B Tank v Home Help Me Care Ltd and Others: 4105167/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105167/2024

Venue Edinburgh

Hearing 17, 18, 24, 25, 26, 28 & 31 March 2025, 1, 2, 4, 7, 8 & 9 April 2025, 8 May 2025, 8 & 9 September 2025, 23, 25, 26 & 27 February 2026, 2, 3, 4, 6, 9, 10, 11, 12 & 18 March 2026 and members meetings in chambers on 13, 14 & 15 April 2026

Between

B TankClaimant

Home Help Me Care LimitedRespondent

Before

Employment Judge McCluskey

Mr M Briggs (instructed by Counsel) for respondent

Date 12 June 2026

JUDGMENT

[1]The complaints against R1, R2 and R3 of detriment for making protected disclosures are not well founded and are dismissed. Page 2 4105167/2024

[2]The complaints against R1, R2 and R3 of disability discrimination by association having been withdrawn are dismissed.

[3]The complaints against R1, R2 and R3 of direct disability discrimination are not well founded and are dismissed.

[4]The complaints against R1, R2 and R3 of indirect disability discrimination having been withdrawn are dismissed.

[5]The complaints against R1, R2 and R3 of failure to comply with the duty to make reasonable adjustments are not well founded and are dismissed.

[6]The complaints against R1, R2 and R3 of harassment related to disability are not well founded and are dismissed.

[7]The complaints against R1, R2 and R3 of harassment related to race are not well founded and are dismissed.

[8]The complaints against R1, R2 and R3 of direct race discrimination are not well founded and are dismissed.

[9]The complaints against R1, R2 and R3 of indirect race discrimination having been withdrawn are dismissed.

[10]The complaints against R1, R2 and R3 of victimisation are not well founded

[11]The complaints against R1, R2 and R3 of unauthorised deduction from wages are not well founded and are dismissed.

REASONS

[1]The claimant made the following complaints: detriment for making protected disclosures; disability discrimination by association; direct disability discrimination; indirect disability discrimination; failure to comply with the duty to make reasonable adjustments; harassment related to disability; harassment related to race; indirect race discrimination; victimisation and unauthorised deduction from wages.

[2]During the final hearing the following complaints were withdrawn by the claimant: disability discrimination by association; indirect disability discrimination; and indirect race discrimination. These complaints are dismissed. Page 3 4105167/2024

[3]The respondents were all represented by Mr C Ocloo, Consultant during the 2025 hearing dates. During the 2026 hearing dates the respondents were all represented by Mr M Briggs, Counsel. The case was sisted for a period during 2025 and 2026. Written reasons for the sist were sent to parties at the time.

[4]Parties agreed at the outset of the final hearing that the Tribunal would determine liability only at this hearing with remedy being reserved until a separate hearing if needed.

[5]A list of the issues to be determined by the Tribunal had been drawn up by the claimant in advance of the final hearing. The respondents made no changes to this list of issues. At the beginning of the final hearing both parties confirmed that this was the list of issues to be determined by the Tribunal. This list changed during the final hearing when a number of complaints were withdrawn or not insisted upon by the claimant. The list of issues on conclusion of the final hearing is in the Appendix to this judgment.

[6]The claimant made various written requests for adjustments to the final hearing format, including regular breaks and the assistance of her sister to help her present her case. She said that these were due to her mental health condition. The claimant referred to the Equal Treatment Bench Book. The Tribunal considered what the claimant had written about adjustments. The Tribunal also separately consulted the Equal Treatment Bench Book to inform its decision making. The adjustments the claimant requested were all granted. The Tribunal said to the claimant that if she wished any other reasonable adjustments during the hearing she was to let the Tribunal know.

[7]The claimant went first in giving evidence. She produced her own file of productions extending to 1290 pages. While giving her evidence she referred to additional documents. The Tribunal allowed these to be added to the claimant’s file of productions. The respondents produced their own file of productions as parties had been unable to agree on a joint file. For the most part the claimant’s file of productions was used.

[8]Any references to page numbers are to the paginated files of productions provided to the Tribunal. Unless otherwise indicated with an R, the page number refers to the claimant’s file of productions.

[9]The claimant gave evidence on her own behalf. She also called her husband Mr Shaminder Tank and Jenni Tait, Head of Registration at the Scottish Social Services Council. The claimant obtained a witness order for Ms Tait’s attendance. The claimant had previously indicated she intended calling other Page 4 4105167/2024 witnesses under a witness order, but she decided not to do so. Ms Diane Francey (R2) and Ms Karen Rafferty (R3) gave evidence for the respondents. Findings in fact

[10]The claimant is a 50% shareholder, statutory director and employee of R1. R1 provides care services to people in their homes. R2 is a 50% shareholder, statutory director and employee of R1. The claimant and R2 are the only statutory directors of R1.

[11]R3 is the Finance Manager of R1. She is an employee of R1. Except as stated otherwise in this judgment, R3 was not a decision maker in relation to the business of R1. R3 did not have responsibility for HR matters for R1.

[12]The decision makers of R1 are the claimant and R2 as the only shareholders and the only statutory directors.

[13]Peninsula Business Services Limited (Peninsula) were the external HR advisors and insurers to R1. R1 had a retainer arrangement with Peninsula to provide HR advice. R1 needs to follow the HR advice given to it by Peninsula to be covered for insurance purposes. Peninsula made recommendations to R1, to either the claimant or R2 depending on who had sought the advice, about how to manage HR matters. Peninsula did not make decisions about HR matters for R1, or for the claimant or R2. When the claimant or R2 sought HR advice from Peninsula, on behalf of R1, they received recommendations from Peninsula about what to do. It was then up to the claimant or R2 to make the decision about whether to follow that advice.

[14]The claimant was involved in engaging Peninsula as HR advisors and insurers to R1, after R1 had been set up in around 2018. Over the years the claimant contacted Peninsula for HR advice, on behalf of R1. This included managing grievances raised by employees of R1.

[15]Peninsula handled grievances raised by employees of R1. Peninsula investigated grievances and provided recommendations to R1 on an outcome. It was for R1, through either R2 or the claimant, to decide whether to follow the recommendations made. Peninsula was not a decision maker of R1.

[16]The claimant’s employment with R1 started in around 2018 when R1 was set up as a company. The claimant and R2 were also both 50% shareholders and statutory directors of R1. At the time of presenting her claim to the Page 5 4105167/2024 Tribunal, the claimant remained employed by R1. Her employment ended in April 2025, part way through the 2025 final hearing dates in this case. The claimant resigned indicating she had been constructively dismissed. The Tribunal did not hear evidence about her resignation. The claimant has brought a second Tribunal claim about this and other matters. The second claim has not yet been heard. Claimant’s four options email

[17]On 14 June 2023 the claimant emailed R2. The email included the following: “Good afternoon, following on from our recent discussions, I thought it was helpful just to write down were we’re at, and agree how we move forward. I’m keen to not delay things due to summer. I think we’re both very much on the same page; that we want different things from the business. Looking back at how far we’ve come, I think it's been a tremendous journey and I don’t want to lose sight of all we have achieved, our friendship. I deeply hope we can navigate this next chapter in both our personal and professional lives. For me personally, I just feel that I no longer want to be part of the day-to day delivery of a frontline business in health and social care as social care stands...... I don’t know what my future will end up, but I feel like what I have currently is not good for me, my family or my overall wellbeing. So there are a few options here which I think are worth tabling and welcome your thoughts...”. The claimant went on to set out various options. “Option 1 – I believe the preferred option is – You buy my 50% holding and we split the retained profits and part ways as business partners....”; There was no option 2 listed. “Option 3 – we both sell the business....”; “Option 4 – You sell your share to me...”. (page 574).

[18]The claimant and R2 were discussing a change of ownership of R1. The claimant was exploring a separate business venture in digital care. R2 did not want to be involved in a digital care business.

[19]The claimant and R2 were unable to agree a price for R2 to purchase the claimant’s shares in R1. They became engaged in a shareholder dispute. Asserted protected disclosures

[20]PD i -The claimant called R2 on 25 February 2023 to tell her about what had happened in the office the previous day. R2 did not say “I know about it from R3 and that you were slapping and beating your chest”. The claimant did not say “This keeps happening to me why are they treating me like this. We can’t keep brushing over this. They may as well call me a gorilla and get on with it.” Page 6 4105167/2024

[21]PD ii – On 7 March 2023 in a call between the claimant and R2 they discussed the process and costs of employer sponsorship of workers from abroad. The claimant said on the call she was going to look into continuing sponsorship of the existing foreign workers (page 333) The claimant followed this up with a Whatsapp message to R2 on 7 March 2024 after the call saying she was going to contact the solicitor to find out what the process and costs are for employer sponsorship of somebody already in the UK.

[22]The claimant did not say there was “unconscious bias” in her Whatsapp message. The claimant did not say there was “unconscious bias” in a telephone call to R2 the same day before she sent her message.

[23]PD iii – On 14 March 2023 in an email to Helen Pearson, of Peninsula Business Services (Peninsula) as part of her 2023 grievance the claimant included the following in a lengthy email “we have some issues that .... we don’t agree on about workers from abroad... I’m an ethnic minority and I am not saying that anyone is racist because I don’t think anyone is but there is a lot of cultural biased negatives. And I think that is starting to cause a low level of tension. But I want. To make it clear that I’m not saying any British racist cause, I don’t think anyone is racist, but I think again it goes back to, yeah, some of the behaviours of what is acceptable, what isn’t acceptable vaping in the office I think is”.

[24]Peninsula is the third-party HR advisors for R1. Peninsula is not the employer of the claimant. There was no procedure authorised by R1 for making disclosures to Peninsula. Peninsula is not a prescribed body for the purposes of making protected disclosures. Peninsula does not make decisions on behalf of R1.

[25]PD iv - On 15 March 2023 the claimant sent an email to Ms Pearson of

[26]PD v – On 9 October 2023 the claimant sent an email to the Bank of Scotland (page 1292). The email heading was “urgent complaint”. The email included the following: “I am a director of the above named company and 50% shareholder. I have been off work for approx. 7 weeks and due to return on 2 November 2023. ... my bank account card and bank account access have Page 7 4105167/2024 been suspended... I still have obligations as a Director and by withdrawing this access, the Bank of Scotland is not allowing me to undertake some of these obligations...I would like to know what process the bank has followed to suspend my access without any contact with me...”

[27]On 25 October 2023 the Bank of Scotland replied to the claimant (page 1292(b)). The letter included the following: “We’ve looked into your complaint...on reviewing the information you have provided I have found that there hasn’t been an error with removing you from the account as the signing rules are 1 to sign”.

[28]On 17 January 2024 the claimant sent an email to the Bank of Scotland (page 1293). The email included the following “Through the Banks inaccurate information supplied to me by your colleagues, it has severely impaired my ability to manage my business and has sparked a whole series of events which has effectively left me frozen out of my business (of which I own 50%)”.

[29]PD vi- On 24 October 2023 R2, R3, Mitchell Brown (business adviser) and other employees were in the office in the evening. They were preparing for an inspection by the Care Inspectorate the following day. The claimant drove past the office and wondered what was happening. She was currently signed off sick from work. The claimant decided to go into the office that evening with her husband. Whilst in the office the claimant and R2 went into the kitchen. In the kitchen the claimant said “I don’t know what is going on with the payments to Jay’s business. The penny has just dropped because you have 28k in your personal bank account” and “I don’t know what has been going on with Hannah’s pay”. Jay is R2’s ex-husband. Hannah was an employee of R1.

[30]PD vii - On 8 November 2023 Lorna Davis of Harper Macleod Solicitors wrote to R2 (page 1296) The letter was headed without prejudice and confidential under section 111A ERA. Harper Macleod were acting for the claimant. The letter proposed financial terms for the claimant to sell her shares and for her employment to end. The content of the letter was set out in various sub headings as follows – 24 February 2023 incident; discriminatory conduct; our client’s absence; directorship issues; access to documents; litigation and next steps. The incident on 24 February 2023 was alleged to be race discrimination against the claimant by Ms McGinty and Ms Auld. The discriminatory conduct subheading referred to a candidate for a post in R1 who was Indian and was not offered a job in R1. The letter made an allegation about a discussion between the claimant and R2 about engaging workers from abroad in January 2023. The litigation and next steps subheading contained the proposed financial terms for the claimant to sell her shares and for her employment to Page 8 4105167/2024 end and referred again to the proposal as being without prejudice and covered by section 111 ERA.

[31]PD viii - [Withdrawn by claimant].

[32]PD ix – On 15 January 2024 the claimant emailed the Financial Ombudsman Service. She made a complaint about the Bank of Scotland. She said that the bank should have required two signatures to stop transactions on R1’s bank accounts but only one signature was required. The complaint to the Financial Ombudsman was about the same complaint which she had made to the Bank of Scotland in October 2023 and January 2024. She needed to show the Financial Ombudsman that she had tried to resolve her complaint with the Bank of Scotland before the Financial Ombudsman would look at this. The claimant was concerned about the standard of service she had received from the Bank of Scotland.

[33]PD x – On 29 January 2024 the claimant submitted a written grievance (page 665). The claimant wrote that her grievance was about direct disability discrimination (section 13 EqA), discrimination arising from disability (section 15 EqA), harassment related to disability (section 26 EqA) and failure to comply with the duty to make reasonable adjustments (sections 20/21 EqA).

[34]In her grievance the claimant asked for reasonable adjustments to be carried out including - “to refer me to Occupational Health”; and “ask me what adjustments I need”.

[35]The claimant’s grievance included “For the avoidance of doubt it is the ‘ongoing omission’ to put in place the reasonable adjustments, which I need implementing, which poses a barrier to my return to work”.

[36]The claimant’s grievance included “[R2]’s personality coupled with her underhanded and perfidious conduct in instigating other employees to make my working relationships with them ‘toxic’ continues to pose a barrier to my return to work” (page 684).

[37]The claimant’s grievance included “[R2] has proposed to buy me out. By starving me of desperately needed income, and furthermore, by omitting to put in place reasonable adjustments, which I need implementing to return to work, [R2] is discriminating against me on protected grounds of disability”.

[38]PD xi – On 20 February 2024 the claimant emailed the Care Inspectorate (page 1306). The claimant said that she and R2 were the two statutory directors of R1. She said she believed that R2 was not meeting her legal obligations as a statutory director of R1. She said she believed “this is Page 9 4105167/2024 impairing her [R2’s] ‘fitness to practice’ in her role as Registered Manager for certain aspects of her role”.

[39]PD xii – On 20 February 2024 the claimant emailed R2 and R1 accountants (page 1356). It was a reply to an email sent by R2 to the claimant and R1 accountants earlier that day about payroll where R2 had said “payroll is to be run how it has been running since we started the company”. The claimant’s email included “You have set your own salary for the past few months without the consent of the Directors of the Board....it appears you have set your salary to an over inflated rate, for which to date I have seen no correspondence, so I have no idea how this conclusion was reached and where it was reviewed or approved”.

[40]PD xiii – On 6 March 2024 the claimant emailed R2 and R1 accountants (page 770). It was a reply to an email sent by R2 to the claimant and R1 accountants earlier that day about payroll where R2 said ”It seems we have come to a deadlock on everything, and I am struggling to see a way forward if I am unable to get paid for the hours I am working which is my statutory right as an employee”.

[41]The claimant’s email included “I am not refusing to pay you but the company needs to undertake how you’ve paid yourself these past few months and recover any overpayment. You changed your pay, without the consent of the board. If this salary keeps running that is £93,000 per year, you would be taking roughly 7-8% of the company’s turnover in pay...In the interim I will approve for [R2] a weekly payment of £875 per week for the next 4 weeks (covering payments to 29 March 2024)”.

[42]PD xiv –Peninsula is the third-party HR advisors for R1. Peninsula is not the employer of the claimant. Peninsula is not a prescribed body for the purposes of protected disclosures.

[43]PD xv – On 22 March 2024 the claimant emailed Brodies, Solicitors (page 1311 – 1312). The claimant’s email included “I am writing to [make a] formal complaint about Brodies...” The claimant’s complaint was about Brodies having given legal advice to R1, on the instruction of R2.

[44]PD xvi – On 26 March 2024 the claimant emailed Laura Rennie of Arena HR (page 810). The claimant asked Ms Rennie to provide a price quote for “potential HR investigation and advice”. The claimant set out a summary of the HR investigation and advice sought. The work did not go ahead.

[45]PD xvii - On 22 April 2024 the claimant completed an online form on the website of the Scottish Social Services Council (SSSC) website (page 994). Page 10 4105167/2024 The form included the following, written by the claimant “Diane has also made a false statement to the care inspectorate on 20th September 2023 – advising that I have been asked not to be contacted whilst off sick. There is evidence to show I advised I could be contacted in an emergency. This also shows she is using her position as a registered worker with SSSC and Registered Manager to knowingly submit false information”. The information which the claimant alleged was false was the information R2 had given to OH about the claimant’s job description.

[46]PD xviii – withdrawn by the claimant.

[47]PD xix – On 23 April 2024 the claimant emailed the Care Inspectorate (page 992) Her email included “Things at HHMCL [R1] have been very difficult and unfortunately Diane Francey and I are now in a directors dispute and deadlock”; and “Diane has knowingly provided false information to both the Care Inspectorate (20/9/23) and Optima Health and I believe this is not in line with SSSC Code of Conduct”. Asserted detriments

[48]Detriment i – On 24 February 2023 a formal grievance was raised by Michaela McGinty and Christina Auld (both employees of R1) against the claimant about an incident that occurred in the office on that date. They said there was a disagreement about the handling of a care package. The claimant was insisting that she deal with the care package herself. Ms McGinty and Ms Auld said that the claimant had shouted at them.

[49]Two days later, on 26 February 2023 the claimant sent R2 a lengthy email about the incident on 24 February 2023. She did not refer to her race or ethnicity or any disability in her email (page 377).

[50]Helen Pearson from Peninsula was appointed to investigate what had happened on 24 February 2023. She met with Ms McGinty, Ms Auld and the claimant to investigate what had happened on 24 February 2023.

[51]The claimant raised “wider concerns” in addition to what had happened in the office that day. The claimant provided additional information in writing to Ms Pearson about these “wider concerns” in addition to the incident in the office on 24 February 2023 (page 454).

[52]On 27 March 2023 Ms Pearson provided a Peninsula Face2Face Report with recommended outcomes (page 445). Ms Pearson recommended that the grievances of Ms McGinty and Ms Auld against the claimant were upheld in Page 11 4105167/2024 full (pages 452/453). Ms Pearson recommended that the wider concerns raised by the claimant were “addressed as a separate issue and addressed by the business outside of this process” (page 456).

[53]On 27 March 2023 at 13.55 Ms Pearson sent the Face2Face report with the recommended outcomes to R2. The report was in a draft format. In her cover email Ms Pearson said “I have separated out the points raised by RT as I have a concern that if I included this it would cause further concerns (which we don’t want) (page 1360).

[54]Around 30 minutes after R2 received the report on 27 March 2023 she sent it to the claimant. The claimant was unhappy that the recommended outcome from the incident in the office on 24 February 2023 was that the grievances of Ms McGinty and Ms Auld against her were to be upheld in full.

[55]The claimant and R2 spoke by telephone. The claimant asked that the recommended outcomes for the grievances by Ms McGinty and Ms Auld against the claimant were changed to “partially upheld”.

[56]On 31 March 2023 Sara Chreptowicz of Peninsula emailed R2 (page R732). R2 forwarded the email to the claimant. The recommended outcome remained that the grievances of Ms McGinty and Ms Auld against the claimant were to be upheld in full. The claimant remained unhappy with that proposed outcome.

[57]The claimant and R2 spoke to Ms Chreptowicz on 31 March 2023. The claimant asked again that the recommended outcomes for Ms McGinty and Ms Auld were that their grievances against the claimant were changed to partially upheld. R2 agreed to this. The outcome letters were changed to partially upheld and sent to R2 by Maggie Chinunka of Peninsula on 31 March 2023 (pages 396 / 397). R2 forwarded them to the claimant straight away.

[58]The outcome letters to Ms McGinty and Ms Auld included the following “...it is my decision that your grievance is partially upheld for the following reasons: I believe that the way Ricki [the claimant] has communicated was not appropriate however I believe there to be mitigating circumstances. Specifically, I believe that Ricki had a legitimate intention to protect [R3]’s day off which would be a reason why she would request for the matter to be brought to her attention”. (page 396/397). The letters partially upholding the grievance against the claimant were issued to Ms McGinty and Ms Auld.

[59]On 11 April 2023 the claimant emailed R2 and Peninsula (page 471/ 472). The claimant appealed. Her email included the following: "I have serious concerns about the process and the investigation into recent grievances at Page 12 4105167/2024 [R1], I understand this is very difficult because we are a small company and I am also a Director....This case has been handled in a shambolic way has left my HR record with a noted grievance on it, which I think is grossly unfair and I would like to appeal this decision. It was fortunate we were able to speak to Sara at Peninsula on 31 March, which was a help, but on reflection it is not enough”. (page 471/472).

[60]On 25 April 2023 the claimant emailed R2 (page 471). Her email was a follow on from that sent on 11 April 2023. Her email of 25 April 2023 included the following: “For the record, I want it noted I do not believe I have been treated fairly in this process, but I understand it is not in the interests of the business or for my own mental health to keep highlighting this”. The claimant did not progress the appeal.

[61]The claimant and R2 continued to use Peninsula as HR providers and insurers for R1 thereafter.

[62]On 29 January 2024 the claimant raised a lengthy written grievance. It included an allegation about a failure to comply with the duty to make reasonable adjustments (page 681). R2 instructed Peninsula to handle the claimant’s grievance in accordance with R1’s HR retainer and insurance arrangements in place with Peninsula. The claimant was not happy that Peninsula were involved.

[63]On 12 February 2024 the claimant wrote to R2. She said “I have serious concerns about the process and am formally noting that I am participating in this grievance ‘under protest’...” (page 692).

[64]R1 pays a retainer to Peninsula, Peninsula is also the insurer for R1. This means that R1 needs to follow the advice of Peninsula otherwise the insurance cover is not in place. Peninsula is a large organisation. It is likely it would be a different adviser on each call. R2 had used Peninsula since around the time R1 was set up. It was the claimant who arranged the contract with Peninsula.

[65]R2 had been using Peninsula since around the time R1 had been set up. R2 had concluded over the years that Peninsula were a professional defective. That was the case where the outcome was that a grievance raised by M McGinty and C Auld about the same incident that the claimant had subsequently submitted a grievance about, was partially upheld against the Page 13 4105167/2024 claimant. Peninsula had obligations to R1 as their HR advisers and insurers to conduct grievances in an impartial and fair way. For these reasons on 12 February 2024 R2 decided to use Peninsula to handle the claimant’s grievance of 29 January 2024.

[66]The claimant asked that her 2024 grievance be dealt with in writing only without a face-to-face meeting. This was agreed by R2. The grievance was lengthy and difficult to follow. It quoted case law and legislation at length but was light on what the claimant was complaining about. It appeared to have been generated by AI. It said that R1 needed an OH assessment as a reasonable adjustment before she could return.

[67]Peninsula recommended that the claimant's 2024 grievance about failing to provide reasonable adjustments when she was off sick was not upheld. R2 followed this recommendation. The claimant received an outcome to her grievance on 26 April 2024. The claimant’s grievance was not upheld (page 961)

[68]Detriment ii – On 2 May 2024 the claimant submitted an appeal against the outcome of her grievance (page 961). On 16 May 2024 R2 wrote to the claimant about her availability to attend an appeal hearing.

[69]On 17 May 2024 the claimant wrote to R2. Her email included “Peninsula have shown they are not independent. I cannot be given a fair right of appeal from them”. The claimant also asked for her appeal to be conducted in writing (page 964).

[70]On 17 May 2024 R2 replied to the claimant “Peninsular is an independent company and the person who holds the appeal will be a different advisor to who held your grievance” R2 asked the claimant for available dates for the hearing and wrote “Can you let me know if you accept this appeal hearing with Peninsular or if you are declining the appeal hearing with Peninsular” (page 964). It was agreed that the claimant’s grievance appeal would be conducted in writing by Peninsula.

[71]Detriment iii – On 14 February 2024 the claimant emailed R2. Her email included” I am today returning to work as an Employee of Home Help Me Care Ltd [ R1] and will return ‘under protest’. I understand the Grievance hearing relating to my employment starts tomorrow, which is also being done ‘under protest’”.

[72]On 15 February 2024 R2 emailed the claimant. Her email included “...we require you to attend an examination with an occupational health specialist to provide an opinion on whether you are fit to return to work and any Page 14 4105167/2024 adjustments that we would have to make before your return. Until we are satisfied that you are fit to return to work you will remain on sickness absence” (page 735).

