Case No 4111836/2019Venue EdinburghHearing 1, 2, 3, 4, 5, 8, 9 and 10 March 2021 and 13 May 2021 (deliberation day)
Between
Mr M FordClaimantThe Scottish MinistersRespondent
Before
Employment Judge W A MeiklejohnDr A Gibson - Solicitor for respondentDate 7 October 2025
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that the claimant’s claims of automatically unfair dismissal, ordinary unfair dismissal and detriment on the ground of having made protected disclosures do not succeed and are dismissed.
REASONS
[1]This case was listed for an eight day final hearing starting on 1 March 2021. We took 1 March 2021 as a reading day and the hearing itself began on 2 March 2021. The claimant appeared in person and the respondent was represented by Dr Gibson. ETZ4(WR)[2]The hearing was conducted on an in person basis but, to comply with the Covid-19 protocols introduced by HM Courts & Tribunals Service, it was necessary for one of the members to participate remotely by means of the Cloud Video Platform (“CVP”) on each day of the hearing. Mrs Brown and Mr Frew both participated partly in person and partly by CVP. Procedural history[3]There had been two preliminary hearings. The first of these took place on 11 May 2020 (before Employment Judge d’Inverno). The principal outcome was an Order that the claimant should provide further and better particulars of his complaints. The claimant duly complied in terms of his document dated 6 June 2020 (732-746) in which he set out seven alleged protected disclosures.[4]The second preliminary hearing took place on 7 July 2020 (before EJ Kemp). At this hearing it was clarified that while the claimant’s primary position was that he had been dismissed (and had suffered detriments) having made protected disclosures, he also wished to bring a secondary claim of ordinary unfair dismissal. There was discussion about the adequacy of the claimant’s document of 6 June 2020 in terms of specifying the disclosures and identifying which detriment was said to flow from which disclosure. The outcome was a further Order that the claimant provide(a) better particulars of his complaints and(b) a Schedule of Loss. The claimant complied in terms of his document dated 3 August 2020 (747- 760).[5]Within his Note following the preliminary hearing on 7 July 2020 EJ Kemp set out a list of issues. This included the time bar point taken by the respondent in relation to the detriment claim. It was agreed that this should be reserved for determination at the final hearing. We set out the list of issues below as articulated by EJ Kemp, with some minor alterations to reflect(a) the claimant’s document dated 3 August 2020 and(b) the fact that the claimant was no longer seeking reinstatement or reengagement.
List of issues
[6]The issues are as follows –(i) Were any of the disclosures identified by the claimant qualifying disclosures under section 43B of the Employment Rights Act 1996 (“ERA”)?(ii) Were any of the said disclosures protected disclosures under section 43A ERA?(iii) If so, did the claimant suffer any detriment after having made each such disclosure?(iv) If so, what was the detriment and when did he so suffer it or over what period of time did he do so?(v) Where there was an act by the respondent or failure to act which amounted to a detriment, was each or any part of a series of similar acts or failures?(vi) If so, when was the last of such acts?(vii) If the claim form was not presented timeously under section 48 ERA was it not reasonably practicable for the claimant to have done so?(viii) If so, did the claimant present the claim form within a reasonable period of time thereafter?(ix) What was the reason or, if more than one, the principal reason for the claimant’s dismissal?(x) Was the dismissal in breach of section 103A ERA and automatically unfair?(xi) If not, was the reason or principal reason potentially fair under section 98(1) and (2) ERA?(xii) If so, was the dismissal fair or unfair under section 98(4) ERA?(xiii) In the event that any of the claimant’s claims succeed what remedy should he be entitled to, and in particular – (a) What losses has he sustained as a result of the dismissal? (b) What losses is he likely to sustain in future as a result of the dismissal? (c) What award for injury to feelings is appropriate, if any? (d) Has the claimant mitigated his loss? (e) Might there have been a fair dismissal had a different procedure been followed? (f) Did the claimant contribute to his dismissal?
Applicable law
[7]The statutory provisions applicable to the complaints brought by the claimant are set out below. Protected disclosures[8]Section 43A ERA (Meaning of “protected disclosure”) provides as “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[9]Section 43B ERA (Disclosures qualifying for protection) provides as “(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, or is likely to be deliberately concealed….”[10]Section 43C ERA (Disclosure to employer or other responsible person) provides as follows – “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure – (a) to his employer….”[11]Section 43F ERA (Disclosure to prescribed person) provides as (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 matter in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true….”[12]In terms of the Public Interest Disclosure (Prescribed Persons) Order 2014 (made pursuant to section 43F ERA – the “2014 Order”), the following are prescribed persons in respect of the matters described –(a) Audit Scotland – The proper conduct of public business; value for money, fraud and corruption in public bodies(b) Financial Conduct Authority – Matters relating to the various descriptions set out in paragraphs (a) to (s) of the Schedule to the Order(c) The Pensions Regulator – Matters relating to occupational pension schemes….[13]Section 43G ERA (Disclosure in other cases) provides as follows – “(1) A qualifying disclosure is made in accordance with this section if –(a) ….(b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,(c) he does not make the disclosure for purposes of personal gain,(d) any of the conditions in subsection (2) is met, and(e) in all the circumstances of the case, it is reasonable for him to make the disclosure. (2) The conditions referred to in subsection (1)(d) are – ….(c) that the worker has previously made a disclosure of substantially the same information – (i) to his employer….” Automatically unfair dismissal[14]Section 103A ERA (Protected disclosures) provides as follows – “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.” Unfair dismissal[15]Section 94 ERA (The right) provides as follows – “(1) An employee has the right not to be unfairly dismissed by his employer….”[16]Section 98 ERA (General) provides, so far as relevant, as follows – “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – ….(b) relates to the conduct of the employee…. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” Detriment[17]Section 47B ERA (Protected disclosures) provides as follows – “(1) 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…. (2) ….this section does not apply where –(a) the worker is an employee, and(b) the detriment in question amounts to dismissal….”[18]Section 48 ERA (Complaints to employment tribunals) provides as “….(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….(1A)….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….”
Evidence
[19]We heard evidence from –(a) For the claimant –• The claimant himself• Mr R Dunn – Friend of the claimant• Mr I Swan* – Former colleague of the claimant(b) For the respondent –• Ms C Heatlie* – Former HR Manager• Mr G Thomson – Investigating Officer• Mr G Caldwell – Disciplinary Officer• Ms L O’Carroll – Appeal Officer• Mr J Preston – Former Senior Policy Manager• Mr G Richardson – Nominated Officer *These witnesses gave their evidence remotely by CVP[20]We had a joint bundle of documents extending to 902 pages to which we refer above and below by page number. Findings in fact[21]It is not the function of the Tribunal to record every piece of evidence presented to it, and we have not attempted to do so. We have focussed on those parts of the evidence which had the closest bearing on the issues we had to decide. Description of parties[22]The claimant was a Pensions Administrator with the Scottish Public Pensions Agency (“SPPA”). His employment commenced on 29 April 2002 and ended on 18 June 2019. He worked as a Pensions Administrator throughout that period.[23]The respondent (The Scottish Ministers) is the legal entity which employed the claimant. The SPPA is an executive agency of the respondent. It administers pensions on behalf of the Scottish Government for Teachers, the Police and Firefighters and also for employees of the National Health Service in Scotland. The SSPA also provides policy advice to the Scottish Ministers on public sector pension issues. Claimant’s whistleblowing issues[24]The claimant described these in his document dated 6 June 2020 (732- 746) in these terms – Issue(i) The Police Injury Benefit Scheme was in an extremely poor state of health. Medical Assessment dates long overdue, statutory benefits were not being paid at the correct levels and errors were not being corrected by SPPA Managers. Issue(ii) Numerous Part Time Firefighters who have not paid any pension contributions are receiving full time contribution-based pensions from Public funds. A hypothetical (unpaid) Ill Health pension award for the purpose of in turn calculating their full time Injury Benefits is being paid. Issue(iii) Billions of pounds are calculated to be paid from Public funds from a law that does not exist. Public Service Scheme pensions which are closed to further accrual are being calculated using future earnings – The Scottish Ministers have not amended Statutory scheme regulations to allow closed Public Service final salary pensions to be calculated using future earnings (as is happening) – nor are they allowed to under restrictions imposed by the Public Pensions Act 2013.[25]For ease of reference we will refer to these issues as follows – Issue(i) – the “Police issue” Issue(ii) – the “Firefighter issue” Issue(iii) – the “FSL issue” (“FSL” meaning “Final Salary Link”) Injury Benefit Team[26]Prior to the events described below, the claimant worked in the Injury Benefits Team. He received training on NHS injury benefits and was familiar with the NHS final salary scheme regulations which were relevant to the calculation of injury benefits. The team leader was Ms J Scott and the other team members were Mr Swan and Mr T McCall.[27]In 2015 the SPPA took over the administration of injury benefits for Police and Firefighters. According to the claimant the Injury Benefits Team did not receive training on these schemes. He referred to problems with both schemes.[28]The claimant described the Police injury benefits cases transferred to the SPPA as being in a “poor state”. Historically these cases had been dealt with by the eight individual Police forces across Scotland, prior to the establishment of Police Scotland in 2013. There were inconsistencies in the way the relevant regulations had been applied, for example in the treatment of transferred-in service. Periodic medical checks on those in receipt of benefit had not been done. The impact of DWP benefits had not been checked. The claimant and his colleagues identified a significant number of over- and underpayments. Claimant’s first disclosure – the Police issue[29]On 2 August 2016 the claimant emailed Ms S Paterson, a senior manager within the SPPA (74), alleging (with reference to a standard overpayment letter which, he said, implied that decisions would be taken dependent on budget) that the SPPA might not be applying the Police (Injury Benefit) (Scotland) Regulations 2007 correctly. He intended that his email should be forwarded to Ms E Guthrie, Operations Manager. On 4 August 2016 the claimant emailed Ms Guthrie requesting a meeting (76).[30]The claimant duly met with Ms Guthrie. The exact date of the meeting was not clear but Ms Guthrie emailed the claimant on 10 August 2016 (78) to summarise the discussion. She identified the concerns raised by the claimant as follows –(i) Member queries about Police injury benefits were being directed to someone who had no knowledge of injury scheme entitlements, with an inference that payment of arrears might be subject to budgetary considerations.(ii) Failure to consider for revision cases where the claimant believed there were over/underpayments because of an approach which assumed such cases had been put into payment correctly.(iii) Disagreement with policy advice in respect of the application of a regulatory change to the assessment of part-time service.(iv) Technical queries raised by the claimant being passed to the Technical Training Team when they did not have the knowledge or experience to make a determination (and nor, in the claimant’s view, did the Policy Team).(v) Being excluded from team meetings and ignored, with the claimant’s suggestions for letter improvements, or queries about casework not being correct, not being acted on.(vi) An approach of accepting and rubber stamping medical advice rather than the SPPA considering all information and making its own decision.[31]In her email Ms Guthrie also recorded that, subsequent to their meeting, the claimant had asked about legal advice on the SPPA’s approach to Police cases and had raised concerns that, in its handling of Police cases, the SPPA was exposing itself to complaints and possibly Ombudsman cases. The claimant did not consider that Ms Guthrie had narrated his concerns correctly. His understanding was that the decisions of previous administrators were not to be revisited. He also alleged that the Technical Training Team had reached different decisions on the same issue. Claimant meets Ms Heatlie[32]On 8 December 2016 the claimant had a meeting with Ms Heatlie, who had recently been appointed as the respondent’s HR Manager. This was set up after Ms Guthrie had told Ms Heatlie that the claimant was unhappy about missing out on a promotion for which he had applied, and also about how the SPPA was paying certain pensions. Prior to their meeting the claimant told Ms Heatlie that he was feeling stressed and anxious.[33]At the meeting on 8 December 2016 the claimant told Ms Heatlie that an appeal he had submitted after his unsuccessful application for promotion had not yet taken place. He presented as “troubled” by the issues of pensions being paid incorrectly. There was insufficient time to conclude the meeting and it reconvened on 14 December 2016. The outcome was a referral of the claimant to Occupational Health (“OH”). Ms Heatlie also followed up on the claimant’s outstanding promotion appeal (which was subsequently declined on 1 March 2017). Claimant meets Ms Guthrie again[34]According to the claimant, the SPPA was still paying benefits incorrectly into 2017. He met again with Ms Guthrie on 8 March 2017. In advance of this meeting the claimant emailed Ms Guthrie on 28 February 2017 (79) referring to the National Fraud Initiative and questioning why the SPPA was not correcting all wrong payments. He emailed Ms Guthrie again on 7 March 2017 (80) complaining that wrong payments were not being corrected where a previous administrator had erred or misinterpreted the regulations.[35]The issue of the claimant being moved away from the Injury Benefit Team must have been raised in advance of the claimant’s meeting with Ms Guthrie because the claimant said in his email of 7 March 2017 – “I would feel unfairly punished and embarrassed to be seconded out of the Injury Team after 16 years. I am genuinely trying to stop the SPPA acting out with the law and trying my best to stop the SSPA being open to charges of gross negligence and maladministration.” Claimant moves team[36]The outcome of the meeting between the claimant and Ms Guthrie on 8 March 2017 was that the claimant was moved to the NHS Awards Team. Ms Guthrie emailed the claimant on 9 March 2017 (81) to confirm this – “You will be undertaking a secondment to NHS awards team until the Police injury issues raised have been satisfactorily resolved and I think that would be around 4 weeks. NHS awards have a high workload which I am keen we address and you will be assisting that team, alongside other work colleagues who are also helping out from other teams in operations as from Monday. This is not a punishment for bringing your concerns to my attention but is to give you a break from the casework with which you have concerns until they are resolved.”