Ms F Gatebi v Circle Healthcare Group Ltd: 4105168/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105168/2024

Between

Ms F GatebiClaimant

Circle Healthcare Group LtdRespondent

Before

Employment Judge McManus

Date 1 April 2026

JUDGMENT

The claims under the Equality Act 2010 reliant on the protected characteristic of disability status are dismissed.

REASONS

Reasons were given orally at the Hearing. JUDGMENT OF THE EMPLOYMENT TRIBUNAL The unanimous judgment of the tribunal is that:

Introduction

[1]The complaint of indirect sex discrimination under section 19 of the Equality Act 2010 is successful and the respondent is ordered to pay to the claimant the sum of £6,000 in compensation for injury to feelings plus interest at the rate of 8% per annum from 1 October 2023;

[2]The complaint of being subjected to a detriment on the ground of having made a protected disclosure under section 47B of the Employment Rights Act 1996 is unsuccessful and is dismissed.

Findings of fact

[1]This was a complaint by an agency worker against a company to whom she was assigned by her agency. She alleged that the respondent had indirectly discriminated against her and detrimentally treated her on the grounds of protected disclosures she had made. She did not pursue any complaints against the agency.

[2]The hearing took place over five days. Evidence was heard from the claimant and also the following on behalf of the respondent -a. Tracey McGoldrick, Quality Lead/Team Leader and acting Unit Manager;

b. Tony Forsyth, Director

c. Caroline McDaid, Unit Manager (Aylesbury),

d. Peter Sutherland, Sterile Services Technician,

e. Kelly McLaughlan, Sterile Services Technician and Team Leader, and

f. Olubunmi Iburonke, Sterile Services Technician.

[3]A joint bundle of documents was prepared. References to numbers in square brackets in the judgment below correspond to pages of the bundle.

[4]The claimant prepared a schedule of loss and a draft list of issues. The respondent had prepared its own list of issues. In essence there were two legal complaints and their terms were clear.

[5]The tribunal gave the parties the opportunity to provide closing submissions and noted them. It then deliberated before deciding on the terms of this judgment.

[6]Owing to the conclusions reached, it turned out that there were few disputes in the evidence on relevant matters. The tribunal found the claimant to be a credible and reliable witness. Her recollection tended to be clear and consistent. It found that Ms McGoldrick’s evidence was less consistent in some areas and that she at times tended to provide answers which fitted her perception of what the respondent’s case should be rather than full and accurate responses. Mr Forsyth was particularly open and helpful by contrast. The remaining witnesses appeared credible but did not always have as clear recollection as the claimant. Findings of fact The following facts were established as relevant to the issues to be decided by the tribunal, based on the evidence provided and on the balance of probability.

[1]The claimant was engaged through an agency to provide services to the respondent at its premises in Glasgow. The respondent operates a facility for the sterilisation of medical instruments and the claimant worked as a Sterile Services Technician. She had performed that role for other organisations for around eight years before.

[2]She registered with an employment agency going by the name of ‘Frontline’ in August 2023 and the terms of her placement with the respondent were confirmed to her in an email dated 16 August 2023 [194-195]. The email said that she would start on 17 August 2023, she would work shifts from 2pm to 10pm that week, and from the following week she would work shifts between 10am and 6pm. She was to report to a Ms Cooke, the site manager with whom these hours had apparently been agreed. Hourly rates of pay were provided for daytime, night shift and weekend working.

[3]At that time the respondent broadly operated two shifts, which were referred to as the ‘early’ shift –between 6am and 2pm, and ‘back’ or ‘twilight’ shift which could be either from 12 noon to 8pm or 2pm to 10pm.

[4]It was important to the claimant to work earlier hours of the day because of her caring responsibilities for her son. She was the primary caregiver and he required care around the clock. When she was working she engaged a child minder. She made all of this clear to her contact at Frontline.