[73]On 20 February 2024 R2 wrote to the Care Inspectorate. Her email included the following about the claimant’s return to work and an occupational health assessment of the claimant “...I am letting the lawyers deal with this situation as Peninsular is only willing to take the grievance on board”. (Page 1333)

[74]R2 was using Peninsula for the claimant’s grievance in the period 15 February 2024 – 22 May 2024. R2 was not using Peninsula to “conduct HR return to work” as asserted by the claimant.

[75]Detriment iv – On 5 February 2024 the claimant went into the office. The claimant asked R2 to go into the kitchen area where it was private. This was so she could discuss her sickness absence with R2. R2 did not discuss the claimant’s sickness absence in front of Christina Auld.

[76]Detriment v – On 13 February 2024 the claimant went into the office. Everyone said hello to her. Ms Auld offered the claimant a cuppa. The staff spoke to her.

[77]Detriment vi –On 15 February 2024 the claimant went into the office. She wanted to speak to R3. R3 was not in the office. She asked Ms Auld where the claimant was. Ms Auld replied to say that she did not know. The claimant asked Ms Auld some other questions about R3. Ms Auld replied that she did not know. R3 was off sick on 15 February 2023. Staff did not know why she was off sick or anything else about her absence. That is why Ms Auld replied to questions about R3 to say that she did not know.

[78]Detriment vii –From around the beginning of March 2024 the claimant and R2 became engaged in a dispute by email about the duties being carried out by R2 and about R2’s pay.

[79]On 4 March 2024 R2 set out in an email the additional duties which she had been carrying out whilst the claimant had been off sick. In the email R2 said that the way questions were being asked by the claimant about these additional duties was having an impact on R2’s health and she had sought medical assistance for stress and anxiety (page 750)

[80]On 5 March 2024 the claimant responded to R2 in a lengthy email. In the claimant’s email there was an introduction about arrangements to meet then three headings – Your Wellbeing; Your Pay as an Employee; and Directors Page 15 4105167/2024 Matters. R2 replied to the email on 5 March 2024. It is R2’s reply which the claimant relies upon as a detriment.

[81]In the introduction the claimant’s email included a reference about arrangements to meet.

[82]R2’s reply to the introduction included “To receive your email saying I am refusing to meet you last Friday when I had just returned from meeting you greatly worries me”. When the claimant had written her email she had set it to send on a timer to send later. She forgot to take the timer off. As a result the claimant’s email was wrong as arrangements to meet had changed and they had just met.

[83]In the introduction the claimant’s email included the following “R1 will need to consider if it requires to put you on emergency leave. I feel an Occupational Health Assessment is required...”.

[84]R2’s reply included: “I have successfully ran the company for the last 28 weeks with no issues whilst you have been off with stress and anxiety due to work. You are using different tactics to delay meeting with [OH] and I feel that will give us both great confidence that you are fit enough to be making the decisions you are making”.

[85]Under the heading “Your Wellbeing” the claimant’s email included the following - asked if R2 had been to her GP, suggested an independent HR advisor investigate R2’s work schedule, said R1 would need to consider putting R2 on emergency leave; said R1 would need to consider if this was paid or unpaid; said that to ensure the safe operation of services to R1’s clients R1 would need to look at contingency arrangements for the Registered Manager post during emergency leave; referred to R1 having the full time equivalent of three people in business; asked for job descriptions for R3, Ms Auld and Ms McGinty to ensure clear lines of accountability; and proposed that R2 undertake a performance development review.

[86]R2’s reply to matters raised under “Your Wellbeing” included: “Can I ask why you would think that my GP would recommend that I take time off? I have not been advised to take any time off and have no intentions of doing so”; “The only issue I have, and is a concern to me, is the one that I have raised numerous times. This is the fact if you are mentally and physically able to carry out your duties as a Director and employee. This is my main major concern at present”. In response to the claimant saying that R1 would need to consider if it required to put R2 on emergency leave and whether this would be paid or unpaid R2 wrote “Can you explain on what grounds you feel this is Page 16 4105167/2024 necessary as at no point have I taken time off and at no point have I not been able to carry out my duties. This gives me real concern again with the decisions you are currently making at present. You cannot simply make assessments and judgments on me when you have still not been assessed by [OH]”. “Again please let me know why you are recommending these actions which are very strange to me at this point”; “There are actually 35 members of staff with guaranteed contracts within R1. The full time equivalent is not 3 people”. In response to questions about R3, Ms Auld and Ms McGinty, R2 wrote that they “have all been employees from when you were Registered Manager and you should have their job descriptions...They have worked hard for over 6 months going above and beyond to make sure the company kept running smoothly. They should be praised for their hard work not questioned”; and “...can you clarify why this point is being raised as I do not understand. If we can have you see [OH] and then let’s concentrate on a performance development review for yourself so we know what you can cope with and what will upset you”.

[87]Under the hearing “Your Pay as an Employee” the claimant’s email included the following - proposed an external advisor to review R2’s pay; said that may result in R1 recovering salary from R2; and set out what the claimant wanted to paid as a director and employee and what she was willing to agree to R2 being paid.

[88]R2’s reply to matters raised under “Your Pay as an Employee” included the following: “At present the amount, and content within, of emails I receive from yourself take up a lot of my working time during office hours”. R2 replied with what she saw as a changing position back and forward by the claimant about how much the claimant would consent to R2 being paid. “As already stated you told me £1500 per week gross and then yesterday you replied to the accountant that you do not give permission for this to be paid. Then today for this week’s payroll you are proposing that I now get £875. This is very erratic behaviour, me being paid as an employee is my statutory right. I think the company is breaking rules by not paying an employee for the hours they are working” (page 746); R2 responded to what was being said about an external adviser to review R2’s pay from September 2023 when she had also been carrying out the role of Registered Manager. R2 wrote: “This is actually stating that if I don’t agree to give you a directors payment then you do not wish for me to receive any payment for the hours I am working as an employee. If you do not find this as unreasonable then again I am concerned for your erratic ways” . Page 17 4105167/2024

[89]Under the heading “Directors Matters” the claimant suggested a replacement director in place of R2. The claimant wrote “If you feel too unwell to participate in Director conversation/ to undertake your Directors Obligations and would like to have a replacement director in your place....” ([page 748 – 750). The claimant suggested the appointment of an non-executive director; The claimant wrote “If you are incapacitated due to stress and anxiety R1 may need to take measures to ensure both you and the company are protected from any financial mismanagement”. The claimant proposed setting up finance mandates.

[90]R2’s reply included: “At no point have I expressed I am too unwell to carry out a meeting.... We met for 30 minutes at a time and place to suit you and then you came back to me that very afternoon saying I had not met you”. R2 replied about the role of a non-executive director: “I will not agree to anything without fully understanding your reasons for this and have clear direction from a professional that you are able to carry out clear and proper decisions”; “ As discussed at our meeting I do not think mediation will repair anything. I have simply asked you to participate in an O/T [OH] meeting and it is still ongoing. I do not think you are ready for anything like this. The accusations and grievance against me from yourself is very troubling”; “I will not agree to anything without understanding and clear direction from a professional on your ability to carry out decisions. I had a directors duty to protect the company and employment legal advice advise me not to participate in anything until you were assessed as fit to work. You accessed the company bank account with no authority and paid dividends along with payments for membership for you to attend a private luxury facility”.

[91]In response to finance mandates R2 wrote “There is absolutely no need for this and we have a fully qualified financial manager that has always had the companies best interests at heart... Again your rationale behind this makes no sense at all to me. At no point have I said I am incapacitated due to stress and anxiety”.

[92]The claimant’s email ended by saying she was happy to meet with R2 but not with R3. The claimant suggested that R3 provide any information by email. R2 replied “I fully support this and that is totally your choice but it seems you do not want to come in the office or meet with the staff yet you say you are perfectly happy and fit enough to come back to work. Again a full O/T assessment would help us both see what you are capable of undertaking within the business” page 748.

[93]Detriment viii – On 26 March 2024 the claimant came into the office to collect bank statements. When the claimant arrived, she didn’t say hello, proceeded Page 18 4105167/2024 to raise her voice to R2, was expressive with her hands and pointing her finger, asking R2 for bank statements.

[94]The office door was always locked including when staff were working in the office. This was because there had been a theft in a neighbouring business. When someone exited the office, another person needed to lock the door behind them. The office area is small. If a person is locking the door behind someone who is leaving, they will be in close proximity to each to each other. When the claimant left the office, R3 looked the door behind the claimant.

[95]Detriment ix – On 27 March 2024 the claimant emailed R3. The claimant said that she had become aware that a grievance had been raised by R2 about R2’s pay. The claimant said she did not agree to this proceeding as a grievance conducted by Peninsula. The claimant said that in her capacity as director she was instructing R3 not to make any further enquires with Peninsula about a grievance hearing for R2. In the claimant’s email she said R3 had come up behind her when the claimant was leaving the office, and the claimant was made to feel she was being shoved out of the office.

[96]On 27 March 2024 R3 replied. (pages 796 – 798). She said that what the claimant alleged about the claimant leaving the office the previous day was totally untrue. R3 said that the claimant had arrived at the office the previous day, didn’t say hello, proceeded to raise her voice to R2 and was expressive with her hands and pointing her finger, asking R2 for bank statements.

[97]R3 wrote in her email that she did not want to be brought into whatever was going on in the background between the claimant and R2. R3 referred to a statement written by the claimant in her email asking why R3 had instructed a grievance meeting with Peninsula. The claimant had written to R3 “even if well intentioned, this is not acceptable and all employees are accountable for their actions”. R3 asked in her email of 27 March 2024 what the claimant meant by this statement to R3.

[98]Detriment x –On around 25 September 2023 the claimant went into R1 bank account and paid dividends to herself and to R2 (page 640). The dividends had not been authorised by a board minute as required. R2 repaid the dividend. On 28 September 2023 R2 stopped the claimant’s ability to make payments from R1’s bank account. This was because the claimant had paid dividends to herself which had not been authorised by a board minute.

[99]On 21 September 2023 R2 wrote to R1 accountants and said that the claimant was not to get access to the shared drive of R1 (page 637). Page 19 4105167/2024

[100]In September 2023 R2 removed access to Quickbooks for the claimant and for R1 accountants. Quickbooks holds the financial information of R1. R2 had become aware that R1 accountants were accessing Quickbooks at times when they wouldn’t usually do so. Ordinarily they only accessed for a few weeks around the time the company accounts were due. R2 knew that the claimant was friendly with someone in the R1 accountant’s business and wondered what why there was the unusual access.

[101]The claimant was the domain authority contact name for R1 website. In October 2023 R2 changed the contact details as the claimant was off sick (page 649)

[102]In early September 2023 R2 instructed Careline to restrict the claimant’s access to the Careline system. Careline holds all client information, invoices and billing for R1 clients. The claimant replied by instructing Careline to reinstate her access. Careline emailed the claimant and said as they were getting opposing instructions from two directors. Careline said they would not get involved and would do nothing therefore the claimant’s access would not be reinstated. (page 864)

[103]On 14 February 2024 the clamant emailed R2. The subject was Directors Obligations – Update February 2024. (page 697). The claimant’s email included the following “...I am today returning to work as an Employee of R1 and will return ‘under protest’. I understand the Grievance hearing relating to my employment starts tomorrow, which is also being done ‘under protest”. The claimant asked for access to R1 systems including Quickbooks, Careline and banking to be restored. The claimant referred to ongoing discussions about the claimant or R2 buying out the shares of each other. (page 698)

[104]Detriment xi – QuickBooks holds all accounting and book keeping information for R1. As at 15 February 2024 the claimant had full access to Quickbooks, access to the banking and full management accounts.

[105]The claimant went into the office on 19 February 2024. She asked R3 to provide full financial information for R1 whilst the claimant was in the office. R3 could not do that as she was just back from absence and was busy with other tasks.

[106]On 22 February 2024 the claimant sent R3 an email. The claimant asked what duties R3 was carrying out. The claimant’s email instructed that all spending required the authority of both directors and that R3 was not permitted to make any payments other than those relating to payroll and staff incidentals. The Page 20 4105167/2024 claimant instructed R3 to provide financial information about R1 to her (page 761).

[107]On 22 February 2024 R3 replied. She referred to the claimant coming into the office on 19 February 2024. R3’s email included the following “You gave me no advance notice to say you wanted a finance meeting you just asked me to come out to the front office. I had nothing prepared for a finance meeting I was in the middle of payroll and... invoicing and this was the first time I had seen you in six months” (page 760)

[108]Detriment xii –There is an R1 work WhatsApp group called “My name is” for business updates and general chat. On 21 August 2023 the claimant emailed R2 to say that she was signed off work. She said she did not want to be contacted by anyone when off sick (page 643). R2 understood this to mean that the claimant did not want to know what was happening with service users or any other R1 business matters on a day-to-day basis.

[109]A message was put on the WhatsApp group saying “do not contact Rickie” [the claimant]. Despite that message members of staff contacted the claimant on the Whatsapp group to ask what was wrong. The claimant was then removed from the WhatsApp group at her request.

[110]The claimant was not told about the Christmas party in December 2023 or sent a Christmas card. The claimant was not kept up to date if a client had died. This was because the claimant had asked not to be contacted by anyone whilst off sick.

[111]Detriment xiii – On 21 August 2023 the claimant sent R2 an email. The claimant told R2 that she was signed off work for two weeks. The claimant wrote “I would request my privacy is respected and the reason I am kept off work is kept private ie NO other employees are aware why I am off work” The claimant also wrote “I feel unwell to have discussions about an acting Registered Manager. You might want to contact our Care Inspector, Martin Brownjohn to seek advice - they usually only require notification after a period of absence of 28 days. In my opinion I would suggest you are acting Registered Manager whilst I am off sick....It would help me in the meantime, if I can be given the space to focus on my wellbeing and not be contacted by anyone”. (page 643).

[112]On 21 August 2023 after receipt of the claimant’s email R2 emailed the Care Inspectorate. She wrote “I am looking for advice, Rickie has been signed off from work at the moment I was wondering what the procedure is for Registered Manager. I have just started my SVQ4 today and was wondering Page 21 4105167/2024 if I can take on this role with immediate effect” The Care Inspectorate replied the same day and said “We only need an eforms notification if a service thinks the manager will be absent for more than 28 days explaining what the contingency arrangements are” (page 1319).

[113]Detriment xiv– On 5 September 2023 R2 wrote to the Care Inspectorate “I would like to inform you that Rickie Tank has been off since 21 August and will remain off until 20 September 2023. Rickie has been signed off by her GP for this period and I’m unsure of when Rickie will be back at work”. On the same date the Care Inspectorate replied “If Rickie is off work for longer than 20/9/23 there needs to be an eforms submission – absence of manager (any absence of more than 28 days). The notification will ask what interim measures are in place to ensure the service can still run well” (page 1319)

[114]The claimant was absent for longer than 28 days. R2 submitted the eforms submission as instructed by the Care Inspectorate and submitted this via the Care Inspectorate portal. (page 1329)

[115]On 23 October 2023 the Care Inspectorate emailed R2. It acknowledged receipt of the change of registered manager eform submission. This was to change the Registered Manager from the claimant to R2. The Care Inspectorate asked for it to be resubmitted as further down the form it still referred to the claimant instead of R2 (page 1328).

[116]On 6 November 2023 R2 updated the eform and resubmitted to the Care Inspectorate through their portal. On 6 November 2023 the Care Inspectorate emailed R2. The email said “Please find new certificate attached can i ask if Rickie is coming back as a phased return or had her sick note extended?” R2 replied on the same date and said “With regard to Rickie I have received a further sick note which is dated 02/11/23 till 1/12/23” (page 1327).

[117]R2 was carrying out the role of Registered Manager due to the claimant’s sickness absence. R2 was registered as such with the Care Inspectorate in accordance with its requirements. The Care Inspectorate certificate showing R2 as the Registered Manager was in place and sent to R2 on 6 November 2023. It was necessary to have a such an arrangement in place when the previous post holder had been off sick for more than 28 days.

[118]Detriment xv - On 28 November 2023 R2 emailed the Care Inspectorate. She wrote “I would like to make you aware that Rickie has informed me through a lawyer that she does not want to continue working within [R1]. She has expressed that she does not want to continue working within Frontline social care anymore. Once I find out more information I will let you know, the sick Page 22 4105167/2024 line which Rickie handed in is valid until 2 December [2023]. (page 1335) The lawyer’s letter was the letter from Lorna Davis of Harper Macleod (page 1296). R2 understood that she needed to keep the Care Inspectorate up to date.

[119]The Care Inspectorate replied on 28 November 2023. “Thanks for letting me know about Rickie’s decision, as you are now the registered manager and Rickie’s name does not appear on our systems, please don’t feel the need to update me regarding Rickie’s withdrawal from [R1] unless you consider that you need some advice on the matter” (page 1335).

[120]R2 had been showing on the Care Inspectorate systems as the Registered Manager since 6 November 2023 when the Care Inspectorate had contacted R2 to confirm this and send the certificate. This was because the claimant had been off sick for more than 28 days. This was all as required by the Care Inspectorate procedures.

[121]Detriment xvi– March 2024 – On 25 March 2024 R2 referred the claimant to Optima Occupational Health (OH) via an online portal (page 1001). The referral included the following “Registered Manager position is now undertaken by the other director. Due to qualifications Mrs Tank did not obtain in the time frame while acting as Registered Manager she is now unable to undertake this role. All other job details are what was undertaken before her sick period with the exception of the registered manager duties....” (page 1001). The referral then set out information about the claimant’s duties.

[122]The Scottish Social Services Council (SSSC) requires that the Registered Manager holds an SVQ4 qualification and a CLSM qualification. The CLSM is a leadership qualification. The SSSC gives individuals a period to obtain these qualifications. In 2018 the SSSC gave the claimant until July 2023 to obtain these two qualifications. This was a period of around five years.

[123]By March 2023 the claimant had not started work towards obtaining the CLSM qualification. The SSSC gave the claimant an extension to July 2023 to obtain the CLSM qualification. In around April 2023 the claimant booked on a course to do the CLSM qualification. The course was to last around 17 weeks. The cost of the course was paid for by R1 (page 1278). The claimant did not start the course.

[124]In July 2023 the SSSC gave the claimant a further extension of one year, to 20 July 2024, to obtain the CLSM qualification, as long as the claimant’s employer endorsed the extension. R2 was the counter signatory for the SSSC. R2 needed to endorse the extension. R2 did so on 20 July 2023. Page 23 4105167/2024

[125]R2 made the referral to OH on 25 March 2024. The claimant was not booked on a course to do the CLSM qualification. By 25 March 2024 there was insufficient time for the claimant to obtain the CSLM qualification by 20 July 2024 which was the end of the SSSC extension period.

[126]The claimant did not ask R2 for any support to obtain the mandatory CSLM qualification after R2 had endorsed the extension as the SSSC counter signatory. The claimant needed to do the qualification herself.

[127]Detriment xvii- In the period 23 August 2023 to around 15 February 2024 the claimant was a director and employee of R1.

[128]Quickbooks was the accounting software system used for R1’s business. It contained the financial information about R1. Careline was the client software system used for R1’s business. It contained information about R1’s clients / services users including their care requirements. R1 had a shared drive which contained other information and documents about the day-to-day operation of R1’s business.

[129]Around the time when the claimant was signed off sick on 23 August 2023 R2 stopped the claimant’s access to Quickbooks, Careline and the R1 shared drive.

[130]R2 stopped the claimant’s business bank card towards the end of September 2023. R2 was concerned about financial mismanagement (page 639), This was because the claimant had paid dividends to both R2 and herself without the agreement of both directors which was required.

[131]In September 2023 R2 was concerned that the claimant had withdrawn money from R1’s bank account to pay dividends without the approval of both directors to do so. The approval of both directors was required. R2 was concerned that the claimant was using Gleneagles Townhouse for personal reasons whilst signed off sick but had paid for the membership from R1 company funds. R2 was also concerned that there were insufficient funds to be taken. For these reasons, R2 stopped the claimant’s ability to carry out banking transactions on R1’s bank account. The claimant could still view the account.

[132]Detriment xviii – The claimant’s access to Quickbooks, Careline and the R1 shared drive was restored around 15 February 2024. The claimant’s ability to carry out banking transactions on R1 bank account was restored on around 15 February 2024. Page 24 4105167/2024

[133]Detriment xix- On 25 March 2024 R2 completed an online referral request to OH to obtain an occupational health assessment. R2 set out what she understood to be the claimant’s operational duties carried out on a daily or a weekly basis (page 998). The claimant did not agree that it was an accurate job description. The claimant produced her own extensive list of duties. The claimant and R2 engaged in correspondence about what the claimant’s duties were. The claimant did not wish to attend an assessment with OH until the full list of her duties for the referral had been agreed between the claimant and R2. They were unable to reach agreement. R2 gave the claimant the opportunity to write her own job description for the OH assessment to progress the referral. The claimant did not do so. The claimant was delaying the OH assessment and therefore delaying her return to work. The claimant had said she was returning to work “under protest”. The claimant had no genuine intention to return to work on 15 February 2024.

[134]Detriment xx –The findings in fact for asserted detriment xiv are repeated.

[135]Detriment xxi– The findings in fact for asserted detriment xvi are repeated.

[136]Detriment xxii– The findings in fact for asserted detriment i are repeated.

[137]On 29 January 2024 the claimant raised a lengthy written grievance. It included an allegation about a failure to comply with the duty to make reasonable adjustments (page 681). R2 instructed Peninsula to handle the claimant’s grievance in accordance with R1’s HR retainer and insurance arrangements in place with Peninsula. The claimant was not happy that Peninsula were involved.

[138]On 12 February 2024 the claimant wrote to R2. She said “I have serious concerns about the process and am formally noting that I am participating in this grievance ‘under protest’...” (page 692).

[139]Peninsula are large organisation. R1 pays a retainer to Peninsula, Peninsula is also the insurer for R1. R2 had used Peninsula since around the time R1 was set up. It was the claimant who arranged the contract with Peninsula.

[140]R2 had concluded over the years that Peninsula were a professional defective. That was the case where the outcome was that a grievance raised by M McGinty and C Auld about the same incident was partially upheld against the claimant. Peninsula had obligations to R1 as their HR advisers and insurers to conduct grievances in an impartial and fair way. For these Page 25 4105167/2024 reasons on 12 February 2024 R2 decided to use Peninsula to handle the claimant’s grievance of 29 January 2024. R2 did not instruct Peninsula to cover up wrongdoing.

[141]The claimant asked that her 2024 grievance be dealt with in writing only without a face-to-face meeting. This was agreed by R2. The grievance was lengthy and difficult to follow. It quoted case law and legislation at length but was light on what the claimant was complaining about. It appeared to have been generated by AI. It said that R1 had not made reasonable adjustments when the claimant had been off sick.

[142]The claimant was given various extensions to provide her written submissions in writing. She did so on 27 February 2024, 5 March 2024 and 12 March 2024.

[143]Peninsula recommended that the claimant's 2024 grievance about failing to provide reasonable adjustments when she was off sick was not upheld. R2 followed this recommendation. The claimant received an outcome to her grievance on 26 April 2024 (page R 3374). The claimant’s grievance was not upheld (page 961). There was no breach of ACAS guidelines.

[144]On 2 May 2024 the claimant appealed the outcome of the grievance. The grievance appeal took place after 22 May 2024, outside of the reference period for this claim.

[145]Detriment xxiii – The findings in fact for detriment i are repeated.

[146]Peninsula managed the grievances of the claimant and the staff together. The claimant was invited to a grievance meeting. Peninsula issued a draft outcome to R2. This upheld the grievances of the two employees. R2 forwarded the draft outcome to the claimant. The claimant did not agree with the proposed outcome and intervened. Following her intervention the outcome was changed to partially upheld. The claimant did not proceed with an appeal. In 2024 the claimant said she did not agree with how the 2023 had been handled. There was no breach of ACAS guidelines.

[147]Detriment xxiv– On around 1 April 2023 R2 received an anonymous letter from a member of the public. It referred to the claimant’s involvement in a company called Sunside Limited. The claimant was a director and shareholder in Sunside Limited.

[148]On 5 April 2024 R2 wrote to the claimant. The letter included the following: “I am writing to inform you that R1 has decided it is necessary to conduct an investigation into your actions in relation to an allegation which has been brough to the attention of R1 –Fraudulent Activity with regards to a company Page 26 4105167/2024 bounce back loan for a company which you are a director of – Using funding that had been ringfenced by HMRC for taxes payable - The company in question is called Sunside Ltd for the above. The company in question for the below points is R1 – Withdrawal of funds while on sick leave for personal reasons – Payment of a dividend that had not been declared” (page 897)

[149]On 5 April 2024 R2 emailed the SSSC and made them aware of the contents of the anonymous letter. R2 forwarded the letter to the SSSC (page R789). The SSSC did not take any further action.

[150]On 5 April 2024 R2 emailed the Care Inspectorate to make them aware of the contents of the anonymous letter. R2 received an automated response (page 921).

[151]On or around 5 April 2024 R2 notified HMRC and Companies House about the contents of the anonymous letter.