[37]The claimant was unhappy at being moved. Ms Guthrie’s email also stated – “You indicated you were not happy being seconded, though I think we reached a compromise yesterday as outlined above. However you do have the right to raise a grievance and HR would be able to advise on this matter. I do hope that can be avoided and I believe I have taken reasonable steps to avoid you feeling embarrassed about this temporary change in assignment.”[38]The claimant emailed Ms Guthrie on 13 March 2017 (82-83) setting out a number of suggestions as to what actions he believed the SPPA should take. He referred to both the Police issue and the Firefighter issue but we did not understand the claimant to be arguing that this email was a disclosure.[39]While not mentioned in Ms Guthrie’s email of 9 March 2017, we understood from Ms Heatlie’s evidence that a reason for the claimant’s move away from the Injury Benefit Team was a breakdown in his relationship with his line manager, Ms Scott. Ms Heatlie said that Ms Scott’s health was suffering and that the claimant’s move was in line with OH advice. Claimant’s second disclosure – the Firefighter issue[40]On 12 June 2017 the claimant emailed Ms Guthrie (84) raising the Firefighter issue. He contended that the SPPA were misapplying the Firefighters Compensation Scheme (Scotland) Order 2006 and asserted that Retained (or part-time) Firefighters were receiving full-time pension and injury benefits both pre- and post 2006 (when part-time Firefighters were able to join the Firefighters’ pension scheme).[41]In response to an email from Ms Guthrie dated 22 June 2018 (85-89) the claimant emailed Ms Guthrie again on 22 June 2017 (90-93). He maintained that Regular (full-time) Firefighters were being disadvantaged. After setting out an example (Regular vs Retained) the claimant continued – “Hopefully from these examples you will see the reasons why this matter could not just be of concern to me, but possibly the Fire Authorities, Firefighters Pension Scheme members and indeed members of the general public who contribute to Public Funds. Hopefully you will understand that I have pointed out my concerns to you with good reason and this will not be biased against me in my future career. The SPPA will clearly not look further into this matter and without the option for me to discuss my concerns with any SPPA decision makers, I will have to raise any further concerns I have to other appropriate bodies.”[42]Some time later Mr Preston spoke to the claimant about the Firefighter issue. Mr Preston explained how the 2006 Regulations operated and referred the claimant to relevant guidance notes. A question arose regarding possible incorrect tax treatment of injury benefits and Mr Preston flagged this up in an email to Ms Scott on 2 August 2017 (94).[43]The claimant did not agree with Mr Preston. This led to a meeting being arranged between the claimant, Mr Preston and the respondent’s Chief Executive, Mrs P Cooper. In advance of this meeting the claimant emailed Mrs Cooper and Mr Preston on 15 September 2017 (95-98) setting out his views on the Firefighter issue.[44]The claimant met with Mrs Cooper and Mr Preston on 19 September 2017. The claimant described this as a short meeting at which he “never really got a chance to speak”. Mr Preston’s evidence was that he explained the position and Mrs Cooper accepted what he said, and “gave that position” to the claimant. We understood that to mean that she told the claimant to deal with Firefighter injury benefits in the manner explained by Mr Preston. Claimant moves team again[45]The claimant regarded his move to the NHS Awards Team as a punishment for speaking out about the Police issue. He said that he had been told not to speak to any of his former team colleagues. Ms Heatlie disputed this. It seemed to us improbable that, in what we understood to be an open plan working environment, such an instruction would be given.[46]The claimant also regarded himself as having been isolated. He described sitting alone at a cluster of four desks. Ms Heatlie described the claimant being seated beside two other members of staff. Mr Swan supported the claimant’s account of sitting alone but accepted in cross-examination that there might have been someone else sitting diagonally opposite the claimant. Our view of this was that the claimant had not been deliberately moved in March 2017 to a location where he would be sitting separately from anyone else but there may have been times when he was the only person sitting at the cluster of four desks.[47]Ms S Kellock, a member of Ms Heatlie’s team, had contact with the claimant in July/August 2017. According to a timeline which we understood to have been prepared by Ms Kellock (577-586), this involved discussion around a stress reduction plan. As a result of Ms Kellock’s meetings with the claimant, Ms Heatlie became aware that his move to the NHS Awards Team was not working out in terms of line management and monthly conversations.[48]This led to a proposal to move the claimant again to a new working environment. The plan was to transfer the claimant to the Service Team where his line manager would be Mr A Hermiston. This was discussed at a meeting between Mr G McGarry, Operations Manager, and the claimant on 28 September 2017. The claimant was accompanied at this meeting by Mr Swan.[49]Mr McGarry emailed the claimant after this meeting on 28 September 2017 to record their discussion (99-100). The mood of the meeting can be discerned from the following paragraphs of Mr McGarry’s email – “I advised you that this move was certainly not intended as any form of punishment, rather purely as an effort to provide you with a fresh start in a new business area that would allow a stress reduction plan to be successful. You noted that your Occupational Health referral had identified your depression and that you needed mental stimulus in your working day, however you felt that nothing had been done to provide this to you, rather that the “torture tactics” that had been applied to you had continued. You noted your frustration in knowing of a case in Northumberland where a retained firefighter was driving around in a Mercedes, never having contributed to the pension that he was still receiving, much to the annoyance of the other Fire Fighters. Something that you as a Scottish tax payer could not abide. When I confirmed to you that you were to be moved to the Service team, retaining responsibility for your NHS Injury Benefits work, you stated that I was basically rubbishing what you had achieved in your 18 year career with SPPA. At this point Ian Swan stated that you were in fact being punished and that everyone knew that. Again I confirmed to you that the purpose of what I was doing was only to provide you with a working environment that would support a stress reduction plan. At this point you stood up and advised that you wished to end the meeting….”[50]Mr McGarry’s email went on to confirm that the claimant would move to the Service Team on 16 October 2017 with Mr Hermiston as his line manager. Ms Kellock continued to engage with the claimant regarding his move. The claimant emailed her on 11 October 2017 (107) under the subject “Minion bullying” – “….Even if by “whistleblowing” I have little doubt that the person will be identified by Managers and there is a strong possibility that they will have to endure the same treatment as I have suffered. Voice taken away, knowledge ignored, isolated from others, subjected to embarrassment and added stresses applied as torture. Absolutely no concern will be given to your health and no effort whatsoever will be made to reintegrate you back into your position of choice – your career will be rubbished and nothing will be done anyway.”[51]Later on the same date the claimant emailed Ms Kellock again in these terms – “It has been suggested by SPPA Managers that I have a problem accepting decisions. I think that to be unfair in that I have only questioned decisions I consider to be flawed and with good reason and with references to Regulations, previous decisions etc.” The claimant then set out eight “examples where decisions on Law have been made without Senior Management or Senior Policy involvement”.[52]The claimant’s move to the Service Team took place on 16 October 2017. As a consequence of this change of team the claimant undertook training along with a group of modern apprentices who were aged 16/17. Claimant’s third disclosure – the FSL issue[53]The claimant emailed Mr R Carruthers, Service Team Leader, on 12 March 2018 (108) in these terms – “We will be answering a lot of questions when 2018 benefit statements are issued and there is one issue I cannot understand. Hopefully you can put me right and refer me to the relevant Regulations. More and more people have both final pension and CARE scheme benefits so I imagine the number of queries on this matter will be very high. I am trying to learn service work so if I had reference to the relevant Regulations it would help me when answering member’s queries. I previously had the understanding that when someone moved from their final salary pension into CARE pension benefits their final salary scheme was calculated and deferred (frozen) at that point. Only PI would increase the accrued benefits up to when benefits were paid. Benefit statements in 2016 and 2017 for those who have moved into the 2015 CARE scheme however appear to recalculate final salary benefits each year and base 1995 benefits on the 2016 and 2017 CARE scheme earnings???? I can’t see what regulations allow this so hopefully you will put me right?”[54]“CARE” is an acronym for career average revalued earnings. That is the design of public sector pension schemes introduced pursuant to the Public Service Pensions Act 2013 (the “2013 Act”). “PI” means price indexation. We understand “1995 benefits” to be a reference to benefits payable under the National Health Service Superannuation Scheme (Scotland) Regulations 1995.[55]Later in his email to Mr Carruthers, the claimant refers to “the consolidation of 1995 regulations in 2011”. We understand this to be a reference to the National Health Service Superannuation Scheme (Scotland) Regulations 2011 (the “2011 Regulations”). The 2011 Regulations superseded the 1995 regulations and the 2008 regulations under which the NHS final salary pension scheme operated. We will refer to the final salary scheme as the “old scheme” and the CARE scheme established pursuant to the 2013 Act as the “new scheme”.[56]The claimant included in his email to Mr Carruthers the text of regulation 14(1) and (2) of the National Health Service Pension Scheme (Transitional and Consequential Provisions) (Scotland) Regulations 2015 (the “2015 Regulations”). Regulation 14(1) provides – “For any purpose of the old scheme including the calculation of benefits under that scheme to or in respect of a 1995 officer transition member, the member’s pensionable pay and final year’s pensionable pay are to be determined by reference to the 2011 Regulations (see in particular Part C of those Regulations.” (the claimant’s emphasis in his email) Regulation 14(2) of the 2015 Regulations makes the same provision for a 2008 officer transition member.[57]The claimant then referred Mr Carruthers to the definitions of “pensionable pay” and “final year’s pensionable pay” in Part C of the 2011 Regulations. Both of these refer to “pensionable employment”. The claimant also took Mr Carruthers to the definition of “pensionable employment” in Part A of the 2011 Regulations – “NHS employment in respect of which the member contributes to this Section of the scheme.” (the claimant’s emphasis in his email)[58]There followed an exchange of emails between Mr Carruthers/ Mr Hermiston and the claimant on 13/14 March 2018 (111-115). In his email to the claimant of 14 March 2018 (115) Mr Hermiston directed the claimant to regulation 6 of the 2015 Regulations – “Unless otherwise provided in these Regulations, a person who is an active member of the new scheme is to be treated for the purposes of the old scheme as though he or she continues to be an active member of the old scheme notwithstanding the operation of section 18(1) of the 2013 Act.”[59]In his reply to Mr Hermiston of the same date (115) the claimant disagreed with the argument that this created a FSL. He quoted section 18(1) of the 2013 Act – “No benefits are to be provided under an existing scheme to or in respect of a person in relation to the person’s service after the closing date.” (claimant’s emphasis)[60]Mr Carruthers then met with the claimant on 15 March 2018. There was a record of their discussion (116). Mr Carruthers sought to demonstrate to the claimant that the SPPA was administering the FSL correctly but the claimant was not convinced. The record of the meeting indicates that the claimant told Mr Carruthers – “that he had set up a meeting with Audit Scotland to discuss the various issues he had encountered with how certain Police and Fire Injury Benefit cases had been handled and that he would be using that meeting to discuss his concerns around Final Salary Linking.” Claimant meets with Mr Conway[61]Mr Carruthers took the FSL issue to Mr G Conway, Senior Operations Manager. On 23 March 2018 the claimant emailed Mr Conway (129-134) setting out his argument that there was no FSL allowing old scheme benefits to be based on final pensionable salary in the new scheme. He quoted from the 2015 Regulations, the 2013 Act and the 2011 Regulations.[62]Mr Conway and the claimant met on 23 March 2018. Mr Conway emailed the claimant after their meeting (135) recording that they had “reviewed some of the regulations and shared our own interpretation of what is intended”. Mr Conway advised the claimant as follows – “I have carried out my own investigations into FSL, including consulting Policy, and have carried out some calculations to work out the impact for a single member. I can confirm in writing that I am content that we are administering the rule correctly and fairly. The FSL is designed to offer some protection to transitional members. Savings are also being made by the fact that employee and employer contributions are collected for an additional 7 years. (Mr Conway’s emphasis) You advised that you still feel that you have the correct interpretation but would now “drop it”.”[63]Mr Conway then set out the process which the claimant was expected to follow if he wished to raise concerns through his line managers. He continued – “Once the final decision has been made, it is then incumbent on you to accept that decision, even if you personally do not agree. All protestations must then stop. This rule applies to everyone in the team, not just you. I hope that most of your queries can be resolved by discussion with your line manager.”[64]On 27 March 2018 Mr Conway followed up on his meeting with the claimant by emailing him (144) some guidance on what to say to members when answering calls relating to the FSL.[65]It was apparent from his evidence to us that the claimant did not accept Mr Conway’s point about savings being achieved through members contributing to the new scheme for an additional 7 years. The claimant pointed out that this was predicated on members retiring at 67 under the new scheme as opposed to 60 under the old scheme, and there was no guarantee that members would do so. Claimant goes to Chief Executive[66]Despite having told Mr Conway that he would “drop it”, the claimant did not do so. He emailed Mrs Cooper, the SPPA Chief Executive, on 26 March 2018 (136-143) repeating the same argument that he had placed before Mr Conway, amplifying his concerns and quoting the same legislative provisions.[67]Mrs Cooper replied to the claimant on 11 April 2018 (145) in these terms – “I have been discussing this with colleagues and I am confident that SPPA is following the correct guidance. I therefore think that you can have confidence in the advice you have received from your colleagues. If you continue to have concerns then you can receive guidance on the whistle blowing policy from our HR colleagues.”[68]The claimant responded on 12 April 2018 (145) restating his argument that the legislation did not support a FSL in the old scheme. Mrs Cooper replied on 13 April 2018 – “You haven’t wasted my time. I have confirmed again and I am confident that we are paying pensions correctly. I expect you to operate within these current SPPA guidelines and procedures. Please confirm to me in writing that you are prepared to do this. Once I have received this I will consider this matter closed.”