[5]The claimant was able to offer some flexibility in the hours she worked. She could work up to around 8pm on some days but no later, because she had to pick up her son from the child minder and by the time she did so it would have been too late in the evening had she finished her shift any later.

[6]A Team Leader at the unit was Tracey McGoldrick. She prepared weekly rotas for staff, which included both employees and agency staff. She prepared the rota for the week beginning 21 August 2023, the claimant’s second week of her assignment, which had the claimant working between 2pm and 10pm on three days. The claimant raised with her that she could not work those hours and preferred to work earlier shifts. Ms McGoldrick changed the rota to accommodate this. She said to the claimant that all workers, whether agency or employees, would be expected to cover each of the shifts at some point to ensure a fair distribution of working hours. Ms McGoldrick said the same to other workers and she tried to ensure that there was an even distribution of shifts among workers to avoid allegations of favouritism.

[7]This was an exchange which was to be repeated whenever Ms McGoldrick drew up a weekly rota which showed the claimant working later hours. The claimant would raise that she could not work those hours and Ms McGoldrick would put her on earlier shifts but say that she would need to take her turn covering the later shifts at some point. She also said on occasion that if the claimant could not do so then she would go back to the agency and ask them to provide a replacement for her. That did not happen every week, but occurred a number of times up until around 6 November 2023 when the claimant asked to move to a new night shift, as detailed below. The claimant raised the matter with her contact at Frontline on around four occasions. By way of illustration, she sent WhatsApp messages to her contact on 10 October 2023 to say that ‘Circle will call U to place someone else from next week coz I’m NOT DOING BACK SHIFTS’ / ‘Plse get me another job’.

[8]These interactions caused the claimant stress because she felt she was being repeatedly challenged on something she had justified and explained at the outset. She was conscious of the need to balance the respondent’s desire for her to work flexibly with the particular demands of her son’s care. The child minder had built up a relationship with her son and she did not want to lose that person’s services through asking them to work unsociable hours. She needed paid work in order to live and to pay for childcare, but felt under threat of being replaced by another agency worker.

[9]Two employees of the respondent, Ms McLauchlan and Mr Sutherland, had been asked to trial a night shift around September 2023. In November 2023 other staff were asked to express an interest in moving to that shift which was to be made permanent but required another worker. The claimant put herself forward and joined the night shift from around 6 November 2023 onwards. She continued to work that shift until her assignment ended. She did so because the shift times were more fixed, and in part to move away from the previous situation of being expected to work some back shifts. The cost of care for her son was slightly higher but she believed the switch was better overall for her prospects of being retained.

[10]Therefore, from 6 November 2023 the claimant normally worked five nights per week between 6pm and 2am alongside Ms McLauchlan and Mr Sutherland.

[11]The claimant’s time working night shifts was largely satisfactory to her and few issues arose, save those described immediately below. Ms McGoldrick no longer had issues with her availability and sent her a message on 19 December 2023 to say that she had asked for four agency staff to be made available until March, and suggested that the claimant should speak to Frontline and ask to be one of them. Ms McGoldrick appeared at this point to have no concerns with her. Around this time management of the respondent had told Ms McGoldrick to try to reduce reliance on agency staff, who were beginning to be a financial burden on the business. They had been brought in to alleviate staff absences and resignations and the respondent planned to recruit permanent employees. Visit of Ms McDaid

[12]On 5 or 6 December 2023 the manager of another of the respondent’s units, Caroline McDaid, visited the Glasgow premises. She was providing support in the wake of the Glasgow unit manager leaving and a replacement being appointed. The claimant spoke to her outside the staff canteen before starting her shift, and in the presence of Ms McLaughlan and Mr Sutherland. Ms McDaid had been asking staff if they had any concerns to raise or sought any further help. The claimant mentioned that the temperature in the clean room would occasionally rise to around 40 degrees centigrade because of a thermostat malfunction. Ms McDaid took note and said she would look into the matter. The claimant believed, although did not say, that this created a risk to the health or safety of patients on whom the instruments would ultimately be used. She believed that the increase in temperature would compromise the sterilisation process.