[152]R2 was concerned about the contents of the anonymous letter and the seriousness of the allegations made in relation to Sunside Limited. R2 did not know who had sent the anonymous letter. R2 took advice on what to do and followed that advice. R2 forwarded the anonymous letter to these four bodies so they could make their own assessment about what if anything to do. R2 was concerned about what was in the anonymous letter. She felt obliged to tell the regulatory bodies for R1.

[153]On 17 April 2024 R2 wrote again to the claimant to invite her to an investigation meeting in respect of the allegations. The allegations set out were the same as on 5 April 2024 and included an additional allegation that the claimant “withdrew money whilst on sick leave for personal reasons, mainly to pay for membership of a private members club” (page 917).

[154]On 17 April 2024 the claimant replied to R2 and said that she did not consent to the investigation (page 920). The investigation did not proceed as the claimant did not consent to it.

[155]On 18 April 2024 (page 925) the claimant emailed R2 and said the proposed investigation is “vexatious and further demonstration of ongoing victimisation and harassment under protected characteristics of disability race sex and whistleblowing. “As a director of R1 I do not consent to this investigation”. There was no investigation as the claimant did not consent to the investigation. Page 27 4105167/2024

[156]Detriment xxv– The claimant was signed off work on a series of fit notes from 21 August 2023 to 2 February 2024. The reason given in each of the fit notes was “stress at work”.

[157]On around 27 March 2024 the claimant emailed R2. Her email included “On 15 February 2024 I advised I was returning to work in both my capacities as director and employee.... There were and continue to be tasks I can complete without the need to wait for an occupational health assessment”. On around the same date R2 replied. Her email included the following “I was concerned about your return to work as on 5 February 2024 you emailed me to say your sick line had run out but that you were still unwell and waiting an appointment from the GP to obtain a new sickline. You came into the office on 13 February 2024 and asked what I would like you to put on your sickline. I explained this was not something I could advise”. In her email R2 set out a timeline of correspondence between them about the claimant attending an occupational health assessment. This included “12 March 2024 you [the claimant] replied saying you felt weaponised and would attend the [occupational health] appointment but it would be under protest ...”(page 799/780).

[158]There was no medical advice stating that the claimant was fit to return to work on 15 February 2024. There was no medical clearance for the claimant to return to work on 15 February 2024. The claimant submitted a grievance on 29 January 2024 in which she stated that she required an occupational health assessment for a return to work to ensure reasonable adjustments were put in place for her return. The claimant said she was returning to work but that was “under protest”.

[159]The claimant was entitled to receive statutory sick pay (SSP) until she was assessed as fit to return to work. R2 told the claimant that she would receive SSP after 15 February 2024 until the OH assessment had been carried out and reasonable adjustments put in place for her return. The claimant refused SSP. The claimant was not paid wages as she had not yet been assessed by OH for a return to work. The claimant and R2 were unable to agree on a job description for the OH assessment. The claimant would not attend an OH assessment until there was an agreed job description. R2 was given the opportunity to write her own job description to facilitate the assessment but did not do so.

[160]Detriments xxvi and xxvii - Withdrawn by the claimant.

[161]Detriment xxviii– The findings in fact for asserted detriments xvii and xviii are repeated. Page 28 4105167/2024

[162]The claimant’s access to Quickbooks, Careline and the R1 shared drive was restored around 15 February 2024. The claimant’s ability to carry out banking transactions on R1 bank account was restored on around 15 February 2024.

[163]Detriment xxix–The claimant was a director and was making decisions as a director of R1. The claimant was off sick and R2 had taken on additional responsibilities as the Registered Manager. R2 was the line manager of R3. Unilateral decision making was not given to R2.

[164]Detriment xxx– The claimant was a director and was making decisions as a director of R1. The claimant had not attended the OH assessment required by R2 to ensure reasonable adjustments were in place for the claimant to return to work. This was also in accordance with the claimant’s 2024 grievance which said that a reasonable adjustment “which I need implementing to return to work, was to refer the claimant to occupational health. The claimant was delaying that assessment. There was no medical evidence that the claimant was fit to return to work. The claimant remained off sick and R2 had taken on additional responsibilities as the Registered Manager. R2 was the line manager of R3. Unilateral decision making was not given to R2.

[165]Detriment xxxi – The findings in fact for previous asserted detriments are repeated. The claimant did not ask to be reinstated to the R1 Whatsapp group or ask to be invited to all Teams meetings.

[166]Detriment xxxii– The claimant made a DSAR request on 10 January 2024. She received a response on or around 25 April 2024. The DSAR was completed by Brodies Solicitors on the instruction of R2. R2 relied on Brodies to complete the process. The volume of documents was such that R2 could not have done this herself. Around 70,000 documents were provided to the claimant in response to the DSAR. This was a significant amount. Disability Anxiety and depression

[167]The claimant was signed off work on a series of fit notes from 21 August 2023 to 2 February 2024. The reason given in each of the fit notes was “stress at work”. ADHD and autism Page 29 4105167/2024

[168]The claimant suspects she has ADHD and suspects she has autism. She understands she may not meet the threshold for an ADHD diagnosis or an autism diagnosis. She has not been assessed by the NHS or privately. The claimant experiences symptoms such as heightened sensitivities to background noise, struggling with sequential tasks and avoiding crowds. The claimant had not discussed these with R2 or R3 as symptoms of ADHD or symptoms of autism. Direct disability discrimination

[169]Issues i, ii, iii, iv and v – see findings in fact elsewhere in this judgment.

[170]Issue vi – withdrawn by claimant.

[171]Issue vii - see findings in fact elsewhere in this judgment.

[172]Issues viii, ix, x, xi – withdrawn by claimant.

[173]Issue xii – see findings in fact elsewhere in this judgment.

[174]Issues xiii, xiv, xv, xvi – withdrawn by claimant. Failure in duty to comply with reasonable adjustments

[175]R1 had a grievance policy. It had a standard appeal time frame of 5 days. The claimant emailed and asked for an extension to the standard appeal time frame when she received the outcome of her 2024 grievance. This was granted. Harassment related to disability or race

[176]The claimant is a British person of Indian origin. She was the only non-white person in the office. She was not the only non-white person employed by R1.

[177]Issues i and ii– see findings in fact elsewhere in this judgment.

[178]Issue iii - On 21 September 2023 R2 emailed Alex Hazelwood, R1’s IT provider. R2’s email included “Just to confirm Rickie Tank is not to get access to the shared drive”. R2 did not give any reason for this. The claimant was not copied into the email. The claimant did not see the email until it was provided the following year in response to a DSAR request.

[179]Issue iv – The Tribunal was not taken to an email of 26 September 2023 to Careline. Any correspondence to Careline from R2 about stopping the Page 30 4105167/2024 claimant’s access to Careline was not copied to the claimant. The claimant would have seen any such email the following year in response to a DSAR request.

[180]Issue v – The Tribunal was not taken to these emails. The claimant would have seen any such emails the following year in response to a DSAR request. R2 had an email exchange with a third party which referred to R2 having “issues at work”, referring to the claimant. No reason was given for the comment.

[181]Issue vi – this is a statement that the claimant raised the 2024 grievance. It is not an assertion of harassment. See findings in fact elsewhere in this judgment about the 2024 grievance.

[182]Issues vii, viii, ix, x, xi, xii, xiii, xiv, xv, xvi, xvii, xviii, xix, xx, xxi, xxii, xxiii and xxiv – see findings in fact elsewhere in this judgment.

[183]Issues xxv and xxvi – withdrawn by claimant

[184]Issues xxvi, xxviii, xxix, xxx, xxxi and xxxii – see findings in fact elsewhere in this judgment. Direct race discrimination

[185]Issues i and ii - see findings in fact elsewhere in this judgment.

[186]Issue iii – this is not an asserted act by any of the respondents.

[187]Issues iv – see findings in fact elsewhere in this judgment.

[188]Issue v - On 6 March 2024 the claimant sent an email to R2 and R1 accountants. The email is headed payroll and is about the pay and director’s dividends for both the claimant and R2. The claimant proposed an external HR advisor to review R2’s pay from September 2023 (page R2939). R2 declined an external HR advisor. R3 is an employee and cannot insist on R2 cooperation in an independent review. There was no policy or procedure which required R2 to consent to an independent review. The claimant also refused to consent to investigations. R3 was not responsible for HR in R1 or for any decision making on HR matters.

[189]Issue vi – see findings in fact elsewhere in this judgment. On 27 March 2024 the claimant arrived in the office didn’t say hello, proceeded to raise her voice to R2, was expressive with her hands and pointing her finger, asking R2 for bank statements. Page 31 4105167/2024

[190]Issue vii – The Tribunal was not taken to any emails about R2 having refused to give consent to an independent financial review by the Financial Ombudsman.

[191]Issue viii– see findings in fact elsewhere in this judgment. R2 did not agree to Arena HR investigating the salary R2 was receiving. This was because of the financial cost to R1 of instructing Arena HR. The quote for the work was expensive. Peninsula were the retained HR advisers for R1.

[192]Issue ix – see findings in fact elsewhere in this judgment. The claimant would not be able to obtain the SSSC mandatory CLSM leadership qualification within the SSSC extended time to 20 July 2024. Without the mandatory CLSM leadership qualification the claimant would not have been able to resume the role of Registered Manager after 20 July 2024, as she would not have met the SSSC mandatory qualifications for the Registered Manager role.

[193]Issue x – R3 did not say about African colleagues “that is how they treat their women”.

[194]Issue xi – In January 2022 R3 told the claimant that she would no longer sit in on HR meetings with staff which were chaired by the claimant. This was because the claimant’s conduct towards a staff member had really upset that staff member. The claimant had been shouting at the staff member.

[195]Issue xii – R3 did not refer to an African colleague as a “lazy c**t” and “not pulling her weight”.

[196]Issue xiii – R3 did not refer to workers from abroad as “they haven’t got a chance, worse than the numpties we have already”.

[197]Issue xiv – see findings in fact in victimisation PA i and PAii. R2 did not say about workers from abroad “I do not think it is fair on our current staff...because the rest of our staff do not need sponsorship”.

[198]Issue xv – R3 did not say about an African colleague and a cheese toastie “who does that” and “how stupid is that”.

[199]Issue xvi – R2 did not say about a candidate of Indian origin for an HR post that “her face would not fit” or that she would “rub staff up the wrong way”. R2 said she thought the candidate was not suitable because of what the candidate had said about onboarding timescales for staff.

[200]Issues xvii and xviii – see findings in fact elsewhere in this judgment. R2 was concerned about the contents of the anonymous letter and the seriousness of the allegations made in relation to Sunside Limited. She took advice and Page 32 4105167/2024 followed that advice. She reported the matter to R1 regulatory bodies, R2 did not know who had sent the anonymous letter. R2 decided to forward the anonymous letter to these four bodies so they could make their own assessment about what if anything to do. R2 also wrote to the claimant about the allegations in the anonymous letter. R2 included in the letter allegations about the claimant having withdrawn dividends from R1 bank account and paid for a private members club whilst the claimant was signed off sick. The claimant refused to agree to any investigation into the allegations.

[201]Issue xix - R3 was not a decision maker and reported to R2 her line manager. investigation into the claimant.

[202]Issue xx - On 18 April 2024 (page 925) the claimant emailed R2 and said the proposed investigation is “vexatious and further demonstration of ongoing victimisation and harassment under protected characteristics of disability race sex and whistleblowing. “As a director of R1 I do not consent to this investigation”. There was no investigation as the claimant did not consent to the investigation.

[203]Issues xxi and xxii- R3 was not a decision maker and reported to R2, her line manager. R3 did not have the authority to make decisions about the remuneration of the claimant or R2 or whether remuneration payments were to be processed. The claimant was only entitled to be paid SSP when she was off sick. The claimant did not have medical clearance to return to work. She stopped putting in fitness for work certificates and then delayed in attending the OH assessment, which she was insisting upon in her grievance. Whilst the claimant was off sick R2 was carrying out the roles of Operations Manager and Registered Manager and was working many hours.

[204]Issues xxiii and xxiv - see findings in fact elsewhere in this judgment

[205]Issue xxv – withdrawn by claimant.

[206]Issue xxvi - R3 was not a decision maker and reported to R2 her line manager. investigation into the claimant. The claimant instructed Peninsula as R1’s retained HR advisers to investigate R2’s salary. Peninsula began the investigation then decided not to proceed as it was part of the wider shareholder dispute between the claimant and R2.

[207]Issue xxvii - On 27 November 2023 the Business Women Award (BWA) emailed the claimant and R2. The email included “Hi Diane and Rickie ... huge Page 33 4105167/2024 business”. (page 657). The email was sent to both of them. Both the claimant and R2 received nominations. The claimant was off sick and did not reply. R2 attended the awards ceremony and won. Asserted protected acts

[208]PA i - On 14 March 2023 at a grievance meeting with Helen Pearson, of Peninsula Business Services (Peninsula) the claimant said “we have some issues that .... we don’t agree on about workers from abroad... I’m an ethnic minority and I am not saying that anyone is racist because I don’t think anyone is but there is a lot of cultural biased negatives. And I think that is starting to cause a low level of tension. But I want. [sic] To make it clear that I’m not saying any British racist cause, I don’t think anyone is racist, but I think again it goes back to, yeah, some of the behaviours of what is acceptable, what isn’t acceptable vaping in the office I think is”.

[209]In January 2023 the claimant and R2 had a discussion about sponsoring workers from abroad. R2 said that she was concerned about the administrative burden and costs of the overseas workers sponsorship process. That was why she was concerned about going down that route. This was a discussion about business strategy. The claimant agreed to investigate the administrative steps and costs further.

[210]PA ii - On 15 March 2023 the claimant sent an email to Ms Pearson of

[211]PA iii – On 16 August 2023 the claimant had a telephone call with Harriet Walsh of Peninsula (page 1361). Someone from Peninsula had initially called the claimant to try to sell additional Peninsula HR services to R1. The claimant told them she was unhappy with the services received from Peninsula. A call was arranged between the claimant and Ms Walsh to discuss this. Ms Walsh was unaware of any of the background. On the call on 16 August 2023 the claimant told Ms Walsh that she was not happy about the grievance process followed by Peninsula about the incident in the office on 24 February 2023. The claimant’s statement on the call to Peninsula included the following: “I have been highlighting [to] my employer, I have been passively aggressively Page 34 4105167/2024 bullied and intimidated at work. And Peninsula have blatantly disregarded my grievance in favour of other people’s grievances”; “I do think there is racism at the heart of some of this”; “I have said on a number of occasions that, look, why am I treated differently to all of you, I can’t put my finger on it. I said because all of you seem the same, yet I’m always kind of vilified”; “the administrator is the one who alleged I stood up in the office beating my chest. I actually feel that is actually quite racist myself. She may as well just call me a bloody baboon and being done with it” R2 did not know that the claimant had had this call with Ms Walsh and said these things.

[212]PA iv – On 8 November 2023 Lorna Davis of Harper Macleod Solicitors wrote to R2 (page 1296). The findings in fact about this letter are set out above in PD vii as the claimant also asserts that this letter is a protected disclosure for whistleblowing purposes.

[213]PA v – On 29 January 2024 the claimant raised a grievance (page 665). The findings in fact about this letter are set out above in PD x as the claimant also asserts that this grievance is a protected disclosure for whistleblowing purposes.

[214]The claimant wrote that her grievance was about direct disability discrimination (section 13 EqA), discrimination arising from disability (section 15 EqA), harassment related to disability (section 26 EqA) and failure to comply with the duty to make reasonable adjustments (sections 20/21 EqA) (paragraph 8 of her grievance).

[215]The claimant wrote “Despite being signed off from work as ‘unfit to work’ [R1] and [R2] has done nothing to accommodate, facilitate or rehabilitate my return to work, so that I can return to work. Why?” (paragraph 26). The claimant wrote “For example [R1] and [R2] has done nothing to remove the barriers, which barriers prevents my return to work, such as ongoing... race, and disability discrimination and harassment” (paragraph 27). The claimant wrote “For the avoidance of doubt it is the ‘ongoing omission’ to put in place the reasonable adjustments, which I need implementing, which poses a barrier to my return to work” (paragraph 29).

[216]PA vi – On 6 March 2024 the claimant emailed R2 and R1 accountants (page 770). The findings in fact about this email are set out in PD xiii as the claimant also asserts that this email is a protected disclosure for whistleblowing purposes.

[217]PA vii – On 12 March 2024 the claimant emailed R2 (page 774). The email was sent in response to an email sent by R2 the previous day. R2’s email set Page 35 4105167/2024 out the tasks which R2 said were required for the claimant’s job role. These were needed for OH assessment. The claimant’s email of 12 March 2024 included the following “ I feel this OH Assessment is being weaponised against me and I am being treated ‘unfavourably’ because of my disabilities and my disability-related sickness absence from work...I will attend the assessment in my capacity as an Employee only and this will be ‘under protest’ because I feel it is discriminatory and you are not impartial”. Asserted detriments for doing protected acts

[218]Detriments xxi, xxii and xxiii - withdrawn by the claimant.

[219]Detriments i – xxx (not including those withdrawn as above) - see findings in fact elsewhere in this judgment. Unauthorised deduction from wages

[220]The claimant received around £530.77 per week gross in wages prior to her sickness absence on 23 August 2023. During some or all of the period 23 August 2023 – 15 February 2024 the claimant was in receipt of statutory sick pay.

[221]R2 told the claimant told she would receive statutory sick pay in the period after 15 February 2024 until there had been an OH assessment about her return to work with reasonable adjustments in place for her return. The claimant refused to accept any payment of statutory sick pay. Observations on the evidence

[222]This judgment does not seek to address every point upon which the parties gave evidence. It only deals with the points which are relevant to the issues the Tribunal must consider, to decide if the claim succeeds or fails. If the Tribunal has not mentioned a particular point, it does not mean that it has been overlooked. It is not included simply because it is not relevant to the question of whether the claim succeeds or fails.

[223]The standard of proof is on a balance of probabilities. This means that if the Tribunal considers that, on the evidence, an event's occurrence was more likely than not, then it is satisfied that it occurred. Likewise, if it considers that, on the evidence, an event's occurrence was more likely not to have occurred, then it is satisfied that it did not occur. Page 36 4105167/2024

[224]As a general point, there was evidence presented on both sides which related to peripheral issues and was put forward to seek to challenge the other side’s credibility. As already stated, the Tribunal has not made findings on of all these points and has limited its findings to the key events and what is required to determine the issues.

[225]PDi – there was a dispute in the evidence about what the claimant said to R2 on a telephone call on 25 February 2023. The claimant’s evidence was that when she called R2, before the claimant had a chance to say what happened R2 said “I know about it from R3 and that you were slapping and beating your chest”. The claimant’s evidence was that she then said “This keeps happening to me why are they treating me like this. We can’t keep brushing over this. They may as well call me a gorilla and get on with it.”

[226]In R2’s evidence she agreed that there had been a telephone call. R2’s evidence was that she had not said anything about the claimant “slapping and beating her chest” and that the claimant had not replied saying “This keeps happening to me why are they treating me like this. We can’t keep brushing over this. They may as well call me a gorilla and get on with it”.

[227]The claimant wrote to R2 on 26 February 2023 about the incident. There was nothing in that email about R2 having said that the claimant was slapping or beating her chest (page 379). The claimant did not refer to having said “they may as well call me a gorilla and get on with it”. In a Whatsapp exchange with R2 on 26 February 2023 (page 333) the claimant said “ I asked somebody to do something I’m seen to be deemed inappropriate offensive and upsetting staff. Please don't let get this brushed under the carpet – threats of staff leaving or carers needs to be played out.” The claimant did not say “they may as well call me a gorilla”.

[228]Given the lack of references in written communication at the time, the Tribunal concluded on balance that on the call on 25 February 2023 R2 did not say that the claimant was “slapping or beathing her chest” and the claimant did not say “This keeps happening to me why are they treating me like this. We can’t keep brushing over this. They may as well call me a gorilla and get on with it”.

[229]PD ii – There was a dispute in the evidence about whether the claimant had said there was “unconscious bias” against her verbally on 7 March 2023 and followed this up in a whats app message to R2 on the same date. The claimant referred to “bullying” in her message. She was asserting that she was being bullied. The claimant did not refer to “unconscious bias” in her message. The Tribunal concluded on balance that as the claimant had not referred to Page 37 4105167/2024 “unconscious bias” in her Whatsapp message she had not referred to “unconscious bias” in a telephone call to R2 the same day before she sent her message.

[230]PD vi – There was a dispute in the evidence about what the claimant said to R2 in the kitchen of R1’s office on the evening of 24 October 2023. The claimant’s evidence was that she said “I don’t know what is going on with the payments to Jay’s business. The penny has just dropped because you have 28k in your personal bank account”; “I don’t know what has been going on with Hannah’s pay"; and that there had been a breach of “fiduciary duties” by R2. Hannah was an employee of R1. The claimant’s evidence in chief was that nobody else had heard the discussion in the kitchen.

[231]R2’s evidence was that she did recall the claimant having referred to payments to her ex-husband. R2’s evidence was that she did recall the claimant having referred to money in R2’s personal bank account. R2’s evidence was that she did not recall the claimant having asked about Hannah’s pay or saying that there had been a breach of fiduciary duties.

[232]The claimant called her husband as witness to give evidence. Her husband’s evidence was that the kitchen is separate from the office but close by. He had not been present in the kitchen and was talking to Mitchell Brown in the office. As the kitchen was close by he could hear some of what was said. He had overheard the claimant ask about payments to R2’s ex-husband's business and money in R2’s personal bank account. He had overheard the claimant ask about Hannah’s pay. The claimant’s husband did not say that he had overheard the claimant saying there had been a breach of fiduciary duties.

[233]The Tribunal concluded on balance that the claimant had said “I don’t know what is going on with the payments to Jay’s business. The penny has just dropped because you have 28k in your personal bank account”; and “I don’t know what has been going on with Hannah’s pay”. The Tribunal concluded that the claimant did not say there had been a breach of fiduciary duties. R2 said that the claimant had not said this and the claimant’s husband did not give evidence to that effect.

[234]Detriment i – R2's evidence which was unchallenged was that Peninsula are external HR providers to R1. They are large organisation. R1 pays a retainer to Peninsula, Peninsula is also the insurer for R1. This means that R1 needs to follow the advice of Peninsula otherwise the insurance cover is not in place. Every time you phone Peninsula for advice you get a different person. R2 had used Peninsula since around the time R1 was set up. It was the claimant who arranged the contract with Peninsula. Page 38 4105167/2024

[235]There was a dispute in the evidence about whether Peninsula had lacked impartiality and had run a defective grievance process in March 2023, following the incident in the office on 24 February 2023. R2’s evidence was that she had been using Peninsula for a number of years. She had concluded that Peninsula were a professional organisation. She concluded that Peninsula had been impartial during the claimant’s 2023 grievance in March 2023. She concluded that Peninsula had carried out a fair grievance process in March 2023. She did not agree that Peninsula had carried out a defective grievance process in March 2023. Peninsula had obligations to R1 as their HR advisers and insurers to conduct grievances in an impartial and fair way. The claimant’s evidence was that R2 had instructed Peninsula to cover up wrongdoing in the 2023 grievance. R2’s evidence was that she had not done so. On balance it was unlikely that R2 would have done so. R2 did not believe that the 2023 grievance had been defective. R2 was entitled to trust the advice she received from Peninsula. The Tribunal was satisfied that R2 was entitled to reach the conclusions about Peninsula’s involvement in the March 2023 grievance, for the reasons given by R2.

[236]Detriment iii - In various issues the claimant asserted R1 and R2 had used Peninsula to “conduct HR return to work”. In the claimant’s evidence in chief she said that there had been no HR return to work meeting conducted by Peninsula in the period to 22 May 2024 which is the cut off point for this claim. The claimant’s evidence was that R2 continued to use Peninsula for HR advice about the claimant’s return to work and that is what this issue is about. On 20 February 2024 R2 wrote to the Care Inspectorate about the claimant. She said “I am letting the lawyers deal with this situation as Peninsular is only willing to take the grievance on board”. The Tribunal was satisfied that R2 was using Peninsula only for the grievance in the period 15 February 2024 – 22 May 2024. R2 was not using Peninsula to conduct an HR return to work.

[237]Detriment iv – The claimant’s evidence was that on 5 February 2024 she attended the office. R2 asked her what her doctor was saying and whether she had another sick note. Hannah Stiff heard R2 asking this. The claimant asked R2 to go into the kitchen area where it was private to continue the conversation and they did so. The Tribunal noted that in the list of issues Ms Auld was the person identified not Ms Stiff. R2’s evidence was that she could not recall discussing the claimant’s sickness absence in front of staff. The Tribunal concluded that it was unlikely that R2 would have discussed the claimant’s sickness absence in front of other staff as it was a private matter

[238]Detriment v – The claimant’s evidence was that she went into the office on 13 February 2024. Everyone said hello to her. Ms Auld offered the claimant a Page 39 4105167/2024 cuppa. The claimant’s evidence was that at some later date she was shown a text exchange between Ms Auld and her husband which said that everyone was sitting in the office in silence. R2 and R3 evidence was that staff did speak to her in the office on 13 February 2024. The claimant’s own evidence was that everyone said hello and Ms Auld offered her a cup of tea. This is inconsistent with the issue that staff including Ms Auld did not speak to her. The Tribunal concluded that staff did speak to her on 13 February 2024.

