Ms A Howse v Bournemouth, Christchurch and Poole Council: 6000111/2023

EMPLOYMENT TRIBUNALS

Case No 6000111/2023

Between

Ms A HowseClaimant

Bournemouth, Christchurch and Poole CouncilRespondent

Before

Employment Judge N J Roper

In person for claimant

Ms D Gilbert (instructed by Counsel) for respondent

Date 6 June 2025

JUDGMENT

ON APPLICATION TO AMEND The claimant’s application to amend the originating application is refused.

REASONS

[1]In this case the claimant seeks leave to amend the claim which is currently before the Tribunal, and the respondent opposes that application. The claim as it currently stands:

[3]The general background and procedural history of the claim as it stands before the determination of this application is as follows.

[4]The claimant presented these proceedings on 16 January 2023. She was directed by Employment Judge Midgley on 20 February 2023 to provide further information with regard to the claims which she was pursuing. There was then a case management preliminary hearing before Employment Judge Rayner on 3 August 2023 following which she set out a detailed List of Issues to be determined by the tribunal, and she listed the matter for a multi-day hearing. Following subsequent conversations and correspondence it became clear the issues were not finalised and the agreed hearing was postponed. There was another case management preliminary hearing before Employment Judge Gray on 22 April 2024. With his assistance the parties agreed a List of Issues subject to two discrete matters which form the basis of the claimant’s application to amend before me today. This is effectively the fourth iteration of the claimant’s claims.

[5]The claimant’s claims are for unfair dismissal; wrongful dismissal with regard to notice pay; for detriment and automatically unfair dismissal said to arise from having made protected public interest disclosures; for direct discrimination on the grounds of a philosophical belief; harassment related to philosophical belief; and for an alleged failure to make reasonable adjustments in respect of the claimant’s disabilities of dyslexia and hearing loss.

[6]The claimant’s claim for direct discrimination is because of the philosophical belief of bodily autonomy. She believes individuals including herself should be allowed to refuse medical treatment, including vaccination against Covid-19. The first part of the claimant’s application to amend is to add a separate and distinct philosophical belief, namely the right to medical privacy (and that medical history should not be discussed or disclosed and that an employer organisation does not have any right to know the claimant’s medical history). This is expressed to be a distinct and separate philosophical belief from that of bodily autonomy already relied upon.

[7]The first allegation of direct discrimination as currently presented is that Mr Stannard of the respondent refused to deal with the claimant’s whistleblowing complaints. In other words, although the claimant has separate complaints of detriment and unfair dismissal said to arise from having made protected public interest disclosures, the claim as currently pleaded asserts that Mr Stannard also failed to deal with her whistleblowing because of her philosophical belief. The claim is now not pursued against Mr Stannard and the claimant wishes to amend her claim to substitute the allegation that it was Rosie Verrico of the respondent who refused to deal with the claimant’s whistleblowing complaints on the grounds of her philosophical belief. The applicable law:

[9]An Employment Tribunal has jurisdiction to determine the case put before it, not some other case (per Gibson LJ at paragraph 42 of Chapman v Simon

[1994] IRLR 124

). If a case is not before the Tribunal, it needs to be amended to be added.

[10]In Cocking v Sandhurst (Stationers) Ltd and anor

[1974] ICR 650

NIRC Sir John Donaldson laid down a general procedure for Tribunals to follow when deciding whether to allow amendments to claim forms involving changing the basis of the claim, or adding or substituting respondents. The key principle was that in exercising their discretion, Tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. This test was approved in subsequent cases and restated by the EAT in Selkent Bus Company Ltd v Moore

[1996] ICR 836

EAT, which approach was also endorsed by the Court of Appeal in Ali v Office of National Statistics

[2005] IRLR 201

CA.

[11]The EAT held in Selkent Bus Company Ltd v Moore

[1996] ICR 836

EAT: In determining whether to grant an application to amend, the Employment Tribunal must always carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. Mummery J as he then was explained that relevant factors would include:12. 1 - The nature of the proposed amendment - applications to amend range, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution of other labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal has to decide whether the amendment sought is one of the minor matters or a substantial alteration pleading a new cause of action; and

13. 2 - The applicability of time limits - if a new claim or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim or cause of action is out of time and, if so, whether the time limit should be extended. (Whether this is still “essential” is considered further below); and

14. 3 - The timing and manner of the application - an application should not be refused solely because there has been a delay in making it as amendments may be made at any stage of the proceedings. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery.

[15]These factors are not exhaustive and there may be additional factors to consider, (for example, 4 - The merits of the claim).

[16]The Balance of Prejudice: per HHJ Tayler in Vaughan v Modality Partnership

UKEAT/0147/20/BA

(V): [21] “… Representatives have a duty to advance arguments about prejudice on the basis of instructions rather than supposition. They should not allege prejudice that does not really exist. It will often be appropriate to consent to an amendment that causes no real prejudice … [26] a balancing exercise always requires express consideration of both sides of the ledger, both quantitatively and qualitatively. It is not merely a question of the number of factors, but of their relative and cumulative significance in the overall balance of justice. [27] Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it. [28] An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional costs; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.”

[17]As for - The nature of the proposed amendment: A distinction may be drawn between(i) amendments which are merely designed to alter the basis of an existing claim, but without attempting to raise a new distinct head of complaint;

(ii) amendments which add or substitute a new cause of action but one which is linked to, or arises out of the same facts as, the original claim (often called “relabelling”); and

(iii) amendments which add or substitute a wholly new claim or cause of action which is not connected to the original claim at all.

[18]Mummery J in Selkent suggests that this aspect should be considered first (before any time limitation issues are brought into the equation) because it is only necessary to consider the question of time limits where the proposed amendment in effect seeks to adduce a new complaint, as distinct from “relabelling” the existing claim. If it is a purely relabelling exercise than it does not matter whether the amendment is brought within the timeframe for that particular claim or not – see Foxtons Ltd v Ruwiel

UKEAT/0056/08

. Nevertheless whatever type of amendment is proposed the core test is the same: namely reviewing all the circumstances including the relative balance of injustice in deciding whether or not to allow the amendment (that is the Cocking test as restated in Selkent). 19. 2 - The applicability of time limits: This factor only applies where the proposed amendment raises what effectively is a brand new cause of action (whether or not it arises out of the same facts as the original claim). Where the amendment is simply changing the basis of, or “relabelling”, the existing claim, it raises no question of time limitation – (see for example Foxtons Ltd v Ruwiel

UKEAT/0056/08

per Elias P at para 13).

[20]There are now conflicting authorities on the applicability of time limits and the “doctrine of relation back”, that is to say that an amendment relates back to the date of presentation of the claim form. The opposing view is that an amendment takes effect from the date of the amendment, and that time limits are to be assessed as a substantive matter as against that date.

[21]The view more recently taken by HHJ Tayler in Vaughan v Modality Partnership

UKEAT/0147/20/BA

(V) (9 November 2020) is this - There has been some confusion as to whether a tribunal may grant an amendment in the form of a new claim without applying the law of time limits to the new claim at the time of application. HHJ Tayler reminds us that a tribunal may do so and suggests that the Selkent categories are regularly misunderstood. Whether the claim may be out of time is just one matter that the EJ has regard to in exercising discretion on whether to allow the amendment. It is not necessarily conclusive. 22. 3 - The timing and manner of the application: This effectively concerns the extent to which the applicant has delayed making the application to amend. Delay may count against the applicant because the Overriding Objective requires, among other matters, that cases are dealt with expeditiously and in a way which saves expense. Undue delay may well be inconsistent with these objectives. The later the application is made, the greater the risk of the balance of hardship being in favour of rejecting the amendment - see Martin v Microgen Wealth Management Systems Ltd EAT 0505/06. However, an application to amend should not be refused solely because there has been a delay in making it, as amendments may properly be made at any stage of the proceedings. This is confirmed in the Presidential Guidance on General Case Management for England and Wales (13 March 2014).

[23]The EAT gave guidance on how to take into account the timing and manner of the application in the balancing exercise in Ladbrokes Racing Ltd v Traynor EATS 0067/06: the Tribunal will need to consider:(i) why the application is made at the stage at which it is made, and why it was not made earlier;

(ii) whether, if the amendment is allowed, delay will ensue and whether there are likely to be additional costs because of the delay or because of the extent to which the hearing will be lengthened if the new issue is allowed to be raised, particularly if these are unlikely to be recovered by the party that incurs them; and

(iii) whether delay may have put the other party in a position where evidence relevant to the new issue is no longer available or is rendered of lesser quality than it would have been earlier.

[24]Langstaff P made the following observations in Chandhok v Tirkey

[2015] IRLR 195

EAT from paragraph 16: “The claim, as set out in the ET1, is not something to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning … the claim as set out in the ET1. [17] … If a claim or a case is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. Such an approach defeats the purpose of permitting or denying amendment; it allows issues to be based on shifting sands; it ultimately denies that which clear-headed justice most needs, which is focus. It is an enemy of identifying, and in light of the identification resolving, the central issues in dispute. [18] In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time ground; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand-in-hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverting into thinking that the essential case is to be found elsewhere than in the pleadings.” This Judgment:

[26]Applying these legal principles above to the current application, I find as follows.

[27]The first part of the amendment application is to add the new philosophical belief relating to medical privacy. The claimant has explained in detail why this is a separate and distinct concept from the first philosophical belief namely her belief in bodily autonomy. In my judgment this falls within the third category of amendments under Selkent, namely the claimant is seeking to a wholly new cause of action. This will require the respondent retrospectively to answer allegations of whether vaccine status falls within the scope of medical privacy and whether employers are entitled to be made aware of employees’ medical history or vaccine status, as well as having that belief, or (as the respondent says) because she was failing to comply with reasonable management instructions. In addition, this application is made substantially out of time in relation to proceedings which were issued well over a year ago.

[28]Furthermore, the allegations involve Rosie Verrico, (who is a former employee of the respondent) and her involvement also forms the basis of the second application to amend. In my judgment this proposed amendment is a form of relabelling and comes with the second category of Selkent, because this allegation is linked to or arises out of the same facts as the original claim. This will expand the scope of the enquiry into whether any protected disclosure was made to Ms Verrico, secondly whether she was required and/or was the appropriate person to respond to a whistleblowing complaint; and finally whether there was any failure by her in that regard.

[29]The difficulty which the respondent faces is one of real and actual prejudice because Ms Verrico is no longer an employee of the respondent, and it is still unclear the extent to which she will voluntarily engage in assisting the respondent in answering the allegations currently before this tribunal. This is not a case of perceived prejudice as envisaged by Vaughan, but rather a set of circumstances which will cause the respondent actual hardship and prejudice in having to deal with either of the proposed amendments.

[30]The claimant already has a wide range of differing complaints within an agreed List of Issues which have now again been listed for determination in a multi-day case. The hardship to the claimant in refusing the amendment is to deny her the right to rely on a new and different philosophical belief and to deny her the right to clarify that one allegation of discrimination is now against Ms Verrico. Given the length of detail of the remaining claims in my judgment denying this amendment application would not cause substantial hardship.

[31]On the other hand, to allow either of the proposed amendments so late in the day would cause the respondent prejudice and substantial hardship because they could well be precluded from preparing to answer these allegations in an informed manner. In addition, it is not certain whether they would be able to do so within sufficient time and/or before other employees also leave their employment, which could well cause further delay in resolving a claim which has already incurred significant delay and in respect of which it is not in the interests of justice to risk a further postponement.

[32]I apply the unvarnished Cocking test. In exercising my discretion, I have had regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. This is the test which was approved in subsequent cases and restated by the EAT in Selkent, and endorsed by the Court of Appeal in Ali. In my judgment allowing the amendment application would cause greater injustice, hardship and prejudice to the respondent, and for these reasons I refuse the claimant’s application to amend her claim.

