Mrs L McNicholas v Care and Learning Alliance and CALA Staffbank: 4118429/2018

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4118429/2018

Venue Aberdeen

Hearing 8, 9, 10 & 11 July and 26 November 2019

Between

Mrs L McNicholasClaimant

Care and Learning AllianceRespondent

Before

Employment Judge J. M. Hendry

Date 6 December 2024

JUDGMENT

The unanimous decision of the Tribunal is as follows: (One) The claimant made the following protected disclosures:(i) On the 25 of April 2018 the claimant made a protected interest disclosure in terms of section 43B(1)(b) of the Employment Rights Act E.T. Z4 (WR) to Ms J D. and Ms N. W. that the nursery was in breach of it’s legal obligations by failing to comply with Z’s child plan and in terms of section 43B(1)(c) of the Act that she reasonably believed that there was a likely danger to the health and safety of Z and other children and further, in terms of section 43B(1)(f) that there was a likelihood of such information being concealed.

(ii) On the 1 May 2018 the claimant disclosed to the First Respondent’s staff the aforementioned disclosures.

(iii) On the 2 May the claimant disclosed to the First Respondent staff a disclosure in terms of section 43B(1) of the Employment Rights Act in relation to areas of Z’s child plan not being applied and this causing unnecessary stress to him.

(iv) On the 2 May 2018 the claimant repeated the aforementioned earlier disclosures (i), (ii) and (iii) to Kelly Sutherland.

(v) On the 3 May 2018 the claimant made protected interest disclosures to Bill Couston of Highland Council in terms of section 43B(1) of the Employment Rights Act in relation to the following matters: (a) the nursery compelling Z to engage in large peer group activities, being physically obstructed, told ‘No’ and later shouted at; (b) Z having problems with transitions changing from one activity to another contrary to the child’s plan and not being supported in these; (c) A repeated failure to allow Z food and water except at set times; (d) On the 28 of March 2018 refusing to admit Z to the nursery despite this being prearranged; (e) The refusal of nursery staff to share information in relation to the conditions of other children to allow the claimant to assess any impact this might have on Z’s needs, advising that Z’s allocated key worker at the nursery claimed to have never seen Z’s child plan and that another child J had been left in outdoor clothes with harness reins on throughout a day; (f) That areas of Z’s care plan were not being applied; (g) That Z was not receiving one to one support and was left unattended for long periods as was another autistic child. (Two). The claimant was subject to the following detriments by the First and Second Respondents as a consequence of her disclosures: (i). On the 1 May the First Respondent removed the claimant from the care of Z and banned her from any contact with the family. (ii). On 4 May the First Respondent extended the claimant’s probationary period. (iii). The First Respondent forced the claimant to resign. (iv). The Second Respondent dismissed the claimant and that dismissal was automatically unfair in terms of section 47B and s.103A of the Employment Rights Act 1996. (v). The claimant was reported to the General Teaching Council by the First and Second Respondents.

REASONS

Facts

[1]The claimant in her ET1 sought findings in relation to whistleblowing detriments (in terms of section 47B and 103A of the Employment Rights Act 1996) against the first respondents (CALA) and unfair dismissal against the second respondents CALA Staffbank (‘Staffbank’).

[2]The claims were opposed. Mr Robertson appeared for both companies. Their position essentially was that they had acted in the way they had because they had good reason to. Accordingly, the claimant had not suffered any detriment or detriments and that the claimant was dismissed for reasons other than those relating to whistleblowing.

The Issues

[3]It was accepted by the respondents that the concerns about the treatment of Z raised by the claimant were capable of constituting protected disclosures. It was for the Tribunal to determine whether the claimant had been dismissed and had suffered detriments though making these protected disclosures. There were disputes as to the facts and motivation of parties and the Tribunal had to ascertain what had actually happened and whether or not the managers at Cala or Cala Staffbank acted the way they did because of the claimant’s whistleblowing allegations or if her actions alone were the cause. The Tribunal also had to consider if the claimant had been automatically unfairly dismissed by Staffbank. The claims were advanced under Section 47B(1) and 103A of the Employment Rights Act 1996 (‘the Act’’) Evidence

[4]The Tribunal had the assistance of witness statements, a Joint Bundle of Productions which included detailed pleadings and a schedule containing of the public interest disclosures which the claimant was alleged to have made. Given the sensitive background of the subject matter the Tribunal has at places sought to anonymise certain persons and places. The Tribunal noted that parties had taken steps in the documentation to ensure that the first child the claimant was providing support to is referred throughout as “Z” and to his school as A.

[5]Witness statements were provided by:• The claimant;

• MM (the father of Z);

• Sadie Kevill, Family Support Manager (CALA);

• Donalda McLean, Operations Manager (CALA);

• Debbie Campbell, Office Manager (Staffbank);

• Darren Zuckert, Administrator (Staffbank). Facts Background

[6]The claimant is an experienced teacher with 33 years’ service having worked in secondary schools in England as a teacher of physical education from September 1986 until 2016. She has an Honours degree and became a Director of Learning in her previous full-time position. In that role she was responsible for planning and implementing intervention programmes to assist students at GCSE level including students with additional support needs (ASN). She received a certificate of excellence from Ofsted for achieving two outstanding judgments within one Ofsted inspection.

[7]In April 2016 the claimant resigned from her position and moved to Inverness in Scotland. She applied for a position and became registered as a supply teacher with Highland Council. However, she wanted to change her career path and work with early years children. She had an interest in autism.

[8]The claimant began working for CALA Staffbank (‘Staffbank’), the second respondent as a Relief Childcare Practitioner in December 2016 after signing aa Agreement for Casual Work (JBp.52). There were no fixed hours. The hourly rate was £7.85. In this role the claimant was employed to provide relief staffing and support in early years childcare as well as one-to-one support for children with ASN (‘Autism Spectrum Disorder’) on an ‘as and when basis’. The company supplied staff to a number of clients including the local authority, Highland Council, private day care centres, playgroups, out of hours clubs and a nursery schools. Their principal client and revenue provider was Highland Council.

[9]Staffbank paperwork was ‘branded’ as ‘Care and Learning Alliance Staffbank’ It was a wholly owned subsidiary of Care and Learning Alliance or ‘Cala’ the First Respondent.

[10]After about a year the claimant was successful in obtaining a role with ‘Cala’ (the first respondents) as a Family Support Practitioner. She was given a contract of employment. (JBp.53-60). CALA were referred to in the contract as the “main company”. The contract contained a confidentiality clause in the following terms: “You shall not at any time during your employment (in so far as necessary and is proper in the course of your employment) or at any time after termination of your employment disclose to any person any information as to the practice, business dealings or affairs of the Company or any of the Company’s customers or Clients or as to any other matters which become to your knowledge by reason of your employment.”

[11]The claimant began work for Cala on 24 October 2017. The contract provided for a sixteen working week probationary period. The salary was £8000 per annum.

[12]The claimant was also provided with a document setting out her remit as a Family Support Practitioner (JBp.61-62). It stated that her duties would include: “3. Provide child led sessions within the child’s home and local environment…. 1. To visit families in their own home, deliver a support service that meets the individual needs for the parents and children in line with the agreed child’s plan…… 6. Liaise with other support services as and when required.”

[13]The claimant worked both with Cala and as a relief practitioner role with Staffbank. Her new role with Cala included supporting eligible two year old children who had been allocated funding for such support. The support was given on a one to one basis by providing sessions at the child’s home and taking them to toddler groups. The claimant was responsible for planning her own diary and recording the support given.

[14]The two respondents were separate incorporated companies. They shared premises and had common senior management. The offices they shared were open plan. They worked together in providing services principally for Highland Council. Involvement with Z

[15]The claimant came to provide support to a child Z through her role with Staffbank. She had been told was told that it would be a long term assignment. It was arranged by Darren Zuckert who was an administrator employed by Staffbank.

[16]Z was a three year old boy with a serious form of autism. A child plan was drawn up with involvement from Highland Council and NHS Highland (JBp.63-73). In part this plan recorded his needs and gave information about those needs to those professionals who would interact with him. The child attended a nursery run by Cala at ‘K’.

[18]The lead professional for the child was a NHS public health nurse called Ms N. W.

[19]Under the heading “Why does this child need a plan?” the following was noted in Z’s plan: “This plan is required to support Z with regards to his communication and social development and ensure that all professionals work together to enable Z to reach his full potential within the home and nursery setting.”

[20]It was also noted that the child was under the care of a Community Paediatrician and had been given a diagnosis of autism and assessed as having complex needs. He had the highest level of score, 4, for Autism Spectrum Condition or ‘ASC’. He would easily become frustrated and upset. When upset he was prone to self-harming behaviours.

[21]The plan recorded that Z was a ‘‘happy and affectionate little boy who settled in well’’ to his nursey. The primary school that he would be expected to go to after nursey was A Primary School.

[22]The plan also noted the following: “Z can have some meltdowns in some situations i.e. getting his haircut proves to be an extremely challenging activity. Distraction works well for Z’’ ‘‘Routine is paramount for Z and he thrives on routine with for everything. He has a heightened sensory nature – he can be picky with his food – enjoys more crisps/dry food and is not very keen on fruit. He takes multivitamins.” ‘‘He can get quite frustrated at times, although distraction can be effective’’.

[23]It was also noted that Z struggled with group activities and that when frustrated he would slap his head and he had to be closely supervised and his attention distracted in order to reduce his frustration.

[24]It was correct professional practice for professionals such as teachers or nursery staff who interacted with Z to be aware of and follow the plan. If they did not do so Z was likely to become upset and ultimately withdrawn. The claimant read the plan carefully and was conscious of Z’s needs.

[25]The plan set out in some detail how Z should be treated and supported. It was hoped that he could be integrated into the nursery attached to the primary school at A as this would ultimately be to his advantage as he would get to know the peer group there that would then progress with him to primary school.

[26]The claimant formed a good relationship with Z and his parents. His father was a graduate and senior professional in Industry. His mother did not keep good health and was unable to look after his children including Z except for short periods. He family had no one else in the area that could look after their children in their absence. First Assignment with CALA

[27]Funding had been obtained from Highland Council to provide support for Z to integrate into a new nursey at A. The claimant had been recommended to take on this assignment because she had worked successfully with Z at his nursery from April 2017 to June 2018. She had provided two sessions of four hours each per week to him over the period. The claimant had formed a good relationship with him and his parents. She would speak to them at the end of each session updating them on their son’s progress. Z was comfortable in her presence.

[28]A feature of autism such as Z’s is that he finds new people and new situations difficult to cope with. The support provided by the claimant to Z had been successful and Z’s anxiety had reduced considerable.

[29]In around November 2017 the claimant was told by the Senior Speech Therapist, Shona McPherson, that the support was going well and that Z was responding to the claimant. By April 2018 it was decided that he no longer required to be monitored by the Speech and Language therapy team.

[30]Z’s progress was regularly reviewed by the professionals involved in his support. These were called ‘Child’s Plan Meetings’ The claimant had been asked to attend the meetings but no funding was available for this so she attended in her own time. It was at the meeting that took place on the 9 February that there was a discussion about Z’s progression to Primary School. It was expected that he would attend the local authority Primary School at A. It was suggested that the claimant should support Z with this transition if funding was obtained through the Family Support scheme from Highland Council.

[31]The meeting was also attended by Ms J.D. the Deputy Head at A. She was the line manager for nursey staff at A. The claimant provided her with Z’s personal profile and a document headed ‘Strengths, Motivators and Challenges’ which was a completed developmental analysis of Z. It was agreed that the documents would be circulated to the nursey staff along with Z’s Plan. She also asked the claimant to email her a copy of a personal profile ‘This is me’ which the claimant had designed and completed as she wanted to use it as a template. It was agreed that the claimant would in due course step back from caring for Z which would be taken over by a nursey staff member, Ms McL. It was agreed that the claimant would come to the nursey on the 19 February to familiarise herself with the nursey and the staff.

[32]Z’s father met Ms McL and found her both nervous and seemingly lacking in confidence about assisting Z.

[33]Following the meeting Ms N.W. told the claimant that there was another child at the nursey called J who she was concerned about. The child did not get the same level of support as Z and she hoped that the claimant’s observations and presence might help as staff could see the way the claimant interacted with Z and follow her lead with Z and J. She warned the claimant that the staff at the nursery could be ‘quite difficult’. There was also a discussion about further family support as Z’s mother was expecting another child. Support at A.

[34]The claimant was given confirmation by Ms Kevill a Manager at Cala that funding had been approved by Highland Council (JBp76). It was proposed that Z would be integrated slowly with his sessions at the nursey building up to allow him to become independent or supported by a member of the nursey staff.

[35]The assignment the claimant had in supporting Z did not have an agreed end point. That point would depend on whether Z integrated quickly or not .It was hoped that if things went well the support could be ended at some point after the Easter holiday in 2018 at which time the claimant’s assignment would end.

[36]The claimant met Ms Kevill and Kelly Sutherland the Family Support Coordinator on the 27 February to discuss the assignment. The claimant’s line manager whilst working at Cala was Ms Kelly Sutherland. The claimant formed a good relationship with Ms Sutherland.

[37]The claimant required to work a probationary period with Cala and her review was due to take place on 12 March 2018. However, she was absent through sickness and the probationary review was rearranged for 2 May 2018. There was no indication given to the claimant that there was any difficulty with her work or that the probationary period would be extended. Her line manager and other professionals had on more than one occasion indicated to her that they were very happy with her work. The family of Z also expressed satisfaction with the claimant’s work and the significant progress that Z was making with her help. Support given to Z at Nursery

[38]The claimant began working at the pre-school nursery as planned on 19 February 2018. She met Ms McL who took her to the nursery area where she was introduced to other staff.

[39]At one point during this session the children, including Z, moved outside. The claimant was with the child J who attempted to climb over the edge of a wooden gazebo. The claimant noticed that the child still had their outdoor coat on and toddler reigns over the top of the coat. It was warm in the nursery and the claimant asked Ms McL why no one had taken the child’s coat off. She was told that “we never take his reins and coat off because he sometimes attempts to strip and so it was better to leave them on”.

[40]The claimant was concerned about this practice as the child was encumbered by his coat and the harness. It was warm in the classroom and the reins appeared to her to be a health and safety issue as they restricted him and could catch on objects. This concerned her. The child did not want to return to the class-room and the claimant observed a member staff lift the child off the ground using the toddler reins to carry him back inside. Again, the claimant was concerned about this practice.

[41]The claimant was unable to find any policies or procedures in the Nursery to guide practitioners working there. She was surprised that none of the staff asked her questions about Z and how he should be supported. She saw that the staff were busy and they explained to her that they were understaffed.

[42]On 26 February 2018 Z had his first transition session at A. He was excited and apprehensive. The claimant had arrived early to prepare a visual timetable for him as recommended in his child plan (JBp.68). The first activity involved all the children. This was potentially difficult for Z as highlighted in the plan. The claimant explained to staff that Z might not be able to engage given that it was a new environment for him. She was told that he would have to participate or the other children would think that “it’s also ok to wander off”.