[13]The evidence of Ms McDaid, Ms McLaughlan and Mr Sutherland was that they could not recall the claimant raising this matter. Ms McDaid had no recollection of speaking to the claimant at any time. Their evidence, and that of Ms McGoldrick, was also that this was a known fault which had occurred occasionally since the unit opened a number of years ago and it was not deemed to be a health or safety risk because the instruments passed from the clean room immediately to the autoclave machine which heated them to over 130 degrees centigrade, and so their exposure to a temperature of 30 to 40 degrees immediately before would cause no harm. Whenever the issue occurred, staff were permitted to take a break or go to fetch some water and an engineer would be called to reset the thermostat. The only issue for them was the comfort of the workers during these episodes. Cancellation and shortening of shifts in December 2023

[14]Whilst working night shifts the claimant would occasionally be asked to come in early to work additional hours, which she often agreed to do. There was no pressure however to work outside of the agreed shift timings or working days.

[15]The claimant had been asked to work on Saturday 16 December 2023, which was an extra shift and would normally have been one of her days off. On Wednesday 13 December 2023 Ms McLauchlan and Mr Sutherland notified her that Ms McGoldrick had decided she was no longer required for that shift. They said that the decision was for a reason that Ms McGoldrick would not divulge. Ms McGoldrick had decided to offer the shift to an employee of the respondent instead.

[16]The claimant had also been asked to work on the following day, Sunday 17 December, which again was normally one of her non-working days. She arrived and began the shift as normal, but there was significantly less work than usual to be done and Ms McLauchlan took the decision to end the shift around 9pm and for all three individuals to go home. Ms McGoldrick later said to the claimant that she would be paid for the full shift, but apparently that did not happen. Ms McLauchlan and Mr Sutherland had to make up the unworked hours of that shift during the following week.

[17]The claimant was unhappy at these two events and sent an email of complaint on 21 December 2023 to two directors of the respondent. One of the directors, Mr Forsyth, asked Ms McGoldrick to look into the matter and provide an explanation of what had happened.

[18]On 17 January 2024 Ms McLauchlan and Mr Sutherland were ill and were replaced on their shift by an employee named Mr Ibironke and an agency worker named Mr Oladimeji. The claimant did not get on with those individuals particularly well. At some point during the shift an alarm sounded to indicate there was an issue with a piece of equipment. The claimant could not locate either of her colleagues on the premises for some time and felt unsupported. She believed that they had left the building and were in one of the individuals’ cars parked outside the unit.

[19]The next day she sent a message to Ms McGoldrick which in its entirety read as follows: ‘Will there be a night shift tonight? After yesterday shift I don’t feel safe working with [Mr Ibironke and Mr Oladimeji]. Coud you excuse me for tonight and move me to day shift starting Monday? You could give me an extra day to work and compensate me for today.’

[20]A few minutes later Ms McGoldrick replied to say that she was going to speak to the claimant’s agency about her shifts, and that she was ‘not having people say who they work with and don’t’. She also said ‘your production is poor’ and that agency shifts had to be worked ‘if and when required’ and ‘we do not have to compensate for any hours you decide not to work.’

[21]Later that day Ms McGoldrick sent a further message to say that she had spoken to the claimant’s contact at Frontline to confirm she was ending the claimant’s assignment, and that there were ‘too many issues’. Discussion and decision Indirect sex discrimination – section 19 of EqA Time bar

[22]Although not directly raised by either party, the tribunal was conscious that this legal complaint was out of time. It was not presented to the tribunal within three months of the act (or the end of a possible continuing act) after factoring in the additional amount of time permitted for ACAS early conciliation. The last time Ms McGoldrick would have commented to the claimant about shift expectations would have been around the beginning of November 2023 but the claimant did not begin early conciliation until 19 March 2024 – more than three months later – and so the complaint was already late when the claim was presented on 22 May 2024.