[69]In his evidence to us the claimant accepted that he had told the Chief Executive that he would “drop it” but did not do so. This was because “I believed I was right”. The claimant said that the Chief Executive told him he was entitled to whistleblow and “that’s what I continued to do”. The claimant told us that he was following the Civil Service Code (708-714).[70]However, the claimant did respond to Mrs Cooper on 16 April 2018 (389) in these terms – “As you have instructed, I will operate within current SPPA guidelines and procedures.” Claimant’s fourth disclosure – Audit Scotland[71]The claimant worked (unpaid) as Bar Steward of Selkirk Cricket Club. Through this he became acquainted with Mr Dunn. Their wives were both part-time NHS employees. The claimant assisted with an issue relating to Mrs Dunn’s pension contributions. Mr Dunn’s father had been in the Fire Service. The claimant and Mr Dunn became aware of the Firefighter issue.[72]The claimant did not have a home computer or broadband. Mr Dunn agreed to help him in taking his concerns about the Police issue and the Firefighter issue to Audit Scotland. Mr Dunn did this by submitting an online form in his own name to Audit Scotland (146-148). It was clear from the description of the “issue of concern” that it related to the Police issue and the Firefighter issue.[73]Mr Dunn told us that it was the claimant who filled in the online form. That was apparent from the last two paragraphs – “these are the words of a current sppa employee who has sought the assistance of a [friend?] to assist me completing this form, he has no connection with the sppa or the matters involved but he is my go between. given I was put out in the open and isolated for many months for initially raising concerns i hope you will understand that my health has been under great stress albeit I have refused to leave or take sick leave. I hope this matter can be treated with as much discretion as possible to safeguard my employment status. I feel very aggrieved and stressed that I am having to raise these concerns on my own and that sppa management did not deal with this in the correct manner and in adherence to civil laws.”[74]Mr Dunn and the claimant attended a meeting with Audit Scotland on 30 March 2018. It was not clear how and when the claimant came to be invited. In the course of the meeting on 30 March 2018, the claimant was spoken to by Audit Scotland separately from Mr Dunn. The claimant raised the FSL issue in addition to the issues raised in the online form. The claimant and Mr Dunn understood that Audit Scotland were to take the issues to a pension expert.[75]The claimant followed up with an email on 16 April 2018 to Ms L McEwan of Audit Scotland (150) in which he articulated the FSL issue.[76]Audit Scotland referred the matters raised by the claimant and Mr Dunn to the SPPA. A meeting was arranged for 19 June 2018 for the auditors to discuss their conclusions with Mr Dunn and the claimant. In advance of this Audit Scotland emailed Mr Dunn on 7 June 2018 (152) setting out those conclusions. They found that SPPA was complying with the relevant legislation in relation to the Firefighter issue and the FSL issue.[77]The claimant replied on 11 June 2018 (153-154). He disputed the Audit Scotland conclusions (and pointed out that they had not commented on the Police issue).[78]Mr Dunn and the claimant met with Audit Scotland again on 19 June 2018. Clearly the claimant did not get the outcome he hoped for because he emailed Audit Scotland on 20 June 2018 (158-161) reiterating his arguments on all three issues. Mr Dunn sent an email to Audit Scotland on 26 July 2018 (164-165) headed “Public Pensions Scandal”. It was apparent from the detail contained in this email and the language used that it was drafted by the claimant. The email concluded – “I have not slept for more than 3 hours at a time for more than 2 years now and suffer from daily anxiety knowing that this travesty is continuing, benefitting those that I had raised the concerns to and of course employees of Audit Scotland!” Claimant’s fifth disclosure – The Scottish Ministers[79]On 13 June 2018 Mr Dunn sent an email (157) to Nicola Sturgeon MSP, First Minister and Derek Mackay MSP, then Cabinet Secretary for Finance, Economy and Fair Work. It was headed “Scottish Public Pensions Authority”. Mr Dunn stated that he was “sending this email on behalf of a friend who doesn’t have a private email account but works for the above authority”. He made reference to the FSL issue and the Firefighter issue. Mr Dunn’s email referred to the meeting with Audit Scotland scheduled for 19 June 2018 and invited a representative from the Scottish Government to attend.[80]Mr Dunn’s email was referred to the SPPA in accordance with the Ministerial and Corporate Correspondence System (“MACCS”). Mr Preston replied to Mr Dunn on 24 July 2018 (162-163, also 170-171). Mr Preston restated the SPPA’s position on the FSL issue and the Firefighter issue. He suspected that someone else might be preparing Mr Dunn’s letters and wondered if it was the claimant.[81]Mr Dunn replied to Mr Preston on 3 August 2018 (173-174) and Mr Preston responded on 17 August 2018 (172-173). Within his response, Mr Preston quoted paragraph 7.32 of Lord Hutton’s report following his independent review of public service pensions – “This means that the final salary link would be maintained for years of service earned in final salary based schemes, up to the date the member is awarded all his or her benefits from that scheme, which could be before, at, or after NPA. In effect that would mean there would be a final salary link as long as the member remained within the existing scheme or its successor.”[82]This correspondence continued in September/October 2018, escalating within the SPPA to Mr Preston’s line manager, Mr L Mackenzie, then Director of Policy. Mr Mackenzie sought to draw a line under this by his letter to Mr Dunn of 29 October 2018 where he advised that (with reference to the FSL issue and the Firefighter issue) – “….I am letting you know that any further correspondence covering these particular issues will not be responded to by SPPA.”[83]Mr Dunn and the claimant then engaged in correspondence with Kate Forbes MSP, then Minister for Public Finance and Digital Economy, in November/December 2018 and January 2019 (198-222) regarding all three of the issues. Claimant’s sixth disclosure – FCA and others[84]In January 2019 Mr Dunn and the claimant took their concerns to the Financial Conduct Authority (“FCA”), the Pensions Regulator (“TPR”) and the Pensions Ombudsman (“PO”). Since, as described below, allegations relating to whistleblowing were not pursued against the claimant as disciplinary charges, we say nothing further about this. Claimant’s seventh disclosure – Nominated Officers[85]Mr Richardson was employed by the Scottish Government as a Senior Internal Audit Manager. He was one of the Nominated Officers appointed to facilitate whistleblowing cases within the Scottish Government and its executive agencies. The claimant emailed the Nominated Officers’ email address on 24 April 2019 (408-413) to whistleblow on the FSL issue. Again, as allegations relating to whistleblowing were not pursued against the claimant as disciplinary charges, we can deal with this briefly.[86]Mr Richardson took the matter to Mrs Cooper (761-766). Mr Preston provided Mr Richardson with information relating to the FSL issue and also the Firefighter issue. Mr Richardson decided that “third party assurance” should be gained by having these matters independently reviewed. This was done by a solicitor within the Scottish Government Legal Directorate and the outcome was confirmation that the position taken by the SPPA on these issues was considered to be correct. Disciplinary investigation[87]On 27 February 2019 Ms Heatlie wrote to the claimant (233-236). Her letter began as follows – “It has been brought to my attention that there are causes for concern over your conduct, which relate to allegations of insubordination; refusal to follow reasonable management instructions; misuse of official information; frustrating the implementation of policies once decisions are taken, by declining to take, or abstaining from, actions which flow from those decisions; and negligence causing financial loss, damage or injury to people.”[88]Ms Heatlie’s letter then explained that Mr Thomson had been appointed as an independent Investigating Officer. In evidence Ms Heatlie described the process by which Mr Thomson, a retired Police officer, was appointed. As we found nothing untoward in this process, we will not dwell on it.[89]Ms Heatlie’s letter referred to the instruction given to the claimant by Mrs Cooper on 13 April 2018 (see paragraph 68 above) and set out seven allegations against the claimant. One of these was sub-divided and related to the claimant allegedly misinforming four pension scheme members. As we detail the matters which were taken forward as disciplinary charges below and refer to those which were not, we will not set out the allegations here.[90]Mr Thomson was advised of the way in which the SPPA expected his investigation to be conducted including the format for recording witness evidence. The claimant was critical of the choice of Mr Thomson as Investigating Officer as he did not have a pensions background. We did not consider that criticism to be well-founded. We agreed with Ms Heatlie that the important point was that the Investigating Officer should be independent.[91]Mr Thomson conducted a thorough investigation. He interviewed 14 witnesses including the claimant and Mr Dunn. Each of these interviews followed a structured format. The claimant took issue with witness interview notes not being signed by the interviewee but we found nothing untoward in this. Mr Thomson prepared a comprehensive report (276-407) for Ms Heatlie. This included(a) as Annexes, the witness statements taken by Mr Thomson and(b) as Enclosures, various items of supporting documentation. Mr Thomson’s report was submitted to Ms Heatlie on 17 April 2019.[92]As part of his investigation, Mr Thomson met with the claimant on 5 April 2019. The claimant was accompanied by a colleague, Mr R Banks. The notetaker (Ms G Creamer) prepared a note of this meeting (350-358). The note was sent to the claimant who considered that there were inaccuracies and omissions. The claimant submitted to Mr Thomson a version of the note with extensive annotations (359-374). Mr Thomson included both versions within his report. Disciplinary charges[93]Ms Heatlie decided on the basis of Mr Thomson’s report that the claimant should face a disciplinary hearing to answer a number of charges. She approached Mr Caldwell to chair the Disciplinary Panel. Mr Caldwell was Deputy Head of Area Offices, SG Agricultural Policy Delivery. He was known to Ms Heatlie through her previous Scottish Government role before she joined the SPPA in 2016. He had experience and training as a Disciplinary Officer. The other member of the Disciplinary Panel was Ms T McFarlane, People Advice and Wellbeing Manager. Her role was to advise Mr Caldwell and ensure compliance with procedure; the disciplinary outcome decision was Mr Caldwell’s alone. Neither Mr Caldwell nor Ms McFarlane had any prior involvement in the case.[94]The disciplinary charges were set out in Ms Heatlie’s letter to the claimant of 7 May 2019 (416-419). They were expressed as follows – “1) From 13 June until 20 November 2018 you shared official information with a third party, Mr Robert Dunn, and used his identity to conceal your own to further your own personal interests and make complaints similar to those already investigated by SPPA. You used Mr Dunn’s computer and email account to falsely misrepresent the identity of the sender of the emails and sent emails to various Ministers and Departments about SPPA business under the name of Robert Dunn which were dealt with through the Ministerial and Corporate Correspondence System. 2) You have deliberately failed to comply with a direct management instruction from the Chief Executive of SPPA on 13 April 2018 to operate within SPPA guidelines and procedures and you have demonstrated insubordination, in particular: 2a) You misinformed a member in September 2018 regarding her ability to change her NHS post to a lower paid one. The effect of this misinformation is considerable as her final salary pension will now be based on a much lower pensionable salary and her Career Average Revalued Earnings pension will also be affected as it will accrue at a lesser rate than if she had not changed posts. Your actions caused financial loss to a member who was subsequently written to by a Team Leader with the correct information, apologised to and informed of SPPA’s complaints procedure. 2b) In October 2018 and in direct contradiction to advice provided to you separately by 2 line managers you misinformed a member about the calculation of whole time equivalent earnings when determining contribution rates. You also sent this misinformation out to 2 Employers namely NHS Borders and NHS Lothian when only NHS Borders should have been informed and this resulted in a minor data breach. This required contact to be made to both organisations to advise them of the correct calculation to use and to instruct them to disregard the emails sent by you. The effect to the member is that her contributions are lower than expected and she will now be required to pay additional contributions to make up the shortfall. 2c) In November 2018 another 2 cases were identified by your managers where you had misinformed members of final salary benefits. In both cases members were querying their Annual Benefit Statements and you recalculated their benefits using your interpretation of the guidelines as opposed to SPPA guidelines, which resulted in both being provided with incorrect figures. This was in contravention of instruction from 3 line managers on how benefits should be calculated. 2d) You admitted in a meeting with your line manager Andrew Hermiston, that you had provided information to a member based on your own beliefs and in direct contradiction to the policies and procedures that SPPA staff are required to follow and disregarded direct guidance on how to apply these policies. You suggested in an email dated 22nd January 2019 that SPPA managers are corrupt in their actions. 3) You have claimed in correspondence and most recently to your line manager in an email dated 22 January 2019 that you were previously isolated from others for 7 months as a punishment for not obeying orders and reporting erroneous and fraudulent payments. In doing so, you gave false information to colleagues. 4) You provided false information to the First Minister and other Scottish Ministers by stating in email correspondence on 20th September 2018 that you are being asked to provide false information to members of the pension schemes and “have orders and no option other than to revolt and be disciplined”. You have also stated in an email to Ms Kate Forbes, Minister for Public Finance and Digital Economy on 13th December 2018 that when you have raised your concerns, “you allow us to be tortured and punished”.[95]Ms Heatlie’s letter advised the claimant that she considered the allegations “would constitute gross misconduct” and, if determined to be well founded, might result in dismissal. Her letter also advised the claimant of the members of the Disciplinary Panel and that the disciplinary hearing would take place on 23 May 2019.[96]By a separate letter also dated 7 May 2019 (414-415) Ms Heatlie advised the claimant that he was being suspended pending the outcome of the disciplinary hearing due to(a) the “continued risk of misinformation to the public” and(b) “genuine concerns for your health and wellbeing as you have indicated that you feel stressed and that you are not sleeping”.[97]The disciplinary charges differed from the allegations investigated by Mr Thomson in that two of the allegations – relating to the claimant whistleblowing to Audit Scotland and the Scottish Ministers – were not reflected in the charges. Disciplinary hearing and outcome[98]The disciplinary hearing took place on 23 May 2019. The Disciplinary Panel was as detailed above. The claimant was accompanied by Mr Swan. The note taker was Ms L Pullar. The notes of the hearing were produced (420-426). Mr Caldwell and the claimant were provided with a pack of papers in advance of the disciplinary hearing. This included Mr Thomson’s report.