[239]Detriment vi - The claimant’s evidence was that on 15 February 2023 she went into the office. She wanted to speak to R3. R3 was not in the office. She asked Ms Auld where the claimant was. Ms Auld replied to say that she did not know. The claimant asked Ms Auld some other questions about R3. Ms Auld replied that she did not know. R3’s evidence was that she was off sick on 15 February 2023. Staff did not know why she was off sick or anything else about her absence. That is why Ms Auld would have been replying to questions about R3 to say that she did not know.

[240]Detriment viii - The claimant’s evidence was that she came into the office on 26 March 2024 to collect bank statements. When the claimant was leaving R3 “was practically on top of her”. The claimant said “what are you doing” and R3 said she was locking the door. R3’s evidence was that the office door was always locked including when staff were working in the office. This was because there had been a theft in a neighbouring business. When someone exited the office, another person needed to lock the door behind them. The office area is small. If a person is locking the door behind someone who is leaving, they will be in close proximity to each to each other. The claimant accepted that the office door was kept locked as described by R3. The Tribunal accepted R3’s evidence that the office area is small, that she was locking the door as required and that she would have been close to the claimant for that reason. The Tribunal accepted R3’s evidence that she was not “practically on top of the claimant” and had not briskly escorted the claimant out of the office.

[241]Detriment xi – The claimant’s evidence was that when she came into the office on 19 February 2024 she asked to speak to R3 for a few minutes and did not ask for a meeting. R3’s evidence was as set out in her email to the claimant of 22 February 2024. This email said that R3 was just back at work and busy with other tasks. The Tribunal was satisfied that the contemporaneous email of R3 set out the position namely that the claimant had attended the office on 19 February 2024 asking for full financial information to be provided to the claimant whilst she was in the office. R3 could not do that as she was just back from absence and was busy with other tasks. Page 40 4105167/2024

[242]Detriment xvii – The claimant’s evidence was that in the period 23 August 2023 to 15 February 2024 the claimant did not have access to Quickbooks, Careline, the R1 shared drive or R1 bank account. R2 accepted that the claimant did not have access to Quickbooks, Careline or the R1 shared drive in that period. In relation to bank account access, the evidence of R2 and R3 was that the claimant had sight of the R1 bank account if she wished to look at it, but that her ability to carry out bank transactions had been stopped by R2 in September 2023 after the claimant had withdrawn money to pay dividends without the approval of both directors to do so. The Tribunal accepted the evidence of R2 and R3 about bank account access. They would have known the position. During this period the claimant engaged in emails with R2 about salary and payroll matters. The claimant had the ability to stop or restrict payment of wages to R2 and R3.

[243]The claimant’s evidence was that when R2 instructed Brodies law firm to provide legal advice to R1, about the claimant, this was a barrier to the claimant undertaking her director duties. The claimant was annoyed because she did not have sight of this advice and thought that she ought to have sight of it and that it ought not to have been instructed by R2. The claimant complained to Brodies and to the Scottish Legal Complaints Commission (SLCC). The complaint to the SLCC was relied upon by the claimant as a protected disclosure in this claim and the claimant gave evidence about the complaint. The claimant later withdrew her reliance on the complaint to the SLCC as a protected disclosure in this claim.

[244]Detriment xviii – The claimant’s evidence was that she continued to have no access to Quickbooks, Careline, the R1 shared drive or R1 bank account in the period 15 February 2024 and 22 May 2024. The evidence of R2 and R3 was that all systems access was restored around 15 February 2024. For reasons already given the Tribunal accepted that all systems access was restored around 15 February 2024. The Tribunal is satisfied that R2 and R3 would have known the position.

[245]Direct race x – The claimant’s evidence was that R3 had made comments about alleged domestic abuse and African women and said, “that is how they treat their women”. No dates were provided by the claimant. The issue asserted that it had happened in several conversations in the period October 2022 to April 2023. No witnesses were provided. The claimant did not make any written complaint or written grievance about it at the time. R3 denied that it had happened. On balance, the Tribunal concluded that this had not been said. The claimant asserted in the issue that she had been impacted. The claimant made her 2023 grievance in this period. The claimant was familiar Page 41 4105167/2024 with raising grievances. The claimant was an owner and director of R1. If this had been said, the Tribunal concluded that the claimant would have taken some action. She did not.

[246]Direct race xi - The claimant’s evidence was that in January 2022 R3 told the claimant that she would no longer sit in on HR meetings with staff which were chaired by the claimant because a staff member had become upset with the claimant in a meeting. R3’s evidence was that she did say this to the claimant because the claimant’s conduct towards the staff member had really upset that person.

[247]Direct race xii - The claimant’s evidence was that R3 had made comments about an African colleague as a “lazy c**t” and “not pulling her weight”. No witnesses were provided. The claimant did not make any written complaint or written grievance about it at the time. R3 denied that it had happened. On balance, the Tribunal concluded that this had not been said. The claimant made her 2023 grievance in this period. The claimant was familiar with raising grievances. The claimant was an owner and director of R1. If this had been said, the Tribunal concluded that the claimant would have taken some action. She did not.

[248]Direct race xiii - The claimant’s evidence was that R3 had made comments about workers from abroad as “they haven’t got a chance, worse than the numpties we have already”. No witnesses were provided. The claimant did not make any written complaint or written grievance about it at the time. R3 denied that it had happened. On balance, the Tribunal concluded that this had not been said. The claimant made her 2023 grievance in this period. The claimant was familiar with raising grievances. The claimant was an owner and director of R1. If this had been said, the Tribunal concluded that the claimant would have taken some action. She did not.

[249]Direct race xiv / PA ii – There was a dispute in the evidence about what had been discussed between the claimant and R2 in January 2023 about sponsoring workers from abroad. The claimant’s evidence was that R2 said “I do not think it is fair on our current staff ... because the rest of our staff do not need sponsorship”. R2’s evidence was that she did not say this. R2’s evidence was that there was a discussion about sponsoring workers from abroad. R2 said that she was concerned about the administrative burden and costs of the overseas workers sponsorship process. That was why she was concerned about going down that route. The claimant agreed to investigate the administrative steps and costs further. The Tribunal concluded that the discussion was about the administrative burden and costs of the overseas Page 42 4105167/2024 workers sponsorship process. That was more likely given that the discussion was about the sponsorship process.

[250]Direct race xv -The claimant’s evidence was that she had a conversation with R3 on 13 March 2023 about a service user who was angry because her cheese toastie had been put in a bag by a staff member and R3 said “who does that” “how stupid is that”. R3’s evidence was that she was not working on 13 March 2023. R3 had checked the rota and was not working. R3 could not recall making the statement. The Tribunal accepted R3 evidence that she didn’t work that date. The Tribunal also accepted R3’s evidence that any comment about putting a cheese toastie in a bag would have been about it going soft and was not said because the staff member was of African descent.

[251]Direct race xvi - In April 2023 R1 was recruiting for an HR position. The claimant’s evidence was that she thought a candidate of Indian origin was the strongest candidate. The claimant did not raise this with R2 at the time. R2’s evidence was that she did not think the candidate was suitable as the answers she gave about onboarding were that it would take weeks to onboard a member of staff. That was too long. R2 told the claimant this. R2’s evidence was that she did not say “her face would not fit” or that she would “rub staff up the wrong way”. The Tribunal accepted R2’s evidence. The claimant did not make any complaint or written grievance about it at the time. R2 denied that she made the comments. On balance, the Tribunal concluded that this had not been said. The Tribunal accepted R2’s evidence that she had said the candidate would not be suitable and the reason why because of what the candidate had said about onboarding timescales for staff. The claimant was an owner and director of R1. If this had been said, the Tribunal concluded that the claimant would have taken some action. She did not.

[252]Direct race xxi – The claimant gave some evidence about payments in the period September – February 2024. This was about payment of dividends. The claimant tried to take dividends in this period. There was no evidence about precisely what the claimant said she ought to have been paid in wages as opposed to dividend payments in that period. R3 was processing payments to the claimant on the instruction of R2. R3 was not a decision maker.

[253]Direct race xxvii Business Women Award – The issue asserted that R2 accepted a Business Women Award (BWA) on behalf of the claimant. The Tribunal concluded that was not the case. On 27 November 2023 BWA emailed the claimant and R2. The email included “Hi Diane and Rickie ... huge business”. (page 657). The email was sent to both. Both the claimant and R2 Page 43 4105167/2024 had received nominations. The claimant was off sick and did not reply. The claimant accepted in cross examination that there were nominations for both of them. R2 attended the awards and won. Relevant law Time limits

Relevant law

[254]Section 48 ERA provides “Complaints to employment tribunals..... (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B..... (2) On a complaint under subsection (1) .... it is for the employer to show the ground on which any act, or deliberate failure to act, was done. (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months......(4) For the purposes of subsection (3)—(a)where an act extends over a period, the “date of the act” means the last day of that period, and(b)a deliberate failure to act shall be treated as done when it was decided on .....”.

[255]Section 123 EqA provides:“(1).... proceedings on a complaint within section 120 may not be brought after the end of –(a)the period of 3 months starting with the date of the act to which the complaint relates, or(b)such other period as the employment tribunal thinks just and equitable (2)..... (3)(a) For the purposes of this section conduct extending over a period is to be treated as done at the end of the period (b)failure to do something is to be treated as occurring when the person in question decided on it. (4)....” Qualifying disclosure

[256]Under section 43A ERA a protected disclosure is a qualifying disclosure (as defined by section 43B ERA) made by a worker in accordance with any of sections 43C – 43H ERA.

[257]Under section 43B ERA a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the Page 44 4105167/2024 disclosure, is made in the public interest and tends to show relevant wrongdoing including “b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject” and/or “(d) that the health or safety of any individual has been, is being or is likely to be endangered”.

[258]Section 43C ERA provides “Disclosure to employer or other responsible person.(1)A qualifying disclosure is made in accordance with this section if the worker makes the disclosure (a)to his employer....(b)....(2)A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.”

[259]Section 43D provides “Disclosure to legal adviser. A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice”.

[260]Section 43F ERA provides “Disclosure to prescribed person.(1) A qualifying disclosure is made in accordance with this section if the worker—(a)makes the disclosure to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b)reasonably believes—(i)that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii)that the information disclosed, and any allegation contained in it, are substantially true.(2) .....”.

[261]Section 47B(1) ERA provides “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”.

[262]Section 47B(1A) ERA provides “A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done -(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure”. Disclosure of information

[263]The disclosure must be an effective communication of information, but it does not require to be in writing. The disclosure must convey information or facts, and not merely amount to a statement of position or an allegation (Cavendish Munro Professional Risks Management Ltd v Geduld

2010 IRLR 38

, EAT). However, an allegation may contain sufficient information depending Page 45 4105167/2024 upon the circumstances (Kilraine v Wandsworth London Borough Council

[2018] ICR 1850

, Court of Appeal). Reasonable belief

[264]The worker must genuinely believe that the disclosure tended to show relevant wrongdoing and was in the public interest. This does not have to be their predominant motivation for making the disclosure (Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

, Court of Appeal). Their genuine belief must be based upon reasonable grounds. This depends upon the facts reasonably understood by the worker at the time.

[265]The burden of proof is on the claimant. It is for her to show that when she carried out the acts which she asserts are protected disclosures or any one of them she reasonably believed that that the information she provided tended to show relevant wrongdoing under section 43B.

[266]What is important for the first part of the section 43B(1) test is the claimant’s subjective belief: Parsons v Airplus International Limited

UKEAT/0111/17/JOJ

. As was noted in Korashi v. Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, what is a “reasonable belief” involves an objective standard but viewed in the context of the personal circumstances of the discloser. Detriment meaning

[267]If a reasonable worker (even if not all reasonable workers) might take the view

[268]It is not necessary for there to be physical or economic consequences to the employer’s act or inaction for it to amount to a detriment. What matters is that the complainant is shown to have suffered a disadvantage of some kind (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL). Detriment causation Page 46 4105167/2024

[269]When determining whether any act, or any deliberate failure to act by the employer is done on the ground that the worker made a protected disclosure the causation test is whether the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower (Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

, CA). Disability status

[270]Section 6(1) EqA provides that a person has a disability if they have ‘a physical or mental impairment; and the impairment has a substantial and longterm adverse effect on the person’s ability to carry out normal day to day activities.’

[271]The statutory definition of ‘substantial’ in section 212(1) EqA is ‘more than minor or trivial’.

[272]Supplementary provisions for determining whether a person has a disability are found in Part 1 of Schedule 1 EqA. For example, Schedule 1, paragraph 2 provides that the effect of an impairment is long-term if it has lasted at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person. Further if the impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, it is to be treated as continuing to have that effect if it is likely to recur.

[273]Schedule 1, paragraph 5(1) provides that an impairment is treated as having a substantial adverse effect on the ability of the person concerned if measures are taken to correct it and, but for that, it would be likely to have that effect.

[274]Appendix 1 to the EHRC Employment Code states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause — para 7. The statutory approach is a functional one directed towards what a claimant cannot, or can no longer, do at a practical level. It is not necessary to determine a precise medical cause (Ministry of Defence v Hay

2008 ICR 1247

EAT)

[275]The statutory ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) pursuant to section 6(5) EqA does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule 1, Part 2, paragraph 12 EqA). Page 47 4105167/2024

[276]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and states: ‘The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.’

[277]Paragraph B1 should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities’. Paragraph D2 states that it is not possible to provide an exhaustive list of day-to-day activities. Paragraph D3 provides that: ‘In general, day-to-day activities are things that people do on a regular or daily basis’.

[278]The Appendix to the Guidance sets out an illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities.

[279]In Goodwin v Patent Office

[1999] IRLR 4

, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are:a. Does the person have a physical or mental impairment?

b. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?

c. Is that effect substantial?

d. Is that effect long-term?

[280]The burden of proof is on a claimant to show that they satisfy the statutory definition of disability. Direct discrimination

[281]Section 13(1) EqA provides “Direct discrimination (1)A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

[282]Section 136 EqA provides: “136 Burden of proof If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that Page 48 4105167/2024 the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.”

[283]There is a two-stage process in applying the burden of proof provisions in discrimination cases, as explained in the authorities of Igen v Wong

[2005] IRLR 258

and Madarassy v Nomura International Plc

[2007] IRLR 246

, both from the Court of Appeal. The claimant must first establish a first base or prima facie case by reference to the facts made out. If she does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the claimant’s allegation in this regard is to be upheld. If the explanation is adequate, that conclusion is not reached. Reasonable adjustments

[284]Sections 20 and 21 EqA provide: “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage....” “21 Failure to comply with duty(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person....”

[285]Schedule 8 EqA Work. Reasonable Adjustments paragraph 20 provides “20 Lack of knowledge of disability, etc.(1) A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know—(a) ...;(b) ... that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement.(2).....”.

[286]In order to make a finding of failure to make reasonable adjustments there must be identification of:(a) the provision, criteria or practice applied by or on behalf of the respondents; and

(b) the nature and extent of the substantial disadvantage suffered by the claimant (Environment Agency v Rowan

[2008] IRLR 20

). Page 49 4105167/2024 Harassment

[287]Section 26 EqA provides:“(1) A person(a) (A) harasses another

(b) (B) if—(a) A engages in unwanted conduct related to a relevant protected characteristic, and(b) the conduct has the purpose or effect of—(i) violating B's dignity, or(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.…(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b)the other circumstances of the case;(c)whether it is reasonable for the conduct to have that effect.”

[288]The necessary connection with a protected characteristic for a harassment complaint can arise where the unwanted conduct is related to the protected characteristic but does not take place because of the protected characteristic (para 7.10. EHRC Employment Code).

[289]In order to be harassed an employee must be aware of the conduct at the time it occurs. The perception of the person claiming harassment is a key and indeed mandatory component in determining whether harassment has occurred. If there is no awareness, there can be no perception (GreasleyAdams v Royal Mail Group Limited

2023 EAT 86

[290]The context in which unwanted conduct takes place for a harassment complaint is an important factor in determining whether it is related to a relevant protected characteristic (General Municipal and Boilermakers Union v Henderson

2015 IRLR 451

[291]The Tribunal’s focus in a harassment complaint should be on the conduct itself, rather than the reason or motivation for the conduct. There is no requirement for a mental element equivalent to that in a claim for direct discrimination when considering whether conduct is ‘related to’ a protected characteristic for the purpose of constituting harassment (Carozzi v University of Hertfordshire

2024 EAT 169

[292]In order to decide whether any conduct has either of the proscribed effects under sub-paragraph (1)(b), a Tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (Pemberton v Inwood

[2018] ICR 1291

). Page 50 4105167/2024

[293]Section 27 EqA provides “Victimisation(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because—a) B does a protected act, or(b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act—(a) bringing proceedings under this Act;(b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith”.

[294]If a reasonable worker (even if not all reasonable workers) might take the view that the conduct in question was detrimental then the test of detriment is satisfied (Warburton v Chief Constable of Northamptonshire Police

2022 EAT 42

[295]There must be a causal link between the protected act and the detriment. The causal standard required is ‘because of’. The claimant must show that the reason why he was subjected to the detriment was ‘because of’ the protected act. It is insufficient to show that ‘but for’ the protected act he would not have suffered the detriment (Chief Constable of Greater Manchester Police v Bailey

2017 EWCA Civ 425

, CA). Burden of proof

[296]Section 136EqA states “Burden of proof (1).... (2) If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred.

[297](3) But this provision does not apply if A shows that A did not contravene the provision.....”

[298]The burden of proving the facts referred to in section 136(2) EqA lies with the claimant. If this subsection is satisfied, then the burden shifts to the respondent to satisfy subsection 136(3) EqA.

[299]This is described in case law as a two-stage process. The claimant must first establish a first base or prima facie case by reference to the facts made out. If he does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is inadequate, it is necessary for the Tribunal to conclude that the claimant’s allegation is to be upheld. If the explanation is adequate, that conclusion is Page 51 4105167/2024 not reached (Igen v Wong

[2005] IRLR 258

; Madarassy v Nomura International Plc

[2007] IRLR 246

[300]For there to be less favourable treatment, the claimant must be subjected to some form of detriment. The question of whether there is a detriment requires the Tribunal to determine whether “by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work” (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

HL).

[301]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (section 23 EqA). In deciding how a hypothetical comparator would have been treated, the Tribunal is entitled to have regard to the treatment of real individuals (Chief Constable of West Yorkshire Police v Vento [2001 IRLR 124).

[302]However, a difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; “something more” is required (Madarassy v Nomura International

[2007] IRLR 246

). The Tribunal needs evidence from which it could draw an inference that the protected characteristic was the reason for the difference in treatment.

[303]Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong

[2005] ICR 931

(as approved by the Supreme Court in Hewage v Grampian Health Board

[2012] IRLR 870

). Wages

[304]Section 13(3) ERA provides “Right not to suffer unauthorised deductions.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion”.

[305]Section 27 (1)(a) and (b) ERA provides “Meaning of “wages” etc.(1) In this Part “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including—(a)any fee, bonus, commission, holiday pay or other emolument referable to his employment, Page 52 4105167/2024 whether payable under his contract or otherwise,(b)statutory sick pay... but excluding any payments within subsection (2)” Subsection (2) provides (2)Those payments are—(a)...(b)any payment in respect of expenses incurred by the worker in carrying out his employment, (c)...(d)... (e)any payment to the worker otherwise than in his capacity as a worker” Submissions

[306]The parties provided written submissions and spoke to those. The Tribunal carefully considered the submissions of both parties during its deliberations. The Tribunal has dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching its decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision Asserted protected disclosures

[307]In order to make findings in fact the Tribunal asked the claimant to identify what part or parts of her verbal or written communication she relied upon as having made a disclosure of information.

[308]PD i - The Tribunal’s findings in fact are that R2 did not say on a phone call on 25 February 2023 that the claimant was slapping and beating her chest and the claimant did not say in response “they may as well call me a gorilla and get on with it.”

[309]As the Tribunal concluded that this exchange did not take place, there can be no protected disclosure. Even if the exchange had taken place, the Tribunal would have concluded that this did not convey information or facts and was merely a statement of position (Cavendish Munro).

[310]PD ii - The Tribunal’s findings in fact are that the claimant did not refer to unconscious bias” in her whatsapp message and did not refer to “unconscious bias” in a telephone call to R2 the same day before she sent her message.

[311]As the Tribunal concluded that this had not been said there can be no protected disclosure. Even if claimant had said there was “unconscious bias”, the Tribunal would have concluded that this did not convey information or facts and was merely a statement of position (Cavendish Munro). Page 53 4105167/2024

[312]PD iii - Peninsula is the third-party HR advisors for R1. Section 43C(1)(a) ERA provides that a qualifying disclosure is made in accordance with this section if the worker makes the disclosure to the employer. Peninsula is not the employer of the claimant.

[313]Section 43C(2) ERA also provides that a qualifying disclosure is made in accordance with this section if a worker who, in accordance with a procedure whose use by the worker is authorised by the employer, makes a qualifying disclosure to a person other than the employer. There was no evidence of any such procedure.

[314]Section 43F(1)(a) provides that a qualifying disclosure is made in accordance with this section if the worker makes the disclosure to a prescribed person and reasonably believes that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and that the information disclosed, and any allegation contained in it, are substantially true.

[315]Peninsula is not a prescribed person or body for the purposes of making protected disclosures.

[316]What the claimant said to Peninsula on 14 March 2023 is not a protected

[317]PD iv - The claimant asserts that she made a protected disclosure to Peninsula on 15 March 2023. For the same reasons as above, what the claimant wrote to Peninsula on 14 March 2023 is not a protected disclosure.

[318]PD v - The claimant asserts that she made a protected disclosure to the Bank of Scotland when she wrote to them on 9 October 2023. There is a prescribed list of bodies to whom a disclosure can be made. These bodies are listed in the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014. The Bank of Scotland is not a prescribed body. The claimant’s evidence was that she needed to write to the Bank of Scotland first before she could write to the Financial Ombudsman. The Tribunal concluded that the correspondence with the Bank of Scotland was a customer complaint about the bank’s signing authority procedures. This was not a complaint about R1 or R2. The email sent to the Bank of Scotland on 9 October 2023 is not a

[319]For the same reasons, the claimant’s email to the Bank of Scotland on 17 January 2024 is not a protected disclosure.

[320]PD vi - The Tribunal’s findings in fact are that on 24 October 2023 in the kitchen in the office the claimant said to R2 “I don’t know what is going on with Page 54 4105167/2024 the payments to Jay’s business. The penny has just dropped because you have 28k in your personal bank account” and “I don’t know what has been going on with Hannah’s pay”. The claimant relies on these statements as a

[321]The disclosure must be an effective communication of information and not merely amount to a statement of position or an allegation. The claimant said “I don’t know what is going on with the payments to Jay’s business. The penny has just dropped because you have 28k in your personal bank account”. This was an allegation. The Tribunal considered whether it contained sufficient factual detail to constitute a qualifying disclosure. The claimant did not flesh out the allegation in the meeting or supply more information. It was a general allegation of wrongdoing by R2. The Tribunal concluded that there was insufficient detail to be an effective communication of information. It is not a disclosure of information. It is not a qualifying disclosure.

[322]The claimant said “I don’t know what has been going on with Hannah’s pay”. The statement did not contain any specific factual content. It is merely an allegation. It is not a disclosure of information. It is not a qualifying disclosure.

[323]What the claimant said to R2 on 24 October 2023 is not a protected

[324]PD vii - On 8 November 2023 Harper Macleod LLP solicitors wrote to R2 (page 1296) on behalf of the claimant. The letter was headed without prejudice and confidential under section 111A ERA. Harper Macleod were acting for the claimant. The letter proposed financial terms for the claimant to sell her shares and for her employment to end.

[325]The letter was produced by the claimant. The contents were relied upon as a protected disclosure. The claimant waived the without prejudice and section 111A ERA confidentiality protection of the letter. There was no objection to this by the respondents.

[326]The disclosure must be an effective communication of information and not merely amount to a statement of position or an allegation. The claimant relied on what was written in the letter about the Indian applicant for the post in R1, discussions which she said she had had with R2 about sponsoring migrant workers and about the incident on 24 February 2023 involving the claimant as a protected disclosure. The Tribunal was satisfied that what was written in the letter was in sufficient detail, by references to dates and names to convey information (Cavendish). Page 55 4105167/2024

[327]The worker must genuinely believe that the disclosure tended to show relevant wrongdoing and was in the public interest (Chesterton Global). The burden of proof is on the claimant to show that when she instructed the letter she reasonably believed that the information she provided tended to show relevant wrongdoing under section 43B ERA. The claimant relies on a criminal offence having been committed, failure to comply with a legal obligation and the health and safety of any individual being endangered.