[23]Section 123 of EqA contains the relevant rules regarding complaints under section 19 among others. The three-month limit can be extended to ‘such other period as the employment tribunal thinks just and equitable.’ – s123(1)(b).

[24]An employment tribunal has a wide discretion to extend time under section 123(1)(b). However, the starting point should always be that the primary time limit of three months should be applied. Only if it is just and equitable to extend time should that happen. In that sense an extension should be an exception rather than the default rule.

[25]Neither party is subject to a burden of proof in relation to the issue, although a decision to extend time must be based on some relevant material or facts. That need not necessarily be provided by the claimant in such a case, although often this will happen as they are the party seeking the exercise of the discretion.

[26]A helpful list of factors to consider was provided in the cases of British Coal Corporation v Keeble

[1997] IRLR 336

and DPP v Marshall

[1998] IRLR 494

, namely:a. The length of and reasons for the delay,

b. The extent to which the cogency of the evidence is likely to be affected by the delay,

c. The extent to which the respondent had co-operated with any requests for information,

d. The promptness with which the claimant acted once they knew of the possibility of taking action,

e. The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

[27]However, it has been made clear in subsequent cases that this is not a closed or definitive list to be slavishly followed. Some factors will be more relevant in each claim than others.

[28]A further matter which has been held to be of potential relevance is the apparent merits of the case, although care should be taken when assessing those at a preliminary stage and before all possible evidence has been heard. Some matters disclosed at an early stage in a claim may be agreed or uncontroversial whereas others may be more nuanced, or later squarely contested. If this is a potentially relevant factor, there is no rule that it is more or less important than any others.

[29]The tribunal decided that it was just and equitable to decide the section 19 complaint by extending the time limit for presenting it. Its reasons for doing so were:a. The complaint was at least potentially valid. It was clear and competently framed. It was capable of succeeding if the evidence supported it;

b. The claimant was not represented or advised and did not appreciate that different time limits would apply to complaints arising on different dates, rather than there being a single deadline calculated with reference to the termination of her assignment;

c. The respondent was not prejudiced in its ability to defend the complaint, and fully did so at this hearing;

d. The complaint was only out of time by around two weeks;

e. The prejudice to the claimant in potentially having a valid complaint rejected because of questions of timing was greater than the prejudice caused to the respondent in having to answer it on its merits, especially at this stage.

[30]The tribunal therefore opted to extend the time required for the complaint to be presented on just and equitable grounds and decide it on its merits. Consideration of the substantive complaint

[31]For a complaint under section 19 to succeed, the claimant must show that:a. They have a protected characteristic;

b. A provision, criterion or practice (‘PCP’) is applied to them;

c. The PCP is applied, or would be applied, to people not sharing the claimant’s protected characteristic;

d. It puts, or would put, others sharing the claimant's protected characteristic at a particular disadvantage;

e. It puts, or would put, the claimant to that disadvantage; and

f. It cannot be show by the respondent to be a proportionate means of achieving a legitimate aim.

[32]The claimant relied on the protected characteristic of sex. She said (in her revised particulars of claim following amendment) that the PCP was disregard of the arrangement agreed with her agency about the hours she would work because of her caring responsibilities towards her son, and the insistence that she work twilight shifts. In the respondent’s draft list of issues it was phrased as ‘a requirement to regularly work twilight shifts’.

[33]In essence these two pieces of wording were referring to the same thing which the tribunal accepted to be a provision, criterion or practice, namely the respondent’s expectation that all workers would be flexible by working each of its shifts at certain times. This is expressed as an expectation rather than an absolute requirement because the claimant in fact was not ultimately made to work twilight shifts. She was however expected, and repeatedly asked, to do so by Ms McGoldrick.

[34]This PCP was applied to the claimant and also others who did not share her protected characteristic, namely male employees of the respondent or agency workers.