[99]The notes of the disciplinary hearing recorded that Mr Caldwell went through each of the charges and gave the claimant an opportunity to comment on these. We did not understand the claimant to dispute the accuracy of the notes.[100]Mr Caldwell issued his outcome letter to the claimant on 18 June 2019 (445-450). In his letter Mr Caldwell set out the charges and his decision in relation to each of them, together with his reasons. Mr Caldwell decided that all of the charges were well founded. In the paragraphs which follow, we summarise Mr Caldwell’s reasons (by reference to the charges as set out in paragraph 94 above).[101]In relation to charge 1, Mr Caldwell found that the claimant had shared official information with Mr Dunn. He did not accept that the claimant acted as co-reporter with Mr Dunn because emails to various Scottish Ministers were sent from Mr Dunn’s email account with no mention of the claimant. He noted that Mr Dunn had said (when interviewed by Mr Thomson) that the emails were in his name to protect the claimant’s identity for fear of the claimant losing his job. He believed that the claimant had deliberately concealed his involvement and knowingly misrepresented his identity.[102]In relation to charge 2, Mr Caldwell was satisfied that the claimant had acted in an insubordinate manner and deliberately failed to follow instructions from SPPA’s Chief Executive.[103]In relation to charge 2a, Mr Caldwell did not accept as credible the claimant’s assertion that he had received insufficient training. He found that there was evidence that the claimant had disregarded direct instructions.[104]In relation to charge 2b, Mr Caldwell found that the charge was admitted by the claimant.[105]In relation to charge 2c, Mr Caldwell found that Mr Conway had explained to the claimant the procedure to follow if he had queries or concerns on annual benefit statements. He found that the claimant knowingly went against managers’ instructions and issued statements which were incorrect, and chose to follow his own interpretation of legislation rather than SPPA guidelines.[106]In relation to charge 2d, Mr Caldwell found the claimant’s explanation for his admission to Mr Hermiston, that he had provided information to a member based on his own beliefs and in contradiction to SPPA policies and procedures, not to be credible. Mr Caldwell found this to form part of the pattern of the claimant operating in an insubordinate manner and knowingly outwith SPPA guidelines and procedures.[107]In relation to charge 3, Mr Caldwell found that the claimant had given false information to colleagues when he alleged that he had been moved (from the Injury Benefit Team) and isolated for 7 months as a punishment for not obeying orders and for reporting erroneous and fraudulent payments. Insofar as this related to the claimant describing himself as “isolated”, we felt this was a little harsh, as we believed this was the claimant’s perception.[108]In relation to charge 4, Mr Caldwell found the claimant had provided false information to Ministers. However, his rationale referred to the claimant acting in collusion with Mr Dunn, knowingly misrepresenting his identity and sharing official information with a third party without authority (echoing charge 1) rather than focussing on what was stated in the emails of 20 September 2018 and 13 December 2018.[109]Mr Caldwell found that the claimant had failed to meet the standards set out in the Scottish Government’s Guide to Standards of Behaviour in that he had failed to respect the dignity of others, behaved in a way that caused offence or distress to his colleagues and failed to behave appropriately towards the people he worked with. Mr Caldwell also found that the claimant had failed to meet the standards contained in the Civil Service Code and that his line managers had irretrievably lost confidence in him as a result of his actions and behaviour.[110]Mr Caldwell’s decision was that the charge of gross misconduct was established and that the appropriate sanction was summary dismissal. Notwithstanding our comment about Mr Caldwell’s rationale for charge 4, we were satisfied this was a decision which he was entitled to reach on the basis of the information available to him. Mr Caldwell noted that, as the claimant was being summarily dismissed, he was not entitled to work a period of notice or be paid in lieu of notice. He nevertheless decided that, in view of the claimant’s long service, he should be paid a sum equivalent to pay in lieu of notice. The claimant was advised of his right to appeal. Appeal hearing and outcome[111]The claimant exercised his right of appeal. He wrote to Ms Heatlie on 25 June 2019 (452-461). The theme running through his appeal letter was that SPPA was wrong and he was right in relation to the issues he had raised. The claimant followed up his appeal letter with further letters to Ms Heatlie on 1 July 2019 (473-478) and 4 July 2019 (479-523), the latter having 10 attachments. The claimant submitted a further letter to Ms Heatlie/Ms Kellock (526-539) – this was undated but was copied to John Lamont MP who in turn wrote to Mrs Cooper on 17 July 2019 (525).[112]The person appointed to hear the claimant’s appeal was Ms O’Carroll, Director of Taxation, Scottish Government. She was supported by Ms K Hunter, People Advice and Wellbeing Manager. Neither Ms O’Carroll nor Ms Hunter had any prior involvement in the case. Ms Heatlie wrote to the claimant on 1 August 2019 (551-552) to advise the date of the appeal hearing.[113]Ms O’Carroll was diligent in her preparations for the appeal. The appeal hearing took place on 14 August 2019. The claimant was again accompanied by Mr Swan. The notetaker was Ms L Walls. The notes were produced (558-564). These recorded that Ms O’Carroll went through each of the disciplinary charges and gave the claimant an opportunity to explain his position.[114]After the appeal hearing Ms O’Carroll decided that the claimant should be referred again to OH. This was done. A report was provided by Optima Health dated 29 August 2019 (567-569) following a telephone assessment on that date.[115]Ms O’Carroll issued her outcome letter on 26 September 2019 (570-575). She upheld Mr Caldwell’s decision in relation to all of the disciplinary charges. Her reasons for doing so are explained in the outcome letter and we will not rehearse them here. We were satisfied that Ms O’Carroll was careful and thorough in her approach to the claimant’s appeal. Loss/mitigation[116]At the time of his dismissal, the claimant’s gross pay was £1727.67 per month. His net pay was £1407.87 per month. These figures translated into weekly pay of £398.69 gross and £324.89 net. The claimant had not sought fresh employment. He had continued to act as Bar Steward at Selkirk Cricket Club and anticipated that he would be remunerated for doing so, once current lockdown restrictions were lifted, probably around national minimum wage. He had not claimed benefits. He had accessed his own pension. Comments on
Evidence
[117]The claimant clearly continues to believe that he is right in relation to the issues he raised. In particular, he maintains that his interpretation of the relevant legislative provisions in the FSL issue is correct. He remains unconvinced that there is a valid statutory basis for preserving the FSL in relation to the old scheme. This belief is in effect the prism through which the claimant perceives his treatment by the SPPA. We had the impression that the claimant viewed these proceedings as an opportunity to demonstrate that he was right in relation to the FSL issue. That was not, however, a matter for us to decide.[118]Unsurprisingly both Mr Dunn and Mr Swan were sympathetic towards the claimant and how he perceived he had been treated. Mr Dunn referred to the claimant being “on the naughty seat”. Both were credible witnesses but their evidence was coloured to some extent by that sympathy.[119]All of the respondent’s witnesses gave their evidence in a measured and straightforward manner. All were credible. Ms Heatlie and Mr Caldwell were robust in their defence of their actions. Mr Preston was clearly knowledgeable in matters relating to pensions legislation. We were struck by the absence of any element of personal animosity towards the claimant. Submissions[120]There was insufficient time at after the conclusion of the evidence to deal with submissions and it was agreed that there would be written submissions. We are grateful to the claimant and Dr Gibson for the detailed submissions which they subsequently provided. As these are available within the case file, we do not rehearse them here. Discussion and disposal[121]We approach this by reference to the list of issues set out at paragraph 6 above. (i) Were any of the disclosures identified by the claimant qualifying disclosures under section 43B ERA?[122]We reminded ourselves of the elements of section 43B –(a) there had to be a “disclosure of information” which(b) in the “reasonable belief” of the worker making the disclosure is(c) made in the “public interest” and(d) “tends to show” one or more of the matters set out in section 43B(1)(a) to (f).[123]The matters set out in section 43B(1)(a) to (f) included at (b) – “that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject”[124]We found a useful summary of recent case law in Dobbie v Felton t/a Feltons Solicitors UKEAT/0130/20. In that case the Employment Appeal Tribunal quote from the decision of the Court of Appeal in Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979 in considering whether a disclosure is in the public interest. In the present case, for the reasons set out below, we had no difficulty in finding that the claimant’s disclosures were made in the public interest.[125]We reminded ourselves that if we found that the claimant had(a) made protected disclosures and(b) suffered one or more detriments, we would need to address the issue of causation. In Fecitt v NHS Manchester (Public Concern at Work intervening) [2012] ICR 372 the Court of Appeal said that – “liability arises if the protected disclosure is a material factor in the employer’s decision to subject the claimant to a detrimental act”.[126]The first disclosure made by the claimant related to the Police issue (see paragraphs 27-29 above). It was made by the claimant to his employer. In his email to Ms Paterson on 2 August 2016 (75) and at his subsequent meeting with Ms Guthrie a few days later (78 refers) the claimant was saying that the Police (Injury Benefit) (Scotland) Regulations 2007 had not and were not being correctly applied.[127]This was a disclosure of information. The claimant had a reasonable belief that it was made in the public interest as Police pensions and injury benefits were publicly funded. It tended to show that the SPPA (and, before the SPPA, Police Scotland and its antecedent Police forces) had not complied and were not complying with a legal obligation to apply the said Regulations correctly. This was a qualifying disclosure.[128]The second disclosure made by the claimant related to the Firefighter issue (see paragraphs 40-44 above). It was made by the claimant to his employer. In his email to Ms Guthrie of 12 June 2017 (84) the claimant was saying that the SPPA was misapplying the Firefighters Compensation Scheme (Scotland) Regulations 2006.[129]This was a disclosure of information. The claimant had a reasonable belief that it was made in the public interest as Firefighters’ pensions and injury benefits were publicly funded. It tended to show that the SPPA (and its predecessors as administrators) had not complied and were not complying with a legal obligation to apply the said Regulations correctly. This was a qualifying disclosure.[130]The third disclosure made by the claimant related to the FSL issue (see paragraphs 53-60 above). It was made by the claimant to his employer. In his email to Mr Carruthers of 12 March 2018 (108) the claimant was saying that the SPPA was applying the FSL to benefits under the old scheme when this was not allowed in terms of the relevant legislation including the 2015 Regulations.[131]This was a disclosure of information. The claimant had a reasonable belief that it was made in the public interest as pension benefits under the old scheme were publicly funded. It tended to show that the SPPA was not complying with a legal obligation to apply the said Regulations correctly. This was a qualifying disclosure.[132]The fourth disclosure made by the claimant related initially to the Police issue and the Firefighters issue, with the FSL issue being added (see paragraphs 72-78 above). It was foreshadowed in the online form submitted by Mr Dunn to Audit Scotland (146-148). It was made by the claimant in person at the meeting with Audit Scotland on 30 March 2018. The FSL issue was referenced in the claimant’s email to Ms McEwan of 16 April 2018 (150).[133]In referring to these issues at his meeting with Audit Scotland on 30 March 2018 and in his email of 16 April 2018 the claimant was making a disclosure of information. For the same reasons as set out above, the claimant had a reasonable belief that the disclosure was made in the public interest and tended to show a failure by the SPPA to comply with legal obligations. The claimant had disclosed substantially the same information to his employer. This was a qualifying disclosure within section 43F ERA.[134]The fifth disclosure made by the claimant related to the FSL issue and the Firefighter issue (see paragraphs 79-83 above). Although contained in an email from Mr Dunn of 13 June 2018 (157) this was the claimant’s disclosure to the Scottish Ministers. This was confirmed by Mr Dunn’s statement that he was “sending this email on behalf of a friend….who works for the above authority”, the email being headed “Scottish Public Pensions Authority”. The said email referred to the FSL issue and the Firefighter issue.[135]This was a disclosure of information. For the same reasons as set out above, the claimant had a reasonable belief that the disclosure was made in the public interest and tended to show a failure by the SPPA to comply with legal obligations. The claimant had disclosed substantially the same information to his employer. This was a qualifying disclosure within section 43G ERA (the Scottish Ministers not being a prescribed person in terms of the 2014 Order).[136]The sixth disclosure made by the claimant was that which was made to the FCA, TPR and PO (see paragraph 84 above). We did not have sufficient information to determine whether this was a qualifying disclosure.[137]The seventh disclosure made by the claimant related to the FSL issue and was made to the Nominated Officers in terms of the claimant’s email of 24 April 2019 (408-413) (see paragraphs 85-86 above). This was a disclosure of information. For the same reasons as set out above, the claimant had a reasonable belief that the disclosure was made in the public interest and tended to show a failure by the SPPA to comply with a legal obligation. The claimant had disclosed substantially the same information to his employer. We did not have enough information to determine the status of the Nominated Officers relative to the claimant’s contract of employment, ie to determine whether disclosure to the Nominated Officers was disclosure to the employer under section 43C ERA or an “other person” under section 43G. Either way, this was a qualifying disclosure. (ii) Were any of the said disclosures protected disclosures under section 43A ERA?[138]With the exception of the sixth disclosure in respect of which we did not have sufficient information, we found that these were protected disclosures. In the case of the first, second and third disclosures, they were made by the claimant to his employer and came within section 43C ERA. In the case of the fourth disclosure, this was made to a prescribed person and came within section 43F. In the case of the fifth disclosure, this was made to an “other person” and came within section 43G. In the case of the sixth disclosure, this came within section 43F in respect of TPR and FCA and within section 43G in respect of PO. In the case of the seventh disclosure, this came within either section 43C or section 43G (as explained in the preceding paragraph). (iii) If so, did the claimant suffer any detriment after having made each such disclosure?