[1]The Claimant lodged her Claim at the Employment Tribunal on 16 January 2023, having initiated Early Conciliation on 16 November 2022. The Early Conciliation Certificate was issued on 28 December 2022.

[2]Acts or omissions that took place before 17 August 2022 are outside the statutory time limit for bringing claims subject to a consideration of whether they amount to “conduct extending over a period” taken with any act or omission that was lodged in time. If deemed not to be such conduct, then a consideration needs to be made, for the discrimination claims, as to whether it would be nevertheless just and equitable for time to be extended or whether it was reasonably practicable for the protected disclosure detriment claims to have been brought in time and, if not, whether those claims were then brought within a reasonable time.

[3]There were a number of Preliminary Hearings in this case. The first was before EJ Rayner on 3 August 2023 and a final hearing was set for June 2024 and a provisional List of Issues was arrived at. On 22 April 2024 those dates were vacated by EJ Gray because of outstanding points on the List of Issues which appeared, on the Claimant’s side, to necessitate an amendment application. On 2 May, EJ Roper determined the amendment applications, case managed further, and a final List of Issues was agreed. That List of Issues appears at 171-182 of the Core Bundle.

[4]In December 2024, there was a final Case Management Hearing in front of EJ Self in respect of disclosure and witness orders, wherein the allocation of time for the case was increased to ten days. Finally, in January, there was an ADR hearing before EJ Richardson.

[5]The final hearing ran as follows and necessitated even more time than was originally anticipated: Day 1 – Preliminary Matters and Reading Day Day 2 – Preliminary Matters, Recusal application and Judgment, Claimant’s evidence commences Day 3 – Claimant’s witnesses Day 4 - Claimant’s witnesses and continuation of Claimant’s evidence Day 5 – Disclosure application until 1230 thereafter no evidence on account of Respondent’s counsel‘s ill health. Day 6 – Claimant’s witnesses Day 7 – Claimant’s witnesses Day 8 – Application to amend claim from Claimant and Respondent witnesses Day 9 – Respondent’s witnesses Day 10 – Respondent’s witnesses Day 11 – Closing Submissions and Tribunal deliberations Day 12 – Tribunal Deliberations Day 13 – Tribunal Deliberations Day 14 – Tribunal Deliberations

[6]There were three separate bundles which were not always straightforward to navigate. There was a bundle that contained everything; a bundle that contained what was deemed the core documents and this was the one used primarily in the hearing; and the Claimant asked to work from her own bundle as a reasonable adjustment, which we permitted. We were grateful for the assistance of Ms Gilbert throughout the case in converting across page references from the Claimant’s bundle to that of the Core Bundle, which saved substantial amounts of time and mitigated the worst consequences of having multiple bundles.

[7]As can be seen above there were applications during the hearing from the Claimant. Firstly, she made an application for the Tribunal to recuse themselves very close to the start of the hearing and before any evidence had even been heard. A separate Judgment and written reasons have already been given to the Claimant in respect of those issues at the Claimant’s request. The trigger for that application was an indication from the Tribunal that it did not consider that it needed to make a preliminary finding as to whether or not the Respondents were in breach of the United Nations Convention on Torture or whether there had been compliance with the seventeenth century Bill of Rights.

[8]The Claimant also made an application on Day 8, for an amendment so as to add more claims to the List of Issues, that application was refused. No written reasons were asked for in relation to that decision and so none will be provided in this Reserved Decision. Oral reasons were given at the time.

[9]The Claimant made the Tribunal appropriately aware of her disabilities i.e., her hearing loss and her dyslexia. The Tribunal sought to be mindful of the need to make adjustments at all times. So far as the hearing loss was concerned the Tribunal utilised a smaller room with better acoustics and we encouraged the Claimant to let the Tribunal know whenever the Claimant did not hear what was said, so that anything could be repeated. That happened from time to time, and the Claimant made no complaint that she was disadvantaged in any way during the hearing. We are quite satisfied that if the Claimant had considered herself disadvantaged, she would have made that clear to the Tribunal.

[10]In addition, the Claimant is dyslexic. The only medical report on that condition is a dyslexia test from June 1995 (52-55), when she was 32 years’ old. That report discloses that the Claimant had an average IQ but was of high average verbal intelligence. The Claimant’s literacy skills, reading, spelling, and writing, were deemed to be well below the standard one would expect from a person of the Claimant’s then age and ability. The broad advice was that the Claimant would need more time in pressurised situations. The Tribunal sought to provide this during the course of the hearing, by providing numerous breaks and giving additional time for responses.

[11]The Claimant was accompanied by multiple scribes each day who were taking down notes in relation to the proceedings and she also had an assistant sat next to her when presenting her case, who intervened where necessary. The Tribunal provided breaks on a regular basis and sought to ensure that the length of the Tribunal day was not extended to the detriment of the Claimant.

[12]We are satisfied that the Claimant’s disability was accommodated by the various adjustments we made. As stated, the Tribunal took regular breaks and looked to give the Claimant an opportunity to recalibrate where she was during cross examination. On numerous occasions, the Tribunal reformulated mini speeches that the Claimant made into questions that could be answered by the Respondent’s witnesses and also ensured that allegations made by the Claimant in the List of Issues, which she failed to specifically put to witnesses in cross examination were put, so that witnesses had a chance to answer these key areas. This is not uncommon in our experience when dealing with a litigant in person.

[13]The Claimant was given clear guidance in respect of drafting her witness statement in previous case management orders (e.g., p.165). The Claimant was told that: a) The witness statement should contain everything relevant the witness could tell the Tribunal; b) The witness statement should set out events usually in the order they happened.

[14]This advice is clear and unambiguous, even taking into account the Claimant’s disability and that she is a litigant in person. The Claimant had a substantial number of helpers at this hearing and whilst not legally qualified we are satisfied that the Claimant could have sought help when drafting her statement. The Claimant is clearly an intelligent individual who has held a difficult and demanding position in the field of social work for many years. We accept that she was a disabled person on account of her hearing loss and dyslexia as detailed above.

[15]During the course of the hearing, we noted (and this is not a criticism) that the Claimant required longer to read certain passages and found the occasional word difficult. We made allowances for that, and it contributed, in part, to the length of the hearing. As we have said the Claimant was also assisted by a number of individuals taking notes for her, prompting her, and generally assisting her on a daily basis.

[16]We are satisfied that the importance of focussing on the issues and the need to provide evidence to support each of the allegations made was regularly and consistently made to the Claimant throughout the proceedings and into this final hearing. During the hearing, the Claimant applied to amend her claims to a limited extent, and we considered that application. Notwithstanding these attempts to focus the Claimant on those things that we would have to determine the Claimant did not, on most occasions, heed what was being said. For the avoidance of doubt that was not, in our view, on account of the Claimant’s hearing or dyslexia issues, but rather because of the broad agenda that the Claimant wished to pursue, regardless of whether it was necessary to be considered at this hearing in order to determine the issues.

[17]We are satisfied that the Claimant was given every opportunity to focus upon the agreed issues in this case but nevertheless decided to plough her own furrow. There are only so many times that a Tribunal can guide somebody down the correct path. Any failures to provide evidence in support of the allegations in the List of Issues flows, ultimately, from the choices the Claimant has made in prioritising what she wanted to say to the Tribunal and what she decided was important. Fairness cuts both ways and this, ultimately, is an adversarial process.

[18]The Claimant’s witness statement is a case in point and, as will be set out in detail below, the Claimant fails to address certain factual allegations that she makes in the List of Issues and there is, accordingly, no evidential basis for some of those allegations.

[19]That statement is not an easy document to read. From an objective perspective it is overly long (66 pages), quotes substantial amounts of law and, frankly, provides substantial amounts of irrelevant information or opinion and is very light on what actually happened. It does provide a substantial insight into why the Claimant believes that she was unfairly dismissed all be it in a repetitive, non-chronological, haphazard style, but provides scant factual information as to what took place, for instance, pre-suspension. Again, we have factored in the Claimant’s disability but also take into account that the Claimant has been receiving assistance from her son and a number of individuals who would all have been available at least part of the time with a critical eye. The Claimant’s approach to the litigation is, in fact, highly reminiscent of how she seems to have dealt with the internal processes.

[20]We heard oral evidence and received written witness statements from the Claimant who was supported by evidence from Mr David Higgins, a TU Representative; Andrew Howse, the Claimant’s son who attended some of the disciplinary meetings, Jennifer Smith, a colleague of the Claimant and Tamsin Miles, who reported into the Claimant.

[21]On behalf of the Respondent, we heard oral evidence and received statements from Ms Nicky Mitchell, who at the relevant time was the Quality Assurance Team Manager and investigated the misconduct allegations on behalf of the Respondent, Ms Betty Butlin. Director of Operations for Adult Social Care, Mr Nigel Stannard, the Head of Audit & Management Assurance who dealt with the Claimant’s whistleblowing complaints, Ms Tracy Comper, a Senior Human Resources Advisor and Mr Matti Raudsepp the Director of Customer, Arts & Property. Each witness was made available to be crossexamined.

[22]There are a large number of individuals who became involved in the matters in this case who have not been called by the Respondent. There were a very high number of grievances raised by the Claimant and the investigators of those have not been called to give evidence and there was a substantial involvement from individuals in HR who have also not been called. We have received no specific information as to why they have not been called, save that the hearing was already a lengthy one and the Respondent sought to focus upon the specific matters raised in the List of Issues. More notably Rosie Verrico, the Claimant’s line manager, was not called to give evidence, and neither was Ms Katie Lacey, who chaired the Disciplinary Hearing. Both of those individuals no longer work for the Respondent.

[23]There was a gap of some three weeks between the end of the evidence and the Tribunal reconvening for closing submissions. We are satisfied that both parties had adequate time to prepare those documents and indeed both were of some length, and we are satisfied that each had a chance to make the representations they wished. Both parties were given the opportunity to orally supplement their submissions at the reconvened hearing. The remainder of the time was spent by the Tribunal in chambers making the necessary findings and that task was completed during 14 March. The task of writing up the Judgment has, of necessity, been conducted as time has allowed taking into account the Employment Judge’s sitting and other judicial commitments. The Tribunal has sought to keep the parties updated with progress. The List of Issues

[24]The List of issues is a lengthy document, and it will not be set out in full at this point, but each part will be replicated when dealing with the Tribunal’s conclusions. In broad terms the issues were as follows: a) Ordinary Unfair Dismissal b) Wrongful Dismissal – no payment of notice pay c) Automatically Unfair Dismissal pursuant to section 103A of the Employment Rights Act 1996 (Protected Disclosures) d) Detriment on the ground that the Claimant had made protected disclosures. In relation to the unfair dismissal and the detriment claim the Claimant raised a number of oral written and verbal communications that she asserted amounted to protected disclosures in relation to criminal offences, legal obligations and /or health and safety breaches. e) Direct Religion and Belief Discrimination – the Claimant relied or was permitted to rely upon “a belief in bodily autonomy… part of which was her belief that individuals including herself should be allowed to refuse medical treatment, including vaccination for Covid-19” (176). The Claimant asserted that she was subjected to eight detriments on account of her philosophical belief. f) Harassment related to philosophical belief – the Claimant raised five allegations of harassment. g) Failure to make Reasonable Adjustments on account of the Claimant’s dyslexia and /or hearing loss. The Respondent accepted that the Claimant was disabled on account of these conditions at the material times. The disability claim was put forward on the basis of PCPs and also in relation to the failure to provide auxiliary aids h) The Respondent raised time limit points in relation to the alleged acts of discrimination and also in relation to the protected disclosure detriment claims. The Factual Background

[25]On 4 August 2021 the Department of Health and Social Care informed, inter alia, directors of Adult Social services that, as of 11 November 2021, new Regulations would require all care home workers and anyone working or volunteering inside a CQC Regulated care home to be fully vaccinated from Covid-19 unless they held a medical exemption (905). It was confirmed that professionals visiting a care home would also be expected to show they had been vaccinated or were exempt. It was calculated that because of the time lag required between doses, the first vaccination would need to be undertaken by 16 September.