[43]The claimant was also surprised that no member of staff had come over to encourage Z who was on his own at this point to join in the activity or be encouraged to do so. At a later point in the session there was another organised activity with all the children where they were asked to form a circle. Z stood up and attempted to leave. Ms McL reacted sharply and loudly said ‘No!’ to Z . She also put out her arms to block his exit. Z became visibly distressed at this. The claimant believed that acting in this manner was both insensitive to Z’s needs, unprofessional and not in accordance with the recommended treatment set out in the child plan.

[44]Later on during another session at the nursery a member of staff again said ‘No!’ to Z and took plastic beakers from him explaining that it was a building exercise and he was supposed to build a tower. Z did not understand this instruction and became frustrated. The claimant was concerned that he would have a “meltdown”. At about this time Z asked for a drink and something to eat. One of the nursery staff told the claimant that it wasn’t snack time and their policy was that no food or drink was allowed outside snack time. She also indicated to the claimant that Z could not be treated differently or other children would expect the same treatment. The claimant was surprised at this as Z had different needs from the other children. He repeated that he was hungry and wanted a drink. The claimant managed to distract him until snack time when he was given milk to drink by one of the nursery practitioners. This was despite the fact that in the child plan it was noted that he was lactose intolerant.

[45]The claimant was concerned that a number of aspects of his child plan did not appear to be recognised by the practitioners looking after Z and that they did not seem to have any understanding of how to interact/manage Z. She also concluded that the nursery staff appeared unaware of many of the basic professional strategies which are normally applied when caring for a child with autism.

[46]In the same session the claimant asked practitioners if there were other children she should be aware of who had ASN or other behavioural issues. She believed that this was necessary information for her in order that she was aware of whether the behaviour of others might have an impact on Z. She believed that as she was in the nursey for a lengthy placement this information should be shared with her. The information would also allow her to try and prevent situations arising where Z could become upset. She also understood that it was important to know about children’s allergies, hearing or visual impairments, epileptic or diabetic conditions and so forth.

[47]The claimant was aware that information about children should be shared on a need-to-know basis between professionals. This did not seem to be the understanding of staff. She was aware of the GIFREC policies and believed she was entitled to ask. The claimant asked Ms McL who replied: “I can’t discuss any other children with you” and walked away terminating the conversation. The claimant was surprised at this response especially given that she was assigned to the nursery on a long-term basis. She believed that she had a proper professional ‘need to know’. This attitude was also held by others in the nursey including Ms J.D.

[48]Over the next few weeks a number of other similar incidents occurred which caused the claimant concern about the treatment of Z and the failure of the staff to adhere both to the child plan of which they seemed unaware, and good professional practice when dealing with Z as a child with complex and special needs. During this period an incident occurred when Z was shouted at by a member of staff. On that occasion the claimant was later contacted by Z’s mother who wondered if something had upset him that day at nursery as he had been upset that evening. She told the claimant that in the evening he had been agitated and distressed and he had pulled out a small amount of his hair.

[49]As a home-visiting practitioner the claimant was required to produce reports for managers and accordingly in the week after the incident in which Z was shouted at she worked on such a document ( Progess Report) which was a diary of events describing the ‘positives’ and ‘challenges’ in the first couple of sessions (JBp80). The claimant e-mailed the report to Kelly Sutherland, Sadie Kevill, N.W and Ms. J.D. She also discussed the terms of the report and the difficulties she had encountered with another professional involved in Z’s care, his speech and language therapist, who indicated that she was happy with what had been said by the claimant and the overall tone of the document. The claimant’s purpose was to diplomatically bring about improvements in the care of Z by highlighting her concerns. She explained to Kelly Sutherland that there were some areas not going well in the nursery.

[50]The claimant later came to understand that Ms J.D claimed that the report prepared by the claimant which included suggestions about staff behaviour was ‘shared’ by her with staff. The claimant noted no improvements in staff behaviour nor any reference or discussion of the plan. Despite prompting by the clamant no small group activities were set up to assist Z. The rule about Z not eating or drinking outwith snack time was maintained. She observed J being left isolated in the nursey for periods of time and no one to one activities were arranged for Z or J. The claimant on occasion had to intervene to guide J back to activities. The claimant did not believe that any steps had been taken to address concerns in her report.

[51]The claimant expected that her concerns would be addressed either formally or informally by Ms J.D but this did not happen. She noted no change in the attitude or behaviour of staff or in the way they treated Z or J. On a number of occasions she became concerned about Z’s treatment and about the way staff interacted with J. He was sometimes left on his own for considerable lengths of time without any attempt being made by staff to engage with him. The claimant had occasion to have to brush sand out of his hair and eyes after having been left in the sandpit on his own. 28 March incident

[52]On the 28 March the claimant arrived at A as previously arranged to support Z. One of the staff told the claimant that the staff were not expecting z nor were they prepared for him. The claimant explained that the date had been identified in the transition plan and that Ms J.D had told her that any changes had to be agreed by her or the Head Teacher. The claimant went to find Ms J.D who told her that it was best that Z did not attend as ‘ the staff were stressed out bearing in mind the number of assessed children they have’. The claimant explained that Z and his mother were already in reception Ms J.D asked the claimant to tell Z’s mother of the school’s decision.

[53]The claimant was concerned at this turn of events and the possible impact the cancellation might have on Z as his routine was being disrupted. She was worried at the seeming inability of staff to engage with Z’s child plan and found the last- minute cancellation worrying. It seemed to have been cancelled solely for the benefit of Highland Council staff with no regard to Z’s needs.

[54]The claimant explained the situation to Z’s mother. Z became distressed at not being able to ‘go to school’. At this point the claimant met Ms N.W who was visiting. She explained the situation to her and she commented on the lack of flexibility at the nursey and once more that they (the staff) could be difficult. She reminded the claimant that the next meeting to discuss Z’s progress was the 25 April. She suggested that the issue should be raised with Ms J.D at the meeting. It was later agreed by Ms Kevill that the claimant could attend and she was informed of this by Ms Sutherland. Further Concerns

[55]Over the next three planned sessions the claimant noted further concerns about the staff’s interactions with Z. In particular despite the terms of Z’s child plan the claimant was not allowed to give him a drink outside snack time. At this point the plan referred to the fact that Z was drinking a lot of water and the possibility of him having diabetes which was being investigated (JBp69). This situation occurred on a number of occasions. It caused him distress. Ms D, a staff member, reiterated to the claimant that he could not be treated differently. In addition, despite the requirements of the plan the child was not assisted to transition between activities. On one occasion Z was carrying a small toy between activities which was physically removed from him without warning by Ms D causing him to become agitated and upset. The claimant had earlier agreed with Ms J.D that he should be allowed to carry this toy. The claimant noted that Z was more agitated and upset than he had been at the other nursey. She was concerned for his wellbeing but decided to wait until the scheduled meeting before taking any further action. Overnight Stay

[56]The claimant had formed a good relationship with Z’s parents. She was contacted by Z’s mother who was in the latter stages of pregnancy. She told the claimant that she was to be admitted to hospital for three nights prior having the baby by caesarean section. She explained that the family had no close friends or relatives that they could leave Z with the night before the operation. Things were made more difficult as he would become upset if he did not stay with someone he was familiar with. She asked the claimant if she would look after him. The claimant considered the request. She understood that as a Family Support Worker she was expected to look after Z on her own at times and that her role encompassed home visits. She was unaware of any policy governing the matter. Given the unusual circumstances and the urgency of the situation she agreed. When it was discovered that the operation was arranged for 9am on the 25 April Z’s father asked the claimant if she could look after Z’s sister as well. She agreed and as a result she looked after Z and his sister the night before the operation.

[57]The claimant told Ms N.W about the situation as the date of the next meeting to discuss Z was on the same date as the operation. Ms N.W suggested that the meeting proceed given the issues that had arisen about Z’s care. The claimant told her that she would be looking after the children the night before the operation and during the following day. N.W responded that it would be a ‘big relief’ to Z’s mother having hi looked after by someone who knew him. The claimant did not consider that she might be crossing professional boundaries and intended informing her managers about the situation at their next meeting.

[58]On the 24 April the claimant was scheduled to support Z at K nursey. On arrival she was told by the that the nursery had already been informed that she would be taking Z home after nursery by the parents. Mrs McK at the nursery advised her that the handover had been registered. She expressed her excitement over the forthcoming birth. She expressed no concerns about the arrangement and the claimant’s role. 25 April Meeting

[59]The meeting to discuss Z ‘s progress took place on the 25 April. Ms N.W attended with an Early Years practitioner. Aspects of the child plan were discussed. The claimant raised concerns about Ms McL namely that she did not engage with Z and had reprimanded him. She expressed concerns about what she saw as a relatively inexperienced practitioner taking over from her in supporting Z. She detailed the various incidents that she had observed. She pointed to the plan and to the issue of Z’s drinking. Ms J.D defended her staff and said that there was a structure in place and that Z could not ‘just munch his way through the day’ The claimant was shocked at the comment. She went on to discuss activities and the fact that there had been no smaller group activities and it was difficult for Z to participate in large group activities such as ‘circle time’ She described the incident when Ms McL prevented Z from leaving such an activity and the issue over the toy being taken from him.

[60]In response Ms J.D said that her staff had been critical of the claimant and she seemed to have no disciplinary role over Z and was ignoring potentially dangerous situations. The claimant explained that if she had to deal with an issue she would do it quietly and encourage the correct course of action and not raise her voice or reprimand Z. She told Ms J.D that no issues had been raised with her or Z’s by staff about potentially dangerous situations as she would have expected to have occurred at the time. Ms J.D then said that she was fed up with the particular group of staff and all their ‘complaints and bitching’. In relation to Ms McL she explained that there was little she could do about it. She said Ms McL felt intimidated by her and the staff had lost confidence. She asked if the claimant could meet Ms McL to help her engage more effectively with Z. The claimant agreed to do this. Ms J.D volunteered that the staff needed refresher training about autism.

[61]During the meeting the claimant received a text message from Z’s mother that she had given birth and wanted the claimant to tell Z about the new baby. She attached a photograph of the baby to the message. At the end of the meeting the claimant showed Z the photograph. He was keen to show Ms N.W. who was also the Health Visitor and lead professional. Ms N.W. agreed that this was fine and took the phone. Ms J.D also asked to see the photograph. Z was holding the phone so she guided Z’s hand round to show her the screen. Ms N.W. was stooping and at Z’s level and during this Z unexpectedly kissed her cheek. She responded by saying: ‘‘And a kiss too!’’

[62]The claimant returned the children to the family home at 6pm that evening. Aftermath of Meeting and Involvement of Highland Council

[63]As agreed at the meeting the claimant met Ms McL on the 30 April to discuss future support for Z. The claimant was shocked to discover that she said that she had not seen a copy of the child plan despite the transition having started nine weeks earlier. The claimant showed her the plan and she responded that she did not think she was allowed to see it. It was apparent that Ms McL was wholly unaware of Z’s needs and behaviours. She said that she did not feel confident to provide one to one support to Z. The claimant did her best to explain what was required. She gave Ms McL some toys that Z liked and explained how to use them to build up a relationship with him.

[64]Following the meeting the claimant emailed Ms J.D advising her that the meeting seemed to go well and that if staff had any queries then they could contact her (JBp96B). The claimant hoped that things would improve. The claimant intended raising these matter with Kelly Sutherland when they were due to meet later in the week.

[65]The claimant’s probationary period had now expired. The review meeting had been put off but Ms Sutherland had advised the claimant that it was now a formality.

[66]Ms J.D responded to the claimant’s email (JBp90) and despite the claimant’s attempt to explain Z’s need to eat and drink she reiterated that there had to be a strict snack time. She also reiterated that the claimant could not ask about other children in the nursey. In addition, the email also contained an allegation that the claimant had encouraged Z to kiss other children. The claimant had no idea what this could relate to. Ms J.D wrote that her staff: ‘‘don’t want children being encouraged to kiss each other ..they are of course aware that Z is a very physical child who enjoys physical contact but would prefer this be encouraged to be a hi-five or equivalent’’.

[67]The claimant was upset at the terms of the email. She felt that there was still no full understanding of Z’s needs and the requirement to be flexible about eating and drinking. She was upset at the allegation being made about her. She had received no feedback from staff about such an allegation and did not know how it could have arisen. She would have expected some issue to be raised at the time. The claimant contacted Ms Kevill and Ms Sutherland about the allegation and gave them the detailed background to the various issues concerning Z. She told them that Ms McL had said that she had not seen Z’s care plan. She told them that she was concerned at the allegations and the risk of further false allegations being made. The claimant wanted the matter addressed.

[68]Ms Kevill seemed to the claimant to be more concerned at the possibility of a complaint being received from the school than over any issues around Z’s care. She told the claimant that they could not afford to get a formal complaint from the school. She instructed the claimant to email Ms J.D and tell her that the support was being withdrawn and that she should contact their Head Office for further information. The claimant was also told to contact Z’s parents and advise them of the situation. The claimant set out her concerns in an email to Ms Kevill and Ms Sutherland (JBp98/99). Probationary Review Meeting

[69]The claimant met Ms Sutherland on the 2 May. No probationary matters or issues were discussed. No concerns were discussed about the claimant’s practice. The meeting concentrated on the extent of the issues the claimant had experienced at A which she outlined fully including the failure to adhere to the care plan and the various incidents of unprofessional behaviour witnessed by her in relation to Z and J. In relation to the allegation made about the claimant Ms Sutherland told the claimant that Ms Kevill would speak to her about it. The meeting lasted three hours.

[70]Later, on the 2 May the claimant was contacted by Z’s mother who told her that she was not comfortable taking Z back to the nursery at A. Contact with Highland Council

[71]On the 3 May the claimant decided to telephone the Highland Centre for Autism Support. She asked to speak to Shona McPherson but was told that she was not available. She spoke confidentiality to someone else about the issues and was told that the child plan had to be carefully followed. That person suggested that the claimant contact Bill Couston of Highland Council as he was the designated ASN Manager for Highland Council.

[72]The claimant contacted Mr Couston. She told him that Z’s parents were taking him out of the nursey. She gave him a detailed account of the incidents she had witnessed, the failures of staff to implement the child plan and the difficulties experienced by Z and J. She told him that despite being lactose intolerant and this being recorded Z had been given milk. The claimant raised the issue of staff refusing to discuss other children’s needs with her and the possible impact on Z. She told him about J being left isolated and having to remove sand from his hair and eyes. The claimant referred to the incidents where J had been left in his outdoor clothes with a harness and reins that in her view this raised health and safety concerns.

[73]The claimant also mentioned the allegation of her allegedly encouraging kissing between the children. He asked if the claimant wanted to give her name to these concerns. She said that if she did not it would lessen the weight of the information she was giving but she did not expect her name to be given to the Head Teacher Mrs S. The claimant had a reasonable belief at this time that it was in the public interest for her to make the disclosures she had made to the school, her employers and Mr Couston as they directly affected the health and safety of Z and other children particularly J.

[74]Mr Couston contacted Ms S the Head Teacher and told her about the issues raised by the claimant. In turn Ms S contacted Ms Kevill and told her that she wanted to put forward a possible child protection concern about the claimant’s behaviour and that she was interviewing staff in this regard. Ms S suggested that the claimant was lying about her staff (JBp376).