[139]We reminded ourselves of what the House of Lords said in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 (Lord Hope at paragraph 35) – “This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”….”[140]In his document of 3 August 2019 (747-760), submitted in compliance with EJ Kemp’s Order following the second preliminary hearing, the claimant detailed the detriments he alleged he had suffered on the ground that he made a protected disclosure. He linked specific alleged detriments to specific disclosures and we adopt the same approach here.[141]In relation to his first disclosure, we understood the claimant to complain about(a) being moved out of the Injury Benefit Team,(b) being made to sit and work alone for 7 months and not have any contact with other Team members and(c) the issuing of disciplinary charges.[142]We found that there was a link between the claimant raising the Police issue and being required to move teams. That was apparent from Ms Guthrie’s email to the claimant of 9 March 2017 (81) (see paragraph 36 above). However, we also found that there was tension between the claimant and his team leader, Ms Scott. In so finding we preferred the evidence of Ms Heatlie to that of the claimant and Mr Swan. It was credible that Ms Heatlie was concerned about Ms Scott’s health. It was also credible that Ms Guthrie should want to move the claimant away from the casework with which he had concerns. We did not consider the fact of the claimant being required to move teams to be a detriment.[143]We were not satisfied that the claimant had been made to sit and work alone for 7 months. We accepted the evidence of Ms Heatlie that at the claimant’s new work location he was seated beside two other members of staff. Mr Swan’s concession under cross-examination (see paragraph 46 above) supported this. There may have been times when the claimant was seated alone but his team move was not a punishment and he was not isolated as he claimed. For the reason given in paragraph 45 above, we were also not satisfied that the claimant had been instructed not to have contact with other members of the Injury Benefits Team.[144]We found that the bringing of disciplinary charges against the claimant was not on the ground that he had made the first disclosure. It was done because of the claimant’s behaviour as detailed in those charges. We considered it significant that those elements of the disciplinary allegations which related to whistleblowing were not reflected in the actual disciplinary charges.[145]In relation to his second disclosure, we understood the claimant to complain about(a) being moved to the Service Team,(b) being put in training with a group of modern apprentices,(c) his access to Police and Fire records being removed and(d) not being allowed to discuss his feelings of unfair treatment.[146]Our findings in respect of the claimant’s move to the Service Team are set out at paragraphs 48-52 above. They related to a stress reduction plan for the claimant and the fact that his move to the NHS Awards Team was not working out in terms of line management and monthly conversations. The move was in our view for the claimant’s benefit and was not a detriment.[147]It was appropriate for the SPPA to provide training for the claimant in connection with his move to the Service Team and we did not find there to be any detriment in that training involving a group of modern apprentices. We had no evidence, beyond the claimant’s own assertion, about the alleged removal of the claimant’s access to Police and Fire records. We were not satisfied that the claimant had been prevented from discussing his feelings of unfair treatment – it seemed to us that the claimant was vociferous on this issue when he chose to be, for example see paragraph 50 above. It was clear from his evidence that Mr Swan knew how the claimant felt. We did not find that any of these matters constituted a detriment to the claimant.[148]In relation to his third disclosure, the claimant complained about(a) being prevented from discussing his disclosures and speaking again on the issue and(b) being expected to sacrifice his honesty and integrity and tell lies in order to keep his job. Our view of this was that by the time the claimant’s concerns about the FSL issue reached the Chief Executive, the claimant had engaged extensively with Mr Hermiston, Mr Carruthers and Mr Conway – see paragraphs 53-64 above. He was told by the Chief Executive that he should follow SPPA guidelines and procedures. That was a reasonable instruction – it would not have been acceptable to have the claimant acting on his own beliefs in terms of the applicable legislation when SPPA’s own interpretation was different. The claimant was not in our view prevented from speaking again on the FSL issue. On the contrary, he was directed by the Chief Executive to his HR colleagues for guidance on whistleblowing if he continued to have concerns – see paragraph 67 above.[149]We could understand that the claimant saw the requirement to follow SPPA guidelines on the FSL issue as sacrificing his honesty and integrity when he was convinced that those guidelines were wrong, and that he regarded this was a detriment. However, when viewed objectively, that was not in our view the true position. The claimant was not prevented from continuing his efforts to persuade others that his interpretation of the relevant legislation was correct. But while he was doing so, he was expected to follow the SPPA guidelines. We regarded that as a matter of operational necessity and not a detriment to the claimant.[150]In relation to his fourth disclosure, the claimant complained about being placed under intense pressure and having to continue to whistleblow under fear of punishment. It seemed to us that the pressure was to a large extent of the claimant’s own making. He referred in his document of 3 August 2019 (at 751) to “having the option of likely having to commit fraud and telling lies in order to keep my job….or….doing my duty as a Public Servant and Whistleblowing to prescribed bodies”. Our view was that the Chief Executive was respecting the claimant’s right to whistleblow – again see paragraph 67 above – but requiring him to follow SSPA guidelines while he did so. Viewed objectively, this was not a detriment.[151]In relation to his fifth disclosure, the claimant complained about having to face disciplinary allegations. The reason for those allegations was, in our view, explained in the paragraph from Ms Heatlie’s letter to the claimant of 27 February 2019 (233-236) which we have quoted at paragraph 87 above. It related not to the claimant having made whistleblowing disclosures but to his conduct. In those circumstances, we did not regard the initiation of the disciplinary allegations as a detriment on the ground that the claimant had made a protected disclosure.[152]In relation to his sixth and seventh disclosures, the claimant accepted in his document dated 3 August 2019 that he could not claim further detriment from making disclosures to(a) the FCA, TPR and PO and(b) the Nominated Officers. (iv) If so, what was the detriment and when did he so suffer it or over what period of time did he do so? (v) Where there was an act by the respondent or failure to act which amounted to a detriment, was each or any part of a series of similar acts or failures? (vi) If so, when was the last of such acts? (vii) If the claim form was not presented timeously under section 48 ERA was it not reasonably practicable for the claimant to have done so? (viii) If so, did the claimant present the claim form within a reasonable period of time thereafter?[153]In light of our findings, as recorded above, that the claimant did not suffer the alleged detriments, these questions become academic and so it is not necessary for us to answer them. (ix) What was the reason or, if more than one, the principal reason for the claimant’s dismissal?[154]The claimant was dismissed because Mr Caldwell decided that the disciplinary charges were well founded. Those charges, which we have set out at paragraph 92 above, all related to the claimant’s conduct. They did not relate to the fact of the claimant having made whistleblowing disclosures. They did relate, in part, to the way in which the claimant had gone about his whistleblowing.[155]In relation to the whistleblowing to Audit Scotland and Ministers, the first disciplinary charge referred to the claimant(a) sharing official information with a third party,(b) using Mr Dunn’s identity to conceal his own and(c) falsely misrepresenting the identity of the sender of the emails. The final disciplinary charge referred to the claimant providing false information. The rest of the disciplinary charges referred to misinforming members, failing to follow SPPA guidelines and giving false information.[156]We found that these were all matters which related to the claimant’s conduct and that it was his conduct, and not the fact that he had made whistleblowing disclosures, which was the reason for his dismissal. (x) Was the dismissal in breach of section 103A ERA and automatically unfair?[157]The claimant’s dismissal would only be automatically unfair under section 103A ERA if we found that the reason, or principal reason, for the dismissal was that the claimant had made a protected disclosure. We did not so find. (xi) If not, was the reason or principal reason potentially fair under section 98(1) and (2) ERA?[158]We found that the respondent had shown that the reason for the claimant’s dismissal related to his conduct. As stated above, that was what Mr Caldwell decided. Conduct is a potentially fair reason for dismissal in terms of section 98(2)(b) ERA. (xii) If so, was the dismissal fair or unfair under section 98(4) ERA?[159]We reminded ourselves of the language of section 98(4). We had to look at what the respondent had done (or failed to do) in dismissing the claimant for the potentially fair reason of conduct.[160]All of the disciplinary allegations made against the claimant related to his alleged conduct. Having become aware of these, it was in our view reasonable for Ms Heatlie to arrange for an investigation to be carried out. It was reasonable for her to appoint Mr Thomson, as someone independent of the SPPA, as the Investigating Officer.[161]We found that Mr Thomson carried out a thorough investigation. He spoke to relevant witnesses. When the claimant alleged that there were inaccuracies and omissions in the notes of his meeting with Mr Thomson on 5 April 2019, Mr Thomson afforded him the opportunity to annotate the notes and included both the original and annotated versions in his report. Mr Thomson produced a comprehensive report.[162]Having received Mr Thomson’s report, Ms Heatlie revisited the disciplinary allegations and framed disciplinary charges which did not exactly mirror the allegations investigated by Mr Thomson. The effect of the changes between the allegations and the charges was, as mentioned at paragraph 97 above, to remove the whistleblowing element. In other words, the claimant did not face disciplinary charges because he had made whistleblowing disclosures. To the extent that the charges related to those disclosures, it was the manner in which the claimant had behaved when making the disclosures and not the disclosures themselves which was reflected in the disciplinary charges.[163]We found that the appointment of Mr Caldwell as Disciplinary Officer was reasonable. He had no prior involvement in the case. He was of appropriate seniority and suitably experienced. Mr Caldwell’s conduct of the disciplinary hearing was fair. He gave the claimant an opportunity to answer each of the charges. He reached conclusions which he was entitled to reach on the evidence before him. He provided the claimant with his reasoning for deciding that summary dismissal was the appropriate outcome. He mitigated the sanction by giving the claimant a payment equivalent to pay in lieu of notice.[164]The claimant was offered and exercised a right of appeal. The appointment of Ms O’Carroll as Appeal Officer was reasonable. The appeal hearing was conducted fairly. The claimant was given an opportunity to explain his position in relation to each of the disciplinary charges. Ms O’Carroll took time to consider matters. She took the unusual step of arranging for the claimant to go through an OH referral and did not issue the appeal outcome until the OH report was available. She provided the claimant with the rationale for her decision not to uphold his appeal. As stated above, we found that she was careful and thorough in her approach.[165]In British Home Stores v Burchell [1978] ICR 303 the Employment Appeal Tribunal said the following – “What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question….entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[166]In the present case, we were satisfied that the respondent did believe that the claimant had committed the acts of misconduct of which he was accused, as set out in Ms Heatlie’s letter of 7 May 2019 (416-419). That was clear from Mr Caldwell’s disciplinary outcome letter of 18 June 2019 (445-450).[167]We were satisfied that the respondent had reasonable grounds upon which to sustain that belief. The matters complained of had been brought to their attention. They had evidence of what the claimant had done and said, as contained in the report prepared by Mr Thomson (276-407).[168]We were also satisfied that the respondent had carried out as much investigation as was reasonable in all the circumstances. We found that Mr Thomson’s investigation was thorough and his report was comprehensive. We found that the respondent had complied with all three elements per Burchell.[169]We reminded ourselves of the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) (the “Code”). The Code sets out the steps an employer should take when dealing with a disciplinary matter –• Establish the facts of each case• Inform the employee of the problem• Hold a meeting with the employee to discuss the problem• Allow the employee to be accompanied at the meeting• Decide on appropriate action• Provide employees with an opportunity to appeal[170]We found that the respondent had complied with the Code when dealing with the claimant’s disciplinary process. The question we had to decide under section 98(4) ERA was whether in the circumstances (including the respondent’s size and administrative resources) the respondent had acted reasonably or unreasonably in treating the claimant’s conduct as a sufficient reason for dismissing the claimant. That had to be determined in accordance with equity and the substantial merits of the case. For the reasons set out above under reference to Burchell, we decided that question in favour of the respondent. The claimant’s dismissal was not unfair. (xiii) In the event that any of the claimant’s claims succeed what remedy should he be entitled to….[171]In view of our findings that the claimant(a) did not suffer any detriment after having made protected disclosures,(b) was not dismissed for the reason that he had made a protected disclosure and(c) was not unfairly dismissed, no issue of remedy arose. All of the claimant’s claims required to be dismissed.
Evidence
[1]The claimant’s complaints of detriment in terms of section 47B of the Employment Rights Act (so far as relating to his secondment and the disciplinary investigation, all as described in the Reasons below) are wellfounded and succeed. The said complaints are not time barred.[3]The respondent is ordered to pay compensation to the claimant in the sum of SIX THOUSAND TWO HUNDRED AND FIFTY POUNDS (£6250.00).[1]This case came before us for consideration of a number of issues remitted to us by the Employment Appeal Tribunal (“EAT”) in their Judgment dated 12 December 2024 – Ford v The Scottish Ministers [2024] EAT 197. Mr Allison appeared for the claimant and Dr Gibson for the respondent. The respondent is the legal entity which employed the claimant when he worked for the Scottish Public Pensions Agency (“SPPA”).[2]The issues remitted to us by the EAT were as follows –a. Was the secondment of the claimant in or around March 2017 an act of detriment on the ground that he had made the first protected disclosure?b. Was the disciplinary investigation undertaken by Mr Thomson between February and May 2019 an act of detriment on the ground that the claimant had made the fourth and fifth protected disclosures?c. Were the claimant’s complaints about either or both of those matters timeously presented to the Tribunal in terms of section 48 ERA?d. If so, what is the appropriate remedy?