[26]That was widely publicised to staff i.e., by the weekly newsletter at the start of September (912-913), 9 September (920) and 16 September (927).

[27]Staff were told that if not medically exempt those who were not fully vaccinated could be redeployed to a role (or work) which did not necessitate vaccination and if redeployment were not available, then dismissal may be the outcome (932). The Claimant was a manager, and we are satisfied that whilst she would not need to enter a care home on a regular basis, she may need to do so in the course of her duties from time to time and/or if on duty when an emergency or a situation cropped up that necessitated such attendance.

[28]On 21 September at a Team Meeting via Teams conducted by Ms Verrico, the Claimant’s Team Manager. One of the items on the agenda was headed Covid-19 Vaccinations. Firstly, staff were told that Ms Butlin was arranging for staff to have a booster “if they wish to” and that Adult Social Care Staff were offered the vaccination as a priority group. (214)

[29]Secondly under that heading, Ms Verrico stated that, as 16 September was the last date that anybody could have had a vaccine to ensure that they were fully vaccinated before the coming into force of the new legislation, anybody who had not had the vaccine by the date of the meeting had missed that deadline. This was a plain statement of fact. She referred to the information on the intranet which indicated that if you could not go into care homes then redeployment may be considered, or employment may be terminated. She indicated that as per the instruction from Ms Butlin she would shortly ask staff for proof of vaccination or proof of exemption. She indicated that the requirement imposed upon what was required to enter a care home had been mandated by central government as opposed to being a local requirement and she stated that she realised that it would be a “challenging time” and any concerns could be discussed with herself, HR or the Trade Union. She provided a link for more information to be gained.

[30]The Claimant indicated that she believed that the policy was illegal and that to mandate such a process employees needed to have signed a separate document to their contract of employment with their employer. The Claimant cited various pieces of legislation and regulations in support of her position and Ms Verrico brought matters to a close by suggesting that if anybody wanted such information, they could request those from the Claimant privately.

[31]On 26 September, Ms Verrico, the Claimant’s line manager, sent an email reminding staff of the requirement for staff entering care homes and asked those in the three Community teams (North, Central, and East) to individually share evidence that each employee was vaccinated or medically exempt. She asked that individuals did not reply to all, as Verrico wanted to keep information on vaccination status confidential (219). She also stated that if any member of staff would like to discuss this then they should book some time with Ms Verrico.

[32]On 28 September the Claimant did reply all contrary to the instruction and stated that she had done so because she believed in “informed consent”. It is clear that it was a conscious decision to reply widely, including to all in the three teams cited above and also other Team Managers and Mrs Butlin. In that email to Ms Verrico, she asked a series of questions relating to the testing of the vaccine and the effects of it. She sought evidence “beyond reasonable doubt” that, for instance, the vaccine was fully safe and provided immunity. The Respondent was in no position to give those assurances in respect of the questions asked, save to repeat that which was publicly available.

[33]The Claimant continued that due to the way matters had been put by the Respondent she considered that staff were being coerced and placed under duress. The Claimant stated that contractually there was no obligation to be vaccinated and nor did vaccination status have to be declared and suggested that to enforce that may lead to a constructive or unfair dismissal, be in breach of the Equality Act 2010, or constitute a criminal offence. The Claimant purported to be speaking for a number of concerned staff and asked that the approach should be suspended as staff were not compelled to answer the questions re vaccination status and it was voluntary only and that had not been made clear to staff (217-218). This letter is asserted to be a protected disclosure by the Claimant at 4.1.1.2 of the List of Issues.

[34]The Respondent explained in their oral evidence that as of 11 November access to care homes would be governed by the vaccination status of their staff in order to stay compliant with the law. They made the request re that status so that they would know those staff who could be deployed into care homes and those that would not be able to be so deployed. Their position was that they required that information so they would not inadvertently be breaking the law or asking an individual to break the law and further so that they could plan what resources they would have available from 11 November.

[35]The aims of having sufficient knowledge so they could plan to ensure that their corporate obligations were met appears an entirely legitimate one to the Tribunal. We are quite satisfied that any employee who did not respond to the request for information would, of necessity, be prevented from going into a care home as an “unknown” vaccination status would need to be registered as not being able to go into a care home to ensure that no law was broken and that residents were fully protected. Staff were entitled not to reply or respond but the consequence of that decision was that they would not be permitted to enter a care home which in turn may or may not have ramifications for their ability to do their job.

[36]We can fully understand why it would be that management would be highly desirous of having as many staff as possible available to undertake any work in care homes. They needed that so the Respondent could be assured that their statutory duties to those in care homes could be discharged. We have no doubt that the message for staff to be vaccinated so that there was no restriction on staff was enthusiastically communicated by the Respondent. Objectively, however, the message fell short of being what could properly be described as being coercive and or placing any serious duress on staff.

[37]There is a document in the bundle headed “Employee Relations Case Chronology” which was within the papers later gathered by the investigator Ms Mitchell. The first entry in that chronology showed Verrico had expressed concerns regarding “potential misconduct in relation to unacceptable communications which could be construed as anti-vaccination and not supporting the Council’s legal requirements in relation to the mandatory vaccination of those staff who visit care homes” (821).

[38]That document is one which appears to have been completed by HR as and when issues were raised. We have not had the benefit of hearing from Verrico in order to enquire precisely which unacceptable communications she was talking about, but it seems reasonable to think, looking at the timing, that it was in relation to the Claimant’s letter, her approach at the Team Meeting and possibly other information Verrico had gleaned about the Claimant’s approach over some time. The fact that there was a wider under current of concern about the Claimant’s vocalisation of her stance was clear from some of the interviews that took place later at the investigation stage. It is noteworthy however that the concern was about “unacceptable communications” that were not supporting the Respondent’s requirement to have knowledge of who they could deploy into care homes. The Claimant was plainly perceived by Verrico as anti-vaccination.

[39]Verrico reported the issue but there is no evidence of any action being taken by the Respondent following the consultation with HR, save that a letter was sent by Verrico to all the Claimant had copied in as set out below. We find that was done as an antidote to the Claimant’s correspondence. The Claimant was absent on sickness leave from 29 September with “workbased stress.” The Tribunal can readily understand the Respondent’s position in relation to the unfolding situation. Clearly, they wanted to have as many staff as possible that were completely unaffected by the legislation coming into force in November so that they could be assure that they would be able to effectively undertake their statutory and other responsibilities in respect of adult care.

[40]On 30 September, Verrico wrote back to the Claimant copying in the Community Teams. She made the following points: a) The Council’s position was “informed by law and government guidance” and the procedures proposed by the Respondent were driven by that. b) The Claimant was entitled to her views / beliefs on the matter, but a legal obligation was shortly going to be implemented and the Respondent had simply set out the possible consequences of not complying with the law and then not being able to do the totality of their role. c) The Respondent was not requiring vaccination and the Claimant and others had “freedom of choice” and it denied that it was coercing or placing individuals under duress. d) The Respondent considered it to be a reasonable management instruction to ask for an individuals’ vaccination status or whether they were medically exempt. e) The Respondent had taken legal advice, and they did not accept that any legal obligations were going to be broken. f) An offer was made to the Claimant or any other member of staff to discuss any matters arising on a confidential basis.

[41]The Tribunal consider that this letter was a measured and proportionate response, and it is highly likely that Verrico was assisted in the drafting of it by HR. Importantly it clarified what the Respondent considered were misapprehensions on the part of the Claimant and invited dialogue from all (including the Claimant) about any of the issues raised. At this point both parties had had their say and it might be thought that ongoing dialogue as suggested by the Respondent might be the best way forward. There was an appropriate channel of communication opened up on a confidential basis that would have been available to the Claimant.

[42]On 5 October the Respondent sent to managers (including the Claimant) a document entitled “Covid 19: Mandatory vaccination for people working or deployed in care homes” (233). The document was to assist managers dealing with any vaccination related issues. It is not known if the Claimant saw this document upon it being published as she was absent on sick leave. It included the following: a) If a colleague advises that the mandatory vaccination goes against their human rights, the manager should explain that this new law makes it a requirement for people working or deployed in care homes to be vaccinated. The personal beliefs about vaccinations are not considered by the government as a legitimate reason not to be vaccinated. b) For those who did not want to be vaccinated the manager was advised to listen to their concerns confidentially and be sensitive towards individual circumstances “being careful to avoid discrimination”. The employee should be directed to the Council guidance and that if not vaccinated / medically exempt they would not be able to go into care homes as of 11 November. If still refused, then consideration would need to be given to reallocate work within the Team to other colleagues that had been fully vaccinated and to see if the work could be done remotely without going into the care home. If that was not possible the employee would need to explore “redirection to another team or redeployment and if that was not possible there may be no option but to take further action which could result in dismissal”. c) This document added in a further element between being unable to attend a care home and possible redeployment i.e., a reallocation of work within the team. The Tribunal find that any staff with any experience would have fully understood that would have been an option i.e., Jennifer Smith who said as much in evidence. She was very clear that all staff and managers had an enormous amount of work to do. In a situation such as the one the Claimant was in, where visits to a care home would have been relatively rare there would have been ample opportunity for that limited work to be swapped around. We find and consider that it should have been plain and obvious to the Claimant and others that the likelihood of redeployment, on account of not being able to do a small fraction of the weekly workload or being dismissed for the same, was vanishingly small.

[43]The Claimant responded to “All” about the vaccination issue on 5 October, contrary to the request for there to be confidential chats, asking what legislation the Respondent had considered in coming to their views and attaching an Australian legal decision which suggested testing as an alternative to vaccination. Testing staff before entering a care home would not have been compliant with the law from 11 November. The Claimant indicated that staff should, moving forward, direct vaccination concerns direct to management.

[44]On 6 October Ms Butlin asked that any further points about the issue raised be directed to her (253). The Tribunal consider that to be a reasonable management instruction in the circumstances that were in place at the time. On 7 October Ms Butlin requested that the Claimant did not send further email correspondence on the subject matter to work colleagues in the Claimant’s capacity as a Team Manager. She reiterated that the Respondent’s position remained the same as previously communicated. Again, the Tribunal consider that to have been a reasonable management instruction.

[45]The Claimant responded to the request to direct issues to Ms Butlin in the first of a series of extremely oddly phrased communications. This communication was addressed to “To the woman betty butlin Sometimes doing business as BETTY BUTLIN.” The letter concludes: “In sincerity and honour, without ill will, frivolity, or vexation, Do unto others as one would have done to you: witnessed by the Father the Son and the Holy Ghost subscribed and sworn under the threat of perjury, without prejudice without recourse all rights reserved,”

[46]We have referred to it as a “communication” as a neutral description of it. The Claimant was perturbed when the Respondent’s counsel described it as a letter when she indicated it was clear it was a “Notice.” The Tribunal are quite satisfied that the name by which the communication is described is an irrelevance. There are similarities with a letter, but this issue was one of several that remained a mystery as to why the Claimant felt the need to be so dogmatic about.

[47]Within the communication, the Claimant asserted that she had been approached by several members of staff who were concerned about having to divulge medical information and she asked for the Respondent’s Covid policy, risk assessment and Manager’s Guidance, plus answers to the questions she had posed on 28 September. She stated that Ms Verrico had stated at the Team meeting that “none (sic) compliance with the Covid 19 Mandate, staff will face either redeployment or Job loss”.