[75]In the late afternoon the claimant received an email from Ms Kevill asking her to meet on the 9 May to discuss the email from Ms J.D (JBp105). The claimant was disappointed that the matter was not being dealt with more urgently given the serious concerns that she had raised.

[76]At about 6pm the claimant received a call from Ms Kevill advising that the meeting had been brought forward to the following morning at 4pm. Later in the evening the claimant received an email from Ms Sutherland attaching notes of the probation meeting. The notes were different from the claimant’s recollection of what had happened at the meeting. The first respondent now proposed that her probation period would be extended and reviewed again in August (JB P100-2). The claimant was upset at the respondent’s change of position. She queried this and Ms Sutherland stated that the ‘issues’ with the nursery were un-resolved. The claimant was confused as she was the person who had raised issues with about the nursery which had not yet been discussed or investigated. She did not appreciate that she was now the focus of concerns or that it was alleged she was lying. Meeting 4 May involving Claimant, Ms Kevill and Ms Sutherland

[77]The claimant arrived at Kintail House the respondent’s offices at 8.50.am. She met Ms Sutherland in the reception and asked why she had failed her probation. She was told that this was because of concerns raised by the Head Teacher at A, Ms S. and that the review had to reflect that. Ms Kevill joined the conversation later. The claimant was upset and confused at the turn of events. Ms Kevill repeated what Ms Sutherland had said about reasons for the extension of the probation. The claimant asked about her concerns which she had communicated to both Ms Sutherland and Ms Kevill. Ms Kevill asked Ms Sutherland to take the claimant to the boardroom to wait for Donalda Johnson to arrive. This was the first indication the claimant had that Ms Johnson, who was a senior HR adviser, was to be involved. Ms Sutherland, who was the claimant’s line manager was told that she need not stay as it would be ‘stressful enough’ for the claimant without having three managers in the meeting.

[78]The meeting started with Ms Johnson advising the claimant that she would be taking minutes. The claimant had no prior warning that the meeting would be formal or disciplinary in nature. Ms Kevill said that the meeting had been brought forward as an email had been received from Ms J.D. The email had in fact only been received that morning but was following up previous contact. Ms Kevill did not show the claimant the email and said that it contained a ‘long list of complaints’ The claimant was asked whether she had looked after the children when Z’s mother went into hospital for the elective birth. Ms Johnson said that she had crossed professional boundaries. The claimant admitted that she had looked after the children and explained that she had been open about the matter and had spoken to Ms N.W who had not seen a difficulty with the arrangement. She had not realised it posed a difficulty. This had been the claimant’s first home visiting assignment. The claimant accepted what she was being told.

[79]The claimant was then asked if she had a photograph of Z on her phone. She confirmed that Z’s mother had sent her a photograph of the new baby to show Z. She explained that Ms N.W. and Ms J.D. were present at the time. Ms Johnson told the claimant that she was not permitted to have a parent’s mobile number. The claimant had been given no advice about this matter nor had she been referred to any policies guiding her on the issue. The claimant was confused about this assertion as without such contact details she could not arrange visits or keep in touch with Z’s parents.

[80]The claimant was then told that the email contained an allegation that she had been encouraging Z to kiss other children. The suggestion was made that the claimant hadn’t disclosed this. The claimant reminded Ms Kevill that she had raised this matter with her four days earlier.

[81]The claimant as asked if she had asked staff about the needs of other children at the school. The claimant accepted that she had asked about support for other children and that this was to safeguard Z’s welfare. It was made clear that this was disapproved of.

[82]Ms Kevill asked if the claimant had telephoned Bill Couston. She confirmed that she had and reminded Ms Kevill that she had mentioned him in her email the evening before. Ms Kevill told the claimant that after the call the Mr Couston had contacted the school. Ms Johnson described Ms J.D ‘s actions as her having ‘retaliated’ against the claimant for contacting Mr Couston by sending the complaint. Ms Kevill indicated that the previous agreement with the school to deal with any concerns about the claimant ‘inhouse’ had changed because she had contacted Mr Couston. Ms Johnson told the claimant that she had brought the situation on herself and that they would no longer be supporting her as she had gone above their heads. Ms Kevill said that the Head Teacher was considering a Child Protection referral. The claimant was unaware at that time that Ms Kevill had on the 3 May had a call from Highland Council that the school was thinking about this action (JBp532).

[83]The claimant believed the meeting was akin to a disciplinary meeting and asked if she was going to be dismissed. Ms Johnson advised her that she would be given the opportunity to resign. She was told that it was against the law to write a ‘bad reference’ but they would give a factual reference. Ms Johnson and Ms Kevill left the room briefly and returned to advise the claimant that there was one possible option namely for her to sign a declaration to have no further involvement in family support and no further contact with Z and his family. The claimant asked what would happen if they met by chance on the street. She was upset that virtually her whole role would disappear as it would mean the end of support for Z even support not connected with the school. Ms Johnston said that this was a matter for Staffbank.

[84]The claimant felt that she was in an impossible position. She had been told that she would not be supported. He future career in child support looked to be in the balance. She believed that her concerns were not treated seriously and that the respondents were acting this way to appease the school and the Council. She felt she had no option but to resign or face disciplinary action She resigned by email (JBp109) It was acknowledged by Ms Sutherland who wrote: ‘‘I hope you are ok! Your groups will miss you as I will.xxx’’.

[85]On the 8 May the claimant was asked by Ms Sutherland if Ms Kevill had been in touch. The claimant confirmed that she had been removed from Staffbank assignments meantime. She also informed her where some work was kept on her portal that Ms Sutherland had claimed was not done. This was untrue. (JBp92). The claimant was told by Ms Sutherland that she had been instructed to tell the claimant’s Toddler Groups that she would not be returning. The claimant was surprised that there was no handover process for Z. Later on the 8 May the claimant was advised that she did not have to work her notice. In a conversation with Ms Kevill the claimant advised her that some of her supervision documents had been modified and a meeting recorded that did not take place (JB 327).

[86]On the 10 May following discussions between Mr Couston and Ms S, he recorded that the main issues about the claimant’s behaviour were the potential relationship damage with Z’s family caused by the claimant and what seemed to be ‘an unhealthy level of control she had’ (JBpP475).

[87]On the 14 May the claimant was contacted by Ms Johnston enquiring if she had decided what to do. The claimant responded by re-sending her resignation to her. She also wrote raising concerns about what she regarded as a disciplinary meeting. She wrote that she had been given two options namely to agree to no further involvement in Family Support or to resign. Ms Johnston responded denying that the meeting was disciplinary or that she had been dismissed rather she had been encouraged to remain working with Cala.

[88]On the 17 May the claimant received an email from Ms Kevill stating that the probation review process had not been handled correctly (JB p126/127). She stated that as the claimant had been off ill when the last review meeting had been re-scheduled for the 8 May and that as the concerns from the school arose after the probationary period ended they should not have been taken into account and that to do so was ‘an error of judgment’ The claimant continued to raise matters with the first respondents and to seek a meeting with the Chief Executive. The Chief Executive was also the Chief Executive of Staffbank. Ms Johnston emailed on the 21 May that as the claimant had resigned she saw ‘no benefit’ in further email correspondence. (JBp129). Staffbank

[89]The claimant had by 9 May been removed from current contracts with Staffbank. She attended a meeting with Debbie Campbell and Darren Zuckert It was minuted (JBp114/117). At the outset it was confirmed that the issues to be discussed were a potential conflict of interest/crossing of professional boundaries in relation to Z’s overnight stay. There was no discussion of the ‘kissing’ allegations or advice about the level of physical contact expected between a practitioner and young child. The claimant was told that they could only look at issues relating to her role with Staffbank. Any conversation about the issues she had encountered in the nursey were shut down. Ms Campbell stated that she had no issues with the claimant’s work and had received no concerns. The claimant was told that she had to work strictly within the Staffbank role. She was at pains to tell the claimant that Staffbank were a separate company and that it was not within her role to raise concerns about the practices of others. The claimant was cautioned that having a child in her home would breach her remit with Staffbank and SSSC guidelines. The claimant was then immediately assigned to provide support to a three year old girl E who had severe ADHD.

[90]On the 15 May Mr Zuckert confirmed the assignment with E.

[91]The claimant attended E’s nursery on the 21 May. She was told that it was a ‘highly challenging assignment’. E required intense one to one monitoring. The claimant was later told that she had been assigned the role by Ms Johnston. The claimant asked the Nursery Leader, Ms C, if she would be available to work with them the following year.

[92]On the 7 June the claimant was looking after E. She spoke to the child’s mother about how well the day had gone. The claimant decided to give E a reward sticker. She crouched down to do this and E ran over and put her arms around the claimant’s neck almost knocking her off balance. E hugged her and the claimant made a ‘mwah’ sound and kissed the air.

[93]On the 8 June the claimant met the Head Teacher of A Primary to discuss her concerns about Z’s care. The Head Teacher apologised for Ms J.D ‘s email of 1 May and confirmed that it should not have contained an allegation of encouraging Z to kiss other children. This allegation was accepted as being untrue. A discussion of Z initiating physical contact then led to a discussion on whether there was any policy on the issue. The Head Teacher agreed to check with the Council and forward any policy to the claimant. She advised the claimant that information on other children could not be disclosed as the Council had a strict policy about this. She also apologised to the claimant about the behaviour of other staff and acknowledged that a ‘refresher’ was required. The claimant was told that Ms McL had resigned from the role. Minutes were prepared and agreed by both parties (JBp512) . The claimant was unaware that the Head Teacher had spoken to Mr Couston and their Child Protection Team about the allegations. These issues were not raised.

[94]The claimant returned to her nursery on the 11 June. During the day she had a conversation with Ms C who commented that while it was sweet that she had given E a goodbye kiss the previous week it was best not to do this. She said that they were advised not to touch children even if they were upset. The claimant said that she had not kissed E but had made a kissing sound and there was no contact with her face. Ms C explained that no one had said anything before but that she had been told that new guidance was coming out. The claimant asked for a copy of the guidance. She also asked if the Nursey had its own policy but was told, after a search, that there was no specific policy.

[95]On the 12 June a worker, F, raised with her manager, Ms H a concern that the claimant had kissed a child on the cheek when saying goodbye. She in turn raised the matter with Fiona Morrison (JBp140) of Cala.

[96]The claimant contacted Staffbank’s head office and asked about new guidance. She spoke to an administrative assistant as she understood Mr Zuckert was out of the office and Ms Campbell was in a meeting. The claimant also asked for any policy of information sharing between professionals. She later received a txt response from Mr Zuckert stating that the policies would depend on the individual centre or organisation (JB114/115).

[97]On the 13 June the claimant was working at the nursey. Ms C seemed to be spending a long time on the telephone and was preoccupied. The claimant noted a missed call from Mr Zuckert. She telephoned him back and was told to immediately come to the office. The claimant was told that she could not attend her afternoon session. She was told that there was an allegation that she had kissed a child.

[98]The claimant attended the office. She was told that there had been a complaint by the nursery that she had kissed a child’s cheek. This seemed to be the allegation made some time earlier by F . The claimant demonstrated what had occurred and was told : ‘‘That is not what was shared with us’’. Ms Campbell said that the claimant had contacted the office to find out about policies ‘out of curiousity’ but had not mentioned any incident. She was reminded that at the meeting on the 9 May she had been asked to refer issues of practice to them. The claimant indicated that she was confused that this matter had been raised at all as she had explained the situation to Ms C. In effect the claimant was not aware that any issue was being made of the situation. She was told that Ms C had not had a chance to speak to the claimant until the following Monday. The claimant found it difficult to set out her understanding of as Ms Campbell repeatedly spoke over her. She was told by Ms Campbell that because she had made a clear admission to Mr. Zuckert, which the claimant denied, she had to dismiss the claimant with immediate effect.

[99]The claimant was upset and devastated by the dismissal which removed her source of income. The claimant submitted grievances (JB P167-172) detailing her position and complaining about the way she was treated. On the 3 July she was notified that a complaint had been made to the GTC her professional regulatory body by the respondents about her fitness to practice. This included the allegation of encouraging Z to kiss other children which had been accepted some time earlier as being unwarranted. It was also alleged that the claimant had formed ‘an inappropriate ‘relationship with Z’s parents.

[100]As a consequence of these events the claimant’s health suffered and she was prescribed medication for stress and depression. She was referred by her GP for counselling. She was required to move back to England as she could no longer afford to live in the Highlands on her own. Witnesses

[101]We found the claimant to be a truthful witness who was generally credible and reliable. Our only concern was that these events had proven traumatic for her and at points we wondered if her detailed recollection of events matched her confidence in that recollection. However, we concluded that where there was a conflict of evidence between the claimant and the respondent’s witnesses her evidence should be preferred as being likely to be the more accurate.

[102]The Tribunal was somewhat concerned to find that the evidence of the respondent’s witnesses, particularly of Ms Kevill and Ms Sutherland was unimpressive. They gave every impression that their focus was appeasing the Council and that matters which previously had been of no consequence in their eyes were now much more serious. They showed every sign of having lost any objectivity.

[103]The Tribunal did not find evidence of Mr Zuckert particularly persuasive. He indicated that when he had asked the claimant to come in for a meeting she effectively admitted kissing a child. Under cross examination it became clear that she had done no more than refer to making a ‘Mwah’’ sound which, given that he knew at that point about the allegation, he interpreted as an admission of guilt. The claimant’s position was consistent that her action had been misinterpreted. This ‘admission’ was then used by his colleague Ms Campbell as being the main reason for dismissal.

[104]Ms Campbell was an evasive and truculent witness whose evidence unfortunately led the Tribunal to the conclusion that she was completely unreliable. Her insistence that there would be no way that any information about the difficulties that the claimant experienced in the Cala placement would be known to her and others in Staffbank stretched credibility and appeared at points rehearsed. We reminded ourselves that her role straddled both respondent companies, the Chief Executive of both had become aware of the controversy, there was an open plan office and even more compellingly there good reason to share information especially if it related to apparently serious concerns over the claimant’s conduct impacting as it was alleged on the welfare of children. Even if this was not enough there were commercial reasons for sharing the information about the complaints given how upset their main clients the Highland Council appeared to be. Submissions Claimant’s Submissions

[105]The Claimant’s Counsel, Mr Menon, addressed the Tribunal at the close of the evidence. He began by reminding the Tribunal of the relevant law contained in and to the cases which parties had referred the Tribunal. The claims against Cala were for detriments set out in the Scot Schedule and for unfair dismissal against Staffbank. He referred the Tribunal to paragraph 30 of the Kuzel case and the necessary elements for a protected disclosure. He submitted that the evidence strongly pointed to the disclosure being the reason for the two respondent’s action rather than misconduct as they now claimed. He accepted that there was no ‘automatic inference’ that could be drawn but the facts pointed clearly to the respondent’s motivation.

[106]Mr Menon then considered the relationship between Cala and Staffbank. Despite what he called the strenuous efforts of their representative to cast them as separate entities the Tribunal should have regard to the form and substance of the relationship in other words to the reality of the situation rather than to their legal identities. They were intertwined and existed solely for the benefit each other. They had the same paymaster namely Highland Council. He referred to the discussion that had taken place at an earlier Preliminary Hearing about the matter. It was he suggested fanciful to believe that there really were ‘Chinese Walls’ nor indeed should there be where the alleged safety of children was an issue.