[328]What is important for the first part of the section 43B(1) test is the claimant’s When the letter was written did the claimant genuinely believe that the

[329]The Tribunal was not satisfied that the claimant genuinely believed the information to be in the public interest at the time. If she had done so, it is likely that the letter she instructed would have referred to the information as being a whistleblowing disclosure or information which was in the public interest or some foreshadowing that what was being written was a protected disclosure. The letter did not do so. The information about an incident on 24 March 2023 in the office concerned a grievance against her which had been upheld and about which she remained unhappy. The information about the Indian applicant and the asserted discussion about sponsoring migrant workers was framed to support the claimant’s own negotiating position and threat of litigation in the letter. The letter was written in the context of the claimant seeking to negotiate financial terms for her to sell her shares and leave the business. The letter was written in the context of a shareholder dispute between the claimant and R2 which had been ongoing since June 2023.

[330]Viewed in the personal circumstances of the claimant, the Tribunal concluded that at the time of the letter the claimant did not genuinely consider that the

[331]The letter from Harper Macleod to R1 and R2 on 8 November 2023 is not a

[332]PD viii - Withdrawn by claimant.

[333]PD ix - On 15 January 2024 the claimant emailed the Financial Ombudsman Service. She made a complaint about the Bank of Scotland. The Financial Ombudsman Service. is not a prescribed body in the Schedule to the Public Page 56 4105167/2024 Interest Disclosure (Prescribed Persons) Order 2014. The claimant’s evidence was that she was concerned about the standard of service she had received from the Bank of Scotland. This was not a complaint about R1 or R2.

[334]The email sent to the Financial Ombudsman Service is not a protected

[335]PD x - On 29 January 2024 the claimant submitted a written grievance (page 665). The claimant’s evidence was that disclosures of information which were protected disclosures were made in paragraphs 8, 19, 21, 26, 27, 29, 31, 39 and 58 of her grievance.

[336]The disclosure must be an effective communication of information and not merely amount to a statement of position or an allegation. The claimant relied on paragraphs 8, 19, 21, 26, 27, 29, 31, 39 and 58 of her grievance as containing protected disclosures. The Tribunal also considered her grievance as a whole.

[337]The Tribunal concluded that the grievance contained extensive quotes of legislation and case law but very little about the claimant’s own situation. The claimant had written in paragraph 26 “Despite being signed off from work as ‘unfit to work’ [R1] and [R2] has done nothing to accommodate, facilitate or rehabilitate my return to work, so that I can return to work” and in paragraph 29 “For the avoidance of doubt it is the ‘ongoing omission’ to put in place the reasonable adjustments, which I need implementing, which poses a barrier to my return to work”. Reading the grievance as a whole the Tribunal concluded that the claimant was saying that she was signed off work, reasonable adjustments had not been made and needed reasonable adjustments to be implemented as set out in paragraph 44 of her grievance before she could return.

[338]The Tribunal was satisfied that when reading the grievance as whole it did convey information (Cavendish).

[339]The worker must genuinely believe that the disclosure tended to show relevant wrongdoing and was in the public interest (Chesterton Global). The burden of proof is on the claimant to show that when she wrote the grievance, she reasonably believed that the information she provided tended to show relevant wrongdoing under section 43B ERA. The claimant relies on a criminal offence having been committed, failure to comply with a legal obligation and the health and safety of any individual being endangered.

[340]What is important for the first part of the section 43B(1) test is the claimant’s Page 57 4105167/2024 When the grievance was written did the claimant genuinely believe that the

[341]The Tribunal was not satisfied that the claimant genuinely believed the information to be in the public interest at the time. The grievance was written in the context of a shareholder dispute between the claimant and R2 which had been ongoing since June 2023. This was evident in the closing paragraphs of the claimant’s grievance where the claimant alleged “underhanded and perfidious conduct in instigating other employees to make my working relationships with them ‘toxic’ continues to pose a barrier to my return to work” and where the claimant refers to the shareholder buyout dispute.

[342]Viewed in the personal circumstances of the claimant, the Tribunal concluded that at the time of the letter the claimant did not genuinely consider that the

[343]The claimant’s grievance of 29 January 2024 is not a protected disclosure.

[344]PD xi - On 20 February 2024 the claimant emailed the Care Inspectorate (page 1306). The Care Inspectorate is not a prescribed body in the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014.

[345]The email sent to the Care Inspectorate is not a protected disclosure.

[346]PD xii - On 20 February 2024 the claimant emailed R2 (page 1356). The claimant’s email included “You have set your own salary for the past few months without the consent of the Directors of the Board”. The claimant said R2’s salary had been set without review or approval.

[347]The disclosure must be an effective communication of information and not merely amount to a statement of position or an allegation. The Tribunal considered whether what the claimant had written contained sufficient factual detail to constitute a qualifying disclosure. The claimant did not flesh out the allegation in the email or supply more information. The claimant acknowledged in the email that she had not seen any correspondence which would have enabled her to reach a conclusion about whether the claimant had set her salary to “an over inflated rate” as the claimant alleged. The Tribunal concluded that this was a general allegation of wrongdoing by R2. The Tribunal concluded that there was insufficient detail to be an effective communication of information. Page 58 4105167/2024

[348]If the Tribunal is wrong on that it also considered whether what the claimant had written tended to show relevant wrongdoing and was in the public interest (Chesterton Global).

[349]When the claimant wrote the email, did she reasonably believe that the information she provided tended to show relevant wrongdoing under section 43B ERA. The claimant relies on a criminal offence having been committed and failure to comply with a legal obligation.

[350]What is important for the first part of the section 43B(1) test is the claimant’s When the email was written did the claimant genuinely believe that the

[351]The Tribunal was not satisfied that the claimant genuinely believed the information to be in the public interest at the time. The email was written in the context of a shareholder dispute between the claimant and R2 which had been ongoing since June 2023.

[352]Viewed in the personal circumstances of the claimant, the Tribunal concluded that at the time of the email the claimant did not genuinely consider that the

[353]The Tribunal also concluded that the claimant did not reasonably believe that there was relevant wrongdoing. The claimant’s email alleges that R2 had made a decision about R2’s pay without the consent of both the claimant and R2 (the board of directors). The Tribunal also heard evidence that the claimant had made a decision about R2’s pay wiithout the consent of both the claimant and R2 when the claimant decided to stop R2’s pay.

[354]The email of 20 February 2024 is not a protected disclosure.

[355]PD xiii - On 6 March 2024 the claimant emailed R2 and R1 accountants. She said “I am not refusing to pay you but the company needs to undertake how you’ve paid yourself these past few months and recover any overpayment. You changed your pay, without the consent of the board. If this salary keeps running that is £93,000 per year, you would be taking roughly 7-8% of the company’s turnover in pay...In the interim I will approve for [R2] a weekly payment of £875 per week for the next 4 weeks (covering payments to 29 March 2024)” Page 59 4105167/2024

[356]The disclosure must be an effective communication of information and not merely amount to a statement of position or an allegation. The Tribunal considered whether what the claimant had written contained sufficient factual detail to constitute a qualifying disclosure. The claimant’s email set out the pay which she calculated that R2 was receiving. The claimant set out figures about the turnover of R1 and the correlation between R2’s salary and R2 turnover. The Tribunal concluded that what the claimant had written was sufficient detail to be an effective communication of information.

[357]The Tribunal next considered whether what the claimant had written tended to show relevant wrongdoing and was in the public interest (Chesterton Global).

[358]When the claimant wrote the email, did she reasonably believe that the information she provided tended to show relevant wrongdoing under section 43B ERA. The claimant relies on a criminal offence having been committed and failure to comply with a legal obligation.

[359]What is important for the first part of the section 43B(1) test is the claimant’s When the email was written did the claimant genuinely believe that the

[360]The Tribunal was not satisfied that the claimant genuinely believed the information to be in the public interest at the time. The email was written in the context of a shareholder dispute between the claimant and R2 which had been ongoing since June 2023.

[361]Viewed in the personal circumstances of the claimant, the Tribunal concluded that at the time of the email the claimant did not genuinely consider that the

[362]The Tribunal also concluded that the claimant did not reasonably believe that there was relevant wrongdoing. The claimant’s email alleges that R2 had made a decision about R2’s pay without the consent of both the claimant and R2 (the board of directors). The Tribunal also heard evidence that the claimant had made a decision about R2’s pay without the consent of both the claimant and R2 when the claimant decided to stop R2’s pay.

[363]The email of 6 March 2024 is not a protected disclosure. Page 60 4105167/2024

[364]PD xiv - For the reasons previously set out, alleged disclosures of information to Peninsula are not protected disclosures.

[365]PD xv - On 22 March 2023 the claimant emailed Brodies, Solicitors to make a complaint. The complaint was about Brodies having given legal advice to R1, on the instruction of R2.

[366]Section 43D provides “Disclosure to legal adviser. A qualifying disclosure is made in accordance with this section if it is made in the course of obtaining legal advice”. The letter written to Brodies was not made in the course of the claimant obtaining legal advice. Brodies is not a prescribed body to whom protected disclosures can be made.

[367]The email to Brodies on 22 March 2024 is not a protected disclosure.

[368]PD xvi - On 26 March 2024 the claimant emailed Laura Rennie of Arena HR. Arena HR an HR company. The claimant was asking for a price quote for potential HR investigation and advice. Arena HR are not the claimant’s employer nor a prescribed body.

[369]The email to Arena HR is not a protected disclosure.

[370]PD xvii - On 22 April 2024 the claimant completed an online form on the website of the Scottish Social Services Council (SSSC) website. In the claimant’s evidence, the part of the completed form which the claimant relied upon as a protected disclosure was the statement “Diane has also made a false statement to the care inspectorate on 20th September 2023 – advising that I have been asked not to be contacted whilst off sick. There is evidence to show I advised I could be contacted in an emergency. This also shows she is using her position as a registered worker with SSSC and Registered Manager to knowingly submit false information”. The information which the claimant alleged was false was the information R2 had given to OH about the claimant’s job description.

[371]The SSSC is listed in the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014 as a prescribed body, insofar as the information disclosed concerns “matters relating to the registration of the social services workforce […] under the Regulation of Care (Scotland) Act 2001”.

[372]The part of the completed form relied upon by the claimant as a protected disclosure is where the claimant says that R2 has provided false information to the Care Inspectorate and to OH. The burden of proof is on the claimant. There was no evidence led about why the claimant said those matters related Page 61 4105167/2024 to the registration of R2 under the Regulation of Care (Scotland) Act 2001. The Tribunal concluded that disclosing those matters did not fall within the provisions of section 43F ERA and the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014.

[373]If the Tribunal is wrong, and what was disclosed did fall within the provisions of section 43F ERA, it also considered whether what was written was an effective communication of information and not merely a statement of position or an allegation. The Tribunal considered whether what it contained sufficient factual detail. What the claimant had written was about two specific matters. Firstly a statement which R2 was said to have provided to the Care Inspectorate on 20 September 2023 and secondly information which R2 was said to have provided to OH about the claimant’s job description. The Tribunal concluded that what the claimant had written was sufficient detail to be an effective communication of information. The Tribunal then considered whether what the claimant had written tended to show relevant wrongdoing and was in the public interest (Chesterton Global). As already reasoned by the Tribunal for other disclosures relied upon, the Tribunal was not satisfied that the claimant genuinely believed at the time that what was written in the online form was in the public interest. Viewed in the personal circumstances of the claimant, the online form was completed in the context of a shareholder dispute between the claimant and R2 which had been ongoing since June 2023.

[374]The information in the online SSSC form completed on 22 April 2024 is not a

[375]PD xviii - withdrawn by claimant.

[376]PD xix - On 23 April 2024 the claimant emailed Martin Brownjohn at the Care Inspectorate (page 992) Her email included “Diane has knowingly provided false information to both the Care Inspectorate (20/9/23) and Optima Health and I believe this is not in line with SSSC Code of Conduct”.

[377]The Care Inspectorate is not a prescribed body in the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014.

[378]The email sent to the Care Inspectorate is not a protected disclosure. Page 62 4105167/2024

[379]The Tribunal found that the claimant did not make any protected disclosures. Therefore, the Tribunal does not need to consider whether the claimant was subjected to any detriments for making protected disclosures. Asserted detriments

[380]In case the Tribunal is wrong and the claimant did make any protected disclosures, the Tribunal also considered whether the claimant had been subjected to any detriment as asserted. This consideration was also carried out because of the overlapping factual matrix across the legal complaints made. In particular, most of the detriments relied upon were the same as the detriments relied upon for doing a protected act under section 27 EqA (victimisation). The discussion / decision on the victimisation complaints is set out in a separate section later in this judgment.

[381]The Tribunal considered whether any of the issues relied upon by the claimant were detriments. In doing so, the Tribunal reminded itself that if a reasonable worker (even if not all reasonable workers) might take the view that, in all the circumstances, the conduct was to the worker’s detriment, the test is satisfied. The test of detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances (Warburton v Chief Constable of Northamptonshire Police

2022 ICR 925

, EAT).

[382]Detriment i - The asserted detriment is about Peninsula managing the claimant’s grievance dated 29 January 2024 (2024 grievance). To consider this the Tribunal needed to look back at the incident in the office on 24 February 2023 and the claimant’s grievance about this (2023 grievance).

[383]There was an incident in the office on 24 February 2023. M McGinty and C Auld raised grievances against the claimant about the incident. The claimant raised a grievance against M McGinty and C Auld about the incident (2023 grievance). Peninsula were appointed to deal with the grievance as the retained HR advisors and insurers of R1. The outcome was that the grievances of M McGinty and C Auld were partially upheld against the claimant. The claimant initially appealed against this outcome but that was not pursued.

[384]When the claimant raised another grievance on 29 January 2024 R2 appointed Peninsula to handle the claimant’s grievance. This was because of the retainer and insurance arrangements which R1 had in place with Peninsula. Page 63 4105167/2024

[385]R2 had been using Peninsula since around the time R1 had been set up. R2 had concluded over the years that Peninsula were a professional defective. That was the case where the outcome was the grievance raised by M McGinty and C Auld about the same incident was partially upheld against the claimant. Peninsula had obligations to R1 as their HR advisers and insurers to conduct grievances in an impartial and fair way. For these reasons on 12 February 2024 R2 decided to use Peninsula to handle the claimant’s grievance of 29 January 2024 (2024 grievance).

[386]The Tribunal considered whether the decision of R2 to use Peninsula to handle the claimant’s 2024 grievance was a detriment.

[387]If a reasonable worker (even if not all reasonable workers) might take the view

[388]The Tribunal was satisfied that a reasonable worker would not take the view that, in all the circumstances, the decision by R2 to use Peninsula to conduct the 2024 grievance was to the claimant’s detriment. Looking at the situation from the claimant’s point of view she was unhappy that the incident on 24 February 2023 about which she had raised a grievance had resulted in a grievance by M McGinty and C Auld against her being partially upheld. She was unhappy that was the recommendation of Peninsula. She was also unhappy that her grievance and those of the other two employees had been rolled together, that being the process followed by Peninsula. Given the outcome and the process followed by Peninsula for her 2023 grievance her perception was that the outcome of her 2024 grievance might not go in her favour. From the claimant’s point of view the decision to use Peninsula to handle and make recommendations to R2 about her 2024 grievance was to her detriment.

[389]On the other hand, the claimant’s perception must be reasonable in the circumstances. The claimant had been involved in the decision making about the outcome of her 2023 grievance with R2 and Peninsula which had resulted in the outcome being changed from fully upheld to partially upheld against the claimant. The claimant had continued to use Peninsula to provide HR services Page 64 4105167/2024 after her 2023 grievance when she was instructing Peninsula on behalf of R1 for other employee matters. Peninsula were the retained HR advisors and insurers of R1. They were a large organisation. The person in Peninsula handling her 2024 grievance was unlikely to be the same person as handled her 2023 grievance. The Tribunal concluded that the claimant’s perception of detriment by R2 using Peninsula to handle her 2024 grievance was not reasonable in the circumstances. The claimant did not suffer a detriment on 12 February 2024.

[390]Detriment ii- The asserted detriment is about Peninsula managing the appeal against the outcome of the claimant’s 2024 grievance. The 2024 grievance was not upheld. R2 decided to use Peninsula to manage the appeal against the outcome of the 2024 grievance for the same reasons she decided to use Peninsula to conduct the grievance itself. On 17 May 2024 R2 replied to an email from the claimant and said that Peninsula were an independent company and that the person who conducts the appeal will be different to the person who conducted the grievance meeting. The claimant was asked if she accepted or declined the appeal hearing with Peninsula. It was agreed that the claimant’s grievance appeal would be conducted in writing by Peninsula.

[391]The Tribunal was satisfied that a reasonable worker would not take the view that, in all the circumstances, the decision by R2 to use Peninsula to conduct the 2024 grievance appeal was to the claimant’s detriment. This is for the same reasons as given for asserted detriment i. There was nothing which the claimant said about the appeal process to be followed which was different to that which the claimant had already said about ther grievance process. The claimant did not suffer a detriment.

[392]Detriment iii - On 20 February 2024 R2 wrote to Martin Brownjohn at the Care Inspectorate. Her email included the following about the claimant’s return to work and an occupational health assessment of the claimant “...I am letting the lawyers deal with this situation as Peninsular is only willing to take the grievance on board”. (Page 1333). There was no evidence led that Peninsula were involved in HR advice in addition to handling the 2024 grievance. The Tribunal concluded that R2 was using Peninsula for the claimant’s grievance in the period 15 February 2024 – 22 May 2024. R2 was not using Peninsula to “conduct HR return to work” as asserted as a detriment. The claimant did not suffer a detriment.

[393]Detriment iv - On 5 February 2024 the claimant went into the office. The claimant asked R2 to go into the kitchen area where it was private. This was so she could discuss her sickness absence with R2. R2 did not discuss the Page 65 4105167/2024 claimant’s sickness absence in front of Christina Auld. The claimant did not

[394]Detriment v – On 13 February 2024 the claimant went into the office. Everyone said hello to her. Ms Auld offered the claimant a cuppa. The staff did speak to her. The claimant did not suffer a detriment.

[395]Detriment vi - On 15 February 2023 the claimant went into the office. She wanted to speak to R3. R3 was not in the office. She asked Ms Auld where R3 was. Ms Auld replied to say that she did not know. The claimant asked Ms Auld some other questions about R3. Ms Auld replied that she did not know. R3 was off sick on 15 February 2023. Staff did not know why she was off sick or anything else about her absence. That is why Ms Auld replied to questions about R3 to say that she did not know.

[396]If a reasonable worker (even if not all reasonable workers) might take the view but the claimant’s perception must be ‘reasonable’ in the circumstances. The Tribunal concluded that a reasonable worker would not take the view that, in all the circumstances, Ms Auld saying “I don’t know” to the claimant was to her detriment. There was no reason why Ms Auld would know where R3 was or about R3’s work. The claimant did not suffer a detriment.

[397]Detriment vii – On 4 March 2024 in an email R2 told the claimant she had sought medical assistance for stress anxiety. The claimant responded in a lengthy email to R2 on 5 March 2024. “[R1] will need to consider if it requires to put you on emergency leave. I feel and Occupational Health Assessment is required...”; The claimant suggested a replacement director in place of R2. The claimant wrote “If you feel too unwell to participate in Director conversation/ to undertake your Directors Obligations and would like to have a replacement director in your place....” ([page 748 – 750). The claimant wrote “If you are incapacitated due to stress and anxiety R1 may need to take measures to ensure both you and the company are protected from any financial mismanagement”.

[398]On 5 March 2024 R2 replied by email. It is this reply which the claimant asserts is a detriment. The claimant asserts that R2 implied she was mentally unstable and called her “erratic”. The email from R2 on 5 March 2024 was about R2’s pay. R2 had written “As already stated you told me £1500 per week gross and then yesterday you replied to the accountant that you do not give permission this to be paid. Then today for this week’s payroll you are Page 66 4105167/2024 proposing that I now get £875. This is very erratic behaviour, me being paid as an employee is my statutory right”; “If you do not find this as unreasonable then again I am concerned for your erratic ways”. R2 also wrote “To receive your email saying I am refusing to meet you last Friday when I had just returned from meeting you greatly worries me”’; “We met for 30 minutes at a time and place to suit you and then you came back to me that very afternoon saying I had not met you”.

[399]If a reasonable worker (even if not all reasonable workers) might take the view (Warburton)

[400]The Tribunal considered whether the email from R2 “implied that the claimant was mentally unstable”. The claimant understood the reference to whether they had met that day. What the claimant had written was wrong. This was because the claimant’s email had been set to send on a timer and she had forgotten to update it. The Tribunal did not agree that R2’s email implied that the claimant was mentally unstable. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances (Warburton). Against the backdrop of the claimant’s absence from work and what the claimant had written about meeting up being factually wrong, the Tribunal concluded that the claimant’s perception of detriment was not reasonable in the circumstances

[401]R2 called the claimant “erratic” in her email on two occasions. This was in relation to what R2 saw as the claimant’s views which were changing back and forward about how much the claimant would agree to R2 being paid. The Tribunal considered whether a reasonable worker might take the view that being called erratic was to the claimant’s detriment. Can the claimant be shown to have suffered a disadvantage of some kind by being called “erratic” in relation to her approach to R2’s pay. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances. The claimant’s communications about pay were part of the wider shareholder dispute between the claimant and R2. Nevertheless, the use of the word “erratic” could be viewed as upsetting to the claimant. The Tribunal concluded that R2’s use of the word “erratic” to describe the claimant’s conduct about R2’s pay was a detriment. Page 67 4105167/2024

[402]Detriment viii – On 26 March 2024 R3 was not practically on top of the claimant as she left the office. R3 did not briskly escort the claimant out of the office. The claimant did not suffer a detriment.

[403]Detriment ix – On 27 March 2024 the claimant emailed R3. The claimant was annoyed that R2 had raise a grievance about R2’s pay and that R3 had referred the grievance to Peninsula. In the claimant’s email she said she did not agree that Peninsula would handle the grievance. In the claimant’s email to R3 she was annoyed that R3 had said she would refer the grievance to Peninsula. The claimant said to R3 that R3’s actions were “unacceptable” and “all employees are accountable for their actions”. The claimant said she had been made to feel that she was being shoved out of the office the previous day. It is R3’s response to this email which is asserted by the claimant to be a detriment. The claimant said that R3 was “implying” in her email that the claimant was acting in an erratic or aggressive manner.

[404]The Tribunal looked at what R3 had written in her email. R3 had described how she viewed the claimant’s conduct in the office the previous day. R3 said that the claimant had arrived at the office the previous day, didn’t say hello, proceeded to raise her voice to R2, was expressive with her hands and pointing her finger, asking R2 for bank statements. The Tribunal accepted the evidence of R2 and R3 that this was what had happened. The claimant had expected to receive financial information when she went into the office that day but it was not available.

[405]The Tribunal considered whether a reasonable worker might take the view that the description of the claimant’s conduct in R3’s email was to the claimant’s detriment. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances. The words describe the claimant raising her voice and pointing her finger. The Tribunal concluded that this was what happened in the office on 26 March 2024. The claimant was annoyed as she was expecting to be provided with financial information when she went into the office but it was not available. Looking at it from the claimant’s perception, the Tribunal concluded that the claimant’s perception was not reasonable in all the circumstances when this was what happened.

[406]The claimant’s evidence was also that when R3 asked in her email what the claimant meant when she wrote that “all employees are accountable for their actions” this implied that the claimant was acting in an erratic and aggressive manner. The Tribunal concluded that the statement from the claimant indicated potential action against R3. R3 was entitled to ask the claimant what she meant by this statement. The Tribunal could see no basis for the Page 68 4105167/2024 claimant’s assertion that what R3 had written in her email implied the claimant was acting in an erratic and aggressive manner. The claimant did not suffer a detriment.

[407]Detriment x – the asserted detriment was that in the period 23 August 2023 – 15 February 2024 R1 and R2 had continuously implied that the claimant was unfit, demanding, unhinged, confused, mentally unstable, lacked capacity and was aggressive. The claimant relied upon emails already asserted as detriments and on which she had already given evidence. These were R2’s email of 5 March 2024 (asserted detriment v) and R3’s email of 27 March 2024 (asserted detriment ix) Neither of these are in the period 23 August 2023 – 15 February 2024. The claimant did not suffer a detriment.

[408]Detriment xi - the asserted detriment was that in the period February 2024 to 22 May 2024 R1, R2 and R3 had continuously implied that the claimant was unfit, demanding, unhinged, confused, mentally unstable, lacked capacity and was aggressive. The claimant relied upon emails already asserted as detriments and on which she had already given evidence. These were R2’s email of 5 March 2024 (asserted detriment v) and R3’s email of 27 March 2024 (asserted detriment ix). Reference is made to the decisions reached about these asserted detriments. The claimant did not suffer a detriment.