[48]There was a second communication on the same day which had the same start and end as above. The text of the communication is again very odd. Instead of “I” the Claimant uses “I the woman :alicia-sharon” and Ms Butlin was referred to mainly as “betty butlin sometimes doing business as BETTY BUTLIN” and sometimes adding her work title and her local authority’s name. This makes it a substantially wordier document than was necessary. Part of the letter reads as follows: “… I alone have the right under God's eyes and guidance to decide upon any medical treatment that I wish to partake in, this decision will be taken between myself and God. You are also reminded that as a living flesh and blood woman I have the unalienable right to earn a living to provide for myself and my family. To Stop this is a deliberate trespass against I as a living woman or in fact against any living man or woman under God. This is a first note to you a woman betty butlin sometimes doing business as BETTY BUTLIN director of operations adult social care, that I the woman :alicia-sharon: will hold you personally responsible and accountable as a woman, under motu proprio for any and all trespasses against my own flesh and blood or to that of any other living man or woman under my watchful care.” (258) The Claimant confirmed that she was not the person who drafted these communications, and that individual was named “Nereus”. Little more was discovered about this individual who was drafting what the Tribunal consider to be extremely strange communications.

[49]Ms Butlin indicated that she did not feel threatened at the time by these communications but did consider them to be very odd. The Tribunal agrees with the assessment that the communications were very odd to say the least. Ms Butlin may not have felt threated by this particular communication, but the letter does clearly comprise of a threat to Ms Butlin. The Claimant asserts that she had been approached by work colleagues concerned about what she considered to be the “expectation to divulge medical information”. A fair reading of the communication is that the Claimant was threatening Ms Butlin that she would be held accountable for any legal wrongs that she undertook although that is buried in a substantial amount of excessive verbiage that appears to the Tribunal to mean nothing at all. Despite that we are satisfied that the communication was deliberately written in that way in order to impress upon Mrs Butlin the seriousness of the situation as the Claimant saw it. We find that the Claimant wanted Ms Butlin to feel threatened on a personal level for any actions that the Claimant deemed inappropriate.

[50]On 26 October 2021, Verrico noted that the Claimant’s sick note expired on 31 October and that as the illness was stress related and had lasted for over four weeks considered there was a need to refer the Claimant to Occupational Health. The Claimant returned to work on 1 November and there was a brief discussion over Teams that morning at around 0920 when Verrico was at court. The Claimant recorded that discussion, and we have a transcript of it that has not been objected to.

[51]The Claimant initially complained that she had received no contact whilst absent and Verrico explained that when somebody was off, she did not wish to overload them. That does not seem an unreasonable explanation. Two staff had been acting up during the Claimant’s absence and due to other staffing issues in the department the Claimant was told they would continue to act up for a further three months. There was a discussion re the supervision status of the Claimant’s staff and the Claimant concluded by asserting that Verrico had breached confidentiality / committed a data breach by cancelling a meeting in a diary by saying the Claimant was on sickness absence.

[52]The meeting was an attempt by Verrico to touch base following the Claimant’s return. The Claimant’s attitude within that meeting can best be described as extremely frosty.

[53]Later that evening Ms Verrico emailed the Claimant hoping she had had a good day at work, apologising for the short nature of their earlier discussion and suggesting a Return to Work meeting the following day. She identified the complaints the claimant had raised and stated that they would be considered in the next meeting. There was a further Teams Return to Work meeting the following day (273 and following). It is asserted that in that meeting the Claimant also made a protected disclosure when she indicated that the Respondent was acting unlawfully, in breach of human rights and in matters of data protection (Allegation 4.1.1.3). That hearing was recorded by the Claimant without Ms Verrico’s knowledge, but again no issue is taken with the transcript.

[54]Ms Verrico enquired as to the stress the Claimant had experienced which had led her to be off work and the Claimant responded with “the stress was caused by implementing and the communication of changes, no consultation and people being selectively given posts” before listing a whole host of concerns in a long list. She accused Ms Verrico of being “incongruent in actions, words, and deeds”. The Claimant raised a substantial number of issues and Ms Verrico was very much placed on the defensive.

[55]The Claimant responded in an email providing a list of ten things that were causing her stress reaffirming in the tenth that Verrico had been “incongruent in action, word and deed”.

[56]It is recorded on the Employee Relations case summary that on 3 November Verrico raised concerns about “anti-vaccination information being contained in supervision records of a support worker supported by (the Claimant)”. That supervision was with Ms Miles, and it was recorded that Ms Miles was upset at some of the behaviours shown when discussing the mandatory vaccination policy and this was causing her stress. The Claimant stated that she explained the difference between “Legal & Lawful” and stated that the Respondent’s mandate was not lawful because: “The main maxim of law i (sic) a woman refer you to is, do no harm. To cause harm or to have the intent to cause harm is trespass against a woman or a woman's property. Trespass is a serious crime in law.” I have explained I have sent a letter to BB (Betty Butlin) to ensure she understands she will be held personally liable under “motu proprio” for any and all trespasses against my own flesh and blood or to that of any other living man or woman under my watchful care”.

[57]The Claimant informed her subordinate of her views and that she had warned her own manager as to what would happen if she was deemed by the Claimant to have trespassed against herself or any person under her “watchful care”.

[58]On 8 November there was a Teams meeting and the Claimant was suspended with immediate effect. This meeting was followed up with a suspension letter (304-306). Five reasons for suspension were set out in that letter which can be summarised as follows: a) A failure to adhere to Council Guidance or fulfil management responsibilities in respect of supporting and encouraging the compulsory vaccination of staff deployed into care homes. b) Failure to comply with obligations to communicate the legal position and council guidance and not to promote personal anti-vaccination views with staff c) Failure to comply with a reasonable management instruction to only discuss concerns in relation to the legal requirement and Council guidance with the Service Director. d) Promoting personal anti vaccination views and opinions in an overbearing and insensitive manner without respect and compassion for contrary views which could be viewed as bullying, intimidating and harassing. e) Communication to management on the issue was unprofessional, threatening and designed to intimidate recipients and so could be bullying or harassment. The Claimant was informed that the matters could amount to gross misconduct and that one of the outcomes could be dismissal.

[59]Taking into account the chronology which is set out above the Tribunal do not consider that the Respondent rushed into suspension and the escalation of the issues with the Claimant’s conduct. It initially told her to discuss matters with colleagues in private, then sought that the Claimant have discussions with her line managers or Ms Butlin about such issues on a private basis and then when it became apparent what had happened in a supervision meeting with the threats being made to Butlin by the Claimant being communicated out to the Claimant’s subordinate. There were a number of opportunities for matters to go no further.

[60]From all of the above it would be apparent that the Claimant was not proposing to follow what we consider to be lawful management instructions and was proposing to follow her own agenda. Such conduct could, in our view, amount to gross misconduct and the decision to suspend fell within a band of reasonable responses taking into account all the circumstances of the case that were known at the time.

[61]On 30 November the Claimant made representations to Mitchell about her appointment as the Investigating Manager. Butlin decided that notwithstanding that discussion the appointment would be maintained. The Claimant was informed of this by a letter dated 3 December (307) and the Claimant was told that she would be contacted “in due course” and invited to an investigative interview. This was the first of a great number of interventions by the Claimant in which she complained about various aspects of the investigation / disciplinary process.

[62]On 10 December (308 and following) the Claimant wrote to Verrico, Farrant, Butlin, and Vitty in like terms. She told us that Nereus had drafted the communication for her, but she accepted that she “owned” the communication by signing it. It was clear to the Tribunal that she was fully supportive of the document in every way. Each was headed “Notice of Potential Liability”. The Tribunal did not find the communications to be an easily read. It is peppered with Latin maxims; all be it translated for those without a classical background. It was said to not be a letter (although in letter form), but a lawful notice served with “honourable and peaceful intentions”. It was said that there was no intention to harass, intimidate, coerce, or cause anxiety, alarm, or distress (among many other possible kindred feelings). The Tribunal did not consider that to be a true statement. We find that the letter was written in the fashion it was so as to create anxiety and alarm in the recipient and even if we are wrong on that we are certainly satisfied that would reasonably be the effect.

[63]The “Notice” acknowledged that the allegations which were at the basis of the suspension detailed above were serious allegations and that the burden of proof lay with the Respondent to prove them. The Claimant asked for full and frank disclosure and set out a request for, in effect, the evidence to support in respect of 18 elements of the allegations. There was then a section which was started by a suggestion that the “common law jurisdiction applies exclusively” followed by a paragraph in which reference was made to the Magna Carta and various points relating to constitutional law, the requirements allegedly required to validate acts of parliament, and what is or is not lawful.

[64]The communication went onto ask a number of questions and to make a number of statements about vaccination and an individual’s rights and finished with asking whether the recipient was aware that “forced vaccination is a crime against humanity, as is coercion and duress to vaccinate people without their consent” and a list of the number of Rights, Declarations and Conventions it was in breach of. The letter finishes as “You are hereby required by law to respond to my stated concerns and answer to all questions within this notice in signed writing within 21 days from date of service. A woman :rosie verrico sometimes doing business as ROSIE VERRICO service manager, adult social care Bournemouth, your failure to adhere to this notice is your tacit agreement via acquiescence that the questions are cannot be answered in a satisfactory manner. A reply is legal and lawful without merit or value until the attached questions are answered in full. This document cannot be signed by a corporation or legal fiction and must be signed by a real party of interest, not an unauthorised third party. I hold you liable and will seek legal lawful remedy from you in your private capacity as a woman if any harm damage and or losses caused to I” (as drafted by the Claimant) The name was different, of course, in respect of each recipient.

[65]On 4 January 2022 the Claimant sent a further “Notice” to each of those named above headed “Notice of Opportunity to Cure.” It was again notified to the recipient that the document was a Notice and not a letter and whilst suggesting it was not the intention to harass nor intimidate “any transgression of the Notice might be dealt with as a private prosecution under the Common law”. The recipients were given three days to withdraw the allegations against the Claimant or deliver to her the evidence she sought, otherwise the Claimant would hold the recipient “liable and will seek lawful remedy from you in your private capacity as a man if any harm, damage or loss is caused to i.”(as drafted by the Claimant).

[66]On 12 January 2022 the Claimant sent a document headed “Notice of Default” to the same four individuals. It was suggested that the failure to reply gave rise by “tacit procuration, to your agreement” to seventeen statements which related primarily to the previous commuincations.

[67]In a letter that was dated 13 January 2022 the Respondent replied in respect of the 10 December communications. It recorded that the Respondent did not consider that there was any obligation under English law to answer in the time scale suggested or at all and the Claimant should not take a failure to respond as any form of admission. It was suggested that any protestations by the Claimant that her correspondence was neither vexatious nor threatening was also rejected. The Respondent stated that the letter was a “Formal notice and instruction on behalf of BCP council management in general including the heads of paid service and human resource is, to immediately cease and desist from sending any further correspondence its nature to the previous recipients or indeed, any other officer, member, or employee of BCP Council.” The correspondence went on that the letters had caused acute anxiety, distress, and alarm to the recipients whether intentionally or otherwise and pointed out that in the letter previously suspending the Claimant one of the allegations had been bullying and harassing communications with management. There was forewarning to the Claimant that the Respondent considered that these communications were further evidence of threatening and unprofessional conduct and would be added to the existing allegations. It is understood that another similar cease and desist letter was sent on 21 January following the 12 January letters.

[68]Again, we do not consider that the Respondent’s response to the Claimant’s notices were unreasonable in light of that which had been sent by the Claimant both in terms of content and form. The bizarre manner in which they were written must have been to try and impress the recipients of the perceived seriousness of the situation and we find were intended to try and frighten the recipients by issuing threats. We do not accept that saying in a communication that it is not meant to threaten or intimidate absolves the writer of the actual effect they might have on the recipient. The Claimant had been told in the original disciplinary letter that such communications were bullying and harassing in nature and so it was not surprising that further communications of a similar ilk were regarded in the same way by the Respondent.