[107]Turning to the witnesses that gave evidence for the respondents Mr Menon characterised the evidence of the first, second and third witness as ‘wholly dishonest’. In his submission the claimant gave honest evidence was both credible and reliable and where evidence conflicted we should prefer that of the claimant’s. Mr Menon then took the Tribunal through the evidence in more detail. Ms Kevill’s evidence foundered was incorrect when she said that Z’s placement was coming to an end. This was a fiction that had to be maintained to justify terminating it. She was unable to explain why the headteacher at A was content to leave concerns she had with the claimant until these concerns became elevated following the claimant’s call to Mr Couson. She was unable to explain how major changes to Z’s plan could be made without consultation with his parent or the nominated responsible person.

[108]It was not credible that if there was any real concern about the claimant’s practice that this would not have been disclosed to Staffbank, a wholly owned subsidiary, not least because that company’s interests align so closely with those of Cala. Mr Menon also asked the Tribunal to consider why did Ms Kevill instruct information to be put in the claimant’s Probation Report when she was not her line manager. She sought to suggest that the concerns about Z were only raised after Z left A. This could only be to try and suggest that the allegation made by the claimant were made to deflect attention from the concerns over her own practice. This position was he suggested unsustainable. It was notable that all the changes to Z’s plan were implemented with no thought to his needs although those needs do not exist in a vacuum.

[109]Mr Menon then explored the arguments advanced by the respondents around the separate nature of the two respondent companies. He pointed to the evidence that there were no serious concerns ultimately expressed about the claimant’s practice but the matter was nevertheless referred to the GTC ‘as a joint effort’. He then took the Tribunal though the evidence of alleged concerns including the evidence which he characterised as having been ‘recanted’ by Ms S. This was done purely to punish the claimant in his submission and was not carried out with any bona fide intention. He then took the Tribunal through the various allegations. Allegation (p367) displayed a fundamental misunderstanding both of confidentiality issues and the needs of Z which required the claimant to know the dangers posed by his environment. Counsel described the evidence of Mrs Campbell as being belligerent and evasive. Mr Zuckert was untruthful about the allged admission. The evidence he submitted disclosed the escalation of matters once Mr Coulson became involved. The respondents showed no loyalty to the claimant as one of their staff and took no steps to defend her. It was noteworthy that the lead professional expressed no concerns at the time over the ‘kissing’ incident. The claimant resigned by email having been given no choice and having been relieved of her responsibilities.

[110]Mr Menon then turned to consider the position of Staffbank and their role in the matter and reviewing the evidence submitting that the dismissal was a clear detriment occasion by a chain of events leading from the initial whistleblowing. Respondent’s Submissions

[111]The respondent’s solicitor made submissions on behalf of the respondents and also lodged a written copy of those submissions for the Tribunal. He set out the respective positions of the two respondents accepting that a protected disclosure had been made by the claimant about the treatment of Z to the first respondent and not to the second.

[112]He then set out the position from the perspective of Cala and the email they had received on the 1 May about the claimant’s practice. On the same day the claimant had raised concerns with Sadie Kevill about the care of Z. Ms S indicated that she did not want to a ‘‘make a big deal’’ about the situation as the claimant’s care for Z was coming to a close. The claimant contacted Bill Couston on the 3 May to reiterate her concerns. Mr Robertson suggested that rather than becoming angry as the claimant suggested he was simply concerned at an ‘‘inappropriate level of control’’ being exercised by the claimant. The claimant’s probation was extended because the concerns from the nursey had not been resolved. These concerns were ‘elevated’ by Mrs Sim on the 3 May. These were the events that led to the meeting between the claimant and Ms Kevill and Donalda McLean and to the claimant intimating an intention to resign.

[113]Turning to the position of Cala Staffbank this begins on the 9 May in Mr Robertson’s view when the claimant contacted Mr Zuckert asking for written clarification of her role. The second respondent could see no reason why the claimant could not continue in her role with them irrespective of the issues that had blown up with Cala. On the 13 June the claimant was asked to attend a meeting to discuss a complaint made by a worker at E Playgroup. It was following this that the claimant’s contract was terminated.

[114]Mr Robertson then went on to summarise the legal position as he saw it referring to section 47B(1) and 103A of the Act. In relation to Cala the position was that they denied any detriment had occurred. He took the Tribunal though the disputed evidence in relation to the claimant’s allegations that Z had been removed from her care and that the probationary period had been extended, she had been forced to resign and the GTC referral. In relation to Staffbank the position was that no protected disclosure had been made to them and consequently no claim could arise. Finally, there was he said no cynical or sinister plot to out the claimant from her position. Discussion and Decision

Legal Framework

[115]We first of all reminded ourselves of the statutory basis for the claims contained in sections 47B(1) and 103A of the Act. “47B Protected disclosures. (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. 103 A Protected disclosure. 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.”

[116]The parties agreed that the correct approach to the claims for unfair dismissal was set out in the case of Kuzel v. Roche Products Ltd [2018] WCA Civ380 which referred with approval to the earlier EAT analysis in the case of Maund v. Penwith District Council [1984] ICR. In Kuzel the Court of Appeal held that it is for the employer to prove that they had a potentially fair reason for dismissing an employee, or to prove that the reason advanced by the claimant was not the true reason. When an claimant maintains that they were dismissed for a different reason the burden of proof does not pass to them. The employee must produce some evidence supporting their assertion but will not bear the burden of proving that the dismissal was for that reason.

[117]In the case Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

it was confirmed that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work but that an ‘unjustified sense of grievance’ is not enough. Although the word ‘detriment’ is not defined it is a wide concept encompassing being treated adversely and differently and in some way being put at a disadvantage by an employer. In deciding whether the claimant has suffered a disadvantage because of the protected disclosure it must be shown to materially influence the employer’s treatment of the whistleblower. As the EAT observed in the case of London Borough of Harrow v Knight

(2002) UKEAT 0790

-01: ‘‘It is thus necessary in a claim under s. 47B to show that the fact that the protected disclosure had been made caused or influenced the employer to act (or not act) in the way complained of: merely to show that "but for" the disclosure the act or omission would not have occurred is not enough’’. General Observations

[118]We do not in any way underestimate the considerable responsibilities and difficulties involved in providing the sort of services that the respondents staff provide and the sensitivities that attend such services and their delivery. It was disappointing therefore to hear evidence that was often contradictory and which displayed confusion about the principles that underly much of the work being done here principally around the duties of confidentiality. That concept was used both to criticise the claimant and to justify the alleged inaction by Cala in making concerns about the claimant’s practice known to the sister company Staffbank.

[119]This issue was also highlighted by the discussion around the claimant showing a photograph of Z’s new sibling. It did not seem to be appreciated that the duty of confidentiality was owed to Z’s parents who had waived that obligation by sending the photograph to the claimant to show to Z and other staff the new baby. If there had been a clear policy guiding staff for example on the need to delete such a photograph after it being shown or indeed that staff should not agree to do this then the criticism of the claimant could be justified as breaching a particular policy but there was clearly no breach of confidentiality in these particular circumstances. It is surprising that in an era where social media forms such a large part on many lives there appears to be no policy addressing its use.

[120]It seems clear to us and should have also been clear to the professionals here that confidentiality applies in different ways depending on the situation at issue and it can be subservient in the situation where the needs of the client or the welfare of other children require it to be. The advice titled ‘Information Sharing’ prepared by HM Government which was lodged and referred to in evidence (p257-294) makes this abundantly clear. In the first of the so called ‘Golden Rules’ it states that Data Protection laws and human rights laws ‘are not barriers to justified information sharing’.

[121]The Scottish Government reflect this concept in the ‘GIFREC’ policy (Getting it Right for Every Child) where they enjoin professionals to work in partnership with each other and that means that relevant information is imparted to other professionals. The professionals in this case often had to had to contort and bend the principles to fit whatever position they were taking.

[122]The issue of the claimant knowing about other children who had for example autism themselves and the effect this might have when interacting with Z was an issue that straddled both the nursey’s refusal to discuss other children with the claimant and Ms Kevill believing that this was a valid complaint being made against the claimant promoting her to take advice on this matter. It was a complaint that should within her own professional knowledge have been quickly dismissed by her. It would only be in a situation where the claimant was asking for unnecessary extraneous information that a boundary might be crossed. The apparent blanket policy of the Council not to share information is the sort of policy that the GIFREC polices were meant to address. The apparent failure to understand this principle both by school staff, including a Depute Head Teacher, a Head Teacher, Ms Kevill and Ms Sutherland was deeply worrying.

[123]At a number of points the Tribunal struggled with the language used by the respondent’s witnesses. Behaviour was often rather lazily characterised as ‘‘inappropriate’’ but in what way it was inappropriate remained obscure as if describing it as such was a sufficient explanation. It was certainly not clear to us why witnesses believed some behavior was ‘inappropriate’ and when something that was to be discouraged then escalated from matters that could be dealt with through advice ( or in house as it was described) to a referral to the GTC. There appeared to be no clear guidance given, including guidance to the claimant, for example in training, policies or professional practice as to the expected boundaries of physical contact with young children such as Z who are physical and tactile as the child plan describes him. To make some prescriptive list would of course be difficult but if a particular type of contact was clearly forbidden then it would be obviously ‘inappropriate’. However, human interactions are complex and can depend on many factors such as here on the age of the child and the relationship of the adult to the child etc. Viewing and judging any interaction in this sphere can be subjective as the evidence here tended to show with differing acceptance as to what level of contact was permitted.

[124]We noted that Z’s father was described by the respondents as being ‘vulnerable’. He did not strike the Tribunal as to being anything other than an intelligent, capable and robust person. It is true that he was theoretically in a potentially vulnerable position as Z’s father. That did not in any way appear to be the situation here but it was interesting to note that someone who was potentially vulnerable was referred to as if he was. Mr M was not cross examined and it was not suggested to him that in any way the claimant had some ‘inappropriate level of control’ over him or his family. Disclosures

[125]It was accepted by the respondents that what the claimant said to the nursey staff, her employers and to Mr Couston were capable of amounting to qualifying protected disclosures. We found as a fact that the claimant did make disclosures of information about the way Z and J were being treated at the nursery and failure to comply with the obligations set out in the child plan. These can be broadly stated as all having been made by the claimant who had a reasonable belief that the health and safety of Z and J was likely to be endangered if the situation persisted. In addition, the failure to adhere to the child plan was also a breach of legal obligations in our view. There was also a clear public interest element underlying the disclosures to highlight perceived problems with the public service (education) being provided. We therefore accepted in whole the schedule of disclosures prepared aby the claimant’s representative. Discussion of

Evidence

[126]Whilst we will examine the various detriments individually the Tribunal was drawn firmly to the conclusion after considering the evidence that the disclosures made to Highland Council did, as Mr Menon submitted led immediately to the elevation of incidents that both the first and second respondents themselves had earlier thought of as minor to a much more serious level because of the nature of the disclosures she had made and the need to pacify their principal clients. They seemed to ignore the timing of the criticisms made against the claimant.

[127]There is no doubt that the claimant’s contact with Mr Couston drew what seemed to be a furious response from the school who concluded that all the allegations were false, that the claimant was emotionally abusing the child and the family, that she had too much control over them and so forth. This is despite the fact that Ms. J.D. had at least engaged with some of the issues and asked the claimant to assist Ms McL.

[128]There were numerous inconsistencies in the position which the respondents were hearing from Highland Council. If as the Council say the claimant was lying about these events then why was she not picked up on what they came to consider as serious matters at the time the allegations were made she made. Similarly if there was a genuine concern about ‘emotional abuse’ why was it not raised? Why was the family not spoken to? It seems that if for example the Depute Head Teacher thought the initial allegations about the claimant were in any way serious it is quite extraordinary that she did not deal with the matters immediately by correcting the behavior complained about, at the very least by counselling the claimant, or reporting matters formally to her employers or the first respondents.

[129]The compelling impression we were left with was that the ‘deal’ that seemed to be done was that if the claimant was taken off working with Z then no further action would be taken. This militates against there being any real or genuine substance to these complaints as does the fact that the claimant continued to work for Staffbank with the same type of child. The complaints from the school only became characterised as serious after Mr Couston became involved. The claimant was then made out to be a liar who had invented her concerns. The claimant’s employers were correct that this was as they described at the time “retaliation” against her. The first respondent’s staff could on the one hand see the minor nature of the complaints and the timing of their escalation. Those complaints were, however, formally taken at face value by the first respondent and were not in any way challenged. It was noted by us that despite the position now taken by the first respondents as to their serious concerns Ms Johnston claimed in her email of the 14 May (JBp121) that the claimant had been encouraged to stay with the company. We found this position impossible to reconcile with the evidence we were now hearing from her.

[130]We also noted that once the claimant did resign her line manager emailed her in terms that did not sit well with the later suggestions that her practice was so bad that it had to be referred to the GTC.

[131]It was also somewhat difficult to understand that if genuine and against this background the claimant was given another assignment with Staffbank with the concerns over her practice unresolved. At the meeting of the 9 May with Ms Campbell the claimant was counselled that having a child overnight would in their view be beyond her remit and crossing a professional boundary. The claimant readily accepted this advice. But it is also a reflection on how seriously the second respondents actually treated the allegations ( for example the overnight stay) in that they immediately assigned the claimant to another autistic child. It is perhaps understandable that the claimant felt she was getting somewhat ‘‘mixed messages’’ as this certainly was the Tribunal’s view of the evidence.

[132]We also did not accept that there were likely to be in reality ‘Chinese Walls’ between the two organisations nor should there be where the sharing of information relates to concerns. The fact that staff shared the same premises, higher management all militated against there being any effective barrier and while we accepted a poor knowledge of confidentiality issues existed it could not have been so poor or so deficient as to seek to prevent concerns about a mutual employee such as the claimant being disclosed to the other organisation especially given the clients. Indeed, to fail to do so would be wholly reprehensible and in a case where the concerns were of a more serious nature and contrary to the GIFREC principles which witnesses accepted applied. Detriments

[133]The detriments claimed for were set out in a Scot Schedule (p38T-38AA). The first followed the claimant’s disclosure about the poor practices at the nursery at A relating to the failure to comply with Z’s care plan and their breach of duty of care towards him.

[134]The first detriment alleged was that on the 1 May the claimant was told that she was being removed from the care of Z. We rejected that this was a point where her care of Z would have naturally ended. The natural end point namely that he had fully settled in had not yet come about. We were left in no doubt that this occurred because of the disclosures she had made and the reaction to those both by CALA who did not want to ‘rock the boat’ with the Council and from the reaction of the Council to any perceived criticism. We concluded that this was in fact a detriment. The claimant was considerably upset at losing this assignment which was brought prematurely to an end. The claimant lost the opportunity of bringing the assignment to a successful close and the experience this would have brought to her so early in her new career.

[135]Mr. Robertson argued that the first respondents change of position over the claimant’s probation was not a detriment. It did not alter the legal position that the claimant had insufficient service to make a claim for unfair dismissal. We do not accept that submission and are of the view that it is simply too narrow. Indeed, the respondents could have left the position as indicated to the claimant, namely she had passed her probation, and this would not have prejudiced their right to have investigated the concerns. That said if they had discovered some previously unknown concern then this might well have justified the reversal of the original decision.