[409]Detriment xii – the asserted detriment was that in the period 23 August 2023 – 22 May 2024 it was implied to staff that the claimant was no longer a part of the organisation. The claimant’s evidence was that she was removed from the R1 Whatsapp group when she was signed off sick in August 2023, was not told about the Christmas party in December 2023 or sent a Christmas card and was not kept up to date if a client had died. The Tribunal accepted R2’s evidence that this was because the claimant had asked not to be contacted by anyone whilst off sick. Initially when the claimant had been signed off sick in August 2023 she was still in the Whatsapp group. Members of staff were contacting her on the groups and the claimant asked to be removed as she didn’t want to be contacted by anyone. The claimant did not suffer a detriment.

[410]Detriment xiii – the asserted detriment is that on 21 August 2023 R1 and R2 requested from the Care Inspectorate to take over the claimant’s role of

[411]On 21 August 2023 the claimant emailed R2 to say she was signed off sick. She said “I feel unwell to have discussions about an acting Registered Manager. You might want to contact our Care Inspector, Martin Brownjohn to seek advice - they usually only required notification after a period of absence of 28 days. In my opinion I would suggest you are acting Registered Manager Page 69 4105167/2024 whilst I am off sick”. In response to this email R2 emailed the Care Inspectorate and said “I am looking for advice, Rickie has been signed off from work at the moment I was wondering what the procedure is for Registered Manager. I have just started my SVQ4 today and was wondering if I can take on this role with immediate effect”.

[412]The Tribunal concluded that R2 had contacted the Care Inspectorate about the role of Registered Manager, precisely as the claimant had suggested that she did. The claimant did not suffer a detriment.

[413]Detriment xiv – the asserted detriment is that on around 20 November 2023 R2 permanently became the Registered Manager. R2 and Martin Brownjohn were in contact from 21 August 2023 about the Care Inspectorate requirements for a Registered Manager to be in place for R1. There was various communication between R2 and Martin Brownjohn. On 6 November 2023 the Care Inspectorate sent R2 a certificate with R2 as the Registered Manager. It was necessary to have a such an arrangement in place when the previous post holder had been off sick for more than 28 days. This was all in accordance with the Care Inspectorate requirements. The claimant did not

[414]Detriment xv – the asserted detriment is that in November 2023 R1 and R2 advised the Care Inspectorate that the claimant had resigned from her role as Registered Manager. On 28 November 2023 R2 emailed the Care Inspectorate. She wrote “I would like to make you aware that Rickie has informed me through a lawyer that she does not want to continue working within [R1]. She has expressed that she does not want to continue working within Frontline social care anymore. Once I find out more information I will let you know, the sick line which Rickie handed in is valid until 2 December [2023]. The lawyer referred to was the letter of 8 November 2023 from Lorna Davis of Harper Macleod.

[415]The Tribunal was satisfied that R2 was already the Registered Manager. The Care Inspectorate had said so on 6 November 2023 when Martin Brownjohn sent R2 the certificate. The claimant could not be the Registered Manager as she had been signed off sick for more than 28 days. Marting Brownjohn had confirmed to R2 on 28 November 2023 that he did not need to be notified about the claimant unless advice was needed.

[416]The Tribunal considered whether R2 notifying the Care Inspectorate in the terms that she did on 28 November 2023 was a detriment. In doing so, the Tribunal reminded itself that if a reasonable worker (even if not all reasonable workers) might take the view that, in all the circumstances, the conduct was Page 70 4105167/2024 to the worker’s detriment, the test is satisfied. The test of detriment has both subjective and objective elements. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances (Warburton).

[417]The Tribunal concluded that a reasonable worker would not take the view that, in all the circumstances, what R2 had written was to the claimant's detriment. It was already the case that the claimant was not the Registered Manager on the Care Inspectorate systems. That had been the position since 6 November 2023, The Care Inspectorate did not need to be kept up to date on the claimant’s involvement or otherwise in R1. The Care Inspectorate had confirmed this to R2. The fact that R2 had written to the Care Inspectorate and said that the claimant had told her through a lawyer that she does not want to continue working within R1 had no disadvantage of any kind to the claimant. The claimant did not suffer a detriment.

[418]Detriment xvi – the asserted detriment was that in March 2024 R2 advised OH that the claimant had been removed as Registered Manager as she did not get the required mandatory qualification. The referral included the following “Registered Manager position is now undertaken by the other director. Due to qualifications Mrs Tank did not obtain in the time frame while acting as Registered Manager she is now unable to undertake this role. All other job details are what was undertaken before her sick period with the exception of the registered manager duties....” (page 1001). The referral then set out information about the claimant’s duties.

[419]The referral did not state that the claimant had been removed as Registered Manager as she did not get the required mandatory qualification. The referral stated “Due to qualifications Mrs Tank did not obtain in the time frame while acting as Registered Manager she is now unable to undertake this role”. It was correct that the claimant would not be able to obtain the SSSC mandatory CLSM leadership qualification within the SSSC extended time to 20 July 2024. It was correct that without the mandatory CLSM leadership qualification the claimant would not have been able to resume the role of Registered Manager after 20 July 2024, as she would not have met the SSSC mandatory qualifications for the Registered Manager role.

[420]The Tribunal considered whether in March 2024 R2 advised OH that the claimant had been removed as Registered Manager as she did not get the required mandatory qualification. The Tribunal concluded that she did not do so. Additionally, the Tribunal concluded that what was written in the OH assessment form was correct in that the claimant would not be able to get the mandatory CLSM qualification in time. The claimant did not suffer a detriment. Page 71 4105167/2024

[421]Detriment xvii – the asserted detriment is that between 23 August 2023 and 15 February 2024 there were significant barriers imposed on the claimant undertaking her director duties. From around 23 August 2023 when the clamant was signed off sick she did not have access to Quckbooks, Careline or the R1 shared drive. Quickbooks was the accounting software system used for R1’s business. It contained the financial information about R1. Careline was the client software system used for R1’s business. It contained information about R1’s clients / services users including their care requirements. R1 had a shared drive which contained other information and documents about the day-to-day operation of R1’s business. From around September 2023 the claimant was unable to carry out transactions on R1’s bank account. This was because the claimant had withdrawn money from R1’s bank account to pay dividends without the approval of both directors to do so. The approval of both directors was required. R2 stopped the claimant’s ability to carry out banking transactions on R1’s bank account. The claimant could still view the account.

[422]The Tribunal did not know what director’s duties the claimant wished to undertake in the period 23 August 2023 to 15 February 2024 but was not able to undertake. There was no evidence about this. The claimant was signed off work. She had said she did not want to have any contact with the business. Notwithstanding this, the Tribunal concluded that stopping access to Quickbooks, Careline and the R1 shared drive was a detriment. Stopping the ability to carry out transactions on R1 bank account was also detriment. The Tribunal concluded that a reasonable worker (in this case in a director role like the claimant) might take the view that, in all the circumstances, the conduct was to the worker’s detriment, the test is satisfied. The Tribunal concluded that the claimant’s perception of detriment was reasonable in the circumstances. This is a detriment.

[423]Detriment xviii – the asserted detriment is that between 15 February 2024 and 22 May 2024 R1, R2 and R3 imposed significant barriers to the claimant returning to work in all her capacities. That is as a director and an employee.

[424]The claimant’s access to Quickbooks, Careline and the R1 shared drive was restored around 15 February 2024. The claimant’s ability to carry out banking transactions on R1 bank account was restored on around 15 February 2024.

[425]The claimant’s evidence was that the barriers she relied upon were the communications with the Care Inspectorate about the R2 taking up the Registered Manager post, the way in which the OH assessment was carried out and what R2 had written in the OH referral about the SSSC mandatory CLSM leadership qualification. These are all referred to separately as specific Page 72 4105167/2024 detriments. None have been found to be detriments. The communications with the Care Inspectorate about R2 taking about the Registered Manager post were prior to 15 February 2024 which is the earliest date relied upon for this asserted detriment. The claimant did not suffer a detriment.

[426]Detriment xix – the asserted detriment is that between 12 March 2024 – 22 May 2024 R1 and R2 gave inaccurate job descriptions to OH. On 25 March 2024 R2 completed an online referral request to OH to obtain an occupational health report. R2 set out what she understood to be the claimant’s operational duties carried out on a daily or a weekly basis (page 998). The claimant did not agree that it was an accurate job description. The claimant and R2 engaged in correspondence about what the claimant’s duties were. The claimant did not wish to attend an appointment with OH until the full list of her duties for the referral had been agreed between the claimant and R2. They were unable to reach agreement. R2 gave the claimant the opportunity to write her own job description for the OH assessment to progress the referral. The claimant did not do so.

[427]The claimant and R2 had differing views about the list of duties which should be included in the OH assessment. Both lists were extensive. The Tribunal was unable to conclude that the list of duties provided by R2 was inaccurate. The claimant was then given the opportunity to write her own job description for the OH assessment to progress the referral. The claimant did not do so.

[428]The Tribunal considered whether a reasonable worker might take the view that the conduct of R2 about the job description was to the claimant’s detriment. The situation must be looked at from the claimant’s point of view, but the claimant’s perception must be ‘reasonable’ in the circumstances. The Tribunal concluded that in circumstances where the claimant was given the opportunity to write her own job description there was no detriment. The claimant did not suffer a detriment.

[429]Detriment xx – the asserted detriment is that between 20 November 2023 and 17 April 2024 R1 R2 and R3 altered the claimant’s contract without her consent by removing her as Registered Manager. The findings in fact are the same as for the asserted detriment xiv. The Tribunal concluded that R2 had followed the procedures required by the Care Inspectorate to ensure that R1 had a Registered Manager in place. The claimant’s contract had not been altered without her consent by removing her as Registered Manager. The claimant did not suffer a detriment.

[430]Detriment xxi – the asserted detriment is that between 23 August 2023 – 22 May 2024 R1 and R2 failed to support the claimant to obtain the mandatory Page 73 4105167/2024 qualification required by the SSSC. The findings in fact are the same as for asserted detriment xvi. It was for the claimant to obtain the mandatory qualification. She had had since 2018 to do so. The claimant did not ask R2 for any support to obtain the mandatory qualification. It was not clear what support R2 could have offered beyond that which R2 had already given by countersigning the extension and R1 paying for previous courses which had not been attended. The claimant did not suffer a detriment.

[431]Detriment xxii – the asserted detriment is between 29 January 2024 and 25 April 2024 R1 R2 R3 failed to undertake a robust grievance process in line with ACAS guidelines. The findings in fact for detriment i are repeated. R2 instructed Peninsula to handle the claimant’s grievance. As set out in the decision about asserted detriment i the claimant had confidence in Peninsula, having used them for a number of years. The claimant asked for her written grievance to be dealt with in writing only. R2 agreed to this. The claimant provided additional written submission on 27 February 2024, 5 March 2024 and 12 March 2024 which were considered by Peninsula. Peninsula provided a recommendation that the claimant’s grievance was not upheld. R2 followed this. The claimant was given a right of appeal. The claimant in evidence submitted that “ACAS guidelines” were not followed. The claimant produced documents during the course of her evidence which appeared to be lengthy AI generated summaries of the ACAS guide on discipline and grievance at work. The Tribunal considered those documents. There was nothing in those documents which persuaded the Tribunal that the grievance process had not followed ACAS guidelines in the handling of either the 2023 or the 2024 grievances. The Tribunal concluded that a fair and robust grievance process had been followed. The claimant did not suffer a detriment.

[432]Detriment xxiii – the asserted detriment is that between 1 March 2023 and 21 August 2023 R1 R2 and R3 failed to undertake a robust grievance process in line with ACAS guidelines. The findings in fact and decision for detriment i are repeated. Ms McGinty and Ms Auld raised a grievance against the claimant about an incident in the office on 24 February 2023. Thereafter the claimant raised a grievance against Ms McGinty and Ms Auld. The grievances were dealt with together as they were about the same incident. The claimant was invited to a meeting to discuss the incident. After much back and forward between Peninsula, R2 and the claimant, the grievances by Ms McGinty and Ms Auld against the claimant were partially upheld. The claimant was involved in this decision making as a director of the business. The claimant was given a right of appeal. She did not proceed with an appeal. In evidence the claimant’s position was that the grievance process was not fair to the claimant because when she had the grievance meeting with Peninsula, she thought Page 74 4105167/2024 this should have been a meeting about her grievance only. She did not think it was fair for the grievances by Ms McGinty and Ms Auld to be considered at the same time even although they were all about the same incident. The Tribunal concluded on the evidence that a fair grievance procedure had been followed. The claimant had been allowed to state her case, as a director in the business she was involved in the outcome and the claimant was given a right of appeal. In any event R2 was following the advice of Peninsula which the Tribunal concluded she was entitled to do. The Tribunal concluded that a fair and robust grievance process had been followed. The claimant did not

[433]Detriment xxiv – the asserted detriment is that R1 and R2 reported the claimant to HMRC, Companies House, the Care Inspectorate and the SSSC. If a reasonable worker (even if not all reasonable workers) might take the view (Warburton).

[434]The Tribunal was satisfied that reporting the Sunside Limited allegations of which R2 had become aware to the SSSC, the Care Inspectorate, HMRC and Companies House was a detriment. Looking at it from the claimant’s perspective she did not agree with the allegations which were being reported. The claimant’s perception must be reasonable. The Tribunal did not hear evidence to determine whether the allegations reported were “baseless”, as the claimant asserted in the list of issues. Nevertheless, the Tribunal concluded that it was reasonable for the claimant to perceive that, given the nature of the allegations, the reports were to her detriment. This is a detriment.

[435]Detriment xxv – the asserted detriment is that between 15 February 2024- 22 May 2024 R1 and R2 refused to pay the claimant’s wages despite the claimant and medical advice stating the claimant was fit to return to work.

[436]The Tribunal concluded that there was not medical advice stating the claimant was fit to return to work. The claimant stopped submitting sick lines after 2 February 2024. In discussions between the claimant and R2 on 13 February 2024 the claimant was saying she was still unwell. The claimant had submitted a lengthy grievance on 29 January 2024 where she stated that she required an OH assessment to identify reasonable adjustments for her return to work. When the claimant and R2 had been unable to agree on the claimant’s job description for the OH assessment the claimant was given the opportunity to write her own OH job description for the OH assessment. She Page 75 4105167/2024 did not do so. There was no medical advice stating the claimant was fit to return to work in the period 15 February 2024 to 22 May 2024. The claimant was entitled to receive SSP until she was assessed as fit to return to work. The claimant declined to receive SSP. SSP is wages. Those are the wages which the claimant was entitled to receive until she was assessed as fit to return to work.

[437]The Tribunal considered the asserted detriment looking at it from the claimant’s perception. The claimant’s perception of detriment must be reasonable. The Tribunal concluded that the claimant’s perception was not reasonable. There was no medical advice stating she was fit to return to work. The claimant on the one hand in her grievance said that she required an OH assessment to determine reasonable adjustments for her return. That is good practice and one which R2 wished to follow. The claimant had written in her grievance “For the avoidance of doubt it is the ‘ongoing omission’ to put in place the reasonable adjustments, which I need implementing, which poses a barrier to my return to work”. On the other hand the claimant was saying to R2 she would only attend an OH assessment “under protest”. The claimant was then delaying the OH assessment by refusing to agree the job description and not writing her own. The Tribunal conclude this was part of the bigger picture which was that there was an escalating shareholder dispute between the claimant and R2. The claimant didn’t not want to be involved in front line care any longer. The claimant wished to sell her shares and leave the business but the the claimant and R2 had been unable to agree a price. The claimant had been offered SSP but had declined receipt. The claimant has not suffered a detriment.

[438]Detriment xxvi – withdrawn by the claimant.

[439]Detriment xxvii – withdrawn by the claimant,

[440]Detriment xxviii – the asserted detriment is that between 26 September 2023 and 22 May 2024 R1 R2 R3 fail to reinstate banking, software and network access despite the claimant’s significant seniority.

[441]The findings in fact and decision for detriments xvii and xviii are repeated. The detriments asserted at detriments xvii and xviii are about the same issue. The claimant has not suffered detriment.

[442]Detriment xxix – the asserted detriment is that between 23 August 2023 and 15 February 2023 R1 R2 R3 failed to consider the claimant’s role as a decision maker of the highest level instead giving unilateral decision making to R2. The Tribunal concluded that the claimant was making decisions as a director of Page 76 4105167/2024 R1 during the period. The claimant was off sick and R2 had taken on additional responsibilities as the Registered Manager. R2 was the line manager of R3. The Tribunal concluded that such arrangements needed to be in place to comply with Care Inspectorate and regulatory requirements. Unilateral decision making was not given to R2. The claimant has not suffered a detriment.

[443]Detriment xxx – the asserted detriment is the same as for asserted detriment xxix but for the period 15 February 2024 – 22 May 2024.

[444]The claimant had not yet attended the OH assessment required by R2 to ensure reasonable adjustments were in place for the claimant to return to work. The claimant was delaying that assessment. There was no medical evidence that the claimant was fit to return to work. The claimant remained off sick and R2 had taken on additional responsibilities as the Registered Manager. R2 was the line manager of R3. Unilateral decision making was not given to R2. The claimant has not suffered a detriment.

[445]Detriment xxxi – the asserted detriment is that between 15 February 2024 – 22 May 2024 R1 R2 R3 stonewalled the claimant by ignoring, gaslighting, not providing information, not including the claimant in business communications and creating procedural obstructions.

[446]Reference is made to decisions made about previous asserted detriments. The claimant’s evidence was that because she asserted that she was fit to come back to work from 15 February 2024 she ought to have been reinstated to the R1 Whatsapp group and invited to all Teams meetings. There was no evidence that she had asked to be reinstated to the R1 Whatsapp group or asked to be invited to all Teams meetings after 15 February 2024. Looking at it from the claimant’s perspective the claimant was being told that medical evidence was required of her fitness to return to work after 15 February 2024. The claimant’s evidence was that she perceived this as a detriment. The claimant’s perception must be reasonable. The Tribunal concluded that her perception was not reasonable. There was no evidence that she had asked to be reinstated to the R1 Whatsapp group and invited to all Teams meetings. She had said herself in her 2024 grievance that she required an OH assessment on reasonable adjustments before returning to work. This is good HR practice. The claimant was delaying the instruction of the OH assessment. The claimant has not suffered a detriment.

[447]Detriment xxxii- the asserted detriment is delaying providing the claimant with HR records and other information until 25 April 2024 in response to a DSAR sent on 10 January 2024 and providing incomplete or missing information. Page 77 4105167/2024

[448]The data subject access request (DSAR) made by the claimant was carried out by Brodies Solicitors on the instruction of R2. Around 70,000 documents were provided to the claimant in response to the DSAR. R2 relied on Brodies to complete the DSAR process. The volume of documents was such that R2 could not have done this herself

[449]The Tribunal did not hear evidence to make any findings in fact about the DSAR process as asserted by the claimant. The Tribunal was satisfied that there was no delay or incomplete or missing information occasioned by R2. The claimant has not suffered a detriment.

[450]The Tribunal found the following to be detriments:a. Detriment vii – On 5 March 2024 R2's use of the word “erratic” in correspondence to the claimant to describe her conduct about R2’s pay;

b. Detriment xvii- On around 23 August 2023 R2 stopping access to Quickbooks, Careline, the R1 shared drive and around the end of September 2023 stopping the ability to carry out banking transactions on R1 bank account.

c. Detriment xxiv – On around 5 April 2024 reporting the claimant to HMRC, Companies House, the Care Inspectorate and the SSSC. On the ground that the claimant made a protected disclosure

[451]The Tribunal found that the claimant had not made any protected disclosures.

[452]In case the Tribunal is wrong and the claimant did make any protected disclosures, the Tribunal considered the evidence which the claimant gave about why she said that she had been subjected to each of the three detriments above on the ground that she made a protected disclosure.

[453]The Tribunal considered the detriment of R2 using the word “erratic” on 5 March 2024 in correspondence to the claimant to describe her conduct about R2’s pay (detriment vii) The Tribunal asked the claimant why she said that this detriment was done on the grounds she made a protected disclosure. The claimant’s evidence was that she did not understand the question. There was Page 78 4105167/2024 no evidence to support a causal link with this detriment and any of the asserted protected disclosures.

[454]The Tribunal considered the detriment of stopping access to Quickbooks, Careline, the R1 shared drive and the ability to carry out banking transactions on R1 bank account between 23 August 2023 and 15 February 2024 R2 (detriment xvii). The Tribunal asked the claimant why she said that this detriment was done on the grounds she made a protected disclosure. The claimant’s evidence was a summary of the evidence already given about stopping access. There was no evidence to support a causal link with this detriment and any of the asserted protected disclosures.

[455]The Tribunal considered the detriment of reporting the claimant to HMRC, Companies House, the Care Inspectorate, and the SSSC on around 5 April 2024 (detriment xxiv). The Tribunal asked the claimant why she said that this detriment was done on the grounds she made a protected disclosure. The claimant’s evidence was that reporting to the bodies was “retaliatory” as the claimant was “raising potential wrongdoing in the organisation”. The Tribunal asked the claimant which protected disclosures she relied upon. The claimant’s evidence was that she relied upon all of the asserted protected disclosures, that her seniority was not being taken into account and that she was being harassed. There was no other evidence to support a causal link with this detriment any of the asserted protected disclosures. Looking at matters purely on a temporal basis some of the claimant’s asserted protected disclosures come after 5 March 2024. They cannot be relevant.

[456]For completeness the Tribunal considered whether R2 had reported the contents of the letter about the claimant’s involvement in Sunside Limited to the SSSC, the Care Inspectorate and others on the ground that the claimant was writing to R2 and external bodies complaining about R2. The Tribunal considered the evidence given by R2. R2 did not know who had sent the anonymous letter. She said that she was concerned about the contents of the anonymous letter and the seriousness of the allegations made in relation to Sunside Limited. The anonymous letter alleged fraudulent activity by the claimant. She took advice and followed that advice. She forwarded the letter to the regulatory bodies so they could make their own assessment. The Tribunal accepted that R2 would be concerned about the contents of the letter and decided the correct course of action was to report it to the various bodies. The Tribunal was satisfied that the claimant's correspondence complaining about R2 did not materially (in the sense of more than trivially) influence R2’s decision to report the contents of the letter (Fecitt). Page 79 4105167/2024

[457]Accordingly, the Tribunal concluded that even if it was wrong in its assessment of whether the claimant had made any protected disclosures, none of the acts found to be detriments were done on the ground that the claimant made a protected disclosure. Direct disability discrimination by association

[458]The claimant withdrew her complaints of direct disability discrimination by association. They are dismissed. Disability status and knowledge

[459]The claimant withdrew her assertion that she was disabled as defined in section 6 EqA by reason of borderline type 2 diabetes. Bilateral tendonitis posterior / Underactive thyroid/ Perimenopause

[460]The respondents accept that the claimant had the following disabilities as defined in section 6 EqA at the time of the events the claim is about and that they had knowledge of these at the time of the events the claim is about.a. Bilateral tendonitis posterior

b. Underactive thyroid

c. Perimenopause Anxiety (and stress) / Depression (and stress)

[461]The respondents accept that the claimant was disabled as defined in section 6 EqA by reason of anxiety (and stress) and by reason of depression (and stress) from 21 August 2023. The respondents do not concede that they had knowledge of these disabilities at the time of the events the claim is about.

[462]The claimant was signed off work on a series of fit notes from 21 August 2023 to 2 February 2024. The reason given in each of the fit notes was “stress at work”. There were no fit notes after that period. The claimant’s email communications to R2 was that she was fit to come back to work in all capacities from 15 February 2024.

[463]If the employer can show that they did not know that the disabled person had the disability in question; and could not reasonably have been expected to know that the disabled person had the disability at the relevant time, there will Page 80 4105167/2024 not be disability discrimination. It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it (paras 5.13 and 5.14 Appendix 1 EHRC Code).

[464]The Tribunal asked itself whether the respondents could reasonably have been expected to know that the claimant had disabilities of anxiety (and stress) and depression (and stress) in the period from 21 August 2023 to 22 May 2024. The Tribunal concluded that it could not reasonably have been expected to know that the claimant was suffering from anxiety (and stress) and depression (and stress) which met the definition of disability under section 6 EqA in the period 21 August 2023 to 22 May 2024.

[465]The period in question was less than 12 months. The claimant herself was saying that she was fit to come back to all duties from February 2024. The claimant had not been signed off work with anxiety or depression or stress in the period before 21 August 2023. The claimant had not been signed of work after 21 August 2023 for anxiety or for depression. The claimant had not yet attended an OH assessment which would have assisted R2 in understanding the claimant’s health conditions. The Tribunal was satisfied that the reason she had not attended such an OH assessment in the period was because the claimant was delaying doing so, rather than delay by R2 in obtaining medical input to obtain information and knowledge about her health conditions. An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. The Tribunal was satisfied that by trying to get the OH assessment R2 was doing all she could reasonably be expected to do to find out about the claimant’s conditions, including the impairments of anxiety (and stress) and depression (and stress).