[69]On 13 January 2022 Mitchell held a disciplinary interview with Ms Verrico. As it was Verrico who had first brought matters that concerned her to the attention of HR that would seem to be a sensible place to start the enquiry and as was said (998) the purpose was to obtain a better understanding so that Mitchell could plan her investigation. The key points of that meeting were as follows: a) Verrico asserted that the Claimant held strong anti-vax and Covid conspiracy views; b) Verrico described that the Claimant by spreading misinformation was causing concern and anxiety among staff including that some staff felt pressured into not being vaccinated. c) The emails widely distributed in late September 2022 were inappropriate and served to distract staff from elements of their roles. d) The Claimant had come across aggressively in expounding her views during meetings. e) Verrico became “incredibly concerned about the Claimant’s conduct” following a routine audit of Miles’ supervision in November. f) Verrico provided the names of staff who had provided to her concerns / evidence of the Claimant’s views and the way she put them. g) Verrico indicated that she felt “aggressively undermined”, and the attacks were personal and threatening. The recent letters to her as a private citizen she found intimidating, unprofessional and had left her feeling vulnerable.

[70]This initial meeting from Verrico, who had initially raised the potential misconduct, is supportive of there being matters to investigate further and the need for a wider enquiry to see which staff (if any) may have been similarly affected by the Claimant’s conduct. A reasonable employer on the information gathered would have proceeded with the investigation.

[71]On 18 January Mitchell interviewed Jennifer Smith who spoke about her time managing the Claimant and broadly, whilst there had been issues from time to time, she had dealt with them as they arose. The general picture, however, was that she personally had no real issue with the Claimant.

[72]On 24 January 2025, Ms Mitchell sent a letter headed Additional Disciplinary Allegations” to the effect that unprofessional correspondence was sent to various members of the Council (by which they meant employees which were “unprofessional, threatening and designed to intimidate” and thereby constituted bullying and harassment. A second allegation was added to state that correspondence had also been sent after the cease and desist letter dated 13 January. (367-368).

[73]Standard letters were sent out on a regular basis (4 weekly) to confirm that the suspension was continuing during the course of the investigation. In the letter dated 18 February there was a statement that Mitchell would write again in another 4 weeks to update the Claimant on the progress of the investigation. She indicated that she would be prepared to meet with the Claimant and any representative “to discuss timescales going forward”. For reasons that have not been explained to the Tribunal there was, in reality very little done in terms of moving the investigation forward between suspension on 8 November and this letter on 18 February – a period of about 3 months. There were two meetings as detailed above and no doubt there was a lot on, but it is difficult to see how this complies with paragraph 5 of the ACAS Code of Conduct on Disciplinary Matters i.e., that “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case”.

[74]In actual fact the gathering of evidence had taken place in earnest between 8 February and 18 March 2022 where Mitchell carried out nine witness interviews with Davies, Oldfield, Sonia Smith, Glynn-Large, Cremin, Speed, Samson, Walters and a witness who wished to remain anonymous. These statements are set out between 1009 and 1047 of the bundle and we have considered them all.

[75]On 22 March the Respondent invited the Claimant to an investigatory meeting on 7 April and the allegations as previously set out were sent to the Claimant. She was told that it was fact finding exercise and that she could be accompanied and could bring any information or documentation that she considered to be relevant. The Claimant was told that it was not the Respondent’s policy to record such meetings and that minutes would be taken, and an opportunity given to the Claimant to check for accuracy. The Claimant was asked to confirm attendance and whether she would be accompanied by 1 April 2022.

[76]The Tribunal have considered the various interviews that were undertaken by Ms Mitchell and whilst there were staff who were positive about the Claimant there were also those who had been adversely affected by her and it continued to be entirely reasonable for the Respondent to continue with the investigation into the allegations made against the Claimant. Such a course fell within a band of reasonable responses.

[77]On 30 April the Claimant wrote to the same four individuals a document headed “Proof of Claim is With Claimant”. The while letter reads as follows: “I have reviewed and enclose the notices and offer to contract declined I require striking out and the Correspondence that was sent by you making allegations and suspending I from work and emails and correspondence received by you that led to the required strike out notices sent by I in the private capacity of I a woman. I accept that my upset and frustration at the inflammatory and divisive allegations put forward by you caused me to go beyond the point of my genuine concerns for staff men and women that I am accountable for. That your allegations were so shocking and divisive as to force me to further justify and overcompensate my demoralised and frustrated attempts at justifying the basis of my original emails and first attached here and sent to the woman: betty butlin and the woman: rosie verrico the e-mail and first notice did still do from the core of concerns of I and several other staff members who I am accountable for. I request that the notices as attached here for ease and struck out by I today and sent after those emails and first notice to the woman: betty butlin and the woman: rosie verrico are disqualified and disregarded as any proof of claim due to the explanation I have set out here. Further that I did not supply a dictionary to assist in the correct interpretation of my words nor did I set out set out any remedy for these reasons I ask forgiveness of any and all perceived harm by those I have noticed. I require to clarify simply what is at the core of this whole situation for I and those who came to me with echoed concerns as per the e-mail attached and what I sent to: rosie verrico. I am attaching that e-mail and first notice so that you scan review what is accurate and what needs to be struck out from my evidence. In that first e-mail and 1st notice I was grounded and accountable to those men and women including I have grave concerns: Stupidly I have since this first e-mail and notice played out the false narratives and allegations that I am anti vax when I was never anti vax. I sought only to provide further proof to avoid use slander of I and any false rumours put out by you on me and instead proved to some degree your view that I am promoting an anti vax agenda. I totally get why you might have come to that conclusion due to my desperate need to protect the reputation of I and respect of peers rather than retain a middle ground on this issue. Again, I apologise firstly to myself and then to you I sent this correspondence to. I again wish to put back my honour in this correspondence and set the record straight. I require your good grace and the opportunity to revert back to the original position as set out in the e-mail and first notice to the woman: Betty Butler and the woman: Rosie Verrico. This was not an anti vax campaign but is a pro-choice starts by I and those I manage…… If I have no replies within seven days use have agreed to strike out those notices. And honour of I is put back. Wish of I is to return to work once claim of I is resolved .

[78]The above is as drafted and sent. The communication is again drafted in a similarly strange fashion to that which she had done so previously. In broad terms, however, the Claimant is saying that she wishes to largely withdraw the communications that have recently been added to the disciplinary allegations as she realises that she may have gone too far. The precise extent of her retraction is unclear, but she does offer an apology (of sorts) within the communication and seems to suggest that her reaction was caused by the upset and frustration she felt because of the allegations against her which caused er to “over-compensate”. At a further point she sought “forgiveness of any and all perceived harm by those I have noticed.” Whilst these were apologies they were couched in terms of the Respondent’s conduct having caused her to act in the way that she did.

[79]The Tribunal find that the Claimant felt the need to write this communication because she feared that she had, indeed, gone too far. It is noteworthy that she still seeks to put the blame on the Respondent for why they needed to be sent and the Tribunal do not consider, taking into account the Claimant’s conduct moving forward that the letter shows any true contrition merely an attempt to try and sideline the ramifications of her behaviour.

[80]On 1 April 2022 Ms Mitchell wrote to the Claimant indicating she had received the correspondence (as she was copied in) but she asserted that it was a breach of the cease and desist letter sent on 13 January and 21 January. The cease and desist was in relation to “correspondence of this nature”. Whilst on the one hand the style of the letter was of the nature of recent correspondence in essence it was a letter seeking to row back from the extremity of the positions previously put and so was of a different nature (genuine or not).

[81]Ms Mitchell said that the investigation had progressed and there were matters that needed to be discussed. Mitchell stated that there had been discussions with the Claimant (or she had been otherwise advised) that the Claimant would not attend such a meeting without proof of the allegations. Mitchell pointed out that she was gathering evidence at the moment and wanted to hear from the Claimant and that the interview would be a chance “to respond to the allegations and to offer any mitigation or apologies that you may now wish to have taken into consideration”. To provide this opportunity is at the very core of a fair process and Mitchell was right to do so. We find that she genuinely wanted the Claimant’s feedback to the allegations so that she could produce a full investigatory report. We accept her evidence on this point. The deadline for confirming attendance was extended to 6 April.

[82]On 4 April the Claimant wrote to Mitchell setting out that she could not attend a meeting alone about “unsubstantiated allegations” and was concerned about bias. She made the point that until the Respondent had gathered evidence from those making the allegations, and she suggested that it mattered not what she did as Ms Mitchell had already decided that the Claimant was in the wrong. Having heard and read Mitchell’s evidence we reject that.

[83]The Claimant suggested that she would attend the meeting if the costs of a “law woman” would be met in full. The fees were suggested to be £1,000 for half a day and then £500 per hour thereafter. That letter was sent on 4 April (according to the correspondence) and was received on 6 April. On that day Mitchell wrote to the Claimant saying that the meeting would now not take place on 7 April and a new meeting would be convened “in due course”.

[84]This was the start of what the Tribunal find to be a concerted effort by the Claimant to seek to delay and obstruct the investigation moving forwards. We have already commented at the unexplained slow pace that the enquiry had at the outset, but the logical next step was for the Claimant to attend at an investigatory meeting and to put her points across against what was relatively straightforward allegations relating to a failure to follow reasonable management orders and the sending of threatening communications and other conduct that was alleged to be inappropriate. The Tribunal have reviewed the allegations against the Claimant and consider them to be sufficiently clear and unambiguous. To the extent that any further particularisation was required (and as we say we consider that there was quite sufficient information for the Claimant to understand what she was being accused of) the Claimant could have made enquiries at the investigatory meeting. We are satisfied that the Claimant had the capability to do so.

[85]Further the Claimant impugned Ms Mitchell at this early stage by accusing her of bias. She had already made an application for Ms Mitchell to move aside. There was no evidence at all to support an allegation that Ms Mitchell was biased at this point or indeed at any point. The Claimant continued to make allegations impugning the integrity of Ms Mitchell and the process that was being followed.

[86]On 28 April Mr Davidge, from Human Resources, wrote to the Claimant inviting the Claimant to what he described as a “reconvened disciplinary interview” on 5 May. He made the following points: a) The purpose of the interview was to discuss the allegations made against the Claimant and to give her an opportunity to provide a response. b) No final decision would be made after the interview, but consideration would be given as to whether a formal disciplinary hearing was necessary. c) The Respondent’s policy did not permit legal representation and the Respondent would not pay for the same, in any event, but the Claimant was entitled to bring a TU representative or a workplace friend or colleague. d) If the Claimant declined to attend, then the Respondent reserved the right to proceed with their considerations without the Claimant’s input. None of the above seem to be anything other than reasonable and normal correspondence.

[87]The Claimant received that letter on 30 April (389) and sent a letter in response which must have been wrongly dated 2 March 2022. It is assumed that should read 2 May 2022. The date stamp on the letter suggests it was only received on 13 May 2022. Mitchell asserts that as the Claimant had not responded she attended on 5 May and the Claimant did not attend. There was no response to the Claimant’s actions until 19 May.

[88]The “2 March” letter stated: a) Insufficient notice had been given as with a bank holiday only 2 working days had been provided and because of the stress the Claimant had been experiencing. b) The short time notice would seriously affect the Claimant’s ability to access and consult with somebody to accompany her, she wrote “you are very well aware of my dyslexia and the impact that has on my ability to read or write”. c) The Claimant reiterated her desire for “further details and evidence” in support of the allegations so she could prepare a response and she asked that any allegation made against her was provided with a “wet ink signature” in advance of any meeting. At the end of the letter, she stated that she did not recognise “what conduct of behaviour was being used against her”. d) She requested a copy of the disciplinary procedure to be sent to her and asked for 2-3 weeks’ notice of any meeting. e) The Claimant suggested that bias was clear / predetermination had been made by the previous letter stating that it was a “disciplinary interview” whereas originally it had been an “invite to attend an investigation meeting”. She asked for clarity as to what the meeting actually was.