[136]The evidence before led us to conclude that the decision was hasty, unnecessary, and a ‘knee jerk’ reaction caused by the claimant’s disclosures. We believe that it was a real detriment. It may not have altered the underlying rights of parties around ‘ordinary’ unfair dismissal but the claimant, the respondents and possibly any future employer might query why her probation period had been extended. Extending someone’s probation is not usually a sign of confidence in their abilities rather it is the reverse.

[137]The claimant’s probation period was also extended in out estimation for the same reasons. We rejected the notion that it was in some way an error or that there was no impact or consequences for her. It meant that her probation period was extended and there was implied criticism of her in that occurring at all.

[138]We also concluded that there was considerable pressure put on the claimant to resign and that it was not in any senses a voluntary act. In coming to this view, we rejected the evidence of the respondent’s witnesses.

[139]We then considered the loss of the claimant’s post with Staffbank. We have no doubt that the dismissal was materially influenced by the earlier disclosures. We simply could not accept that it somehow took place in a vacuum. It is very difficult to conceive that after the issues raised by Highland Council and fraught atmosphere this created that no one in CALA told the senior staff at Staffbank, with whom they work closely of these issues. The evidence was that they not only shared premises but these were ‘open plan’. In addition, the complaint seems to have been raised with Cala (JBp140). It is interesting to note the terms of Ms. Heneghan’s email that a child should experience kindness and compassion including physical comfort, such as a cuddle, but kissing the child on the cheek would be disapproved of.

[140]The knowledge of the earlier disclosures would explain the rather artificial attempt by their witnesses to paint the fact that the claimant enquired about policies over physical contact as being evidence of wrongdoing and somehow underhand. It also sheds light on the decision to dismiss for what was, according to earlier evidence, something that would have been likely to have lead simply advice being given to the claimant. It was also notable that what actually happened was disputed by the claimant. There was no formal disciplinary hearing to allow the claimant to consider the statements obtained by Ms Campbell and we regret that we formed the impression that Ms Campbell did not approach the meeting with the claimant with an open mind. The complaints were the catalyst for immediate dismissal. That evidence does not ring true to the Tribunal that a member of staff would be dismissed on such a disputed allegation and leads us to believe that the earlier protected disclosures to Highland Council were the true driving factor in dismissal. This renders the dismissal unfair.

[141]The Tribunal found that the suggestion by the respondent’s witnesses that there was something sinister in the claimant seeking to get copies of policies in relation to physical contact and how those applied was something the Tribunal had considerable difficulty in understanding. If the claimant had spoken to staff it was likely that any such request would get back to Ms Campbell as indeed it did. Rather than seek to understand the reason why the claimant felt it necessary to look for such policies to resolve in her mind the ambiguities that seemed to exist her actions were characterised as being evidence of wrongdoing.

[142]We then considered the reference to the GTC. The evidence that we heard led us to the conclusion that the reference itself was driven by the disclosures. There was considerable evidence available that showed that the concerns about the claimant’s practice would in ordinary circumstances be addressed through discussion and additional training or clarification of policies. If these concerns had been as serious as they were now painted to be then we would have expected a much earlier referral to the GTC or to formal disciplinary proceedings. We do not go so far as Counsel for the claimant to suggest that the reference was a deliberate attempt to end the claimant’s career. If there is such a ruling by the GTC then that is a matter for them and we do not seek to usurp their authority in this matter. This gives us a quandary in Assessing the matter as we do not know the outcome of that process. We have no doubt that there was a joint decision taken to make this referral and that it was not done in good faith but as a consequence of the disclosures made and as an attempt to pacify the Council and discredit the claimant’s observations of the practices she found at the nursey which we found wholly credible.

[143]We have made findings on the merits of the case. Remedy is complex and we have reserved that matter. It may be that remedy can be dealt with out any further hearing. The Tribunal has made an assessment of the impact of these matters on the claimant but the financial consequences are not wholly clear to us.

[144]Finally, we would observe that despite the statutory protections that exist for Whistleblowers the situation that the claimant finds herself in is sadly not uncommon in the Tribunal’s experience. It is a warning to anyone who raises genuine concerns. It is clear to us that the various parties involved reacted aggressively to the concerns that the claimant raised (involving as they did the proper care of vulnerable children) showing little regard to determining whether they were justified or not or seeking to learn from the situation that had developed and that in all this further the interests of Z were lost sight of.

[1]Following a hearing in July 2019 the Employment Tribunal issued a Judgment in relation to liability dated 9 December 2019 and sent to parties on 10 December 2019. That Judgment had found that the claimant had made various protected disclosures and had been the subject of detriments by the first and second respondents as a consequence of her disclosures. These were as follows: (i). On the 1 May the First Respondent removed the claimant from the care of Z and banned her from any contact with the family. (ii). On 4 May the First Respondent extended the claimant’s probationary period. (iii). The First Respondent forced the claimant to resign. (iv). The Second Respondent dismissed the claimant and that dismissal was automatically unfair in terms of section 47B and s.103A of the Employment Rights Act 1996. (v). The claimant was reported to the General Teaching Council by the First and Second Respondents.

[2]There was a considerable delay in bringing the case to a remedy hearing. The principal reason for the delay was both parties awaited the determination of a referral to the GTCS which although made in 2018 had not yet at the date of the hearing been determined. The issues

[3]The remedy hearing was made more complex by the fact that the referral to the GTC had not yet been concluded. The Tribunal’s task was to assess the appropriate measure of compensation the claimant should receive arising from the various proven detriments. This matter was also complicated by the fact that the claimant’s mental health had been affected both by these detriments made in the lead up to her dismissal and the referral to the GTCS. However, another factor which we could not ignore was the fact that despite the claimant’s protestations the GTCS had not dismissed the proceedings but after investigation they had proceeded with the complaint and it is due to be heard by a panel.

[4]The claimant argued that she should be compensated for the reduction in value of her pension incurred by her in having her pension paid early which she said was a result of the respondent’s actions. She also argued that we should accept that she would have returned to teaching at a senior level or remained with the respondents if she was able to secure as well paid employment with them which would have allowed her to access her pension on retirement as she planned.

[5]Prior to the hearing the claimant’s solicitors had lodged a witness statement on their client’s behalf together with a report from a consultant physiatrist, Dr Haroon Moosa. This report was contained in the Joint Bundle of Documents prepared by parties for the hearing. The Joint Bundle also contained a detailed Schedule of Loss (JB7) and supporting documents. The claimant’s representatives had also lodged an application for expenses (JB65) which required to be determined.

Background

[6]The claimant had lodged a detailed revised Schedule of Loss (JB p114-120). Our understanding was that the calculations were not in themselves in dispute nor was the attribution of any award either against R1 or R2 (or jointly and severally) but exception was taken to the underlying basis for making such high awards of solatium and in relation to pension loss any compensation at all. Mr Edward argued that the claimant was simply accessing an accrued benefit early and taking advantage of the scheme and that no loss occurs. Facts

[7]The Tribunal made the following additional findings namely:-

Legal Framework

[1]The claimant was born on 9 August 1963. She originally came from the Inverness area and had moved to England in about 1980. She had always intended to come back to Scotland at some point before or after her retirement. Her teaching qualifications were recognised on both sides of the border. It was likely that she would have readily been able to obtain a teaching post in Scotland at a senior level.

[2]In 2016 the claimant’s niece who was living in Inverness died suddenly leaving two children aged 2 and 3. The claimant’s niece was a single parent. The claimant felt compelled to come back to Scotland earlier than planned to look after the two children. There were legal proceedings involving the children. There was involvement of Social Services. The claimant was assigned by them as being the person responsible for transporting the children between different relatives who had interim joint custody pending a final decision by the court.

The issues

[3]The claimant was involved in various aspects of the care of the children being a close member of the family. She did not formally have residency/custody rights.

[4]The claimant gave up her teaching job as a Director of Learning for Key Stage 4 at Easington Academy in County Durham. At that point she was being paid a salary of £48,899. The claimant was also qualified as a science teacher.

[5]The claimant had sought after expertise in the education sector. She was suitable for an appointment for promoted posts in Scotland. The claimant believed that her commitment to her niece’s children was likely to be a long-term matter which she estimated to last a few years rather than a few months. The oldest child began attending primary school in September 2018. The youngest child attended nursery school at that point.

[6]The claimant was aware that her break from pensionable service in teaching would not result in losing pension continuity if she returned to pensionable service within 5 years of that break (JBp.152). The claimant did not want to resume pensionable employment as a teacher given her commitment to her niece’s children. She intended to resume teaching within this period or if the opportunity arose become employed by the first respondents in a senior post by another body providing support for children with special needs. If she had been able to obtain such a post at a salary broadly equivalent to her teaching salary she would have intended staying in this sector otherwise she would have returned to teaching.

Facts

[7]The claimant is married. Her husband has been unable to work since 2013 and is retired. He is not yet in receipt of a state pension.

[8]In 2018 the claimant’s finances were stretched. She was covering the cost of a property she and her husband owned in Peterlee and had an outstanding mortgage for a buy-to-let property in Newcastle. She tried to sell the property after she lost her employment but was unsuccessful. The claimant in Scotland entered a property near Dingwall. She had to give up this property after termination of her employment. At this time she was involved in a lengthy legal process relating to residency of her late niece’s young children (JBp.151).

[9]The claimant was approved as a supply teacher with Highland Council in 2017 qualifying for a salary of £36,480 pro rata (JBp.193). She did not take up any teaching assignments. The claimant was aware that the first respondent would auto enrol her in their pension scheme and she would be able to transfer her pension contributions to her teacher’s pension (JBp.181).

[10]The claimant began exploring the possibility of obtaining a more senior position with the first respondent or as a supply teacher or a combination of roles to make up her salary to a level that she had previously earned in England.

[11]The claimant was advised following the termination of her employment that she would only get a factual reference. The claimant believed that this would not be sufficient to obtain alternative employment in the same area.

[12]In early July 2018 the respondents lodged an application to the GTCS raising allegations of the claimant’s fitness to teach (JBp.264-265). This occurred two days after the claimant had initiated the early conciliation to raise employment tribunal proceedings. The letter giving notification of an investigation. It suggested that a PVG referral might be necessary.

[13]The GTCS carried out an Interim Investigation (JBp266-277) which was issued on the 21 February 2019. It found that the matter should proceed to a full investigation.

[14]A further report dated September 2019 indicated that the grounds for a PVG referral had not been met (JBp278-288).

[15]The claimant was advised by the GTCS on the 3 September 2019 that the matter was being referred to a panel as part of their complaints process.

[16]A further ‘‘Interim Report’’ on the initial allegations was finalised on 16 April 2020 (JBp290-300).

[17]A ‘‘Final’’ Report was completed dated 20 July 2020 (Jbp309-320) and the claimant advised that the matter was progressing to a ‘‘Fitness to Teach panel’’ (JB p324-326).

[18]On the 26 August 2020 the GTCS advised the claimant that the complaint would be heard by a Fitness to Teach Panel.

[19]The claimant believed that she was unemployable in any role involving the teaching care of children as to obtain such a post she would have to declare the impending referral. The referral included fresh allegations that had not been raised with the claimant. It was alleged that she had formed an “inappropriate relationship with the parents of a child referred to as vulnerable”. The claimant was at this stage the impact had potential impact the referral caused to her career and to her chance of securing future employment given that the allegations there related both to behaviour towards children and adults. The claimant believed that the stigma of being referred was such that she would never be likely to teach again. The stigma of being referred in itself had a long-term impact on the claimant and on her confidence. The claimant believed that the referral contained an inaccurate version of events. During the GTCS investigation the investigators recommended that she should be referred to the relevant Scottish Ministers under the Protection of Vulnerable Groups (Scotland) Act 2007 because they had suspected that she had caused emotional harm to children (JBp.277). Mental Health

[20]The claimant did not have any significant past history of mental health problems until her dismissal. For many years she had held down a stressful and demanding teaching position. He mental health was robust.

[21]The claimant had felt stressed just before the death of her niece in 2016. She had been supporting her in a difficult personal relationship. The claimant consulted her GP and was given an antidepressant called Fluoxetine at 20 mg and thereafter at 40 mgs after her niece’s death. Her condition gradually improved and she reduced her medication herself. She had stopped taking Fluoxetine by September 2017. The claimant did not take Fluoxetine beyond September 2018 despite continuing family stress and anxiety in particular in relation to the future of her niece’s children.

[22]In March 2018 the claimant lost her dog. She was not at that point taking medication. She was upset at this event. She would go out at night looking for it. She was working at this time and found it exhausting so took three weeks off work to recover.

[23]Following events at work in mid-2018 culminating with her resignation from R1 and dismissal by R2 the claimant felt sick, cold again and was shaking. She was shocked, bewildered and confused at the allegations raised against her. She began having physical symptoms. After leaving one meeting she suffered a panic attack. The various detriments constituted an ‘Index’ event that led to psychiatric injury.

[24]The claimant experienced physical symptoms such as having pins and needles and breathlessness. These symptoms were exacerbated when in July she discovered she had been reported to the GTCS. The claimant has found those proceedings which are continuing to be stressful. She has also found the continuing Tribunal proceedings stressful. These matters are a barrier to her full recovery.

[25]From the time of the Index event the claimant found it difficult to sleep. She had recurring bad dreams and a poor sleep patten. The claimant suffered psychiatric injury. She was later diagnosed as suffering from Adjustment Disorder as a consequence of the various unlawful acts to which she was subjected by R1 and R2.

[26]The claimant was prescribed Mirtazaine 30 mgs an antidepressant. In addition, she takes over the counter medicine to help her mood and sleep. Her mental health difficulties have left her anxious and socially withdrawn. She has periodically experienced flashbacks of meetings with managers from R and R2.

[27]The claimant is unlikely to fully recover until the GTCS proceedings and Tribunal proceedings are resolved.

[28]In January 2019 the claimant’s GP arranged counselling for her. This was six sessions of ‘‘Talking Changes’’ She was told that she needed face to face therapy which could not be delivered because of the Covid lockdown although she has had two video sessions.

[29]Following an overdose of medication in March 2020 the claimant was assessed by the Psychiatric Liaison Team at Sunderland Royal Hospital who put in place a Care Plan for her which is supervised by the Lanchester Road Hospital in Durham. This is continuing.

[30]The claimant was referred for counselling and attended six sessions from May onwards. That was interrupted by the Covid Pandemic and Lockdown.