Preliminary matters
[3]On the morning of the hearing the claimant’s solicitors submitted a witness statement containing the claimant’s proposed evidence relating to time bar and remedy. Dr Gibson objected to this. We heard submissions from Mr Allison and Dr Gibson about(i) whether the witness statement should be allowed to stand as the claimant’s evidence in chief and(ii) whether the scope of the claimant’s evidence should include remedy as well as time bar.[4]Following a short adjournment to consider matters, we decided –a. Not to allow the use of the witness statement. We noted that the witness statement had not been ordered by the Tribunal and had been submitted at the last minute before the hearing. We considered that the claimant should give his evidence orally in the usual way.b. That the scope of that evidence should cover both time bar and remedy. We noted that the Tribunal had earlier directed that the claimant should give evidence only in relation to time bar but we considered that it would be necessary to hear from the claimant about what had happened to him (in terms of injury to feelings) since the original hearing in March 2021. Structure of hearing[5]Mr Allison and Dr Gibson had provided the Tribunal with written submissions in advance of the hearing. We are grateful to both for the evident care taken in the preparation of these.[6]We decided to approach matters by working through the issues remitted to us by the EAT, hearing oral submissions from both sides on each issue in turn. We also decided that the claimant should give evidence about time bar and remedy once we had heard submissions on the two detriment issues, followed by oral submissions on those matters. Before recording those submissions we will narrate the protected disclosures we previously found to have been made by the claimant and the detriments said to have been suffered by him on the ground of making those disclosures. We will also set out the relevant provisions in the Employment Rights Act 1996 (“ERA”). Protected disclosures[7]We adopt the description of the claimant’s disclosures given by the EAT, using the numbering of those disclosures in our original Judgment.[8]Disclosure 1 – On 2 August 2016 the claimant sent an email to a senior manager in which he expressed concern that the SPPA may not have been correctly applying the Police (Injury Benefit) (Scotland) Regulations 2007. On 4 August 2016, the claimant emailed the respondent’s Operations Manager, Ms Guthrie, to request a meeting. At the resultant meeting (which took place between 4 and 10 August 2016), the claimant expressed his concerns about the way in which police injury benefits were being dealt with.[9]Disclosure 4 – The claimant had concerns about the way in which the firefighter injury benefit scheme was being administered and about an issue described as “final salary linking” (abbreviated to “FSL”). In or around the start of 2018, the claimant enlisted the support of an acquaintance, Mr Dunn, to submit an online form in Mr Dunn’s name to Audit Scotland. The online form submitted by Mr Dunn referred to an “issue of concern”. It was clear from the description of that issue that it related to police and firefighter injury benefits. Although the online form was submitted in the name of Mr Dunn it was, in fact, the claimant who had filled out the online form. Mr Dunn and the claimant then attended a meeting with Audit Scotland on 30 March 2018. It was not clear to the Tribunal how and when the claimant came to be invited to that meeting. In the course of the meeting, however, the claimant was spoken to by Audit Scotland separately from Mr Dunn. He outlined his concerns about the police and firefighter issues mentioned in the online form. In addition, he raised concerns about the FSL issue.[10]Disclosure 5 – On 13 June 2018, an email was sent in Mr Dunn’s name to the First Minister and to the Cabinet Secretary for Finance, Economy and Fair Work. The email was, in fact, written by the claimant. It referred to the same issues as had been raised with Audit Scotland. Alleged detriments[11]Again we adopt the EAT’s description of the detriments said by the claimant to have been suffered by him on the ground of making his disclosures, following the same numbering of those disclosures.[12]Detriment on the ground of disclosure 1 – The claimant met Ms Guthrie on 8 March 2017. The outcome of that meeting was a decision by Ms Guthrie to take the claimant away from police and firefighter injury benefit work and to place him on a secondment to the NHS awards team. The claimant was not happy at being seconded. He regarded it as a punishment for speaking out about the police injury benefit issues.[13]Detriment on the ground of disclosures 4 and 5 – On 27 February 2019, Ms Heatlie wrote to the claimant to advise him of an investigation into allegations about his conduct. The letter began with a general introduction as follows – “It has been brought to my attention that there are causes for concern over your conduct, which relate to allegations of insubordination; refusal to follow reasonable management instructions; misuse of official information; frustrating the implementation of policies once decisions are taken, by declining to take or abstaining from, actions which flow from those decisions; and negligence causing financial loss, damage or injury to people.”[14]The letter went on to identify seven specific allegations of alleged misconduct which were to be investigated by an Investigating Officer, Mr Thomson. Only two of those (numbered 2 and 4 in the letter) were relevant to the appeal (and the EAT then recorded the terms in which allegations 2 and 4 were expressed in Ms Heatlie’s letter). These were as follows – “2. On 19 June 2018 you and Mr Dunn met with Audit Scotland and despite previous full internal investigations into your concerns you again reported the same beliefs that errors were being made in relation to public service pensions. Although SPPA remain unaware of the specific conversation you and Mr Dunn had with Audit Scotland it did provide details of complaints about final salary links and retained firefighter’s benefits we provided under scheme regulations that were the subject of your previous complaints. SPPA provided a full response to Audit Scotland on 8 August 2018.” “4. You have falsely accused SPPA of the misuse of public funds and of corruption on a number of occasions and have written to the First Minister and other Scottish Ministers under the heading “Public Pensions Scandal” with complaints that were similar to those fully investigated by SPPA. You have also falsely stated that staff were being required to give false information to members or “revolt and be disciplined”.” Relevant statutory provisions[15]Section 47B ERA (Protected disclosures) provides, so far as relevant, as follows – (1) 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.[16]Section 48 ERA (Complaints to employment tribunals) includes the following – (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 …. (1A) …. 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 …. Submissions on first issue Was the secondment of the claimant on or around March 2017 an act of detriment on the ground that he had made the first protected disclosure?[17]Mr Allison submitted that the respondent’s act of moving the claimant out of the injury benefit team had been to the claimant’s disadvantage, and this disadvantage had subsisted until his dismissal. This was the nature of the detriment. It should not be regarded as a single, stand-alone act. It did not end when the claimant was moved seven months later to a different team, but continued until his dismissal.[18]This interpretation was, Mr Allison contended, consistent with how the concept of detriment was elucidated in Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 IRLR 285. Mr Allison contended that it was unarguably a detriment to move an employee from the team in which he worked against the employee’s wishes.[19]Dr Gibson referred to the EAT’s criticism of the manner in which we dealt this issue at paragraph 142 of our original Judgment and invited the Tribunal to rectify matters by producing more detailed reasons for our finding that the claimant being required to move teams was not a detriment. The claimant’s move, Dr Gibson submitted, had been a welfare measure to give the claimant a break from casework which was causing him to be stressed. A reasonable worker would not have considered such a move to be a detriment.[20]Dr Gibson addressed the EAT’s criticism of the Tribunal’s approach to the reason for the claimant’s secondment. That criticism was under reference to NHS Manchester v Fecitt and others [2012] ICR 372. Dr Gibson invited the Tribunal to find that the claimant having made a protected disclosure was no more than a trivial factor in the decision to move him.[21]Dr Gibson submitted that it was wrong to regard any detriment arising from the claimant’s secondment as continuing until his dismissal. The secondment to the awards team had lasted for a period of seven months at which point the claimant was moved permanently to the service team. The Tribunal had found this second move not to be a detriment and this broke the chain of causation. Mr Allison responded to this by asserting that the Tribunal had made no finding in fact that the claimant’s second move was permanent.[22]Mr Allison argued that it would be wrong for the Tribunal to proceed as suggested by Dr Gibson. The correct approach was to address de novo the issue remitted by the EAT. Submissions on second issue Was the disciplinary investigation undertaken by Mr Thomson between February and May 2019 an act of detriment on the ground that the claimant had made the fourth and fifth protected disclosures?[23]Mr Allison and Dr Gibson took different positions on the meaning of this issue. Mr Allison argued that it was descriptive, and the correct approach was to look at the disciplinary process of which Mr Thomson’s investigation had formed part. He pointed out that in the original Judgment the Tribunal had referred (at paragraph 144) to “the bringing of disciplinary charges”. Mr Allison urged the Tribunal to look at what the claimant had complained about at the time, and not to restrict the focus of this issue. Mr Allison also suggested that if there was doubt as to what was meant by the language in which the second issue was expressed, the EAT could be asked to clarify.[24]Dr Gibson disagreed – the EAT had not referred to the issuing of disciplinary charges. The language used was not “descriptive”. The Tribunal should deal with the issue as stated by the EAT, ie only Mr Thomson’s investigation. The Tribunal’s reference to the bringing of disciplinary charges was made in the context of the claimant’s first protected disclosure and not the disclosures to which the second issue related.[25]Mr Allison’s position was that subjecting a long-serving employee with a clean disciplinary record to disciplinary proceedings (including having their duties curtailed pending the outcome of those proceedings) was something the reasonable worker would consider to be a disadvantage. On the question of causation, Mr Allison submitted that the correct approach was for the respondent to be required to show that the protected disclosures did not materially influence the decision to commence the disciplinary process.[26]Referring to Ms Heatlie’s letter to the claimant of 27 February 2019, Mr Allison pointed out that allegations 2 and 4 there specified (and narrated above) related expressly to the claimant having made his fourth and fifth protected disclosures. This meant that the respondent had said in terms that it was commencing an investigation to look into inter alia the claimant’s conduct in making those protected disclosures. The fact that these allegations were removed when disciplinary charges were brought against the claimant made no difference – the detriment was subjecting the claimant to the disciplinary process, not the sanction of dismissal.[27]Mr Allison commended to the Tribunal the EAT’s analysis at paragraphs 51- 52 of its Judgment. The EAT was critical of the Tribunal for having appeared not to notice the apparent correlation between protected disclosures 4 and 5 on the one hand and allegations 2 and 4 on the other. The EAT also observed that it was not clear the Tribunal had recognised that the Fecitt materiality test simply required the influence of the protected disclosure(s) on the relevant act to be “more than trivial”. Mr Allison argued that this threshold was met; the claimant’s protected disclosures were part of the reason for the respondent’s disciplinary action.[28]Dr Gibson submitted that the claimant’s conduct in relation to the fourth and fifth protected disclosures had been investigated by Mr Thomson. The allegations in Ms Heatlie’s letter which related to whistleblowing had not been pursued as disciplinary charges. Dr Gibson noted that the Tribunal had described this (at paragraph 144 of the original Judgment) as “significant” and he invited the Tribunal to explain that significance. He argued that the significance was that the removal of the disciplinary charges relating to whistleblowing broke the chain of causation. It could not be a detriment to the claimant for the respondent to drop disciplinary allegations against him.[29]Dr Gibson also invited the Tribunal to expand on why, being aware of the full content of Ms Heatlie’s letter, it was content to rely on the paragraph of that letter set out at paragraph 87 of the original Judgment as being the reason why the disciplinary investigation was commenced, and did not go into more detail on the seven different allegations contained in the letter. Evidence – third and fourth issues[30]Having received oral submissions on the first and second issues, we heard evidence from the claimant. It was convenient for this to cover both the third issue (time bar) and the fourth issue (remedy).[31]In making the findings in fact set out below we do not attempt to record all the evidence given by the claimant. We have sought to focus on matters relevant to the issues of time bar and remedy. Findings in fact[32]The claimant was aware of the right to whistleblow from his knowledge of pension schemes. Prior to bringing his claim, he had no knowledge or experience of employment law. He was unaware of the concept of whistleblowing detriment. He was not a member of a trade union.[33]When he was moved out of the injury benefit team in March 2017, the claimant did not obtain any advice. He did not think about the possibility of bringing a Tribunal claim. He was unaware that he might have such a claim. His focus was on getting senior management to look at the pension issues which were the subject of his disclosures.[34]When the claimant received Ms Heatlie’s letter of 27 February 2019 he did not seek legal advice. He said that his mind was “fixed” on his whistleblowing (ie pension) issues. He had no thought of Tribunals. He was concerned about his job but, before being dismissed, it did not occur to the claimant that he might have a claim.[35]Following his dismissal the claimant contacted Thompsons’ office in Galashiels. He had two conversations, the second of which was with a solicitor. He also sent two emails. The information he provided to Thompsons related primarily to the pension issue. He said that he had been dismissed and was awaiting an appeal. He mentioned having been to Audit Scotland and having spoken to the office of The Pensions Regulator. He did not recall receiving any advice from Thompsons about time limits or what claims he might have. He was advised to await the outcome of his appeal. At some point – it was not clear when exactly – the claimant was told by Thompsons that they would not be able to assist him.[36]After consulting Thompsons, the claimant went to the Citizens Advice Bureau (“CAB”). He was advised there to check whether he had the benefit of legal expenses insurance as part of his household insurance cover. This resulted in the claimant contacting the Royal Bank of Scotland (“RBS”). He was put in touch with what he described as “litigators in Southampton”. He was unclear as to whether this was before or after he submitted his Tribunal claim. We believed that, on the balance of probability, this occurred after the claimant had submitted his claim as(a) he referred to bringing the claim himself after conducting his own internet research and(b) he described the litigators’ response as “slow”. The claimant said that in the course of his email correspondence with RBS there had been mention of detriment – he thought this was around November 2019.[37]The claimant contacted ACAS to initiate Early Conciliation on 9 September 2019. He accepted that someone must have told him that he needed to do this before bringing a Tribunal claim but he was unable to say whether this advice had come from Thompsons or the CAB. The claimant’s recollection was that it was ACAS who told him about the time limit for bringing a Tribunal claim.[38]The claimant agreed with the occupational health report from Optima Health dated 29 August 2019 (which the respondent had obtained in the course of the claimant’s appeal against dismissal). That report referred to the claimant experiencing stress at work which was “situational and related to workplace issues”. The claimant accepted that his stress at that time was not related to his wife’s health, and that the level of that stress would not have changed much in the period of August/September 2019.[39]The claimant was experiencing work-related stress in March 2017 and continued to do so in August 2019. This was confirmed in the Optima report which stated – “Malcolm has historical workplace issues, and this remains the key trigger to his current situation and symptoms of stress. Malcolm firmly believes that the pension procedures are incorrect within the SPPA and has formally raised this as a concern. The workplace issues appear to have been ongoing for around 2 years.” The Optima report also recorded that the claimant had attended his GP but they (ie the GP) believed that no medical treatment was required and suggested that the claimant should increase his exercise and self-care to aid his symptoms of stress.[40]By February 2019 the claimant was suffering from sleep deprivation. He was able to sleep for only three hours each night. This made him feel depressed. His focus was on his whistleblowing issue which he described as “all consuming”. The claimant agreed under cross-examination that the main source of his stress was that no-one was taking his whistleblowing seriously.[41]The claimant believed that he was good at his job in the injury benefit team. He wanted to stay there. He referred to his removal from that team as “a slap in the face” and “demoralising”. The claimant said that he felt being taken to disciplinary proceedings was a “total injustice”. He described his current perception as a “feeling of being picked on for years” and said that he was “viewed as a troublemaker”.[42]The claimant said that, following(a) his removal from the injury benefit team and(b) the start of the disciplinary investigation, he did not function as he did previously. He explained this in terms of being unable to explain things briefly, his brain not being the same and being unable to articulate himself well. Submissions on third issue Were the claimant’s complaints about either or both of these matters timeously presented to the Tribunal in terms of section 48 ERA?[43]Mr Allison’s primary position was that both of the detriments suffered by the claimant (removal from the injury benefit team and being subjected to disciplinary proceedings) were continuing acts so that time began to run for the purposes of his detriment claim only from the date of termination of his employment on 18 June 2019.[44]Mr Allison’s secondary or esto position was that it had not been reasonably practicable for the claimant to present his detriment claim in time because he had been reasonably ignorant of his right to do so. He had no knowledge of whistleblowing detriment. The possibility of a detriment claim did not enter his mind, largely because he was fully focussed on his whistleblowing issues relating to pensions. His mental health was adversely affected because he was suffering from stress, without any medical assistance.[45]The claimant’s approaches to Thompsons and the CAB were triggered by his dismissal. While he remained focussed on the resolution of his whistleblowing issues, he did mention his dismissal when seeking advice and received sufficient information to allow him to bring a claim to the Tribunal.[46]Mr Allison argued that the claimant’s ignorance of his right to bring a detriment claim was reasonable. He referred to John Lewis Partnership v Charman UKEAT/0079/11. The possibility that he might have something other than an unfair dismissal claim did not enter the claimant’s head until he received the respondent’s ET3. The issue was then addressed at the case management preliminary hearing (before EJ d’Inverno) on 11 May 2020 following which the claimant was ordered to provide specification of the protected disclosures he had made and the detriment he had suffered.[47]Dr Gibson submitted that the date of the last act (for the purposes of time for bringing a claim of detriment beginning to run) was 7 May 2019 when the investigation stage of the disciplinary process ended and the disciplinary hearing invitation letter was sent. The claimant did not approach ACAS within three months of that date and so his detriment claim was out of time.[48]Dr Gibson referred to Marks & Spencer plc v Ryan [2005] EWCA Civ 470 and summarised the principles which the Court of Appeal had distilled from a review of the case law. The focus should be on what knowledge the employee should have had if he had acted reasonably. In this case the claimant had approached Thompsons, the CAB and ACAS and he had also carried out his own internet research before presenting his claim. He should, Dr Gibson contended, have gained sufficient knowledge to bring his detriment claim in time. He had not been ignorant of his right to bring a Tribunal claim and should not be rewarded for raising his detriment claims retrospectively.[49]Dr Gibson did not agree that the detriments were continuing acts. The first and second issues referred back to the Tribunal by the EAT were expressed in terms of specific dates –(a) March 2017 for the secondment and(b) between February and May 2019 for Mr Thomson’s investigation. Evidence at original hearing[50]We did not deal with time bar and remedy in our original Judgment because, having found against the claimant, it was unnecessary to do so. However, we reviewed the evidence which we heard at the original hearing with a view to identifying anything relevant to the issues of time bar and remedy.[51]The claimant’s evidence about the impact on him of being seconded out of the injury benefit team related to his being required to sit on his own for seven months. We addressed this at paragraph 46 of the original Judgment. We found that the claimant “had not been deliberately moved in March 2017 to a location where he would be sitting separately from anyone else but there may have been times when he was the only person sitting at the cluster of four desks”.[52]In relation to his subsequent move to the service team in October 2017, the claimant’s evidence was that Ms Guthrie “had decided to move me permanently to a new team”. This was consistent with what Mr McGarry said to the claimant in his email of 28 September 2017 (recorded at paragraph 49 of our original Judgment) where he described the move to the service team as “a fresh start”.[53]The claimant’s evidence about the impact on him of the disciplinary investigation/process was limited. He described the letter of dismissal as “hurtful and misleading” and referred to being “incredibly disappointed” when he received the appeal outcome letter.[54]We noted that in his document dated 3 August 2020, submitted in compliance with the Tribunal’s Orders issued following the second case management preliminary hearing on 7 July 2020 (before EJ Kemp), the claimant said the following – “From March 2017 I have suffered prolonged extremely unpleasant treatment and permanent injury to feelings as a consequence of making a series of disclosures. I have been openly humiliated and ridiculed, suffered extreme stress and loss of health, loss of friendships, loss of hobbies and all but lost my life long enthusiasm for sport ….” “I have been profoundly affected by my treatment in a life changing manner ….” “I have been subjected to extreme and prolonged victimisation for whistleblowing ….” Submissions on fourth issue If so, what is the appropriate remedy?[55]Mr Allison invited the Tribunal to make a cumulative award of £15000 plus interest in respect of both detriments. On the issue of apportionment he referred to BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188. Mr Allison said that, in addition to the detriments found to be unlawful, there had been other factors or events found not to be unlawful, and which clearly had impact on the claimant. It was, he submitted, not possible to apportion those effects, particularly at this stage several years later.[56]Dr Gibson argued that the claimant’s stress was of his own making. He had allowed his belief in relation to the pension issues which were the subject of his protected disclosures to consume his life. He urged the Tribunal to find that the claimant had suffered no injury to feelings as a result of the respondent’s actions. If there was to be an award for injury to feelings, it should be at the low end of the lower Vento band.