[89]There are a number of matters here that become recurring themes of the huge amount of correspondence that follows. The disciplinary policy that was being followed does not set any specific notice period for an investigatory interview (1141-1142). Having said that a reasonable time should be allowed. The Claimant had had notice of most of the allegations since 10 November and she had been aware and able to prepare for a meeting since 22 March. It would not be unreasonable for an individual knowing that a meeting is going to be convened to begin to take steps to prepare for putting forward her position to the allegations made. The Claimant herself would be aware if her dyslexia would make her take longer to prepare and so would presumably build that in.

[90]The Tribunal consider that the Claimant did have sufficient information about the allegations to answer them and her desire for a “wet ink signature” is simply a further example of seeking to place further barriers or procedural obstacles before the Respondent so as to make life more difficult. Whilst the Claimant was right that there should not have been reference to a reconvened disciplinary interview but rather a reconvened investigatory interview, we do not accept the Claimant’s view that this error by Mr Davidge was clear evidence of a pre-determination and on the balance of probabilities was a product of slack drafting.

[91]On 19 May 2022 Mitchell sent a further letter in which she asserted that the Claimant had failed to attend on two occasions and that under the Disciplinary and Dismissal Procedure “the employee must make themselves available during this time to attend meetings, as necessary, whilst on suspension”. She stated that though unusual she would give the Claimant a final chance to attend on 30 May “as she was still to write her report”. An option to provide a written response was also given.

[92]On 20 May Mitchell emailed Vitty, identifying the four pieces of correspondence that the Claimant had sent to him on 10 December 2021, 4 January 2022, 12 January 2022 and 30 March 2022. Vitty responded on the same day. The specific questions posed by Mitchell were: a) What impact, if any, did the letters have on you? b) Did you feel that the language and content was threatening? c) Did the tone cause you any discomfort, for example, any stress or alarm? The Tribunal consider that only the first question needed to be asked being an open question. The other two questions are leading questions. The Tribunal quizzed Mitchell about the manner she had gone about this, as it was not a question posed by the Claimant. One possibility, of course, was that she was not genuinely looking for views but was seeking to lead a witness down a path she wished to proceed along. In her oral evidence Ms Mitchell came across in a very positive manner answering questions in an open and candid manner. She did not really seem initially to recognise the perils of the leading questions but once it was explained to her did agree that she could and should have asked questions of Vitty in an open fashion. We are satisfied that the questions were not asked due to desire to fashion an adverse outcome for the Claimant but did amount to an error on her part.

[93]Vitty’s answers to each question was: a) “The letters are direct in places demanding and use very dense language which feels like it is framed in a legal capacity. Collectively these letters have felt unsettling to some extent personal and certainly containing language that I would not expect from a BCP officer. b) Language was used in the letters to threaten legal action and was clear that this would be directed at me in a personal capacity. I would therefore suggest that threatening language was clearly and unambiguously used. c) It was unsettling to be personally threatened with legal action and particularly for this to be repeated over three successive letters”.

[94]Whilst the Tribunal bears in mind the manner in which the questions were framed, we are satisfied that even had an open question been asked, such as explain how you felt upon receipt of the letters, Mr Vitty would have provided identical answers.

[95]On 21 May 2022 the Claimant lodged grievances against Verrico, Butlin, Mitchell and Davidge with Vitty, who was Butlin’s line manager. The grievances (Nos 1-4) broadly were as follows: a) Verrico – The allegations were twenty-eight in number, widespread and included bullying and harassment of the Claimant and others, extortion and underhand tactics in relation to taking the Covid vaccine and numerous other alleged breaches. b) Butlin – The allegations were twenty-one in number and included Disability discrimination, pressurising the Claimant and others to take the Covid vaccine and breaching confidentiality. c) Davidge - The allegations were ten in number and included disability discrimination and breaching the disciplinary policy and procedures in a number of ways. d) Mitchell - The allegations were six in number and all related to the disciplinary process she was conducting.

[96]These were the first grievances that the Claimant had brought and were sent just before what had been described as the last chance for an investigatory meeting. The grievances were large in scope and under particularised with broad parameters such as “misconduct in public office” without explaining what that specifically was, or “trespass” or “extortion”. The ability to draft up these grievances shows, in the Tribunal’s view that the Claimant had plenty of time to process what was going on and to respond to it. Had she wished to, she could have spent the time preparing for the investigatory meeting, but she elected not to. That was a conscious choice on her part. Having considered the evidence the Tribunal are satisfied that whilst the Claimant did hold grievances against individuals within the Respondent, the primary motivation in raising these grievances at that time was as an attempt to delay and try and distract from the investigation process by throwing out a number of serious allegations.

[97]It is readily apparent that from the Claimant’s perspective she still held her managers in scant regard notwithstanding her “apology” earlier. We are satisfied that the apology in her last “Notice” was not one that was genuine. If we are wrong and it was genuine, then the sentiment was fleeting and gone very quickly. We are satisfied that the Claimant’s primary motivation in bringing these grievances when she did was to try and derail the investigatory process. It also shows that the Claimant had no trust and confidence in the Respondent at all to deal with her in a fair or appropriate way. We accept that this was a genuinely held view (although with limited evidential support), but we do not accept that it was one that was supported by any objective view.

[98]Threads for each of the individuals who had grievances raised against them: a) Verrico, her line manager, was a bullying extortionist, who had defamed the Claimant and was in breach of numerous processes and proper procedure; b) Butlin had abused her position of power and had discriminated and breached process in a number of ways; c) Davidge, from HR, had breached policy, discriminated against the Claimant and lacked impartiality; d) Mitchell had acted improperly from the outset in respect of the disciplinary and had already pre-judged the outcome.

[99]Even at this relatively early stage of this process it is very difficult to see how, no matter what the outcome of the investigation into the Claimant’s behaviour was that these parties were ever going to be able to work together effectively again. That is not to say that everything the Respondent had done was perfect and we have pointed to early delay in the process, a slip in a letter from Davidge and leading questions by Mitchell, however the main person driving the wedge between the two parties was clearly the Claimant with her series of early bizarre communications, the effect of which would still be felt despite the Claimant’s apology, and the Claimant’s desire to criticise each and every element of the Respondent. We acknowledge the Claimant’s right to bring grievances but repeat our finding that we find her primary motivation for bringing those grievances was to try and hinder the investigatory process.

[100]On 25 May 2022 the Claimant indicated that she would attend on 30 May for the investigation meeting. On 26 May 2022 Mr Vitty wrote back re the grievances citing the disciplinary procedure which read that “any grievance raised during the course of these proceedings that relates to disciplinary action or dismissal will be dealt with as part of the (disciplinary process)”. He indicated that he was going to extract those parts of the grievance that fell outside the disciplinary action and appoint an investigator in relation to those. He estimated that an enquiry would take four weeks. He indicated that he did not intend to remove Mitchell or Davidge from their roles in the disciplinary action, unless the independent investigation finds evidence that would justify their exclusion. (403)

[101]The investigatory meeting for the disciplinary process took place as arranged on 30 May 2022. The notes indicate that it took place between 1100 and 1125 (404-408). There is no signature at the end of those notes to either confirm acceptance of the notes nor to set out proposed amendments. The notes disclose that very little of value was achieved. The Claimant attended without a Trade Union Representative. She stated she thought the meeting was starting at 1000 (despite the notice clearly stating it was 1100 and her indicating that she would attend at 1100 in her 25 May 2022 letter). Her TU rep was conflicted at 1000 so did not attend. The Claimant indicated that she felt discriminated against because she was not accompanied, but the fault for that lay squarely with her.

[102]The Claimant reiterated that she was dyslexic and wore hearing aids, but the notes suggest no specific adjustments were asked for. The issue of recording the meeting was brought up and the Claimant offered to do so but that was declined and the system with the notes was explained. Mr Lynton was the note taker who the Claimant described as a “very nice man” in her evidence. The Claimant sought a copy of the whistleblowing procedure (which was agreed would be sent to the Claimant) and also indicated that she did not feel that she had sufficient notice of the detail of the allegations. The Claimant suggested that if the questions could be placed in writing, then she could answer them, but Mitchell suggested that answering in that way would not be possible. In short nothing that might provide information towards the disciplinary enquiry was achieved.

[103]The Claimant’s approach to this meeting is supportive of the view that the Tribunal have taken that the Claimant was being deliberately difficult in order to delay the process. The Tribunal does not accept the Claimant’s explanation for the mix up with her Trade Union representative as she should have been fully aware of when he needed to attend. The Tribunal cannot see why there was a strong aversion from the Respondent to any hearing being recorded. The Tribunal would think having a record where there could be no doubt what was said would have been a useful tool for the Respondent. The Tribunal also acknowledges that ultimately it is for the Respondent to run their process as they deem fit, and they clearly did not wish to set a precedent and were unpersuaded that there was a need to make any adjustment from their normal process. Whether they were entitled to come to that view will be discussed later in these Reasons. Certainly, at this meeting the Tribunal can see no prejudice to the Claimant that flows from the recording of it by a note taker as opposed to there being a recording.

[104]We reject the Claimant’s contention that she did not have enough time to prepare. We find there was ample time, but it appears that the Claimant made the choice to dedicate her efforts to other things. The Claimant raised the whistleblowing procedure for the first time, and we will deal with our findings about that request shortly. We are satisfied that the Claimant had a clear opportunity at this meeting to put her response to the complaints that the Respondent had raised with her and to explain her actions. She chose to focus on other matters and in doing so failed to progress the investigation any further. We find that was a deliberate tactic on the part of the Claimant.

[105]On 30 May the Respondent wrote to the Claimant and stated that the Claimant would have five working days from 31 May to suggest an alternative date i.e., before 1700 on 6 June 2022. It was suggested that a reasonable time frame would be for an investigatory meeting no later than 8 June. Mitchell sought to placate the Claimant by suggesting that she was showing good faith by the number of times she was allowing the Claimant to meet with her and reiterated it was not for her to find “guilt” but to present the evidence she uncovered in the investigation in her report. She stated that the allegations had been set out and the meeting was to hear the Claimant’s views on those.

[106]Mitchell commented on the request to conduct the interview by way of questions and answers and the suggestion that would be an adjustment for the Claimant’s dyslexia. Mitchell refused that as she considered at that stage that written answers had limited evidential value and greater understanding would be gained through spoken dialogue. There was no claim brought against this decision. The Claimant was permitted to put in a written document however of her own, in order to break the log jam. Mitchell explained precisely what steps she would be undertaking in terms of her role.

[107]On 1 June the Claimant raised a grievance against Mr Vitty (Grievance 5) (M527-528). There are eight allegations primarily linked to the disciplinary process and in particular allowing Davidge and Mitchell to continue to determine it and the failure to appoint an “independent investigator”. The Claimant indicated that she wanted “full redress”

[108]On 4 June the Claimant replied that she had expected the notes of the meeting to consider and the whistleblowing policy to have been sent to her as opposed to the letter that was sent. The Claimant took issue with the suggestion that four chances had been given to meet and asserted that this was a disingenuous statement and “poured scorn on your attempts to now protest a lack of bias and an intent to sabotage a fair process against me”. Objectively that is not an assessment the Tribunal would share. The view the Tribunal takes is that if anybody was attempting to sabotage the smooth and efficient running of the investigatory process, it was the Claimant

[109]The Claimant asserted that the recent letter had spoiled a second bank holiday and was a further “breach of my Human Rights”. The Claimant stated that she had disclosed her disabilities and when asked what adjustments were needed indicated that she needed to be given “all the details of the allegation in full before I can answer any questions.” This was alleged to be a breach of natural justice. The Claimant also asserted that until the investigation had been made into the grievances put forward by Davidge and Mitchell had been completed no further meetings would take place. As previously stated, the Tribunal are satisfied that sufficient information had been given to the Claimant to enable a two-way dialogue to take place about the issues at an investigatory hearing. The Tribunal notes that the Claimant was asserting that the process could not continue until the outstanding grievances, which would have amounted to substantial pieces of work were undertaken. Again, this is supportive of our finding that the Claimant was seeking to delay / derail the investigatory process by deploying multiple grievances.