[31]At the date of the remedy hearing the claimant was being prescribed Mirtrazapine 30mgs at night and Propranolol 80ms daily which is a betablocker. The latter medication assists with the physical symptoms of anxiety. Witnesses 8. The Tribunal heard evidence from two witnesses. The claimant gave evidence about her financial affairs and the impact of events on her financially particularly with regards to her pension and the emotional impact of the various detriments and their effect on her mental health. We found the claimant a wholly honest witness who gave her evidence in a clear professional manner and who we regarded as credible and reliable. 9. The Tribunal also heard evidence from an expert witness called by the claimant namely Dr Haroon Moosa a Consultant Psychiatrist working for Lancashire Care NHS Foundation Trust. He prepared a lengthy Report for the hearing (JBp424-458) The Report has been prepared with obvious care and is detailed. We have attempted to summarise the findings broadly under the section headed Mental Health. 10. Dr Moosa was a careful thoughtful witness who we regarded as being credible and reliable. We accepted his conclusions that the Index event which contributed to the claimant’s mental ill health was the termination of her employment and the manner in which she was treated by her employers of which the detriments were the core elements. Submissions Claimant’s Submissions 11. The Claimant’s counsel supplemented the detailed Schedule of Loss with oral arguments. He reminded the Tribunal of the facts of the case reviewing the authorities and referring to the original Judgment both in support of his contention that the detriments were particularly serious and had occasioned significant psychological injury and financial loss to his client. The claimant in his view had been ‘‘stitched up’’ and the referral to the GTCS was ‘‘retaliation’’ for the whistleblowing. He urged the Tribunal to accept that there was no natural cut off point for either head of claim and that the consequences of the detriments had to be ‘‘taken on the chin’’. He took the Tribunal to the Final Report (JB309/310) prepared for the GTCS and to the merits of those allegations. He was critical of the attitude of those advising the GTCS who had prevented the panel dealing with the matter seeing the Tribunal Judgment because he ventured it was critical of R1 and R2. It could be seen from the investigation that the same witnesses that had given evidence that the Tribunal had rejected were repeating the same flawed evidence before the GTSC. In his submission they were exacerbating the effects of the original detriments. He argued for a whole life loss in the unusual circumstances here. 12. Mr Menon then referred to the Schedule of Loss taking the Tribunal through the various elements of loss. The awards relating to the detriments should be dealt with separately under injury to feelings caused during the employment and injury arising from termination. He referred the Tribunal to the explanatory notes attached to the Schedule (JBp115) incorporating them into his submission. He then turned to examine Dr Moosa’s Report and the impact of events on the claimant. His position was that an award of £35,000 was appropriate for the latter as this was a deliberate and calculated course of conduct. 13. Counsel then considered future loss of earnings staring with the premise that we should accept that the claimant intended returning to the profession within 5 years if she could not gain comparatively well-paid employment with R1 or R2. She was effectively the household breadwinner. She would have been able to secure employment in the salary range £45-48,000). Reference was made to the various tables used for calculation of loss. He then addressed the question of pension loss (JBp117) on the ground that the claimant would have regained employment within this period. The claimant he pointed out has only 29 years’ service out of 35 required for the full state pension and this is an appropriate head of claim. 14. The claimant’s Counsel then argued that the initial legal expenses of the GTCS process should be recoverable namely the requirement for the claimant to have representation at the GTCS hearing which directly arose from the final detriment. 15. He submitted that it would be appropriate to award interest on any award in line with practice in discrimination claims. 16. Mr Menon then made an application for expenses referring the written applications and accompanying schedules (JB 475-480). Respondent’s Submissions 17. Mr Edward indicated at the outset that he took no issue with the legal propositions expounded by Mr Menon. He started by examining the detriment being the reference to the GTCS Any consequences of such a reference could not properly be visited upon the respondents. Such consequences did not flow directly or naturally from the detriment. He examined the referral noting that four witnesses interviewed were completely independent and not associated with the respondents. The GTCS delays were not the responsibility of the respondents. 18. Turning to the Schedule of Loss Counsel advised that he had no difficulty with the methods of calculation. Past lost was he said unobjectionable but he took issue with the basis on which future loss was calculated. There was he said very little evidence to support the contention that the claimant would return to full time teaching in the evidence She registered as a supply teacher in September 2017 but did not pursue this avenue. This, he suggested, casts some doubt on her intention to return to teaching. He suggested that the claimant had changed her career and had intended to stay in Scotland. Counsel also queried if there was sufficient evidence that the claimant would fill posts on the salary range suggested which seemed more applicable to the higher salaries paid in England. 19. Counsel also expressed difficulties with the medical evidence which did not in his view support life-long loss. The Report does not say the claimant will never work again. The impediments to her recovery appear to be the GTCS referral and the current Tribunal proceedings. In December 2019 it was being suggested that a return to teaching could take place within 12-24 months. 20. Mr Edward then addressed pension loss. The claimant was not intitled to CPI uprating. Her pension was index linked. He did not see any legal basis for a recovery based on pension loss. The claimant has had the benefit of this sum and it is not properly a separate head of claim the matter has to be assessed as a ‘‘package’’. (Aegon v Roberts) There was he continued no basis for a claim of loss of state pension it was in any event not pled in the ET1.There was no evidence she would lose the full pension. Counsel submitted that the injury to feelings had to reflect the original Judgment and it’s terms. It should not be swayed by Mr Menon’s submissions of a campaign of retaliation against the claimant or that they were in his words ‘‘gunning’’ for her. He then turned to examine the injury to feelings element considering the medical evidence and concluding that the actions of the GTCs was at least as significant in any injury to feelings and long term upset. In his submission looking at the matter in October 2018 this was a ‘‘middle band’’ case and an award of £12500 was appropriate. He reminded the Tribunal that there was no claim for injury to feelings in unfair dismissal claim. There was no claim for personal injury and no evidence of serious psychological injury for example that a psychosis had been triggered. 21. In relation to the claim for expenses to the GTCS Counsel indicated that he opposed any award. His position was that it was up to the claimant who she instructed, if anyone, to attend the GTCS. Legal representation was not required. 22. The application for expenses was opposed. It would not be appropriate to grant them. There were serious allegations that were no challenged such as taking care of a child overnight. There was a prima facie case for referral. There was evidence from third parties, the application was legally assessed before proceeding and the claimant made no attempt to mediate the case when it was initially referred to ACAS under the early conciliation process. 23. We would also record that we considered the response lodged by the respondent’s against to the Schedule (JBp113). Discussion and Decision 24. There was no dispute as to the principles that we should apply in assessing remedy. We bore in mind that the purpose was compensatory and not punitive and that the aim of compensation is that ‘‘as best as money can do it’’ to put the claimant into the position she would have been in but for the unlawful conduct. 25. It was common ground that any compensation should be made on the basis of the test reiterated by the Court of Appeal in the case of Essa v Laing Ltd namely that the claimant should be compensated for the damage or loss which was caused by or arose naturally and directly from the wrongful act or as in this case acts causing detriment. In relation to injury to feeling the Tribunal had regard to the case cited to us of the Commissioner of Police for the Metropolis v Shaw (

UKEAT/125/11

) which is authority for the proposition that compensation for unlawful detriment should be dealt with on the same basis as a claim for unlawful discrimination. There are broadly two elements namely injury to feelings (and in this case psychiatric injury) and financial loss. 26. We had to consider whether the claimant’s loss was in some way interrupted by supervening events in particular the proceedings before the GTCS. We were referred by Mr Menon to the cases of Beart v HM prison Service

UKEAT/0279/04/SM

and to Ashan v The Labour Party

UKEAT/0211/10/ZT

which he submitted bolstered his argument that there should be no cut off here as contended for by the respondent’s Counsel. 27. In Beart (a case dealing with disability discrimination) the issue was whether or the chain of causation was broken by her later unfair dismissal. This argument was rejected by the court which held that it was not. At paragraph 40 of the Judgment H.H.J Ansell recorded: ‘‘There was the clearest evidence in this case that the psychiatric harm caused by the act of discrimination and its impact upon the Respondent's ability to work continued far beyond the date of the unfair dismissal and in the absence of a fair dismissal we see no reason why the chain of compensation should be broken at that date’’. Mr Menon argued that this was an analogous case. The case of Arshan raised a number of difficult issues in relation to causation. In that case the claims arose from the claimant’s suspension by the Labour Party and the losses that properly flowed from what was found to be race discrimination. The EAT considered both Essa and Beart. It accepted the employer’s position that the fact that the claimant was not selected to stand for Parliament in 2004 was not connected to earlier events but to ‘‘subsequent unconnected events’’ and thus the chain of causation was broken. Mr Menon urged us to find that the actions of the GTCS did not break the chain of causation. As in Beart the claimant was still suffering the psychological effects of the employers’ actions. 28. This is not an easy matter to assess. We do not wholly accept Mr Menon’s position nor indeed Mr Edward’s. As in Beart we accept that the claimant is still suffering injury because of the events leading up to her dismissal and it’s after effect including the reference to the GTCS. However, we cannot ignore the fact that the GTCS which is a statutory body with it’s own processes and appeals has begun proceedings. Whatever the Tribunal’s views on the merits of the evidence against the claimant (which were set out in the merits Judgment) they must have been persuaded that there was sufficient material before them to proceed after they had concluded their own interim investigation on 21 February 2019 (JB p277). It was in their competence to lawfully act in that way presumably after an assessment of the prima facie case against the claimant. Mr Menon’s argument was that we, as a Tribunal knew that that case was not made in good faith and that this did not constitute an intervening event. We noted that in Arshan the Judge referred to later ‘’unconnected events’’ interrupting causation. This matter a difficulty in that we have found that the referral was not made in good faith and was a detriment and accordingly we cannot just ignore the GTCS complaint. 29. We were tempted to agree with Mr Menon’s analysis but on reflection find that we cannot do so. Although a referral may not be made in good faith that does not necessarily mean that there is no factual basis alloying the referral to be ultimately upheld. The evidence that led to us finding a detriment was the claimant’s evidence that the respondent’s would know that such a referral in itself would be damaging. If the referral had been disposed of in the claimant’s favour then she would have been in a stronger position to succeed in this argument. We were not asked to sist the case to await the determination of the referral so we must reach our decision on the basis of what is before us which is that the current ‘live’ referral has a continuing effect on the claimant’s ability to put these events behind her and for her condition to resolve. 30. We were also mindful that in damages there should be no double recovery if possible and that we needed to examine the effects of the detriments singly and cumulatively and as best we could remove the impact of the continuing GTCS referral and Tribunal proceedings. In some cases upset or distress caused by unlawful acts can subside within relatively short periods but it is clear that in this case the claimant was left with long terms feelings of humiliation and loss of self- esteem as recorded in some detail in Dr Moosa’s report. 31. The Tribunal, with reluctance, reached the view that although psychological injury attributable to the detriments continued unresolved the GTCS referral must be considered particularly the lengthy period the claimant has waited to have those matters resolved before the GTCS and the impact of that alone. We must disentangle this in some way from our assessment of loss both as to injury to feelings and financial loss. In relation to the latter it is the GTCS’s investigation that the claimant believes effectively makes her unemployable and has been the most damaging. It strikes at her own self- image as a professional. She believes that this prevents her from working both in the teaching profession or in support services and thus that is a break in causation for financial loss but the effects of the respondent’s actions do still continue to have an impact. Injury to Feelings

[32]The assessment that the Tribunal required to make was to look at the impact the various detriments had made on the claimant particularly to her mental health. The claimant held down a demanding and no doubt stressful teaching position for many years without any indication that she had difficulty in coping or was not in robust mental health. We take fully into account her background circumstances leading up to these events for example the fact that she was supporting her mother and her husband did not keep good health. We noted that before the events we are concerned with the claimant had previously became unwell following the death of her niece and the difficult situation that caused regarding the care and future care of her niece’s children.

[33]Dr Moosa was challenged regarding the conclusions he had drawn. He had access to the claimant’s medical notes and was in a position to consider the claimant’s medical history. He compares her past (being able to cope with a highly pressurised role) and stressful events such as her divorce with her now fragile mental health. He acknowledges, as did the claimant, that the suicide of her niece caused her to seek medical assistance from her GP for mental health problems and led to her being be prescribed an anti-depressant at a relatively low dose. She gradually weaned herself off the medication and did not take it beyond September 2017 although she again asked for and was prescribed a course of anti-depressants in March 2018 when her dog was lost.

[34]We accepted the claimant’s evidence and that of Dr Moosa that she had not suffered from any significant or continuing mental health issues until the events leading up to the termination of her employment. At that point the various events seemed to overwhelm her.

[35]In his report the Consultant Psychiatrist went on to consider whether the claimant was suffering from any recognisable psychiatric illness and if so it’s date of onset and whether it was an exacerbation/aggravation of any preexisting condition. We had to consider how the condition diagnosed by him affected the claimant’s day-to-day activities and employment. Finally, we had to take a view on whether the dismissal and detriments suffered by the claimant assigned by the Tribunal caused or exacerbated or aggravated or otherwise contributed to any current psychiatric condition.

[36]The chronology of events was known to the Tribunal from the merits hearing although that hearing did not focus on the impact of those events on the clamant in the same way as the evidence at the remedy hearing did. The psychiatrist took a history from the claimant which accorded with the evidence we heard from her and our own knowledge gleaned from the merits hearing as to the impact of events on her. The claimant made reference in her statement to experiencing a panic attack and feeling “utterly devasted” and used words like ‘‘intimidated’’, ‘‘cornered’’ and ‘‘unsupported’’ to describe events (p418) He concluded that the ultimate dismissal was the Index Event that led to psychiatric injury. The consultant psychiatrist concluded the claimant was suffering from adjustment disorder. He wrote: “Adjustments Disorder (ICD 20 code; F43.2) “R states the subjective distress and emotional disturbance, usually interfering with social functioning and performance arising in the period of adaptation to a significant life change or a stressful life event. Individual predisposition or vulnerability plays an import role in the risk of recurrence and the shaping of the manifestations of adjustment disorders, it is nevertheless assumed that the condition would not have arisen without the stressor. The manifestations vary and include depressive mood anxiety or worry (or a mixture of these), a feeling of vulnerability to cope, plan ahead or continue in the present situation, as well as some degree of disability and the performance of daily routine.” His view was that the onset of the condition followed on the significant stress and trauma she experienced when she was dismissed in 4 May 2018.

[37]However, we need to consider not only the impact of the GTCS referral but subsequent events which have prevented the claimant recovering in Dr Moosa’s opinion. These events cannot be underplayed. There have been threats to report her to the Scottish Protecting Vulnerable Groups Scheme which has forced her to disclose the referral to family members. In addition, she had had to endure the long running process she is in with the GTCS and the failure by her to either short-circuited or have the proceedings ended. There is also the continuing stress that she must feel because of the financial impact of having to defend herself in these proceedings and the cost of the Tribunal proceedings.

[38]Dr Moosa would not be directly drawn on the question of how long it might have taken for the claimant to recover from the events of May 2018 if there had been no GTSC referral. He agreed with the suggestion of the respondent’s Advocate that if there had been no further stressors then a recovery period of between 12 and 24 months would be reasonable if appropriate support could be put in place.

[39]In summary although we do not discount the initial referral to the GTCS we do not accept that we can ignore the severe impact those proceedings have and would have had anyway and on her ability to recover from the detriments caused by the respondents. At the date of the members meeting the proceedings had been continuing for over three years with the concomitant impact on the claimant’s mental health that we have described. Quantum

[40]In approaching our assessment of these matters we noted that there was no dispute that the applicable uprated ‘‘Vento Bands’’ that applied in 2018 as et out in the detailed Schedule of Loss.