Discussion
[57]We considered that our approach to the first and second issues referred back to us by the EAT should be that contended for by Mr Allison, namely that we should look at these issues de novo. The EAT had found Mr Allison’s criticisms of our decision on the first and second issues to be well founded. Part of that criticism was that we had conflated the different issues of detriment and causation. We did not believe that this could be addressed simply by expanding on our reasoning as suggested by Dr Gibson. It was necessary to look at matters afresh.[58]We reminded ourselves of the language of section 47B ERA and considered that what we should have done in our original Judgment was as follows –a. identify the conduct of the employer said to amount to a detriment to which the claimant was subjected;b. determine whether that conduct was a detriment; andc. determine whether the detriment was on the ground that the claimant had made a protected disclosure.[59]We considered that the scope of our looking at matters afresh was informed by the terms in which the first and second issues referred back to us by the EAT were framed. We found these issues to be clearly expressed and saw no need to seek clarification of either of them from the EAT.[60]We noted what Lord Hope of Craighead said in Shamoon (at paragraphs 34- 35) – “34… the court or tribunal must find that 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. 35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to detriment ….”[61]We also noted what Elias LJ said in Fecitt (at paragraph 45) – “…. section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.” First issue[62]The first issue referred back to us by the EAT was expressed as follows – Was the secondment of the claimant in or around March 2017 an act of detriment on the ground that he had made the first protected disclosure?[63]The first protected disclosure was made by the claimant in August 2016. He disclosed that, in his view, the Police (Injury Benefit) (Scotland) Regulations 2007 had not and were not being applied correctly. The conduct of the respondent alleged by the claimant to amount to a detriment was their moving the claimant out of the injury benefit team in March 2017. This was described by Ms Guthrie as “a secondment to the NHS awards team until the Police injury issues raised have been satisfactorily resolved”.[64]Looking at this afresh, we decided that the claimant’s disclosure relating to Police injury benefits was a material factor, in the sense of being more than trivial, in the respondent’s decision to move him away from the injury benefit team. In her email to the claimant dated 9 March 2017(a) Ms Guthrie made specific reference to the Police injury issues when advising the claimant of the move and(b) she made no reference to the other factors argued by the respondent at the original hearing to have been behind the move. She did not mention the claimant or his Team Leader Ms Scott being stressed.[65]We then considered whether the secondment was a detriment to which the claimant was subjected. We decided that it was. The claimant did not want to be moved. He told Ms Guthrie in his email of 7 March 2017 (quoted at paragraph 35 of the original Judgment) that he “would feel unfairly punished and embarrassed to be seconded out of the Injury Team after 16 years”. The claimant continued to object when he met with Ms Guthrie on 8 March 2017. Applying the words of Lord Hope of Craighead, this was the claimant taking the view that he had been disadvantaged in the circumstances in which he had thereafter to work.[66]We found that the claimant taking this view was reasonable. It was not an unjustified sense of grievance. He regarded the move as a punishment. Having been in the injury benefit team for 16 years, he was embarrassed to be moved away from that team. It was a detriment.[67]We moved on to the question of causation – was the detriment on the ground that the claimant had made his protected disclosure about Police injury issues? We noted that –a. Seven months had passed between the claimant making his protected disclosure and suffering the detriment of the unwanted secondment.b. During that period the claimant had continued to raise his concerns about the Police injury issues. This was confirmed by Ms Guthrie telling Ms Heatlie (in advance of Ms Heatlie’s meeting with the claimant on 8 December 2016) that the claimant was unhappy about how the SPPA was paying certain pensions (as recorded at paragraph 32 of the original Judgment).c. Ms Heatlie described the claimant as “troubled” by the issue of pensions not (in his view) being paid correctly.[68]We came to the view that the claimant’s disclosure about Police injury issues was a material factor in the respondent’s decision to second the claimant away from the injury benefit team in March 2017. When we revisited paragraph 142 of the original Judgment we found that we had not applied Fecitt correctly. We had focussed on what we saw as the principal reason for the detriment. Looking at matters afresh, we concluded that the claimant’s disclosure about Police injury benefits was a factor in the respondent’s decision to move him out of the injury benefit team. Ms Guthrie advised the claimant in her email of 9 March 2017 that the move was to give the claimant “a break from the casework with which you have concerns”.[69]We found that this was a matter of considerable importance to the claimant. It was not something of which he could let go. We did not believe that the claimant’s protected disclosure about this issue could be regarded as trivial when assessing its significance in the respondent’s decision to move him away from the injury benefit team. While some seven months passed between the making of the protected disclosure and the detriment of the secondment, the issue did not go away - quite the opposite. The claimant continued to voice his concerns. It was a material factor – in the sense of being more than trivial – in the respondent’s decision to move the claimant away from the injury benefit team. Decision on first issue[70]For the reasons set out above we decided that the secondment of the claimant in March 2017 was an act of detriment on the ground that the claimant had made the first protected disclosure. Second issue[71]We next considered the second issue referred back to us by the EAT – Was the disciplinary investigation undertaken by Mr Thomson between February and May 2019 an act of detriment on the ground that the claimant had made the fourth and fifth protected disclosures?[72]We began by considering the argument advanced by Mr Allison that the language used by the EAT to express this issue was descriptive and we should look at the disciplinary process of which Mr Thomson’s investigation formed part. We did not agree with Mr Allison. As stated at paragraph 59 above, this issue was clearly expressed by the EAT. If the EAT had considered that we should look at the whole disciplinary process, it would have said so.[73]Adopting the approach set out at paragraph 58 above –a. We found that the conduct of the respondent said to amount to a detriment was the disciplinary investigation.b. That conduct was a detriment to which the claimant was subjected.c. The detriment was (applying Fecitt) on the ground that the claimant made protected disclosures. We set out our reasons in the paragraphs which follow.[74]In our original Judgment we focussed (at paragraph 144) on the bringing of disciplinary charges against the claimant. We did not address separately the question now referred back to us by the EAT of whether the disciplinary investigation which preceded those charges was itself a detriment. The fact that the EAT had identified the disciplinary investigation as a potential detriment was in our view sufficient to confirm that this was the conduct of the respondent upon which we now required to focus.[75]When considering whether this conduct amounted to a detriment we reminded ourselves again of what Lord Hope of Craighead said in Shamoon. We found that a reasonable employee facing an investigation into seven disciplinary allegations would or might take the view that this was to his detriment. Looking at this afresh, we believed that this conclusion was self-evident. Although in her letter to the claimant of 27 February 2019 advising him of the investigation Ms Heatlie described it as a “neutral action”, that was not how it would be perceived by a reasonable employee who was the subject of that investigation.[76]As the EAT observed (at paragraph 52 of its Judgment) there was an apparent correlation between(a) the claimant’s fourth and fifth disclosures and(b) allegations 2 and 4 set out in Ms Heatlie’s letter. Allegation 2 referred to the disclosure to Audit Scotland and allegation 4 referred to the disclosure to the First Minister and other Scottish Ministers. We considered that this selfevidently passed the Fecitt threshold that the influence of the protected disclosures on the relevant conduct of the respondent (the disciplinary investigation) was more than trivial.[77]In our original Judgment we described it as significant that the disciplinary charges subsequently brought against the claimant did not include the references to whistleblowing matters. The explanation for this is that, when considering the nature of the detriment, we were looking at the disciplinary process and not the investigation which preceded it. Decision on second issue[78]For the reasons set out above we decided that the disciplinary investigation undertaken by Mr Thomson between February and May 2019 was an act of detriment by the respondent on the ground that the claimant had made the fourth and fifth protected disclosures. Third issue[79]We dealt next with the third issue referred back to us by the EAT – Were the claimant’s complaints about either or both of those matters timeously presented to the Tribunal in terms of section 48 ERA?[80]We firstly considered Mr Allison’s argument that the detriments to which the claimant was subjected were acts which continued until the termination of his employment on 18 June 2019 with the consequence that his detriment claim was not time-barred. While this was a superficially attractive argument, we were not persuaded by it.[81]In relation to the detriment involving secondment of the claimant away from the injury benefit team in March 2017, we found that this was a continuing act. We considered that it would be plainly illogical to say that the claimant suffered a detriment only on the first day of the secondment but not thereafter. If the secondment continued, so did the detriment which it entailed.[82]However, we agreed with Dr Gibson that the claimant’s move some seven months later to the service team broke the chain of causation, so that the claimant ceased to suffer the detriment on the ground of his first protected disclosure. It was clear from the evidence at the original hearing (see paragraph 52 above) that the claimant’s move to the service team in October 2017 was permanent. The claimant’s evidence was that this was what Ms Guthrie had told him. This was supported by Mr McGarry’s description of the move as “a fresh start”. It followed that time began to run for the purposes of a section 47B ERA claim from the date of the claimant’s move to the service team in October 2017.[83]In relation to the detriment involving the disciplinary investigation, we found that this was also a continuing act. The detriment continued for the duration of the investigation. In its articulation of the second issue the EAT referred to the investigation taking place between February and May 2017. That was not strictly accurate. Mr Thomson submitted his report to Ms Heatlie on 17 April 2019 (see paragraph 91 of the original Judgment) which indicated that his investigation did not continue beyond that date. However, the claimant would not have been aware that Mr Thomson’s investigation had concluded until Ms Heatlie wrote to him on 7 May 2019 inviting him to a disciplinary hearing.[84]From that point onwards the claimant was subject to the disciplinary process which resulted in his dismissal. That process was clearly to his disadvantage – it was impossible to conceive of any circumstances in which a reasonable employee would not regard being subjected to a disciplinary process as a detriment. But that process did not commence until the investigation had been concluded. It was not inevitable that the investigation would result in disciplinary action against the claimant. Accordingly the detriment on the ground of the investigation ended when the claimant was advised of the outcome of the investigation, ie on 7 May 2019. Time began to run for the purposes of a section 47B ERA claim from that date.[85]The claimant initiated Early Conciliation when he contacted ACAS on 9 September 2019. We agreed with Dr Gibson that this meant his subsequent claim to the Tribunal, to the extent that it related to detriment, was brought out of time. We moved on to address whether it had been reasonably practicable for the claimant to bring his detriment claim in time.[86]We considered the claimant’s evidence about his knowledge of the right to bring a claim of detriment on the ground of having made a protected disclosure. We found that he had been unaware of that right until he received the respondent’s ET3, where the paper apart contained references to detriment for making a protected disclosure. We had to decide whether the claimant’s lack of knowledge of his right to bring a detriment claim was reasonable.[87]We found the following matters to be relevant –a. The claimant had some knowledge of the concept of whistleblowing but this was in the field of pensions, his own area of expertise, and not in the employment context.b. When the claimant sought advice following his dismissal his focus was on the pension issues about which he had made his protected disclosures. Put briefly, he wanted someone to look at those issues because he believed he was right and that the SPPA was paying public sector pensions incorrectly.c. From our observation of the claimant at the original hearing, we were keenly aware of the extent to which those pension issues occupied his mind. There was some force in Dr Gibson’s assertion that the claimant had allowed those issues to “consume his life”.d. Although the claimant had mentioned going to Audit Scotland and speaking to The Pension Regulator when seeking advice from Thompsons, it was his dismissal and not any other adverse treatment by the respondent which triggered his need for advice. The possibility of a detriment claim did not enter his head.e. The Optima report confirmed that the claimant was suffering from stress in August 2019 and had done so for some two years before that.[88]Taking all of these matters into account, we found that the claimant’s ignorance of his right to bring a detriment claim was reasonable. His stress related to his workplace issues. These stemmed from his belief in respect of the pension issues which, for the claimant, was all-consuming. It was also damaging to the claimant’s health and wellbeing – see paragraph 54 above. It had not been reasonably practicable for him to bring his detriment claim in time. That reasonable ignorance subsisted from(a) October 2017 in the case of the claimant’s move away from the injury benefit team and(b)9 May 2019 in the case of the disciplinary investigation until the claimant received the respondent’s ET3.[89]We then considered whether the claimant had brought his detriment claim within such further period as was reasonable in terms of section 48(3)(b) ERA. We noted the terms of the Orders made following the case management preliminary hearings in May 2020 and July 2020. It appeared to us that the claimant had, in effect, been allowed to amend to bring in his detriment claim subject to the respondent’s contention that such a claim was out of time (with the time bar issue reserved for determination at the final hearing). It had not been unreasonable of the claimant to await the outcome of the case management preliminary hearings before taking further action in relation to his claim.[90]The claimant had complied with the Tribunal’s Orders to provide further and better particulars. Within those further and better particulars, he had articulated his detriment claim. In these circumstances we found that the detriment claim had been brought within such further period as was reasonable. Decision on third issue[91]For the reasons set out above we decided that the claimant’s detriment claims were not time-barred. Fourth issue[92]We then turned to the fourth issue referred back to us by the EAT - If so, what is the appropriate remedy?[93]We reminded ourselves that section 49 ERA provides as follows –(1) Where an employment tribunal finds a complaint under section 48(1) …. well-founded, the tribunal – (a) shall make a declaration to that effect, and (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates ….(2) ….. the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to – (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant’s right.(3) The loss shall be taken to include – (a) any expenses reasonably incurred by the complainant in consequence of the act, or failure to act, to which the complaint relates, and (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act.(4) In ascertaining the loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.(5) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by the action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding ….[94]We also reminded ourselves of the Presidential Guidance: Vento Bands (2017) issued on 5 September 2017 and the Second Addendum to that guidance issued on 25 March 2019, which applies to claims presented on or after 6 April 2019 (but before 6 April 2020). In terms of that Addendum – …. the Vento bands shall be as follows: a lower band of £900 to £8800 (less serious cases); a middle band of £8800 to £26300 (cases that do not merit an award in the upper band); and an upper band of £26300 to £44000 (the most serious cases), with the most exceptional cases capable of exceeding £44000.[95]The claimant was seeking an award in respect of injury to feelings. We found his evidence about the impact on him of the detriments he had suffered, as recorded at paragraphs 38-42 above, to be credible. We noted the evidence he gave at the original hearing about the impact on him of the disciplinary process (see paragraph 53 above) but we believed that this was in response to the outcome letter informing him of his dismissal. It did not assist us in assessing injury to feelings attributable to detriment.[96]The Optima report dated 29 August 2019 contained an opinion as to the claimant’s current mental and physical wellbeing – “The issues in this case appear to be entirely work related in nature, accumulating over a period of time, due to Malcolm’s perceived concerns about the way pensions are being processed. In my clinical opinion, Malcolm’s physical and mental wellbeing appear to be stable. He is aware of the stressors that may affect him and seeks to apply self-care to manage these. He is not being treated medically for any physical or mental health issues, other than for his epilepsy, which has been stable for a significant period of time.”[97]We noted that the claimant was suffering from stress before he was seconded away from the injury benefit team in March 2017. He told Ms Heatlie that he was “feeling stressed and anxious” before their meeting on 8 December 2016 (see paragraph 32 of our original Judgment). That he continued to suffer from stress was confirmed in the Optima report. Ms Heatlie said in evidence at the original hearing that the claimant’s secondment was “in line with OH advice” (although this could not be a reference to the earlier Optima report because that was dated 4 August 2017, ie after the date of the secondment).[98]We believed that the secondment and the disciplinary investigation both affected the claimant adversely in terms of injury to feelings. We reviewed the material available to us with a view to quantifying that injury to enable us to determine what level of compensation would be just and equitable.[99]As recorded at paragraphs 41-42 above, the claimant described his move away from the injury benefit team as “a slap in the face” and “demoralising”. He described being taken to disciplinary proceedings as a “total injustice”. We understood the claimant’s reference to disciplinary proceedings to include the investigation undertaken by Mr Thomson. He referred to a “feeling of being picked on for years” and being “viewed as a troublemaker”.[100]The way in which the claimant described to us the injury to his feelings was somewhat less strident than the language he used in his further and better particulars (see paragraph 54 above). We believed that this reflected a degree of resignation on the claimant’s part in relation to what had happened to him, but we also observed a continuing sense of injustice.[101]Based on this limited material, we found that(a) the claimant’s mental health was already impaired before he suffered the detriments caused by the secondment and the disciplinary investigation,(b) the secondment and the disciplinary investigation made things worse for the claimant and(c) the extent to which they made things worse was more than trivial but not substantial. That led us to determine that the appropriate award fell within the lower Vento band.[102]We noted what Hand HHJ said about the divisibility of psychiatric injury in Konczak. We considered whether it was possible to apportion the impairment to the claimant’s mental health amongst(a) the stress experienced by him due to the pension issue,(b) the detriments we found him to have suffered and(c) the alleged detriments we found him not to have suffered. We came to the view that apportionment was not possible: we did not have sufficient evidence (and in particular medical evidence) to allow this and considerable time had passed since the detriments occurred. For the same reasons we also considered that it was not possible to apportion as between the two detriments we found the claimant to have suffered.[103]We noted from his written submissions that Mr Allison was seeking interest on any compensation awarded to the claimant. This was not challenged by Dr Gibson in his written submissions. Interest is payable on an award of compensation for injury to feelings in terms of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (the “1996 Regulations”). However, an award of compensation for detriment on the ground of having made a protected disclosure is not an award under the “relevant legislation” as defined in the 1996 Regulations.[104]We decided that we should seek written submissions on the matter of interest. When inviting the parties to provide those submissions we drew their attention to Main v SpaDental Ltd [2024] EAT 200. In that case the EAT had remitted to the Employment Tribunal the issue of “loss caused by the effluxion of time in light of any relevant evidence” in the context of a claim for holiday pay. The EAT referred to this as “interest-like compensation”. Submissions on interest[105]We are grateful to Mr Allison and Dr Gibson for providing further written submissions on this point.[106]Mr Allison accepted that the 1996 Regulations did not apply in this case. He relied on Melia v Magna Kansei Ltd [2006] ICR 410 in arguing that the assessment of what compensation was just and equitable under section 49 ERA could, where fairness required, include account being taken of the consequence of delayed receipt of money to which the claimant was found entitled. He found support for this in the EAT’s reference to “interest-like compensation” in Main.[107]Mr Allison argued that the claimant(a) had been deprived of access to funds due to him since the dates of the detriments and(b) should be compensated for the value of those funds being reduced due to the effluxion of time as a consequence of inflation. For the claimant’s compensation to be just and equitable, the Tribunal was obliged to take account of those matters.[108]Mr Allison invited us to award interest on the same basis as if this had been a discrimination case. That, he contended, was the “interest-like” approach commended in Main. In the alternative, he invited us to increase the sum awarded in line with inflation, although he argued that this would compensate the claimant only for the devaluation of his compensation and not for the delay in receiving it.[109]Dr Gibson submitted that in Melia the Court of Appeal in England had approved a modest “premium” for delay in receiving past financial losses (ie earnings). This was described as an equitable adjustment, and not interest. There was nothing in Melia to suggest that this should extend to a nonpecuniary award such as injury to feelings. An award for injury to feelings was assessed on a once-and-for-all basis using the Vento guidance.[110]Dr Gibson sought to distinguish Main. He contended that the EAT’s reasoning in that case was tied to the principle that holiday pay, unlike injury to feelings, was a fixed monetary entitlement. Injury to feelings fell to be assessed at the time of the award and inflation was already factored in via the Vento guidance. To apply a further inflationary increase would cut across that guidance and create a parallel interest regime. Decision on fourth issue[111]We reminded ourselves that section 49 ERA entitled (but did not require) us to make an award of compensation in a case such as this, and that such an award should be what we considered to be just and equitable in all the circumstances having regard to the matters specified in section 49(2).[112]We noted that in Melia the Court of Appeal upheld the approach that compensatory awards should consistently treat loss of past and future earnings, allowing a premium for delayed receipt of past earnings analogous to the discount for accelerated receipt of future earnings. We found this did not apply to the assessment of compensation for injury to feelings. That assessment required us to apply section 49 ERA on a once-and-for-all basis. To that extent we agreed with Dr Gibson.[113]We also agreed with Dr Gibson that inflation was factored into the Vento guidance. That was reflected in the annual Addenda to the original guidance. However, this was not in our view a complete answer to the points made by Mr Allison that the claimant had been deprived of access to funds to which he was entitled and should be compensated for the negative impact of inflation on the value of those funds.[114]Delivering the leading Judgment in Melia, Chadwick LJ said this – “41. ….The task which an Employment Tribunal is set by section 123(1) is to assess the compensatory award in such amount as it considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal. In a case where the loss sustained by the complainant in consequence of the dismissal includes a loss of past earnings as well as a loss of future earnings, it seems to me just and equitable to treat the two losses in a consistent way. If loss of future earnings is to be discounted to reflect the early receipt of that money, so loss of past earnings should be increased to reflect the late receipt of that money. That, as it seems to me, is a conclusion to which the Appeal Tribunal were entitled to come; having in mind the overall requirement that the compensatory award should be an amount which the tribunal considers just and equitable.42. It is important to keep in mind that interest is not awarded on the amount of the compensatory award. Rather, the Tribunal takes into account in deciding what the amount of the compensatory award should be the fact that full compensation requires a recognition that money which is paid later than it should have been gives rise to a loss. In that context interest is a measure of the loss of the use of the money which the recipient should have had earlier.43. It may be necessary, in a future case, to consider whether that approach should be adopted in circumstances in which the Tribunal is not also awarding compensation for future loss ….”[115]In terms of how a compensatory award should be assessed, the language of section 49(2) ERA is sufficiently similar to that of section 123(1) ERA to indicate that the same approach should be taken. Paragraph 43 in Melia indicates that it is not necessarily authority for recognising the diminution in the value of money in all circumstances. The case does however support the proposition that in order for compensation to be just and equitable, the Tribunal should be alert to and where appropriate take account of that diminution.[116]If we had awarded the claimant a particular sum by way of compensation for injury to feelings in our original Judgment, the claimant would have had the benefit of receiving that sum at that time rather than some four years later. If we awarded the same sum now, it would be worth less than its value four years earlier due to inflation. We regarded this as a relevant consideration in our determination of what amount of compensation would be just and equitable.[117]We did not believe it would be appropriate to adjust the amount of compensation on the same basis as if this had been a discrimination case. If Parliament had intended that this should be done, the definition of “relevant legislation” in the 1996 Regulations would have reflected this (or some equivalent provision would have been enacted).[118]We also had reservations about simply building into our assessment of compensation a factor reflecting inflation over the period between our original Judgment and this one. We were not convinced that this would necessarily reflect the impact on the claimant of the delay in receipt of compensation. Another option would be to work out what interest the claimant might have earned if he had received the money four years earlier. That however begged the question of what he might have done with the funds, and what rate of return might have been available to him. We had no evidence about these matters.[119]We agreed with Dr Gibson that the effect of inflation was already factored into the level of compensation by reference to the Vento guidelines. That was broadly an answer to Mr Allison’s argument that any compensation should reflect the passage of time since the occurrence of the detriments complained of, at least up to the time of presentation of the claim.[120]Apart from the OH report in 2019, we had no medical evidence about the impact on the claimant of the detriments he suffered. We found in our original Judgment that not all of the treatment about which the claimant complained amounted to detriment. As stated above, we did not feel able to apportion between the treatment which did amount to detriment and that which did not. Looking at matters in the round, we found that the detriment suffered by the claimant was more than trivial but not so serious as to take the case into the middle Vento band. That meant that his compensation for injury to feelings required to be assessed within the lower Vento band. This was £900 to £8800 at the relevant time.[121]We decided that the appropriate level of compensation lay in the third quartile of the lower Vento band (ie between £4850 and £6825). That reflected our view of the seriousness of the impact on the claimant of his treatment by the respondent which we found to amount to detriment. To address the adverse effect on the claimant of the passage of time between our original Judgment and the present one, we chose a figure which was approximately 12.5% higher than we considered we would have awarded in 2021. That figure was £6250 and we determined that the claimant should be compensated in that amount.[122]We considered whether the compensation should be reduced to reflect the claimant’s conduct, having regard to section 49(5) ERA. We reminded ourselves that this required us to consider whether the act to which the complaint related (the detriments) was to any extent caused or contributed to by action of the claimant. If we found that it was so caused or contributed to, we should reduce the amount of the compensation by such proportion as we considered just and equitable having regard to that finding.[123]In terms of section 47B ERA, a worker who makes a disclosure which qualifies for protection has the right not to suffer detriment “on the ground that” he made the disclosure. It would undermine the purpose of affording the worker that right if this were to be interpreted too narrowly. On the other hand, conduct of the worker which is genuinely separate from the disclosure(s) can justify a reduction in compensation. We considered the issue of whether the claimant’s conduct was connected with or separate from his protected disclosures.[124]In relation to the detriment of being seconded away from the injury benefit team, we found no conduct on the part of the claimant which was separate from his protected disclosures. In relation to the detriment of the disciplinary investigation, we found conduct which might be capable of being viewed as separate from the protected disclosures. That conduct comprised(a) the claimant’s failure to comply with management instructions to follow SPPA guidelines despite having agreed to do so and(b) linked to that, providing advice which was based on his own beliefs rather than on SPPA guidelines.[125]These aspects of the claimant’s conduct were clearly unsatisfactory from the respondent’s perspective. However, we found that we were not able to draw a clear distinction between the claimant(a) acting in a manner consistent with his belief that the respondent was not calculating benefits correctly, ie his whistleblowing issue, and(b) disregarding management instructions. Put another way, we were not able to identify conduct of the claimant which was unrelated to his protected disclosures. Rather, we found conduct which was consistent with the beliefs which underpinned those disclosures.[126]We considered the alternative that the aspects of the claimant’s conduct which we have described as unsatisfactory did require to be treated as conduct which engaged section 49(5) ERA. That conduct did not cause the detriment but could be said to have contributed to it in that it formed part of the basis for the disciplinary investigation. In relation to whether it would, had we so found, have been just and equitable to reduce the claimant’s compensation, we were not inclined to answer this as a hypothetical question. We did however note that we could have decided not to reduce the compensation despite finding contributory conduct – see N Notaro Homes Ltd v Keirle and others [2024] EAT 122.[127]We recognised that the section 49(5) ERA issue had not been addressed by either party within their written and oral submissions. We considered whether to afford the parties an opportunity to provide further written submissions on this issue, and decided not to do so. We were reluctant to cause further delay and expense in a case which has been ongoing for almost six years. If either party does wish to pursue this issue, an appropriate route would be an application for reconsideration.