[110]On the same day the Claimant wrote to Mr Farrant, the Respondent’s Chief Executive (415) and the letter was headed “Re 1. Whistleblowing & 2. Complaint or grievance of flagrant breach of BCP policies and procedures.” The Claimant asked Farrant to intervene and take the necessary steps to allow the employer to fulfil its duties fairly. The Claimant referred to her issues with the letter Mitchell had recently sent to her and that it should have been self-evident that she was a whistleblower because of “the nature of the allegations against me” and her recent grievances. Pausing there it is unclear why the nature of the allegations against the Claimant which she had asserted she did not understand and could not respond to would have been sufficiently cogent to show she was a whistleblower.

[111]On 7 June 2022 the Claimant sent a letter to Mr Stannard as the dedicated officer for the Whistleblowing Policy. She indicated that she would have brought these some seven months earlier i.e., at the tail end of 2021 had the Respondent “not denied me access to the council policies and the intranet”. The Claimant explained that she believed that her suspension was borne of a desire to shut her down and engineer her exit from the Respondent “to prevent the exposure of the BCP Council Officer’s wrongdoing with regards to serious health and safety breaches”. The Claimant then set out a number of bullet points to explain her position summarising it by saying: “I believe BCP council employees that enforced the mandatory COVID-19 vaccination on staff by the use of coercion and duress acted unlawfully and they have since been covering up their wrongdoings through maligning my character, threats, intimidation, manipulation, and collusion with others leading to the “toxic” environment of the council workplace. As I pointed out there unlawful and improper conduct, I was then falsely accused of wrongdoing and subsequently suspended for seven months.”

[112]The Claimant indicated that as she was disabled on account of her dyslexia and hearing impairment, she would like to request that all meetings were recorded and that she wanted to bring her own independent minute taker “to ensure I am supported to understand and fully participate in the meeting and to protect me from any attempts to silence me and to distort and manipulate the outcome in their favour”.

[113]At this point there were now three separate strands relating to the Claimant: her investigation, her multiple grievances and now the report to the person charged by the Respondent to deal with whistleblowing. Her dealings with Mr Stannard were, in the view of the Tribunal, a separate strand of complaint and in this recitation of facts found we will deal in these next paragraphs solely with the Claimant’s dealings with Mr Stannard and then return back to early June, with the rest of the issues relating to the investigation and grievances.

[114]On 10 June Stannard acknowledged receipt of the Claimant’s whistleblowing submission and he asked her what remedy she was seeking (429).

[115]On 14 June the Claimant wrote to Stannard and asked him a series of questions i.e., matters relating to his training vis a vis the whistleblowing policy, the Respondent’s bullying and harassment policy and the Council’s “Duty of Care” (430). There was further correspondence between Stannard and the Claimant on 5 July which did not take matters any further.

[116]On 1 August the Claimant complained that she did not feel protected as a whistle blower and complained that Stannard’s delay in dealing with her complaint was causing her a detriment and was unreasonable (460). On 4 August, Stannard replied indicating that he was continuing to consider the Claimant’s “complex disclosure” and that his work was entirely separate to the Claimant’s grievances. He indicated that as things stood, he was struggling to find any wrongdoing on the part of the Respondent as the vaccination was not a mandatory requirement and staff “were free to choose”. He raised a number of questions which in legal parlance were a request for further and better particulars: a) Who broke the Nuremburg code, where and when? b) Who broke staff contracts and how? c) Who undertook blatant breaches of personal data and medical privacy and what were they? d) Who misrepresented facts and wilfully manipulated the consequences so as to make staff believe they had no choice but to be vaccinated? e) What articles of the Human Rights had been breached and who breached them?

[117]There appears to be a dearth of correspondence between Stannard and the Claimant until 27 October. We can find no trace of a response to Stannard’s queries in that period. On that date the Claimant wrote to Stannard complaining that the disciplinary investigation had been accelerated “without following due process” to conceal various unlawful actions. The Claimant attached a spreadsheet to support her whistleblowing claims and indicated she wanted Stannard to protect her from “future injustices” by ensuring that the disciplinary matters were suspended until the whistleblowing elements had been addressed. The Claimant stated that she had the evidence to support the spreadsheet and that she would give it to an “independent investigator or the police” because of the Respondent’s “disingenuous” actions. The spreadsheet raised eleven disclosures. Whilst the Tribunal does accept that at least to some extent the Claimant thought herself wronged and believed she was a whistle blower, the Tribunal also find that part of the reason why she launched her whistleblowing complaints was to use another tactic to obfuscate and to make matters more difficult for the Respondent in conducting their investigation. A significant part of the Claimant’s rationale for bringing the whistleblowing was to try and delay progress for the disciplinary as she seeks to do on 27 October.

[118]On 2 November Stannard responded and set out that his role was to ensure that any qualifying disclosure was considered. He accepted that spreadsheet as the Claimant’s answer to the further particulars he had sought and explained that the strictures that the Claimant had put into her letter that none of those individuals could be spoken to effectively meant that he could not investigate the issues raised as he would normally investigate by speaking to the individuals involved. He pointed out that the Claimant was at liberty to raise issues with any independent outside body she wished but clarified that he would not be doing so (554).

[119]The Claimant responded later the same day (555-556). She replies point by point but ends asking Stannard to confirm that he will investigate her whistleblowing concerns, he will take into account the Claimant’s disability, that he will protect the Claimant from further detriment by getting the disciplinary meeting postponed and that he would meet with her to discuss the whistleblowing issues “perhaps” on 10 November the proposed date of the disciplinary.

[120]Stannard responds by return and confirms that he has no authority to suspend personal meetings re discipline or grievance. He again sets out what he was seeking to achieve and asserted that since June he had been trying to establish whether the Claimant had actually made any qualifying disclosures and that the spreadsheet would assist him in this quest. He indicated that as the Claimant had emphasised the work, she had to do preparing for her disciplinary he would not contact her until after the disciplinary hearing (558).

[121]On 3 November the Claimant wrote to say that she was available to discuss her whistleblowing elements prior to the disciplinary meeting and that if Stannard declined she would “have no option other than to accept your action as collusion and cover up resulting in significant detriment to myself” (559). This is a further example of the Claimant’s ongoing belief that if one does not agree with her then you must be crooked / corrupt / covering up.

[122]Stannard responds saying: a) He would not meet with the Claimant until he had thoroughly considered the spreadsheet, determined if there were any qualifying disclosures and worked out what he needed to speak with the Claimant about. b) He hoped to be able to get back to the Claimant the following week. c) He was not involved in any collusion or a cover up.

[123]On 8 November Stannard reverted to the Claimant pursuant to Stage 3 of the Respondent’s Whistleblowing Policy effectively rejecting the Claimant’s whistleblowing complaint save that he sought further information in relation to providing evidence the Claimant said that she had re managers coercing staff into being vaccinated (566-567). He asked for that information by 18 November (566-567).

[124]In the Claimant’s reply on 11 November (578-579) she complained again about Stannard refusing to meet with her and explained that a meeting was necessary for her to explain herself in the best way. She complained that Stannard had stated that the Claimant’s interpretation of coercion was not shared by colleagues and pointed out that in her view doing so before speaking with her was lacking “natural justice”. She explained that his approach had compromised her well-being and that she had raised a grievance about Stannard’s conduct to Farrant. She reiterated her wish for an independent investigator. In response on 21 November Stannard maintained his position that a meeting would achieve nothing and asking the Claimant to send the information he had required on 8 November extending the deadline for such information to 25 November (591). Again, this is evidence of the Claimant’s regular pattern of making adverse conclusions and raising grievances if those within the Council did not do what she asked of them.

[125]On 25 November the Claimant reiterated a number of points raised in earlier letters (training on the procedure, failure to meet, external investigator, whether the Claimant was complying with a whole range of policies). The Claimant concluded that she was “fully committed to cooperating with the whistleblowing policy” still required a meeting.

[126]In his response on 30 November Stannard indicated that if the Claimant provided evidence in support as had been requested then he considered that a meeting might be necessary to fulfil the obligations set out at stage 4 and 5 of the Whistleblowing Policy. He extended the deadline for providing such information (again) to 7 December. On that date the Claimant responded and in relation to the whistleblowing again asked a series of questions that had almost exclusively been raised before.

[127]On 13 December Stannard stated that he had exhausted the Stage 3 process and as the Claimant had not sent the evidence she had said she held, and he was therefore ending his investigation and was relying upon his initial findings that the alleged coercion was not made out. He indicated that he would reopen the investigation if the Claimant sent the said evidence. (673)

[128]The Tribunal considers that Stannard was entitled to do that rather than continue to be tied into a repetitive and time-consuming discussion with the Claimant that was getting absolutely nowhere. There are similarities in the whistleblowing with how the Claimant was conducting the investigation process in that the Claimant was prepared to focus upon points of technical detail rather than simply to come forward and explain precisely what her position was.

[129]As Stannard had effectively ended the process the Claimant was required to offer him what her evidence was in order to keep this particular strand alive, and the Claimant provided evidence of what she described as coercion by an email dated 16 December in the form of the minutes of the North team meeting on 21 September and email trail and an email from Ms Verrico. She indicated that she presented those documents as “primary evidence of coercion” and was linked to the threat of losing one’s job. The Tribunal can see no reason why she could not have done tis a long time before.

[130]On 21 December Stannard responded stating that he was firmly of the view that: “… no coercion took place and management merely stating matters of fact regarding the need for potential redeployment. It was factual, for a period of time in late 2021 and early 2022, that people choosing not to be vaccinated could not enter care homes. It reasonably follows that if a person's role required them to visit a care home they would need to be redeployed or their job may be at risk in extreme circumstances. It was entirely proper and reasonable that management explained all eventualities and I do not see this as coercion in any way.”

[131]Stannard stated that he still considered Stage 3 to have been completed but still offered the Claimant the opening to send any further evidence of “coercion” to him. In the circumstances of the Claimant having had every opportunity over a significant period to precisely do that, his offer was a genuine one.

[132]On 28 December 2022 the Claimant responded to Mr Stannard and asked him whether he was closing the process before Stage 4 – Management Investigation and if so, who it was within the Respondent she could apply to review his decision. If no appeal existed, then the Claimant indicated she was likely to raise the issue with the relevant prescribed person or body.

[133]Stannard explained in his email of 3 January that: a) He had explained that he did not believe that there had been coercion and noted that the Claimant disagreed with him; b) His stage 3 enquiry had gone further than normal and that a Stage 4 management investigation would seem to be inappropriate taking into account the Claimant’s belief that management were already covering things up. c) He identified that the Claimant could contact the Chief Executive or could contact Public Concern at Work, or she could contact prescribed bodies.

[134]To place the above conversation in context compared to other matters going on the Claimant was dismissed by a letter dated 15 December.

[135]Having diverted off to focus upon the Claimant’s correspondence with Mr Stannard, we return to the factual chronology of the investigatory process.

[136]On 7 June 2022 Mr Kippax, a Project Manager, wrote to the Claimant to indicate that Vitty had appointed him to deal with the grievances. He indicated that he would deal with the matters raised in two tranches: firstly, he would deal with matters concerning Mitchell and Davidge and in due course he would deal with the matters relating to Verrico and Butlin.

[137]He pointed out that the Claimant had said that she would provide all evidence needed to support those grievances and that to ensure that he investigated in a meaningful way that would need to be done and documents or witnesses needed to be provided so that he could seek interviews with those people or consider the documents. He stated that “understanding the nature of alleged harm or detriment which led you to feeling aggrieved is obviously important” and would help him reach a decision. A response was sought no later than 13 June so as to meet the time scale envisaged by Vitty.

[138]On 8 June Mitchell sent out the notes of the 30 May meeting for consideration.