[41]Despite our sympathy for the claimant we cannot agree that this is a case where the top band is engaged. We considered the reference in Vento that the top band should be reserved for only the most serious cases such as when there has been a lengthy campaign of discriminatory harassment. That is not the case here where the detriments cover a relatively short time span and whilst upsetting and undermining of the claimant are not either cumulatively or singly serious enough for that band.

[42]As noted earlier we had some considerable debate about this matter and how the referral and role of the GTCS impacts on these matters which we had to try and disentangle. Our view was that ending the causation of loss at the date of the referral was not the correct approach given that the merits Judgment had held that the referral itself was a detriment. A better approach we concluded was to look at the point at which the continuation of the complaint was a matter in the hands of the GTCS. That properly seems to be in February after they had completed an interim report and concluded that the matter should proceed. That decision is in our view significant and is the intervening act that halts the chain of causation. What this means is that we considered that if the complaint had at that point been rejected it would have taken the claimant between 12 months and 24 months to fully recover from the Index event. We have no doubt that the continuing GTCS referral had had a significant effect on the claimant’s health and mental well- being but that cannot be fully laid at the door of the respondents.

[43]We came to the view, although reluctantly, that this was a serious case but one that is appropriately dealt with in the middle band to compensate the claimant for the anger distress and upset felt by her. We cannot separate the responsibility of the two respondents who we observed in the original Judgment acted effectively as one organisation nor were we asked to do so. In our view the appropriate award is the sum of £10,000. We also considered the appropriate sum for psychiatric injury bearing in mind that there should be no double recovery. It was accepted that the bands for Psychiatric Injury we should consider should be between £17,500 and £51,400. Our understanding is that this would cover a stand -alone claim and we must take into account the award for injury to feelings and to discount the impact of the GTCS post the referral. Using as a guide Dr Moosa’s view that recovery (absent any stressors) would be 12-24 months we concluded £12,000 would be the appropriate sum to award. Other Awards and Schedule of Loss

[44]It was accepted that past loss of earnings with R1 would be properly calculated at £1833 and £9622 with R2. As discussed above we make no award for loss relating to the early cashing in of the claimant’s pension or loss of a future occupational Pension or State Pension. The claimant is however entitled to loss of income for a period ending with the GTCS becoming seized of the issue in February 2019. There is an element of speculation in any assessment of future earnings. The claimant hoped to increase her paid hours but we had no evidence particularly from the respondent’s whether this was likely or not. We were left with what the claimant had been earning up to May 2018. Her future loss of earnings with the first Respondent would accrue at the rate of £153.37 (as assessed in the Schedule) and £66.36 per week with the second. The period is 42 weeks which gives us £6441.50 (£153.37 x 42) loss of future earnings with the first respondent. The claimant only worked during the school year with the second respondent. The school year in Scotland starts usually the second week of August and taking off two weeks for the October Holidays and a week at Christmas/New Year and this gives us 23 weeks. The loss is therefore £1524 (£66.26 x 23) with the second which was agreed to be joint and several.

[45]We accepted the calculations given in the Schedule and the application of interest at 4% on the detriment awards given that they are akin to discrimination awards.

[46]We do not regard the claim for expenses in relation to the GTCS referral is well founded. We held that the application was made in bad faith and malicious but once the GTCS is engaged they appear to have some assessment of the matter and conclude there is as it were a possible case to answer then the that interrupts causation and it would not be appropriate to award compensation especially as the process is continuing. Application for Expenses

[47]The claimant’s Counsel made an application for expenses (costs). The Rule governing such applications is Rule 76:- “When a costs order or a preparation time order may or shall be made 76(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that - (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b)any claim or response had no reasonable prospect of success.”

[48]Although there have been changes to what could be described as the expenses regime over the years an award is still the exception rather than the rule. There are good policy grounds for this ensuring that litigants are not deterred from making claims by the fear of incurring expenses if they lose.

[49]The terms of Rule 14(1) of the earlier 2001 Rules used the same formulation as later versions of the rules namely that the trigger test was acting ‘vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived’.

[50]In most cases the unsuccessful party will not be ordered to pay the successful party’s costs; see McPherson v BNP Paribas (London Branch)

[2004] IRLR 558

per LJ Mummery at paragraphs 2 and 25:- “Although Employment Tribunals are under a duty to consider making an order for costs in the circumstances specified in Rule 14(1), in practice they do not normally make orders for costs against unsuccessful applicants. Their power to make costs orders is more restricted than the power of the ordinary courts under the Civil Procedure Rules; it has also for long been generally accepted that the costs regime in ordinary litigation does not fit the particular function and special procedures of Employment Tribunals. It is, therefore, not surprising that the Employment Tribunal Rules of Procedure do not replicate the general rule laid down in CPR Part 38.6(1) that a claimant who discontinues proceedings is liable for the costs which a defendant has incurred before notice of discontinuance was served on him. By discontinuing the claimant is treated by the CPR as conceding defeat or likely defeat. The Tribunal rules of procedure make provision for withdrawal of claims in Rule 15(2)(a), but the costs consequences are governed by the general power in Rule 14.”

[51]The then President of the EAT, Mr Justice Burton in Salinas v Bear Sterns International Holdings Inc UK/EAT/0596/04DM noted at paragraph 22.3 that “something special or exceptional is required” before a costs order would be made and, even if the necessary requirements of Rule 14 are established, there would still remain a discretion of the Tribunal to decide whether to award costs. The matter is one for the Tribunal’s discretion. In Benyon & Others v Scadden

[1999] IRLR 700

it was made clear that the discretion given to Tribunals and courts is not to be fettered.

[52]The starting point is to examine the facts found by the Tribunal in the Judgment dealing with the merits of the case and the ultimate decision made. This is a case where the Tribunal found that the principal reason the claimant was treated the way she was related to her making Protected Disclosures and that the allegations made against her even if true would have been dealt with internally by guidance or counselling. The claimant was, although a highly experienced secondary school teacher, new to this sector and although highly regarded, initially at least, had only been working full time for R2 since December 2016 and for R2 in 2017 by the time of the first incident in early 2018.

[53]The managers of R1 and R2 we found to be unsatisfactory witnesses in many ways. The respondent’s main client/funder was the Highland Council which put those mangers in a sensitive difficult position when disclosures were made about the Council’s staff and practice. There was no acknowledgement by them of this pressure. The core finding is that we concluded that the claimant would not have been dismissed in ‘‘ordinary’’ circumstances and that it was the desire to pacify the reaction of the Council to the disclosures that was the principal reason for the claimant’s treatment including her summary dismissal.

[54]However, it was argued that the respondent would not have had any reason to act in this way had it not been for the complaints that had been made. This was an important factor. Unfortunately, we were hampered in any assessment because of the deficiencies in the investigation and no evidence led from the authors of the complaints or from Mr Coulston of Highland Council who seems to have been closely involved in matters.

[55]We simply cannot go as far as the claimant’s Counsel invites us to when considering the actions of the respondent’s managers. We recall that whatever deficiencies there were in the respondent’s respective positions and evidence the claimant herself accepted that she may have misjudged some matters. She believed that the complaints were self-serving. Nevertheless, those complaints made against her practice came from third parties and were not fabricated by the respondents although completely mishandled by them. Even if we were to hold that the Rule was engaged, which although reluctantly we do not, expenses remain the exception in Tribunal cases and we would not have awarded the claimant expenses here. RECONSIDERATION JUDGMENT OF THE EMPLOYMENT TRIBUNAL ETZ4(WR) The unanimous Judgment of the Employment Tribunal is as follows: 1. The First Respondent shall pay to the claimant a monetary award of Three Thousand One Hundred and three pounds and Eighty pence (£3103.80) for past loss of earnings made up as follows: a) the sum Two Thousand One Hundred and Sixty-One Pounds and NinetyFive Pence (£2,161.95) (being made up of £2059 for past loss of earnings which sum being subject to an ACAS uplift of 5% (£102.95)) together with £941.85 interest to 31 March 2025. 2. The Second Respondent shall pay to the claimant, a monetary award of Sixteen Thousand, Two Hundred Pounds and Fifty Six Pence (£16200.56) made up as follows: a) the sum of £10,776 for past loss of earnings which shall be subject to an ACAS uplift of 5% totalling £11,314.80 (£10,776 + £538.80) together with the sum of £4885.76 interest to 31/3/2025. 3. The First and Second Respondents shall pay to the claimant monetary awards, made up as below noted, and shall be liable jointly and severally therefore: a) the sum of Seventy Six Thousand, Seven Hundred and Six Pounds and Twelve Pence (£76,706.12) as past loss of earnings to which interest was added of £11,132.26.to 3/3/2025 b) the sum Eighty Five Thousand One Hundred and Seventy Five Pounds and Fifteen Pence (£85,175.15) as net future loss of earnings. c) The sum of Thirty One Thousand, and Sixty Six Pounds and Eighty One Pence (£31,066.81) in respect to injury to feelings of £20,000 with interest to the date of the Judgment of £11,066.81 and then at 8 per cent until payment; d) the sum of Twenty-Four Thousand Eight Hundred and Sixty One Pounds and Fifty Four Pence (£24,861.54) in respect to solatium for psychiatric injury which sum includes interest to the date of the Judgment of £8,861.54 and with interest at 8 per cent per annum until payment; e) the sum of Three Thousand, Seven Hundred and Thirty-Six Pounds and Fifteen Pence (£3,736.15) in respect of the shortfall in National Insurance contributions; f) the sum of Twenty Nine Thousand and Forty Six Pounds and Fifteen Pence (£29,046.15) as legal expenses for the Employment Tribunal liability hearing of £20,000 with interest of £9046.15 to the date of the Judgment; g) the sum of Fifteen Thousand, Seven Hundred and Eighty Four and Fifty pence (£15,784.50) made up of £11,902.50 in respect to her legal expenses for the GTCS referral and interest (£3882); h) the sum of Five Thousand Five Hundred and Forty Five Pounds and Forty One pence (£5545.41) in respect of legal expenses incurred in relation to Judicial Review including interest of £1045.38. i) the sum of One Nine Hundred and Eight Pounds (£1908) being the fees for Dr Moosa’s attendance at the remedy hearing on 24 May 2024 together with interest to 31 March 2025 of £108. 4. The First and Second Respondents shall pay to the claimant the sum of One Hundred and Six Thousand and Fifty Five Pounds and (£106,055) made up of the calculated tax liability to 12 February 2025 of £105,365 and the sum of £690 to take account of the claimant’s taxable liability for Awards 1,2,3(a) and (b) from 12 February 2025 until 31 March 2025 being a further accrual of interest.

[56]The factual position was that the Tribunal found that the First Respondent had forced the claimant to resign and the Second Respondent had dismissed the claimant for whistleblowing. We also found that the claimant had submitted grievances which had been ignored (P671 paragraph 99). Mr Cunningham submitted that the Code had limited applicability here and did not appear to have been engaged in relation to the actions of the First Respondent in dismissing.

[57]The EAT in the case of Rentplus UK Ltd v Coulson

[2022] EAT 81

in which the EAT held that an uplift of 25% made by a Tribunal should be upheld where a redundancy process was a sham. In that case the EAT suggested that the Tribunal ask itself the following questions: ‘‘1) Is the claim one which raises a matter to which the ACAS Code applies, 2) Has there been a failure to comply with the ACAS Code in relation to that matter, 3) Was the failure to comply with the ACAS Code unreasonable, 4) Is it just and equitable to award an uplift because of the failure to comply with the ACAS Code and, if so, by what percentage, up to 25%’’.

[58]This was a case where the operation of the Code was perhaps not particularly obvious and the Respondents argued that the case was a redundancy case and not a misconduct case which would trigger the application of the Code. This was rejected.

[59]It would be fair to observe that the Code sets out the requirements for a fair process and can be viewed as being more often applicable where there has been some departure from procedural fairness. However, as this case makes clear the Code can have wide application. In the present case the claimant was summarily dismissed by the Second Respondent. We deal with this and her subsequent grievances which were not concluded on the basis that she had left the organisation at paragraphs 98 and 99. Mr Menon urged us to accept that if the dismissal was to appease the Council and therefore a ‘sham’ then the Code was engaged.

[60]We considered our findings. In particular paragraph 140 of the original liability Judgment (p685). There was no formal disciplinary hearing and the claimant did not get to consider the evidence being used by the employers. We were mindful that the Code provides that a disciplinary hearing should have these basic elements: ‘‘• Establish the facts of each case• Inform the employee of the problem

• Allow the employee to be accompanied at the meeting

• Decide on appropriate action

• Provide employees with an opportunity to appeal”.

[61]It seems to us that there are three basis on which the Code was engaged. The first is that the dismissal was a sham. We held that the dismissal was because of the earlier protected disclosures. Secondly the actual disciplinary hearing was not approached with an open mind. We did not describe the meeting as a ‘formal disciplinary hearing’. The claimant was not given the evidence to consider and was not accompanied. Thirdly, the grievances were ignored.

[62]We considered the guidance given in the case of Acretrip to which we had been referred. That case in turn drew on earlier decisions in Chagger v Abbey National Plc & Anor

[2010] ICR 397

(CA) and Wardle v Credit Agricole Corporate & Investment Bank

[2011] ICR 1290

. At paragraph 100 we noted the following: “100. Under the 2002 regime, the starting point, in a case where the uplift provisions were engaged, was an uplift of 10%, but a Tribunal might award less if there were exceptional circumstances. In Chagger the Court considered that the absolute value of a large award might constitute such circumstances. The Court in that case (at paragraph 102) observed that Parliament could not have intended the sums awarded to be wholly disproportionate to the nature of the breach. In Wardle, the Court was concerned with the power, under that same regime, to make an award of up to 50%, if thought just and equitable. At paragraph 15 Elias LJ (Smith LJ and the Master of the Rolls concurring) said: “The principle of proportionality is equally applicable in those circumstances. The size of the award sought in an appropriate case to be a factor informing the tribunal’s determination of what is just and equitable under that provision. No doubt in most cases where the compensation is modest it will not affect the tribunal’s analysis. But in other cases, it can be a highly material consideration.”