[35]The tribunal accepted that it would put others sharing the claimant’s protected characteristic of sex at a disadvantage. This is based on readily available and empirically reliable data showing that more female than male parents or carers of children assume the primary responsibility for the care of the child in question. For example, the UK Government published a study carried out by representatives of three centres of learning in 2021 – https://www.gov.uk/government/publications/childcare-shared-care-and-wellbeing-outcomes-for-families/sharing-of-childcare-and-well-being-outcomesan-empirical-analysis. Despite the study being some five years old, relevant evidence suggests that the imbalance still exists.

[36]Logically and inevitably following from that, because of the needs of children in terms of the time they are at home, or their schooling or pre-school arrangements, female care givers are more likely to be restricted in relation to which hours they can work and also how accommodating they can be to variations in working hours from week to week or across other periods.

[37]The tribunal accepted that the PCP did in fact put the claimant to a disadvantage. This was by way of Ms McGoldrick repeatedly raising it, causing frustration to her when she believed her position was clear. The occasional threat that the claimant would be replaced if she did not work some twilight shifts added stress. This was sufficient to prompt the claimant to volunteer for night shifts, despite them being less convenient and more costly overall, to escape from the risk of replacement and achieve a more predictable set of working hours.

[38]The tribunal notes two things in particular here. First, that Ms McGoldrick did not necessarily know about the claimant’s specific childcare responsibilities. The claimant’s evidence was that she raised this with Ms McGoldrick whereas the latter had no such recollection. The tribunal considered it most likely that the claimant mentioned that she had a son to whom she provided care but did not go into detail about his particular needs. This point is of little overall relevance because an employer need not have knowledge of an individual’s disadvantage for discrimination to occur under section 19. Secondly, in fairness to Ms McGoldrick, she did not ever insist on the claimant working twilight shifts. Whatever she said about her expectation, she would ultimately agree to allowing the claimant to working earlier shifts in a given week.

[39]Nevertheless, based on the above findings the respondent had discriminated indirectly against the claimant. The last matter to consider was whether, colloquially, that could be objectively justified by being a proportionate means of achieving a legitimate aim, as section 19(2)(d) provides.

[40]The respondent relied on five possible legitimate aims as set out in its list of issues, namely:a. To ensure the continued safe and efficient running of its operations,

b. To ensure fairness amongst the staff in the distribution of shifts,

c. To ensure that the respondent had sufficient staff deployed on shifts across the whole of its operational,

d. To ensure the proper management of its staff resources to meet the needs of its business, and/or

e. To ensure there are sufficient staff to meet business objectives.

[41]The tribunal considered that (d) and (e) were essentially restatement of aim (c), but that aims (a) to (c) were legitimate in the circumstances. It was important for the unit to process and return the medical instruments it received properly and on time given the reliance on them by surgeons carrying out medical procedures. It was also important that all staff, employees and agency workers, felt fairly treated from the point of view of good employee relations, general morale and retention.

[42]The tribunal was not however satisfied that the imposition of the above PCP on the claimant was a proportionate means of achieving that aim. The evidence showed that the claimant could be, and was, accommodated in working earlier shifts. Ms McGoldrick threatened to go back to the claimant’s agency and ask for a replacement because of this but did not do so. The claimant was only one individual among a team of employees and agency workers performing duties interchangeably. The respondent recognised and contemplated the right of its own employees to request flexible working arrangements in its workplace policies. The repeated raising of the same issue with the claimant was not necessary.

[43]The tribunal therefore concluded that the claimant had been unlawfully indirectly discriminated against. It next considered compensation. The claimant’s evidence was, as covered above, that the situations caused her frustration and stress, leading her to worry if her assignment would be ended. She was concerned enough to opt for less convenient night working in order to achieve more stability and reduce the risk of being replaced.