[466]In the absence of an OH assessment, in light of the claimant’s assertions about being fully fit to return to work in February 2024 in all capacities without any OH assessment and the background of the shareholder dispute between the parties where the claimant was saying in her grievance that it was R2’s “personality coupled with her underhanded and perfidious conduct” which was a barrier to the claimant’s return to work, R2 could not reasonably have been expected to know that the claimant had the impairment of anxiety (and stress) and the impairment of depression (and stress) which met the definition of disability under section 6 EqA in the period 21 August 2023 to 22 May 2024 or at any time prior to 21 August 2023. The claimant did not tell R2 that she had anxiety or depression. The claimant did not tell R2 about the effects now relied upon. Page 81 4105167/2024

[467]Accordingly, the respondents did not have knowledge or deemed knowledge of the claimant’s disabilities of anxiety (and stress) and depression (and stress) at the time of the events which the claim is about. ADHD and autism

[468]The respondents do not concede that the claimant was disabled as defined in section 6 EqA by reason of an impairment of ADHD or an impairment of autism at the time of the events the claim is about. The claimant’s evidence was that she suspects she has ADHD and suspects she has autism. However, she understands she may not meet the threshold for an ADHD diagnosis or an autism diagnosis. She has not been assessed by the NHS or privately.

[469]In the claimant’s disability impact statement (page 1183) she referred, for example, to heightened sensitivities to background noise, struggling with sequential tasks and avoiding crowds, as symptoms of ADHD and symptoms of autism which she experiences. The Tribunal asked itself the four questions set out in Goodwin. Does the claimant have a mental impairment of ADHD and/or of autism? The claimant says she suspects she has ADHD and suspects she is autistic. She also understands she may not meet the threshold for a diagnosis of ADHD or a diagnosis of autism. On the one hand these two statements may be difficult to reconcile. As yet there has been no diagnosis of either impairment. Nevertheless, the Tribunal was prepared to accept the claimant’s evidence which is that she experiences certain symptoms which she believes may point to her having mental impairments of ADHD and autism. Accordingly, the Tribunal was satisfied that the claimant has impairments of ADHD and of autism. These impairments have an adverse effect on the claimant’s ability to carry out day to day activities as she described in her impact statement for example the heightened sensitivities to background noise, struggling with sequential tasks and avoiding crowds. The Tribunal accepted that those effects were more than minor or trivial and are therefore substantial. The Tribunal accepted the claimant’s evidence that ADHD and autism are lifelong conditions.

[470]Accordingly, the Tribunal was satisfied that the claimant was disabled by reason of ADHD and autism as defined by section 6 EqA at the time of the events the claim is about. This is, of course, not a medical diagnosis.

[471]The Tribunal asked itself whether the respondents could reasonably have been expected to know that the claimant had disabilities of ADHD and autism in the period from 21 August 2023 to 22 May 2024. The Tribunal concluded that it could not reasonably have been expected to know that the claimant had Page 82 4105167/2024 ADHD and autism which met the definition of disabilities under section 6 EqA in the period 21 August 2023 to 22 May 2024. The claimant had not told the respondents that she had ADHD and autism or told the respondents that she had symptoms of ADHD and autism such that they could reasonably have been expected to know that the claimant was disabled under section 6 EqA.

[472]Accordingly, the respondents did not have knowledge or deemed knowledge of the claimant’s disabilities of ADHD and autism at the time of the events which the claim is about. Direct disability discrimination

[473]Issue i and issue vii –On 4 March 2024 in an email R2 told the claimant she had sought medical assistance for stress and anxiety. The claimant responded in a lengthy email to R2 on 5 March 2024. “[R1] will need to consider if it requires to put you on emergency leave. I feel and Occupational Health Assessment is required...”; The claimant suggested a replacement director in place of R2. The claimant wrote “If you feel too unwell to participate in Director conversation/ to undertake your Directors Obligations and would like to have a replacement director in your place....” ([page 748 – 750). The claimant wrote “If you are incapacitated due to stress and anxiety R1 may need to take measures to ensure both you and the company are protected from any financial mismanagement”.

[474]On 5 March 2024 R2 replied by email. The claimant asserts that R2 implied she was mentally unstable and called her “erratic”. The email from R2 on 5 March 2024 was about R2’s pay. R2 had written “As already stated you told me £1500 per week gross and then yesterday you replied to the accountant that you do not give permission this to be paid. Then today for this week’s payroll you are proposing that I now get £875. This is very erratic behaviour, me being paid as an employee is my statutory right”; “If you do not find this as unreasonable then again I am concerned for your erratic ways”. R2 also wrote “To receive your email saying I am refusing to meet you last Friday when I had just returned from meeting you greatly worries me”’; “We met for 30 minutes at a time and place to suit you and then you came back to me that very afternoon saying I had not met you”. R2 called the claimant “erratic”. This was in relation to what R2 saw as the claimant’s changing views back and forward about how much the claimant would agree to R2 being paid.

[475]The claimant asserted that what R2 had written in her email on 5 March 2024 was less favourable treatment because of her disabilities. The Tribunal has already found that at the relevant time R2 did not have knowledge and could Page 83 4105167/2024 not be deemed to have knowledge of the claimant’s disabilities of anxiety (stress), depression (stress), ADHD or autism.

[476]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had written to the claimant in the way in which she had on 5 March 2024 because the claimant was disabled by reason of her disabilities. The Tribunal found no such facts had been proven; therefore the burden of proof does not shift to the respondents.

[477]The claimant relied on R2 as her comparator and also relied on a hypothetical comparator. The Tribunal concluded that R2 could not be a statutory comparator. The claimant and R2 carried out different roles in R1. R2 was the Operations Manager and was also carrying out the claimant’s role of Registered Manager from when the claimant had been signed off sick. The Tribunal considered whether R2 treated the claimant less favourably than she would have treated a hypothetical comparator in the same situation as the claimant but for the claimant’s disabilities. There were no facts proven from which the Tribunal could reach this conclusion.

[478]The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. The Tribunal accepted R2’s evidence that she would have written to anyone in the terms on which she did when that individual was conducting herself in the way the claimant was about R2’s pay and because of the bigger picture of the shareholder dispute between the parties.

[479]The claimant was not treated less favourably than someone without the claimant’s disabilities would have been treated.

[480]Issue ii- In the period 23 August 2023 to around 15 February 2024 the claimant’s access to Quickbooks, Careline and the R1 shared drive was stopped. From around September 2023 until around 15 February 2024 the claimant was unable to carry out financial transactions on R1’s bank account. The claimant’s access to all systems and banking access was restored on around 15 February 2024.

[481]The claimant asserted that stopping access was less favourable treatment because of her disabilities. The Tribunal has already found that at the relevant time R2 did not have knowledge and could not be deemed to have knowledge of the claimant’s disabilities of anxiety (stress), depression (stress) or ADHD or autism.

[482]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had stopped access Page 84 4105167/2024 because the claimant was disabled by reason of her disabilities. The Tribunal found no such facts had been proven, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. The Tribunal accepted R2’s evidence that access to the systems had been stopped because the claimant was signed off sick and said she did not want to be contacted by anyone, The Tribunal accepted R2’s evidence that the claimant’s ability to carry out financial transactions on R1’s bank account was stopped because the claimant had paid dividends to herself and R2 without board authority to do so. The claimant was not treated less favourably than someone without the claimant’s disabilities would have been treated.

[483]Issue iii, issue iv, issue v and issue xii- In the period 15 February 2024 – 22 May 2024 the claimant’s access to Quickbooks, Careline and the R1 shared drive and her ability to carry out financial transactions on R1’s bank account was restored. The claimant’s evidence was that the barriers to her return were R2’s handling of the OH assessment and notifying the regulatory bodies about the contents of the anonymous letter alleging fraudulent activity in relation to the claimant’s company called Sunside Limited.

[484]On 25 March 2024 R2 completed an online referral request to OH to obtain an occupational health report. R2 set out what she understood to be the claimant’s operational duties carried out on a daily or a weekly basis. The list was extensive (page 998). The claimant did not agree that it was an accurate job description. The claimant produced her own extensive list of duties. The claimant and R2 engaged in correspondence about what the claimant’s duties were. The claimant did not wish to attend an OH assessment until the full list of her duties for the assessment had been agreed between the claimant and R2. They were unable to reach agreement. R2 gave the claimant the opportunity to write her own job description for the OH assessment in order that it could take place. The claimant did not do so.

[485]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2’s actions in seeking to obtain an OH assessment before the claimant returned to work was because she was disabled by reason of her disabilities. The Tribunal found that the claimant had not done so, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. The Tribunal accepted R2’s evidence that given that the claimant’s 2024 grievance said she required an OH assessment before returning to work and that the claimant had not been medically signed off as fit to return R2 wished to the claimant to have an OH Page 85 4105167/2024 assessment before returning to work. The claimant was not treated less favourably than someone without the claimant’s disabilities would have been treated.

[486]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2’s notification to regulatory bodies about Sunside Limited concerns was because she was disabled by reason of her disabilities. The Tribunal found that the claimant had not done so, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. The Tribunal accepted R2’s evidence that she was concerned about the seriousness of the allegations made in the anonymous letter. She took advice and followed that advice. That was her reason for reporting to the various regulatory bodies. The claimant was not treated less favourably than someone without the claimant’s disabilities would have been treated.

[487]Issue vi – withdrawn by claimant.

[488]Issue vii – see discussion and decision above.

[489]Issues viii, xi, x and xi - withdrawn by claimant.

[490]Issue xii – see discussion and decision above.

[491]Issues xiii, xiv, xv and xvi - withdrawn by the claimant.

[492]In summary, the Tribunal was not satisfied that the claimant had made out a case of direct disability discrimination in relation to any of the individual issues above or when stepping back and looking at the whole picture, which would put the onus on the respondents to prove that there was a non-discriminatory reason for their actions. Accordingly, the direct disability discrimination complaints are not well founded and are dismissed. Indirect disability discrimination

[493]The claimant withdrew her complaints of indirect disability discrimination. They are dismissed. Failure to comply with the duty to make reasonable adjustments

[494]The provision criteria or practice (PCPs) relied upon are:a. A standard appeal timeframe. This was agreed to be 5 days; (PCP 1) Page 86 4105167/2024

b. A sickness policy – a practice of seeking an occupational health report before the claimant was allowed to return to work; (PCP 2)

c. A right to access medical records – there was a practice applied to the claimant of seeking access to her medical records before she was allowed to return to work; (PCP 3)

d. A grievance and appeals policy; (PCP 4)

[495]For PCP 1, the parties agreed that the standard appeal timeframe was 5 days. R2 agreed that this was applied to the claimant. The claimant said that the substantial disadvantage to which she was put by PCP 1 is that she was required to email and ask for an extension.

[496]Section 212(1) EqA says a substantial disadvantage is one which is more than minor or trivial. Whether such a disadvantage exists in a particular case is a question of fact and is assessed on an objective basis.

[497]The claimant emailed and asked for an extension to the standard appeal time frame. This was granted. The Tribunal was not satisfied that being required to email and ask for an extension to the standard appeal timeframe was a substantial disadvantage to which the claimant was put. In any event, the adjustment sought, which was the additional time, was granted. There is no failure to comply with the duty to make reasonable adjustments.

[498]For PCP 2, R2 accepted that there was a practice of seeking an occupational health report before the claimant was allowed to return to work. In the list of issues the claimant says that the substantial disadvantage to which she was put by this PCP compared to somebody without the claimant’s disabilities is that she was isolated as she wasn’t allowed to return to work, wasn’t paid and her respect and decision-making authority were removed. The Tribunal accepted that not being allowed to return to work instantly when the claimant appeared to say so could be a substantial disadvantage, although this is contradicted by what the claimant said in her 2024 grievance. That however is not the question. This is a complaint about disability discrimination. The Tribunal required to ask itself whether the claimant was put to that substantial disadvantage compared to somebody without the claimant’s disabilities. The Tribunal was not satisfied that this was the case. The Tribunal accepted R2’s position than an OH assessment would have been required of somebody without the claimant’s disabilities, before being allowed to return to work, against a backdrop of a lengthy period of absence since August 2023 and where the person themselves was saying in a grievance ““For the avoidance of doubt it is the ‘ongoing omission’ to put in place the reasonable Page 87 4105167/2024 adjustments, which I need implementing, which poses a barrier to my return to work” and in the same grievance is saying that a reasonable adjustment is a referral to occupational health. The Tribunal also accepted that it is good HR practice to seek OH advice on adjustments and support before a return to work after a lengthy period of sickness absence. The claimant has not made out the substantial disadvantage compared to someone without the claimant’s disabilities. There is no failure to comply with the duty to make reasonable adjustments.

[499]For PCP 3, the issue identified is that the claimant was required to provide access to her medical records before she was allowed to return to work. The Tribunal did not hear any relevant evidence about this. There was no evidence about the context of the request or what had happened with the request. The evidence throughout this case about returning to work has been about the requirement for an OH assessment. In the list of issues, the claimant asserts the same substantial disadvantage as for PCP 2. There was no evidence led about this in the context of the asserted PCP of a requirement to provide medical records. The claimant has not made out the PCP or the substantial disadvantage compared to someone without the claimant’s disabilities. There is no failure to comply with the duty to make reasonable adjustments.

[500]For PCP 4, the respondents accepted that it has a grievance and appeals policy which the claimant used. In the list of issues, the claimant did not identify any substantial disadvantage to which she was put by this PCP compared to somebody without her disabilities. In the absence of any identified substantial disadvantage the Tribunal is unable to conclude that the proposed adjustment of “allowing the claimant to use additional technologies to remove barriers” was a duty which it would have been reasonable for the respondents to have to take. There is no failure to comply with the duty to make reasonable adjustments.

[501]The complaints of failure to comply with the duty to make reasonable adjustments are not well founded and are dismissed. Direct race discrimination

[502]Issue i - In the period 23 August 2023 to around 15 February 2024 the claimant’s access to Quickbooks, Careline and the R1 shared drive was stopped. From around September 2023 until around 15 February 2024 the Page 88 4105167/2024 claimant was unable to carry out financial transactions on R1’s bank account. The claimant’s access to all systems and banking access was restored on around 15 February 2024.

[503]The claimant asserted that stopping access was less favourable treatment. The claimant is a British person of Indian origin. She was the only non-white person in the office. She was not the only non-white person employed by R1.

[504]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had stopped access because of the claimant’s race. The Tribunal found no such facts had been Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. The Tribunal accepted R2’s evidence that the claimant and R2 had been friends for a long time and had worked successfully in business together in R1 for a number of years, Access to systems had been stopped because the claimant was signed off sick and did not want to be contacted. The Tribunal accepted R2’s evidence that the claimant’s ability to carry out financial transactions on R1’s bank account was stopped because the claimant had paid dividends to herself and R2 without board authority to do so. The claimant was not treated less favourably because of her race.

[505]For the same reasons given for the complaints of direct disability discrimination the Tribunal concluded that R2 could not be a statutory comparator. The Tribunal considered whether R2 treated the claimant less favourably than she would have treated a hypothetical comparator in the same situation as the claimant but for the claimant’s race. There were no facts proven from which the Tribunal could reach this conclusion.

[506]Issue ii and iv- On 5 March 2024 R2 replied in an email chain between her and the claimant and called the claimant “erratic”. This was in relation to what R2 saw as the claimant’s changing views back and forward about how much the claimant would agree to R2 being paid.

[507]The claimant asserted that what R2 had written in her email on 5 March 2024 was less favourable treatment because of her race.

[508]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had written to the claimant in the way in which she had on 5 March 2024 because of the claimant’s race The Tribunal found no such facts had been proven, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. The Tribunal Page 89 4105167/2024 accepted R2’s evidence that she would have written to anyone in the terms on which she did when that individual was conducting herself in the way the claimant was about R2’s pay and because of the bigger picture of the shareholder dispute between the parties.

[509]Issue iii - this is not an asserted act by any of the respondents. It cannot be a complaint of race discrimination.

[510]Issue iv – the decision is as above in issue ii.

[511]Issue v – On 6 March 2024 the claimant sent an email to R2 and R1 accountants. The email is headed payroll and is about the pay and director’s dividends for both the claimant and R2. The claimant proposed an external HR advisor to review R2’s pay from September 2023 (page R2939). R2 declined an external HR advisor. R3 is a manager and cannot insist on R2 cooperation in an independent review. There was no policy or procedure which required R2 to consent to an independent review. The claimant also refused to consent to investigations into allegations about her. R3 was not responsible for HR in R1 or for any decision making on HR matters.

[512]The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R3 had acted or failed to act because of the claimant’s race The Tribunal found no such facts had been Tribunal was also satisfied that if the burden of proof had shifted the explanation of R2 and R3 was adequate. The Tribunal accepted their evidence that R3 was not responsible for HR in R1 or for any decision making on HR matters.

[513]Issue vi - On 27 March 2024 the claimant arrived in the office didn’t say hello, proceeded to raise her voice to R2, was expressive with her hands and pointing her finger, asking R2 for bank statements. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R3 had acted or failed to act because of the claimant’s race The Tribunal found no such facts had been proven, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted the explanation of R2 and R3 was adequate. The Tribunal accepted their evidence that this is what the claimant had done in the office that day.

[514]Issue vii - The Tribunal was not taken to any emails about R2 having refused to give consent to an independent financial review. There was no evidence about why the Financial Ombudsman would be interested in looking into a Page 90 4105167/2024 dispute between parties. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R2 was because of the claimant’s race. The burden of proof does not shift.

[515]Issue viii – R2 did not agree to Arena HR investigating the salary R2 was receiving. This was because of the financial cost to R1 of instructing Arena HR. The quote for the work was expensive. Peninsula were the retained HR advisers for R1. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had acted or failed to act because of the claimant’s race The Tribunal found no such facts had been proven, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted the explanation of R2 was adequate. The Tribunal accepted R2’s evidence about the cost of Arena HR and that Peninsula were the retained advisers and this was part of a bigger shareholder dispute about how much R2 should be paid when the claimant was signed off sick.

[516]Issue ix -The claimant would not be able to obtain the SSSC mandatory CLSM leadership qualification within the SSSC extended time to 20 July 2024. Without the mandatory CLSM leadership qualification the claimant would not have been able to resume the role of Registered Manager after 20 July 2024, as she would not have met the SSSC mandatory qualifications for the Registered Manager role. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had acted or failed to act because of the claimant’s race The Tribunal found no such facts had been proven, therefore the burden of proof does not shift to the respondents. The Tribunal was also satisfied that if the burden of proof had shifted the explanation of R2 was adequate. The Tribunal accepted R2’s evidence that she signed off the Care Inspectorate extension to the claimant obtaining the mandatory qualification in July 2023 and had therefore supported her. The claimant had not taken steps to obtain the mandatory qualification and had run out of time to do so before the extended deadline.

[517]Issue x - R3 did not say about African colleagues “that is how they treat their women”. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R3 was because of the claimant’s race. The burden of proof does not shift.

[518]Issue xi- In January 2022 R3 told the claimant that she would no longer sit in on HR meetings with staff which were chaired by the claimant. This was because the claimant’s conduct towards the staff member had upset that staff member. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 had said this Page 91 4105167/2024 because of the claimant’s race. The Tribunal found no such facts had been Tribunal was also satisfied that if the burden of proof had shifted R3’s explanation was adequate. The Tribunal accepted R3’s evidence that she had said this because the claimant’s conduct towards the staff member had upset that staff member. The claimant had been shouting at the staff member. The claimant was not treated less favourably because of her race. The burden of proof does not shift.

[519]Issue xii - R3 did not refer to an African colleague as a “lazy c**t” and “not pulling her weight". The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R3 was because of the claimant’s race. The burden of proof does not shift.

[520]Issue xiii - R3 did not refer to workers from abroad as “they haven’t got a chance, worse than the numpties we have already”. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R3 was because of the claimant’s race. The burden of proof does not shift.

[521]Issue xiv - R2 did not say about workers from abroad “I do not think it is fair on our current staff...because the rest of our staff do not need sponsorship”. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R2 was because of the claimant’s race. The burden of proof does not shift.

[522]Issue xv - R3 did not say about an African colleague and a cheese toastie “who does that” and “how stupid is that”. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R3 was because of the claimant’s race. The burden of proof does not shift.

[523]Issue xvi - R2 did not say about a candidate of Indian origin for an HR post that “her face would not fit” or that she would “rub staff up the wrong way”. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R2 was because of the claimant’s race. The burden of proof does not shift.

[524]Issue xvii - On around 1 April 2023 R2 received an anonymous letter from a member of the public. The anonymous letter made serious financial allegations about the claimant’s involvement in a company called Sunside Limited, of which she was a director and shareholder. R2 was concerned about the seriousness of the allegations made. R2 did not know who had sent the anonymous letter. R2 took advice. She followed that advice. She Page 92 4105167/2024 forwarded the anonymous letter to R1 regulatory bodies so they could make their own assessment about what if anything to do. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2’s actions were because of the claimant’s race. The Tribunal found no such facts had been proven, therefore the burden of proof does not shift. The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. She was concerned about the seriousness of the allegations and considered that she had an obligation to report the matter to R1 regulatory bodies.

[525]Issues xviii and xx– R2 wrote to the claimant about the allegations in the anonymous letter. R2 included in the letter allegations about the claimant having withdrawn dividends from R1 bank account and paid for a private members club whilst the claimant was signed off sick, The claimant refused to agree to any investigation into the allegations. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2’s actions were because of the claimant’s race. The Tribunal found no such facts had been proven, therefore the burden of proof does not shift. The Tribunal was also satisfied that if the burden of proof had shifted R2’s explanation was adequate. R2 was concerned about the seriousness of the allegations.

[526]Issue xix - R3 was not a decision maker and reported to R2 her line manager. investigation into the claimant. The claimant has not proven facts from which, if unexplained, the Tribunal could conclude that any conduct of R3 was because of the claimant’s race. The burden of proof does not shift.

[527]Issue xx- see decision above at issues xvii and xviii.

[528]Issues xxi, xxii xxiii and xxiv - R3 was not a decision maker and reported to R2 her line manager. R3 did not have the authority to make decisions about the remuneration of the claimant or R2 or whether remuneration payments were to be processed. The claimant was only entitled to be paid SSP when she was off sick. The claimant did not have medical clearance to return to work. She simply stopped putting in fitness for work certificates and then delayed in attending the OH assessment. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 and R3’s actions were because of the claimant’s race. The Tribunal found no such facts had been proven, therefore the burden of proof does not shift. The Tribunal was also satisfied that if the burden of proof had shifted R2 and R3’s explanation was adequate. The claimant was entitled to be paid SSP. She refused SSP. The claimant did not have medical clearance Page 93 4105167/2024 to return to work. Whilst the claimant was off sick R2 was carrying out the roles of Operations Manager and Registered Manager and was working many hours.

[529]Issue xxv – withdrawn by claimant.

[530]Issue xxvi - R3 was not a decision maker and reported to R2 her line manager. investigation into the claimant. Peninsula were instructed as R1’s retained HR advisers to investigate R2’s salary. Peninsula began the investigation then decided not to proceed as it was part of the wider shareholder dispute between the claimant and R2. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2 and R3’s actions were because of the claimant’s race. The Tribunal found no such facts had been proven, therefore the burden of proof does not shift. The Tribunal was also satisfied that if the burden of proof had shifted R2 and R3’s explanation was adequate. Peninsula were instructed as R1’s retained HR advisers to investigate R2’s salary. Peninsula began the investigation then decided not to proceed as it was part of the wider shareholder dispute between the claimant and R2.

[531]Issue xxvii - On 27 November 2023 Business Women Award (BWA) emailed the claimant and R2. The email included “Hi Diane and Rickie ... huge business”. (page 657). The email was sent to both of them. Both the claimant and R2 received nominations. The claimant was off sick and did not reply. R2 attended the awards and won. The Tribunal considered whether the claimant had proven facts from which, if unexplained, the Tribunal could conclude that R2’s actions were because of the claimant’s race. The Tribunal found no such facts had been proven, therefore the burden of proof does not shift. The Tribunal was also satisfied that if the burden of proof had shifted R2 explanation was adequate. She was contacted by BWA about the award and told she had been nominated. R2 attended the awards ceremony and she won.

[532]In summary, the Tribunal was not satisfied that the claimant had made out a case of direct race discrimination in relation to any of the individual issues above or when stepping back and looking at the whole picture, which would put the onus on the respondents to prove that there was a non-discriminatory reason for their actions. Accordingly, the direct race discrimination complaints are not well founded and are dismissed. Page 94 4105167/2024 Indirect race discrimination

[533]The complaints of indirect race discrimination were withdrawn by the claimant Harassment related to disability or race

[534]The Tribunal’s focus in a harassment complaint should be on the conduct itself, rather than the reason or motivation for the conduct. There is no requirement for a mental element equivalent to that in a claim for direct discrimination when considering whether conduct is ‘related to’ a protected characteristic for the purpose of constituting harassment (Carozzi v University of Hertfordshire

2024 EAT 169

)

[535]Issues i and ii – R2 reported the contents of the anonymous letter about the claimant’s involvement in Sunside Limited to HMRC, Companies House, the Care Inspectorate and the SSSC. The Tribunal did not hear evidence to determine whether the allegations reported were “baseless”, as the claimant asserted.