[63]We take account of the submissions made. This does appear to be an unusual case and we paused to consider whether any uplift should be made. However, the power to make such an award was given by Parliament to mark, as it were, an employer’s failure to adhere to the principles in the Code which should inform employer/employee relationships. The employers acted badly and there was no fair disciplinary process. We accepted that employers were not acting in good faith. While we accept that this should not lead to a disproportionately large award or a windfall but we accept that in principle an award should be made and that 5% is appropriate given these serious failings. This must then be applied to the award for unfair dismissal payable by the Second Respondent. This is £2161.95 (£2,059 +£102.95). Future Loss of Earnings

[64]The claimant was diagnosed with having an Adjustment Disorder triggered by the events in May 2018. We reconsidered this matter both in the light of our original findings and in the light of the most up to date evidence before us. Sadly, there has been a deterioration in the claimant’s mental health. We noted that Dr Moosa in his updated report said as follows: “6.5 It is difficult to give an exact prognosis at this moment in time. However, I am of the firm opinion that the symptoms will not improve until the end of the legal proceedings. Thereafter, I believe that she will require intense psychological therapy with CBT and/or EMDR therapy. She probably will require treatment for between 18-24 months. She will need to continue to take her current medication for the foreseeable future. 6.6 The prognosis will be very much determined by the outcome of these processes. If the outcome is negative, then it is my opinion that her mental health may potentially deteriorate significantly and she may never fully recover from her psychological symptoms. Even if the outcome is positive, she will require some time to fully come to terms with what has happened to her and to repair some of the damage. As I mentioned earlier, she will require extensive psychological therapy to allow this to happen. The therapy may require trauma focused CBT and EMDR therapy. This is because there are significant traumatic memories which continue to haunt her in relation to the index event. It is entirely possible that Miss McNicholas may never get to a stage to go back to the sort of employment she was previously doing. At this moment in time she fears that she may make further mistakes and she may be subjected to extra scrutiny. This will undermine her confidence and her ability to do her work properly. She may be too apprehensive and may be too avoidant of putting herself in that situation. If she is able to fully recover from her psychological symptoms, and if the outcome of the tribunal is in her favour, then it is possible that she may be able to consider alternative forms of employment which do not remind her of the previous trauma once her therapy sessions have come to an end.” (Our emphasis)

[65]The persistence of the claimant’s condition seems tied to the stresses she has been subjected to and the cautious air of optimism about her recovery which we detected in our original Judgment and the estimate of a recovery between 12 and 24 months has proven unfounded. The claimant has now been unwell for some years and the Report recognises this. These difficulties were to some extent foreseen in the earlier report. Mr Cunningham suggested that 12 months would be appropriate as the proceedings were now at an end. We take the view that the proceedings will not come to an end until we release our Judgment. Even then Dr Moosa’s report is not, understandably given the lack of progress in the claimant’s recovery to date, particularly optimistic. In addition, the claimant’s best option of obtaining reasonably well-paid employment (given her age and utilising her professional skills) will be a return to education and this may well present difficulties as the passage in Dr Moosa’s report we have highlighted suggests.

[66]In addition, we noted from the claimant’s evidence that any job in education would probably involve retraining and work experience (p30) as she is no longer immediately eligible to return to class teaching. There is always an element of speculation and in this case the picture we have shows that the claimant has difficult hurdles to overcome both with regards to her health, retraining/requalifying and whether she will be robust enough to return to teaching. There are a number of uncertainties such as whether she can obtain a job immediately in teaching and this may be hampered because any retraining will probably occur in the course of the academic year while recruitment for a post will usually be at the beginning.

[67]We do not accept that a full life award is appropriate. This was the basis on which the Schedule of Loss was prepared. It seems to us that the circumstances here all militate towards a period of three years’ future loss of earnings as being appropriate. Account has been taken that the claimant might recover more quickly during this period by the application of a withdrawal factor of .75 reflecting a 25% chance of early recovery/employment.

[68]The basis on which the calculations were made and the underlying assumptions were only challenged to an limited extent. Mr Cunningham argued that it was not clear that the claimant would lose salary at the rate claimed which was based on her returning to a similar role before these events occurred. She had, he observed, given up the relatively stressful role as a principal teacher to change direction and that involved accepting lower paid work. In short, his position was that there was little evidence to support either her speedy return to teaching or the salary claimed.

[69]We ultimately rejected these submissions. It seems clear to us that the claimant wanted to make a career in special needs education and hoped to quickly reach a level of salary approximating to her old teaching role. Her decision was not irrevocable. She had ensured that she could apply for work as a Secondary School teacher in Scotland. It was understandable that she would give this new ambition a period to materialise but in the background she had financial commitments that would have meant her return to Secondary Education if her new ambitions were not fairly quickly realised. She was on her way to realise this by keeping both posts with the respondents and obtaining better paid work with the Second Respondent.

[70]The claimant was also conscious of the impact of lower paid employment on her pension and we recorded in the original Remedy Judgment (p693) that she needs to return within 5 years of the break. The claimant’s skills and experience coupled with the demand for such skills and experience lead us to the conclusion that she would have been able to obtain a senior position commanding a substantial salary. For these reasons we accepted the basis on which the loss of salary both past and future was calculated in the Schedule of Loss (at Table 2 (e)(ii)).

[71]In all probability considering both her personal and professional needs we considered that she would have returned to Secondary Education in April 2021 on at least a salary of £45,000. This was four years after her initial break from teaching in 2016. This would have been likely to increase to £46,702 between 1/9/2022 and 31/8/2023. This would in turn have increased to £49,739 from 1/9/2023. It is reasonable that the continuing loss should be calculated on this basis. The loss to the date of the remedy hearing is therefore £108,242 net. From this figure should be deducted pension received early from 7 May 2021 to the date of the hearing on 23 May. These total £42668.32. The final net loss of earning to 7 May 2021 up to the remedy hearing is £65,573.68. The withdrawal factor does not apply to these sums.

[72]In relation to future loss of earnings the gross annual salary was £49,739. The net annual loss is £37,853 as set out in the revised Schedule of Loss. A withdrawal factor of 0.75 is applied leaving £85,175.15. Injury to Feelings/Solatium

[73]The Tribunal had originally awarded the claimant £10,000 for injury to feelings and £12,000 for psychiatric injury. The matter is now at large for us to reconsider these awards based on the most up-to-date information we have and taking full account of the impact of the GTC referral which we had previously subtracted. It is, of course, clear that public interest (“protected”) disclosure claims are a form of discrimination and fall to be compensated in the same way (Virgo Fidelis Senior School v Boyle

[2004] IRLR 268

). In Virgo Fidelis the EAT said that detriment suffered by whistle-blowers should normally be regarded by Tribunals as a very serious breach of discrimination legislation. Both Counsel referred the Tribunal; to the ‘‘Vento’’ bands.

[74]Mr Cunningham’s position was that the award should still fall into the middle band while Mr Menon suggested that the higher award was appropriate given the campaign as he put it against the claimant which had resulted in the referral to the GTCS and all the distress resulting from that prolonged process.

[75]An award for injury to feelings is intended to compensate a claimant for the anger, distress and upset caused by the unlawful treatment and is not meant to be punitive. Although as Mr Cunningham pointed out there were only five detriments these were particularly serious and although committed over a short period having a long-term effect.

[76]The Tribunal had regard to what are known as the Vento bands called after the case of Vento v Chief Constable of West Yorkshire Police

(2003) IRLR 102

. The financial boundaries of these bands have periodically been increased. The claims were made in 2018 and accordingly it is the bands in operation at that point that are in play. We reminded ourselves about the guidance given in relation to appropriate bands. The top band should only be for the most serious cases. While the consequences of the employers’ actions have had long term and serious effects the employers’ actions although bad were not in this higher category in our estimation. The second band ends at £25,700.

[77]The claimant sets out in her updated statements the difficulties she has faced and the impact of the long drawn out GTCS proceedings. This is also reflected in Dr Moosa’s report. The first material change he records (p550) in his up dated report is that the GTCS investigation continued for a further 23 months. It had lasted five years. The claimant’s mental health had deteriorated since the previous report in October 2020. The evidence discloses the claimant’s anguish and the impact these matters had on her both personally and on her family life. One aspect of this was that she would suffer panic attacks when having to deal with correspondence about this process. In layman’s terms most of the ‘news’ for some 5 years was bad with no sign of a resolution until the proceedings were dropped.

[78]We take the view that now that it has been clarified that the proceedings before the GTCS flowing from illegal conduct (detriment) are part of the background to which we can have regard, we concluded that because of the serious nature of these matters and the impact they have had on the claimant that this would mean that we would have to consider an award in the higher level of the middle band. We accept that the illegal wrongdoing perpetrated by the Respondents took place was over a relatively short period of time as Mr Cunningham suggested but the impact of the GTCS referral has been longstanding.

[79]We were, however, aware that guard against double recovery in effect compensating the claimant twice. The medical evidence is clear that the claimant suffered severe anxiety and depression (Dr Moosa’s report paragraph 6.2 p562). This was not a situation of some relatively transient condition following the experiencing of upsetting events. The condition has resulted in the claimant experiencing chronic symptoms. These have been longstanding. The claimant experienced significant personal and emotional problems. She has been unable to concentrate to work, had had relationship and family problems and she will need intensive interventions to recover and these may take some time. These matters are documented and described both in the two medical reports and in the claimant’s evidence at both remedy hearings.

[80]We found the cases submitted by Mr Menon to be of some assistance in our consideration of this matter. (Marsh v Ministry of Justice and Zeromska - Smith v United Lincolnshire Hospitals). If we had been looking solely at psychiatric injury the award in Marsh of £23,000 seems to have been made in broadly similar circumstances. That award would now be £32,640. Our conclusion is that an overall award of £36,000 is appropriate with £20,000 allocated to the claim for injury to feelings and £16,000 in respect to the psychiatric injury.

[81]The claimant is also entitled to compensation for National Insurance Contributions as set out in the Schedule of Loss amounting to £3,736.15. Interest

[82]We were asked to consider interest on the awards. We understood there appeared to be no challenge to the calculations provided to us in the up dated Schedule of Loss. Issuing the Judgment took much longer than we anticipated and as a consequence we have added interest up to the 31 March 2025.

[83]The application of interest was not in dispute in principle. The claimant will be entitled to interest on the awards made for detriment as if they are awards for discrimination. Again, we did not understand that this was disputed in principle and must also apply to the awards of expenses/costs before the GTCS (£11,902), ET Liability hearing (£20,000) and Dr Moosa’s Report from the dates of payment set out in the Schedule of Loss. Interest will be simple interest applied at 8%. Interest will accrue for the date of the act of discrimination and ends on the date the Tribunal calculates loss at the remedy hearing. In relation to the expenses incurred by the claimant it will accrue from the date the expenses were paid.

[84]We issued a draft Judgment on the 23 August to allow parties to calculate interest and address the issue of grossing up. The claimant’s solicitors produced a revised Schedule of Loss and calculations based on a date of the 23 August. These were not ultimately challenged. However our Judgment dated 6 December was revoked and we required to recalculate interest to the 31 March.

[85]We considered the report prepared by Miss Bellerby of Clive Owen LLP. Our understanding is that the principles applied and the calculations themselves are not disputed. In the conclusions section we noted the tax due on Awards 1,2 and 3(a) and 3(b) (the awards that attract tax) £105,365 and that the total award would be £397,025.

[86]We noted that in relation to grossing up that the first £30,000 of any taxable award is exempt from income tax. To avoid disadvantage to the claimant the Tribunal was required to gross up these awards over £30,000.

[87]In the circumstances we are prepared to deal with these matters by way of a balancing payment for awards 1, 2, 3(a) and (b) (noted as Awards 1,2, and 7 in the report. We noted, however, that Award 1 is payable solely by the First Respondent and Award 2 by the Second. It may be that the taxable element needs apportioning between them. We do not have the figures to do this but we assume that it would be proportionate. If agreement cannot be reached between the First and Second Respondent then the Second Respondent could to seek a reconsideration of that matter. We will issue the Judgment as it stands because we have had no direct input from other the First of Second Respondent in response to the Report or in relation to such an apportionment and as they are connected companies with the same funder the matter may be academic.

[88]The claimant’s taxable elements total £180,475.26 of which £30,000 is tax free. In order for the net payments to equal £180,475.26 the grossed up amount is £285,840.48. The income tax charged on £255,840.48 would be £105,365.22. This is calculated by taking 20% of £21564, 40% of £87440 plus 45% of £14626.48. This is equivalent to £17,251.20/.08 plus £5246400/.6 + £80760.06/055. The total after the grossing up is £180475.26 + £105365.22 or £285,840.48. The total amount due to the claimant before tax. The balancing payment calculated by the accountants amounts to £105,365. This is based on interest calculated to 12 February 2025.

[89]However, we have added additional interest into the calculation date which was from 12 February until 31 March when the Judgment will be issued. These sums total £844 (Award 1, £52.12, Award 2 and £116.56, Award 3 (a) (net loss of earnings) £675) This is the net sum that requires to be grossed up to take account of tax at 45%. The figure is therefore 55%. This gives a figure of £1534 as a ‘’grossed up’’ award. An additional sum of £690 requires to be added to the balancing payment. First Respondent

[90]In relation to past loss of earnings amounting to £2059 there is an ACAS uplift to be applied of 5% (£2,059 + 102.95). Interest is then applied as follows: Interest @ 8% p.a. to 12 February 2025 £3081.53 Additional Interest of £52.12 to 31 March 2025 (110 days x .08 x 2,161.95 /365) Making a total award of £3103.80 Second Respondent

[91]The sum of £11,314.80 was awarded for past loss of earnings. The ACAS uplift is 5% ACAS uplift (£10,776 + £538.80). Interest is then applied @ 4% p.a. 13.6.184 - 31.3.21 - 146 weeks 0.04 £11,314.80 x 146/52 = £1,270.74. Interest @ 8% p.a. 1.4.21 – 6.12.24. - 193 weeks £4612.96 Interest to be added to 12 February 2025 £156.24. Additional Interest of (12/2/2025-31/3/2025) £116.56 (47 days x .o8 x £11,314.80/365) First and Second Respondents

[92]As discussed, the claimant will be entitled to reimbursement of her legal expenses involved in the GTCS proceedings amounting to £11,902.50. To which interest falls to be added (@ 8% p.a. from 8.3.21 – 31.03.2025 (212 weeks) (0.08 x £11,902.50 x 212/52 = £3,882 totalling £15,784.50

[93]We also awarded the claimant the balance of her expenses amounting to £4,500 to which interest is added £1045.38. (8% from 09.5.22 to 31.3.25 = 151 weeks @ 8% p.a. 0.08 x 4,500 x 151/52 = 1045.38).

[94]The fees for Dr Moosa’s unnecessary attendance at the remedy hearing amounted to £1800. Interest falls to be added £108 making a total of £1908 (8% p.a. from 28.6.24 to 31.3.25 = 39 weeks @ 8% p.a. = £108).

[95]The legal expenses for the Employment Tribunal liability hearing amounted to £20,000. Interest falls to be added as follows. (7.8.19 – 31/3/2025 = 294 weeks @ 8% p.a. 0.08 x 20,000 x 284/52 = £9046.15. The total is accordingly £29,046.15).

[96]We assessed past loss of earnings at £65,573.66. Interest requires to be added from 7.5.21 to 23.5.24 (date of the Remedies Hearing) 159 weeks @ ½ rate 4% (continuing loss) 0.04 x 65,573.66 x 159/52 = £6,726.59. Then from 24.5.24 to 6.12.2024 (date of judgment) 28 weeks @ full rate 8% (0.08 x 65,573.66 x 28/52) = £2824.71. We required to add additional interest to 31 March 2025 of £675 (.08 x 65573.86 x 47/365)

[97]We assessed future loss of earnings as £85,175.15.

[98]We turned to consider the application of interest to the figure for injury to feelings. Again, using the date of the 23 August from the forced resignation on the 4 May 2018 this amounts to £10,123.08 from (344 weeks @ 8% 0.08 x 20,000 x 344/52 = £10,584.62.

[99]In relation to psychiatric injury (£16,000) from the date of the forced resignation 4.5.18 (1st detriment) to 31/3/2025 is 360 weeks @ 8% 0.08 x £16,000 x 344/52 = £8861.54.

[100]No interest is awarded on the future loss of earnings or the National Insurance shortfall of £3,736.15.