[44]The tribunal considered that there had been a degree of continuation or repetition of the treatment complained of between the last week of August and early November 2023 – some two months at least. It then stopped as a result of the move to night shifts. In terms of injury to feelings, there do not appear to be any ongoing effects of the treatment beyond November 2023.

[45]The tribunal concluded that an award in the middle of the lower Vento band would be consistent with the evidence it heard. An award of £6,000 is therefore made.

[46]Interest is payable on awards of compensation for injury to feelings at the statutory rate. The date from which interest runs depends on whether the discrimination occurred on a single date or over a period. Where it is the latter, as in this case, interest is calculated from the midpoint date. That is therefore taken to be 1 October 2023. Whistleblowing detriment – section 43B ERA

[47]An employee has a right not to suffer a detriment on the ground that they made one of more protected disclosures - section 47(B) of the Act.

[48]A protected disclosure must first be a ‘qualifying disclosure’ – section 43B: 43B Disclosures qualifying for protection.(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3) A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

[49]A qualifying disclosure will be protected if it is made in the way permitted within section 43(C) to (H) of the Act.

[50]A qualifying disclosure must be all of the following:a. A disclosure of information,

b. Reasonably believed to be made in the public interest, and

c. Reasonably believed to show the existence of one or more circumstances within section 43(B)(1)(a) to (f).

[51]Unless all of the above apply, there will not be a qualifying disclosure – see for example the judgment of the Employment Appeal Tribunal in Williams v Brown

UKEAT/0044/19

[52]The requirement to disclose ‘information’ means that there must be some specific factual detail - Cavendish Munro Professional Risks Management Ltd v Geduld

UKEAT/0195/09

. Whether that has occurred will depend on the individual features of each case, including the context in which a statement is made. Reference to a hypothetical situation, expression of an opinion or the mere suggestion that a law or legal obligation has been breached without further specification may not be enough.

[53]There must be a belief that the disclosure of the information in question is in the public interest, and that belief must be objectively reasonable - Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

. What is in the ‘public interest’ is not further defined. It need not apply to all of the public at large, and can involve a smaller group such as all employees, customers or service users of an organisation, or even potentially a sub-group within one of those categories. If the matter raised only relates to the person raising it there will be a greater risk that it is not in the public interest (or that any belief that it is would not be reasonably held when objectively assessed). It is however possible that a disclosure could be made (or reasonably believed to be made) both for personal reasons and in the public interest at the same time. Who is affected, in what way and whether the alleged conduct was intentional could all be factors.

[54]There must also be a reasonable belief that at least one of the circumstances in section 43(B)(1) has arisen. The complainer therefore need not know absolutely that the relevant situation exists but they must believe that it does. That belief must then be assessed to understand whether it is reasonable. It may be reasonable even if later proved ‘wrong’, for example by evidence which the individual did not know about at the time of the disclosure. Of more relevance is what the individual knew, or ought to have known, at the time of the disclosure. Because the requirement is that the information disclosed ‘tends to show’ that a relevant scenario exists, the individual making the disclosure does not have to provide absolute proof of it or have gone through an extensive process of weighing up the evidence for and against before their belief is formed or reported\ – see for example Durey v South Central Ambulance Service NHS Foundation Trust and Protect (Intervenor)

[2024] EAT 173

. ‘Protected’ disclosure

[55]A qualifying disclosure can be protected by being made in various ways or to certain parties. A disclosure by an agency worker to their client will qualify under section 43C(1)(a) or (b). Whether protected disclosures had been made First alleged disclosure and detriments

[56]The claimant’s first alleged protected disclosure was to Ms McDaid on 5 or 6 December 2023. The tribunal considered that the claimant’s recollection was more likely to be correct, and that this encounter did take place. The claimant gave a clear account of what happened which remained consistent through the hearing.