[536]The Tribunal focused on the conduct itself rather than the reason or motivation for the conduct. There is no requirement for a mental element. The reporting was of concerns about alleged fraudulent activity which had come to R2’s attention. That was unwanted conduct, but did it relate to the claimant’s disabilities or her race? The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. The term is designed to have a relatively broad meaning. That said the Tribunal was not satisfied, even looking at the term broadly that, properly viewed, a report about alleged fraudulent activity related to the claimant’s disabilities or related to her race. The issue also asserted that it was harassment related to disability or race not to have completed an internal investigation first. The claimant had not consented to an internal investigation therefore R2 could not complete an investigation. Given the seriousness of the allegations, R2 took advice. She followed that advice. R2 passed the letter on to the regulatory bodies promptly. Properly viewed the conduct of R2 cannot be said to have a relationship to the protected characteristics of her disabilities or her race. There is no harassment related to disability or race.

[537]Issues iii, iv and v – The claimant was not copied into these emails from R2 to third parties. The claimant saw these emails in response to a DSAR request in 2025. The Tribunal concluded that the claimant cannot rely on emails which she was not aware of at the time, and which were provided to her by way of a DSAR, as harassment under section 26 EqA. If there is no awareness at Page 95 4105167/2024 the time, there can be no perception of harassment (Greasley-Adams). There is no harassment related to disability or race.

[538]Issues vi, vii and viii – The claimant raised her 2024 grievance. The grievance was investigated by Peninsula who spoke to the claimant and R2. Peninsula recommended that the claimant’s grievance was not upheld. R2 followed that recommendation. The claimant did not agree with that recommendation. R2 delegated all HR services to Peninsula. R2 was satisfied with the service Peninsula was providing. R2 was satisfied that Peninsula were impartial. R2 needed to use Peninsula to have HR insurance cover in place.

[539]The Tribunal focused on the conduct itself rather than the reason or motivation for the conduct. There is no requirement for a mental element. R2 had asked Peninsula to investigate her 2024 grievance. R2 was satisfied with the service Peninsula was providing. R2 was satisfied that Peninsula were impartial. R2 needed to use Peninsula to have HR insurance cover in place. Peninsula being asked to investigate the 2024 grievance was unwanted conduct, but did it relate to the claimant’s disabilities or her race? The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. The term is designed to have a relatively broad meaning. That said the Tribunal was not satisfied, even looking at the term broadly that, asking Peninsula to investigate the claimant’s 2024 grievance related to the claimant’s disabilities or related to her race. There is no harassment related to disability or race.

[540]Issue ix – R2 was not using Peninsula to conduct and HR return to work, as found elsewhere in this judgment. There is no harassment related to disability or race.

[541]Issue x - On 15 February 2024 the claimant went into the office. She wanted to speak to R3. R3 was not in the office. She asked Ms Auld where the claimant was. Ms Auld replied to say that she did not know. The claimant asked Ms Auld some other questions about R3. Ms Auld replied that she did not know. R3 was off sick on 15 February 2023. Staff did not know why she was off sick or anything else about her absence. The Tribunal focused on the conduct itself rather than the reason or motivation for the conduct. There is no requirement for a mental element. The assertion is about a straightforward honest answer to a question. The claimant did not like the answer, and it that sense it could be unwanted conduct, but did it relate to the claimant’s disabilities or her race? The term is designed to have a relatively broad meaning. That said the Tribunal was not satisfied, even looking at the term broadly that the honest answer related to the claimant’s disabilities or related to her race. There is no harassment related to disability or race. Page 96 4105167/2024

[542]Issue xi – On 5 March 2024 in an email chain R2 wrote that the claimant was “erratic” in relation to the claimant’s changing position back and forward on how much the claimant would agree to R2 being paid when the claimant was off sick. The Tribunal has already concluded that R2 did not imply that the claimant was mentally unstable.

[543]The Tribunal focused on the conduct itself rather than the reason or motivation for the conduct. There is no requirement for a mental element. R2 wrote that the claimant’s changing position back and forward on how much R2 was to be paid was “erratic”. The claimant asserts that this was unwanted conduct, but did it relate to the claimant’s disabilities or her race? The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. The term is designed to have a relatively broad meaning. The Tribunal was not satisfied, even looking at the term broadly that, calling the claimant erratic related to the claimant’s disabilities or related to her race. In relation to the disabilities of anxiety (stress), depression (stress), ADHD or autism, the Tribunal has found that R2 did not have knowledge of these disabilities at the relevant time and accordingly could not have engaged in conduct related to those protected characteristics. There is no harassment related to disability or race.

[544]Issue xii – The Tribunal has already concluded that R3 did not briskly escort the claimant out of the office. There is no harassment related to disability or race.

[545]Issue xiii – The Tribunal has already concluded that R3 did not imply that the claimant was acting in an erratic or aggressive manner. There is no harassment related to disability or race.

[546]Issue xiv – The Tribunal has already concluded that the respondents did not continuously imply that the claimant was unfit demanding unhinged and aggressive. There is no harassment related to disability or race.

[547]Issue xv – The Tribunal has already concluded that the respondents did not imply to staff that the claimant was no longer part of the organisation. There is no harassment related to disability or race.

[548]Issue xvi - The Tribunal has already concluded that R2 contacted the Care Inspectorate about the role of Registered Manager, precisely as the claimant had suggested that she did. There is no harassment related to disability or race. Page 97 4105167/2024

[549]Issue xvii – The Tribunal has already concluded that R2 had not advised the Care Inspectorate that the claimant had resigned from her role as Registered Manager. There is no harassment related to disability or race.

[550]Issue xviii – The Tribunal has already concluded that R2 did not state to OH that the claimant had been removed as Registered Manager as she did not get the required mandatory qualification. There is no harassment related to disability or race.

[551]Issue xix – From around 23 August 2023 until 15 February 2024 the claimant did not have access to Quickbooks, Careline or the R1 shared drive. From around September 2023 until 15 February 2024 the claimant was unable to carry out transactions on R1’s bank account. The Tribunal focused on the conduct itself rather than the reason or motivation for the conduct. There is no requirement for a mental element. The claimant asserts that stopping access was unwanted conduct, but did it relate to the claimant’s disabilities or her race? The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic. The term is designed to have a relatively broad meaning. The Tribunal was not satisfied, even looking at the term broadly that, stopping access related to the claimant’s disabilities or related to her race. In relation to the disabilities of anxiety (stress), depression (stress), ADHD or autism, the Tribunal has found that R2 did not have knowledge of these disabilities at the relevant time and accordingly could not have engaged in conduct related to those protected characteristics. There is no harassment related to disability or race.

[552]Issue xx – the Tribunal has already concluded that between 15 February 2024 and 22 May 2024 the respondents did not impose significant barriers to allow the claimant’s return to work in all capacities. There is no harassment related to disability or race.

[553]Issue xxi – The Tribunal has already concluded that R2 did not give inaccurate job descriptions about the claimant’s role to OH. There is no harassment related to disability or race.

[554]Issue xxii – The Tribunal has already concluded that R2 did not fail to support the claimant to obtain mandatory qualifications. There is no harassment related to disability or race.

[555]Issue xxiii – R2 reported the contents of the anonymous letter about the claimant’s involvement in Sunside Limited to HMRC, Companies House, the Care Inspectorate and the SSSC. The Tribunal did not hear evidence to determine whether the allegations reported were baseless, as the claimant Page 98 4105167/2024 asserted. The Tribunal has already concluded that R2 did not make the reports intending to cause professional and personal harm to the claimant. For the same reasons as is issues i and ii, the Tribunal concluded there is no harassment related to disability or race.

[556]Issue xxiv - The Tribunal has already concluded that there was no medical advice stating the claimant was fit to return to work. There is no harassment related to disability or race.

[557]Issues xxv and xxvi– withdrawn by the claimant.

[558]Issue xxvii – The Tribunal has already concluded that from 23 August 2023 to around 15 February 2024 the claimant did not have access to QuickBooks, Careline or the R1 shared drive and from around September 2023 to around 15 February 2024 was unable to carry out transactions on R1’s bank account. Thereafter from around 15 February 2024 all accesses were restored. For the same reasons as in issues xix and xx, the Tribunal concluded there is no harassment related to disability or race.

[559]Issue xxviii – The Tribunal has already concluded that between 23 August 2023 and 15 February 2023 the respondents did not fail to consider the claimant’s role as a decision maker of the highest level instead giving unilateral decision making to R2. There is no harassment related to disability or race.

[560]Issue xxix – The Tribunal has already concluded that between 15 February 2024 – 22 May 2024 the respondents did not fail to consider the claimant’s role as a decision maker of the highest level instead giving unilateral decision making to R2. There is no harassment related to disability or race.

[561]Issue xxx – The Tribunal has already concluded that between 15 February 2024 – 22 May 2024 the respondents did not stonewall the claimant by ignoring, gaslighting, not providing information, not including the claimant in business communications and creating procedural obstructions. There is no harassment related to disability or race.

[562]Issue xxxi – On 27 March 2024 the claimant contacted Peninsula and instructed them to carry out an investigation into R2’s salary increases. On 1 April 2024 the claimant sent Peninsula a document setting out 29 questions to be answered about the payment of salary and director's dividend to R2 (page 875). This was intended as part of the investigation. Both the claimant and R2 were writing to Peninsula about R2’s pay. Peninsula were hesitant to become involved as they viewed R2’s pay as a business dispute. The Tribunal concluded that this was a director and shareholder dispute. The Tribunal Page 99 4105167/2024 concluded that it could not be said that R1 failed to investigate R2’s salary. The claimant had instructed that investigation. As the Tribunal concluded that R1 had not failed to investigate R2’s salary, there is no harassment related to disability or race.

[563]The Tribunal has also already concluded that R3 did not have decision making authority within R1. It cannot be said that R3 failed to investigate R2’s salary. There is no harassment related to disability or race.

[564]Issue xxxii – The Tribunal has already concluded that there was no delay or incomplete or missing information occasioned by R2 in the response the claimant received to her DSAR request. There is no harassment related to disability or race.

[565]The complaints of harassment related to race or disability are not well founded

[566]The Tribunal asked the claimant to identify what part or parts of her verbal or written communications she relied upon as a protected act under section 27 EqA. Asserted protected acts

[567]PA i – On 14 March 2023 at a grievance meeting with Helen Pearson, of Peninsula the claimant said “we have some issues that .... we don’t agree on about workers from abroad... I’m an ethnic minority and I am not saying that anyone is racist because I don’t think anyone is but there is a lot of cultural biased negatives. And I think that is starting to cause a low level of tension. But I want. To make it clear that I’m not saying any British racist cause, I don’t think anyone is racist, but I think again it goes back to, yeah, some of the behaviours of what is acceptable, what isn’t acceptable vaping in the office I think is”.

[568]The Tribunal considered whether what the claimant had said was a protected act. In particular, had the claimant made an allegation (whether or not express) that the respondents or another person had contravened the EqA, as prescribed by section 27(2)(d) EqA. Page 100 4105167/2024

[569]The claimant relies on having used the phrase “cultural based negatives” as having done a protected act. The Tribunal was not satisfied that this phrase amounted to a protected act. The phrase was general and unspecific in its terms. The example she provided was about vaping. The claimant was emphasising at the same time that she did not think anyone was racist. The Tribunal also considered that the claimant had said “we have some issues that .... we don’t agree on about workers from abroad”. This was followed by the claimant saying again that she does not think anyone is racist. In around January 2023 there was a discussion between the claimant and R2 about sponsoring workers from abroad. R2 said that she was concerned about the administrative burden and costs of the overseas workers sponsorship process. That was why she was concerned about going down that route. The claimant agreed to investigate the administrative steps and costs further. The Tribunal was satisfied that the discussion between the claimant and R2 was about business strategy. The Tribunal was not satisfied that this statement amounted to a protected act. The claimant did not do a protected act on 14 March 2023.

[570]PA ii – On 15 March 2023 the claimant sent an email to Ms Pearson of

[571]The Tribunal considered whether what the claimant had said was a protected act.

[572]The email was a follow up to the meeting the previous day. The claimant relies on having used the phrase “unconscious bias” as having made an allegation. The discussion between the claimant and R2 had been about the administrative burden and costs of the overseas workers sponsorship process. The Tribunal was satisfied that the discussion between the claimant and R2 was about business strategy. The Tribunal was not satisfied that the statement amounted to a protected act. The claimant did not do a protected act on 15 March 2023.

[573]PA iii - On 16 August 2023 the claimant had a telephone call with Harriet Walsh of Peninsula. The claimant talked about the incident in the office on 24 February 2023 involving Ms McGinty and Ms Auld. The claimant said “the administrator is the one who alleged I stood up in the office beating my chest. I actually feel that is actually quite racist myself. She may as well just call me Page 101 4105167/2024 a bloody baboon and be done with it”. R2 did not know that the claimant had had this call with Ms Walsh and said these things.

[574]The Tribunal was satisfied that the claimant did make allegations of racism against Ms McGinty and Ms Auld in the call with Ms Walsh on 16 August 2023. This was an allegation (whether or not express) that the respondents or another person had contravened the EqA, as prescribed by section 27(2)(d) EqA. The claimant did a protected act on 16 August 2023.

[575]PA iv - On 8 November 2023 Lorna Davis of Harper Macleod Solicitors wrote to R2 on behalf of the claimant. The letter included an allegation of race discrimination said to have occurred in January 2023 and an allegation of race discrimination said to have occurred on 24 February 2023. Section 27(2)(d) EqA provides that a person does a protected act when they make an allegation of contravention of the EqA. The Tribunal was satisfied that the letter of 8 November 2023 made allegations of a contravention of the EqA. The claimant did a protected act on 8 November 2023.

[576]PA v - On 29 January 2024 the claimant raised a grievance. The grievance included allegations of disability discrimination. The claimant set out reasonable adjustments which she said she needed implemented to enable her to return to work from a period of sickness absence. Section 27(2)(d) EqA provides that a person does a protected act when they make an allegation of contravention of the EqA. The Tribunal was satisfied that the grievance made allegations of a contravention of the EqA. The claimant did a protected act on 29 January 2024.

[577]PA vi- On 6 March 2024 the claimant emailed R2 and R1 accountants (page 770).The email was a reply to an email sent by R2 to the claimant and R1 accountants earlier that day about payroll where R2 said ”It seems we have come to a deadlock on everything, and I am struggling to see a way forward if I am unable to get paid for the hours I am working which is my statutory right as an employee”.

[578]The claimant’s email included “I am not refusing to pay you but the company needs to undertake how you’ve paid yourself these past few months and recover any overpayment. You changed your pay, without the consent of the board. If this salary keeps running that is £93,000 per year, you would be taking roughly 7-8% of the company’s turnover in pay...In the interim I will approve for [R2] a weekly payment of £875 per week for the next 4 weeks (covering payments to 29 March 2024)”. Page 102 4105167/2024

[579]The Tribunal considered whether what the claimant had said was a protected act. The email is about payroll. It is about a dispute between the claimant and R2 about the salary which R2 is to be paid. The Tribunal was not satisfied that this email amounted to a protected act. There was nothing in the claimant’s email which suggested that the claimant was writing about an allegation of breach of the EqA or that the claimant’s email was something she had done for the purposes of or in connection with the EqA. The claimant did not do a protected act on 6 March 2024.

[580]PA vii - On 12 March 2024 the claimant emailed R2 (page 774). The email was sent in response to an email sent by R2 the previous day. R2’s email set out the tasks which R2 said were required for the claimant’s job role. These were needed for OH assessment. The claimant’s email of 12 March 2024 included the following “ I feel this OH Assessment is being weaponised against me and I am being treated ‘unfavourably’ because of my disabilities and my disability-related sickness absence from work...I will attend the assessment in my capacity as an Employee only and this will be ‘under protest’ because I feel it is discriminatory and you are not impartial”.

[581]The Tribunal considered whether what the claimant had written was a protected act. Section 27(2)(d) EqA provides that a person does a protected act when they make an allegation of contravention of the EqA. The Tribunal was satisfied that what the claimant had written in her email of 12 March 2024 made allegations of a contravention of the EqA. The claimant did a protected act on 12 March 2024. Asserted detriments for making protected acts

[582]The Tribunal found that the claimant did protected acts as defined by section 27 EqA on 16 August 2023 in the telephone call with Harriet Walsh of Peninsula; on 8 November 2023 in the letter written on her behalf by Lorna Davis of Harper Macleod; on 29 January 2024 when she submitted a written grievance to R2; and on 12 March 2024 in an email to R2 about the OH assessment.

[583]If a reasonable worker (even if not all reasonable workers) might take the view Page 103 4105167/2024

[584]It is not necessary for there to be physical or economic consequences to the employer’s act or inaction for it to amount to a detriment. What matters is that the complainant is shown to have suffered a disadvantage of some kind (Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL). Asserted detriments for doing protected acts

[585]The Tribunal found the following to be detriments:a. Detriment vii – On 5 March 2024 R2's use of the word “erratic” in correspondence to the claimant to describe her conduct about R2’s pay. This is also detriment vii in the section 48 ERA whistleblowing complaints.

b. Detriment xiv- On around 23 August 2023 R2 stopping access to Quickbooks, Careline, the R1 shared drive and on around the end of September 2023 stopping the ability to carry out banking transactions on R1 bank account. This is detriment xvii in the section 48 ERA whistleblowing complaints.

c. Detriment xx– On around 5 April 2024 reporting the claimant to HMRC, Companies House, the Care Inspectorate and the SSSC. This is detriment xxiv in the section 48 ERA whistleblowing complaints.

[586]These are the same detriments as those found to be detriments in the whistleblowing complaints. The Tribunal found that the other asserted detriments for having done protected acts were not detriments, for the reasons already given in the discussion / decision about section 48 ERA whistleblowing detriments.

[587]The Tribunal asked itself whether stopping access to Quickbooks, Careline, the R1 shared drive on around 23 August 2023 and the the ability to carry out banking transactions on R1 bank account around the end of September 2023 (detriment xiv) was because the claimant had done a protected act.

[588]The protected acts were done on 16 August 2023 in the telephone call with Harriet Walsh of Peninsula (protected act 1); 8 November 2023 in the Lorna Davis letter (protected act 2); 29 January 2024 in a written grievance to R2 (protected act 3); and on 12 March 2024 in an email to R2 about attending for an OH assessment (protected act 4).

[589]The only protected act which was done before 23 August 2023 / end of September 2023 (detriment xiv) is the telephone call with Peninsula on 16 Page 104 4105167/2024 August 2023 (protected act 1). R2 did not know that the claimant had had this call with Ms Walsh and said these things. Accordingly, there can be no causal link between the call on 16 August 2023 and the stopping access to the various systems.

[590]The Tribunal asked itself whether reporting the claimant to HMRC, Companies House, the Care Inspectorate and the SSSC on around 5 April 2024 (detriment xx) was because of a protected act. It cannot be because of the protected act on 16 August 2023 (protected act 1) as R2 did not know about that.

[591]The Tribunal asked itself whether there was a causal link between the Lorna Davis letter on 8 November 2023 (protected act 2); or the claimant’s grievance on 29 January 2024 (protected act 3); or the claimant’s email on 12 March 2024 to R2 about attending for an OH assessment (protected act 4) and reporting the claimant to the various bodies on 5 April 2024 (detriment xx).

[592]The Tribunal was satisfied that reporting the claimant to various bodies was not because of any of these protected acts. R2’s evidence, which the Tribunal accepted, was that she had concerns about the allegations of fraudulent activity concerning the claimant and Sunside Limited in the anonymous letter. She took advice. She followed that advice. She reported these concerns to the relevant regulatory bodies in order that they could decide what to do with the information. The Tribunal accepted this explanation for the reasons already set out in this judgment.

[593]The Tribunal asked itself whether calling the claimant’s conduct “erratic” in an email on 5 March 2024 (detriment vii) was because of a protected act. It cannot be because of the protected act on 16 August 2023 (protected act 1) as R2 did not know about that. It cannot be because of the protected act on 12 March 2024 to R2 (protected act 4) as 12 March 2024 is after 5 March 2024.

[594]The Tribunal asked itself whether there was a causal link between the Lorna Davis letter on 8 November 2023 (protected act 2); or the claimant’s grievance on 29 January 2024 (protected act 3); and R2 calling the claimant’s conduct “erratic” in an email on 5 March 2024.

[595]The Tribunal was satisfied that calling the claimant’s conduct “erratic” in an email on 5 March 2024. was not because of either of these protected acts. R2’s evidence, which the Tribunal accepted was that she called the claimant’s conduct “erratic” in the email because of the claimant’s changing views back and forward about how much the claimant would agree to R2 paid. The Page 105 4105167/2024 Tribunal accepted this explanation for the reasons already set out in this judgment.

[596]The complaints of victimisation are not well founded and are dismissed. Wages

[597]The complaint in relation to mileage allowance of approximately £300 was withdrawn by the claimant.

[598]The claimant asserted in the list of issues that she was due £530.77 per week gross in wages for the period from 15 February 2024 to 22 May 2024 which is the cut-off date for this Tribunal claim. As set out already in this judgment this is because she asserts that she was fit to come back to work immediately in all capacities on 15 February 2024 and was prevented from doing by R2. The Tribunal has found elsewhere in this judgment that the claimant was delaying a return to work. She raised a grievance on 29 January 2024. That said that she required an OH assessment about reasonable adjustments before she returned to work. When R2 instructed an OH assessment the claimant delayed attending this by a dispute with R2 over her duties. When the claimant was given an opportunity to write her own job description for the purposes of the OH assessment she did not do so. By 22 May 2024 which is the cut off date for this claim the claimant had still not attended for an OH assessment.

[599]A difficulty for the claimant is that from 15 February 2024 and throughout this litigation she has attempted to adopt two opposing positions at the same time. On the one hand, as set out on 29 January 2024 in her grievance where she says that she cannot return to work until she has an OH assessment to determine any adjustments to be made, after a lengthy period of absence. On the other hand, saying that she was fit to come back to work in all capacities on 15 February 2025 that by R2 instructing an OH assessment before her return to work, R2 was blocking her return. Into the mix, although in her latter position she asserts she is fit to come back in all capacities on 15 February 2024, she also tells R2 that she is returning to work on 15 February 2024 “under protest”.

[600]These opposing positions are also set against the important backdrop of the wider shareholder dispute between the claimant and R2 which had been ongoing since June 2023. That dispute was clearly continuing when the Page 106 4105167/2024 claimant wrote in her grievance on 29 January 2024 that “[R2]’s personality coupled with her underhanded and perfidious conduct in instigating other employees to make my working relationships with them ‘toxic’ continues to pose a barrier to my return to work”. Taking a step back to consider all of the background and the claimant’s delaying actions during the 2024 grievance and the OH assessment, the Tribunal concluded that, as submitted by Mr Briggs, the claimant had no genuine intention to return to work on 15 February 2025.

[601]The Tribunal concluded that R1 and R2 were entitled to seek to obtain an OH assessment on reasonable adjustments before the claimant returned to work. During the period 15 February 2024 – 22 May 2024 the claimant was told that she would be paid statutory sick pay. The claimant instructed that statutory sick pay was not to be paid to her.

[602]In the circumstances the Tribunal concluded that the claimant was not entitled to a payment of £530.77 wages each week as she was still off sick. She may have been entitled to statutory sick pay, which had been paid during her sickness absence prior to 15 February 2024. The Tribunal did not hear any evidence about this and in any event, it had been declined by the claimant.

[603]Accordingly, there was no unauthorised deduction from wages in the period 15 February 2024 to 22 May 2024.

[604]Separately the claimant asserted that she was due dividends of £750 per week in the same period. A dividend is a payment a company can make to shareholders. Section 27(2) ERA excludes from the definition of wages any payment to the worker otherwise than in their capacity as a worker. The Tribunal does not have the jurisdiction to determine disputes about dividend payments to shareholders.

[605]The complaint of unauthorised deduction from wages is not well founded and is dismissed. Time bar

[606]The claimant participated in ACAS early conciliation from 14 March 2024 to 25 April 2024 (R1); from 20 May 2024 to 21 May 2024 (R2) and from 22 May 2024 to 22 May 2024 (R3). The claim was presented on 22 May 2024.

[607]Any events which occurred before 15 December 2023 (R1); 21 February 2024 (R2); and 23 February 2024 are potentially out of time, given the dates on which early conciliation comments. Page 107 4105167/2024

[608]As all the complaints are dismissed, there is no requirement to determine time bar in relation to complaints which may be out of time.

Remedy

[609]As all of the complaints are dismissed, there is no requirement for a remedy hearing.