[57]The tribunal was also satisfied that the claimant met all of the requirements of a protected disclosure when speaking to Ms McDaid. She conveyed information about a malfunction which she genuinely believed caused a risk to the health and safety of patients who would undergo procedures by surgeons using the instruments which had been affected. That would involve a public interest aspect as potentially any member of the public receiving surgery could be at risk. Her belief was also reasonable in the circumstances. It was informed by her experience of working in other similar facilities where the temperature of the clean room was more carefully monitored and maintained. This is not to say that the respondent’s procedures were objectively defective, as there was evidence against that and the tribunal did not have the expertise to make such a finding. What mattered was whether the claimant genuinely and reasonably held her belief.

[58]The claimant alleged a number of detriments resulting from this disclosure. The first was that she had been branded a troublemaker by Mr Ibironke and Mr Oladimeji and had separately been shouted at by Mr Ibironke. It proved to be outside of the tribunal’s jurisdiction to decide this part of the claim, because it was out of time by the point she presented her claim form to the tribunal. Her best recollection was that these events had happened at some point in December 2023, but before Christmas. She could be no clearer despite being pressed to give her best recollection. She commenced ACAS early conciliation on 19 March 2024, meaning that any acts complained of taking place on 19 December 2023 or earlier were time-barred. As she could not establish that the acts took place on or after 20 December 2023 the tribunal could not determine the complaints. It was more likely than not that they fell before 20 December rather than on or after that date. The claimant was asked by the tribunal to explain what she did following the termination of her assignment in order to ascertain whether it might not have been reasonably practicable for her to approach ACAS any earlier. The rules for extending time are more stringent than for the discrimination complaint above, for which time was extended. Her evidence in summary was that she was aware of her rights and of the option to raise a claim by the end of January 2024 but delayed commencing the process to allow Mr Forsyth to investigate the matter internally. Regrettably for her therefore, nothing prevented her from bringing this complaint on time other than her own decision-making.

[59]The second detriment was that the claimant had been taken off the proposed shift on 16 December, had been sent home early the following day, and that Ms McGoldrick never responded to the claimant’s complaint about those matters. Again, decisions made in relation to those shifts were time-barred for the reasons in the paragraph immediately above. In any event the tribunal was satisfied that the removal and shortening of the shifts were for operational reasons and not because of the claimant’s protected disclosure. There was no evidence that the disclosure played any part at all in those decisions.

[60]Similarly, there was no evidence that the disclosure influenced Ms McGoldrick’s decision as to whether or not she would respond to the claimant in relation to the shifts of 16 and 17 December 2023, a detriment complaint which was within time since her act or failure to act, however it was viewed, occurred after 21 December 2023. She simply felt that no further explanation to the claimant, who was not even an employee but an agency worker, was necessary. Second alleged disclosure and detriments

[61]The claimant’s second alleged disclosure was her message to Ms McGoldrick on 18 January 2024, repeated verbatim above. This can be dealt with more briefly. Whatever the claimant’s belief and however reasonably she held it, she did not convey ‘information’ in that message. She simply said she did not feel safe. That was not detailed enough to amount to a relevant disclosure. This is illustrated by the fact that Ms McGoldrick took it to be about the claimant being uneasy at working alone at night, whereas the claimant was referring to a perceived risk to others of contamination of medical instruments.

[62]As there had been no protected disclosure it followed that the alleged detriment – the termination of the claimant’s assignment - could not have been an unlawful detriment. For what it is worth, the evidence suggested quite clearly to the tribunal that Ms McGoldrick had simply run out of patience with the claimant at this point. As she saw it, the claimant had complained to a more senior manager about not working two full shifts, neither of which were her normal hours, and had now proposed to dictate who she was prepared to work with and which shifts she would be available for. In circumstances where she had been asked to reduce reliance on agency workers Ms McGoldrick took an immediate decision in response to the claimant’s message,

Conclusions

[63]For the reasons above the complaint of indirect discrimination is successful and the claimant is entitled to compensation for the injury to her feelings. The whistleblowing detriment complaints are unsuccessful and will be dismissed.