[139]On 15 June the Claimant wrote to Farrant raising a further grievance against Mitchell and Davidge (Grievances 6 and 7). There were nine allegations against Mitchell and six against Davidge. They relate to matters arising from 30 May meeting and the letter that came after it. The Claimant sought confirmation that each had been trained on various policies and sought their immediate suspension pending further investigation. Had the Respondent acquiesced that would inevitably have delayed the investigation for the Claimant’s disciplinary matters.

[140]On 16 June the Claimant sent back her amendments to the minutes of the investigatory meeting suggesting inter alia that the meeting only lasted for fifteen minutes (433-440). There were numerous changes the Claimant sought to be made and they included the Claimant being refused to record the meeting three times and that she had asked several times for information to be provided in advance of the meeting as a reasonable adjustment. The proposed amendments were “noted” in a letter from Mitchell on 22 June. She also indicated that the next step in her investigation would be a meeting with Mr Kippax about the grievances that had been raised that related to the disciplinary process.

[141]On 20 June (M562) Mr Kippax responded to an email from the Claimant dated 11 June 2022. He told the Claimant that he was the lead investigator in relation to the Claimant’s various grievances and explained that he was “independent” in the sense that he was outside of Adult Social Care at the Respondent. He pointed out that the Claimant had indicated to him within the grievance that she had evidence in her possession in support and so there appeared to be no reason why a meeting should not be set up between them expeditiously. Even taking into account any difficulties the Claimant had that arose from her medical conditions he did not consider that a delay of three weeks was necessary. He offered the Claimant a meeting on either 23 or 24 June and warned her that if she did not attend, he would have to proceed on what he had.

[142]On 23 June (M566) the Claimant wrote to Farrant, complaining about Kippax and the “short” time frame he was giving her to attend a meeting. She complained about the lack of response from Farrant about Grievances 5-7 and that all of the above was part of a breach of the Respondent’s policy and procedure, the Equality Act and natural justice. She reiterated her desire to be investigated by somebody outside the Respondent such as from another Local Authority or ACAS. The Tribunal view this request as another string to the Claimant’s bow in terms of seeking to slow down and/or disrupt the processes. It should be further noted that despite the number of grievances raised by the Claimant the relevance of them only impacts upon the decision to be made in respect of the ordinary unfair dismissal claim. The grievances and the handling of them has not been raised as a detriment in either the whistleblowing or the discrimination claims.

[143]On 28 June Kippax responded to the Claimant’s letter of 23 June. He reiterated why he considered himself to be appropriate to carry out the investigation into the grievance and indicated that although the Respondent held no record of the Claimant needing any reasonable adjustments or indeed of the Claimant being a disabled person, if the Claimant required any adjustments, then she should inform him of them. We reiterate that the handling of the grievance process is not part of the disability claim before us in the List of Issues.

[144]On 4 July 2022 Butlin was interviewed by Kippax in relation to the grievance raised by the Claimant against her (444-446).

[145]It appears that there were further grievances raised about Mitchell and Davidge in relation to the way they conducted the 30 May meeting. Over the course of week commencing 10 July Kippax interviewed Verrico in relation to the grievances against her.

[146]On 1 August Mr Davidge invited the Claimant to a reconvened investigation interview on 17 August. The Claimant responded in a letter dated in error 4 July (447) that she was unhappy about the invitation as she was on a period of annual leave; she wanted the meeting postponed because of outstanding grievances and that she wanted evidence / questions in advance of the meeting in relation to her disability. Again, this is not a reasonable adjustment claim within the List of Issues

[147]On 4 August 2022 a further letter was sent by Mr Davidge about the reconvened investigative interview and that interview was scheduled for 17 August. It said in part that: a) The interview would be extended to include aspects of the Claimant’s grievances related to those facts upon which the disciplinary allegations are based, and that Mitchell would also be investigating elements relating to the Council’s approach to the mandatory vaccination of staff required to work in care homes. b) A further allegation was added to the list of matters to be discussed i.e., the deterioration in relations between the Claimant and the Council and it was suggested that the Claimant may have acted in a way that was in breach of the implied term of trust and confidence within the employment contract. The Tribunal do not see that as being unusual or unreasonable based upon the highly polarised communications between the parties over the previous months where there was agreement on virtually nothing. There had been huge amounts of time and effort on both sides to get virtually nowhere. Taking a step back the Tribunal can see that even at this point taking into account the Claimant’s view of the Respondent and its staff that reconciliation was highly unlikely. c) In addition, there was an additional issue relating to fidelity which due to its nature was “not considered appropriate to share with you in detail until we meet.” Mitchell explained that this was in relation to the anonymous complaint, and she was initially told by Davidge that this would need to be considered in the investigation but after a further review by HR was not proceeded with. We are satisfied that Mitchell did not receive details of the anonymous complaint and no was she influenced by it when she came to her assessment of what was required.

[148]The Claimant was very concerned about this anonymous complaint. It is unfortunate that it was raised but we are satisfied that it was a red herring in that although raised it did not impact upon the key decision makers at all.

[149]On 8 August 2022 (although dated July in the letter itself which must be wrong) the Claimant stated that she wished to have full particulars of the additional allegations and that the lack of detail was again causing her a disadvantage.

[150]On 11 August the Claimant appealed the outcome of her grievances raised against Mitchell and Davidge. That was received by the Respondent on 12 August and the 17 August investigatory meeting was postponed on 15 August pending the outcome of the appeal to Kippax’s grievance outcome., Again, progress in the investigation was thwarted. (M668)

[151]On 14 August the Claimant raised a further grievance against Sarah Ray-Deane, The Head HR and OD Service. On 15 August the Claimant sent in a sick certificate based upon “work related stress” (M677) and she sent further notes after that initial one.

[152]On 4 October Mitchell asked the Claimant to attend a further investigation meeting on 10 October at 1300. Alternatively, she indicated that a written response could be filed by 12 October. After those dates Mitchell would be finalising her report “with or without the Claimant’s participation”. On the same date the Claimant was told by Mitchell that she would be considering the parts of the grievances concerning Verrico and Butlin at the same meeting.

[153]On 7 October (date stamped as received on 7 October) the Claimant responded indicating that she considered the invite a surprise because she was on sick leave and was awaiting an OH referral (483), The Claimant complained about the short notice given and that she did not think the time allowed was sufficient for what was required to be discussed. She reiterated her need for reasonable adjustments (provided with full details of allegations, the recording of meetings and to bring an independent minute taker). On 10 October another Fit Note was sent to the Respondent for a further two weeks in respect of work-related stress and the Claimant confirmed that she would not be attending the meeting on 10 October (487).

[154]Mitchell made various responses to the points put and, in a letter dated 13 October 2022, (488) confirmed that with the Claimant’s permission she had liaised with Dixon (her TU rep), and he had agreed that he could attend and support the Claimant on 17 October. She clarified that the issues to be discussed were: a) The allegations in association with the Claimant’s suspension; b) An opportunity to discuss the grievances against Butlin and Verrico in association with the Disciplinary and Dismissal procedure. Mitchell concluded that she could not see any reason why the reconvened interview could not proceed on that day and informed the Claimant that if she did not attend then it would not be rescheduled. That letter was hand delivered on that same day.

[155]The Claimant responded with a highly detailed six-page letter which broadly alleged that the correspondence from the Respondent was “designed to cause (the Claimant) harm, stress and could only be viewed as ramping up the bullying and harassment.” The Claimant’s capability to discuss matters pertaining to the investigation can be gleaned from the Claimant’s response in this letter. It is a highly detailed document, taking parts of previous letters by the Respondent and then closely commenting on them. The Tribunal consider that if a letter of this detail was capable of being written then there was absolutely no reason why the Claimant could not have provided a written response to the allegations that were being investigated. The Claimant complained about the number of letters she was receiving, but this was a result of the vast number of complaints she had engendered and needed to be dealt with. The Tribunal consider that the Claimant presented a massive HR challenge on account of her behaviour and conduct. We find that it was highly unlikely that the Claimant’s attitude and demeanour were likely to change, and it was highly probable that she would continue to raise grievances / issues/ complaints and that the chances of actually getting the Claimant to a meeting at the investigatory stage was small.

[156]On 20 October, Mitchell confirmed that the investigatory interview would not be rescheduled, the investigation had been concluded and Mitchell would prepare her report based on the information she had and would do the same on the limited grievances before her (501). The Tribunal have reflected upon the reasonableness of that decision and are of the view that in light of all the circumstances that decision did fall within a band of reasonable responses a reasonable employer would make. Indeed, we find that the Respondent were remarkably indulgent of the Claimant and even if they had have called time on the process substantially earlier, we would not have been able to criticise them.

[157]The purpose of the investigatory meeting was to establish facts having given the employee an opportunity to state her case in response to the allegations. Once that is done the designated manager would then make a decision as to how matters should proceed. The investigatory meeting is a chance for the employee to try and persuade the employer at an early stage that no further action is required or action short of a disciplinary hearing is needed. We find that the Claimant was given that opportunity, but she decided for reasons best known to herself that she would prefer to delay, defer, object, and seek to avoid such an opportunity. There must be a level of proportionality brought to bear and the Tribunal finds that the Respondent provided sufficient opportunities which the Claimant spurned.

[158]We find that the allegations were sufficiently clear and taking into account the lengthy discourse on collateral matters we find that had the Claimant focussed upon what those allegations were, she would have been able to explain at a meeting her position on each so as to enable the Respondent to take a rounded view of what the next steps would be. The fact that she did not so must lay at her door and not the Respondent’s. Even when the Claimant was absent on account of stress her ability to write detailed letters belies her suggestion that she was not fit to attend. She had the option of writing a response as well and we are satisfied that she was quite fit enough to respond to the allegations via that medium.

[159]The Claimant, on 24 October, sent an eleven-page letter to Mr Matthews over a range of issues and asking a substantial further number of questions. The detailed nature of these letters from the Claimant again belie any suggestion from her that she was not fit enough to attend a meeting in relation to allegations at the investigatory stage or at the very least send to the Respondent a written response as she had been permitted to do. The Tribunal reiterates that the fact that the Claimant did not ultimately have a substantive investigatory meeting where she was able to put her views on the allegations forward lies with the Claimant herself and the choices she made in dealing with the Respondent and by so acting in that way widened the gulf between the parties.

[160]In a letter dated 26 October the Claimant was sent a copy of the investigation report with supporting statements. In the letter Mitchell’s recommendations were that “the allegations against (the Claimant) are founded and so should be considered at a formal disciplinary hearing”. According to the policy all the designated investigatory manager has to do is to determine under 3.5.5 (1142) what the next step must be, although we accept that there would need to be a basis for that recommendation. Whether there was a need for the investigating officer to make a definitive finding that the allegations were founded is a moot point. It would have been sufficient for her to say that there was reasonable grounds for each and that she was satisfied on that basis a disciplinary hearing needed to be held to make the final findings.

[161]A disciplinary meeting was set for 10 November and any witnesses the Respondent intended to call would be notified by 3 November. The following additional points were made (514-517): a) The Claimant could have a TU representative or a work colleague and if the Claimant wished to call witnesses she would need to notify the Respondent by 3 November. b) Any reasonable adjustments needed to be notified and there was still time for OH involvement if consent was given for the same by the Claimant. c) The allegations were reiterated and set out in full. There were still seven in number. The original five plus two following the odd communications being sent d) The allegations may constitute gross misconduct and that if found may constitute grounds for dismissal. e) The hearing would be conducted in accordance with the “legacy Bournemouth” disciplinary policy and the bundle would be provided to the Claimant at least 5 working days before the hearing. f) The grievances against Butlin and Verrico would not be upheld for reasons given in the respective reports attached and she was given the opportunity to appeal those findings.

[162]On 2 November the Claimant wrote to Mitchell and contained within that was: a) Reconfirmation that because of her disability she needed extra time to respond to correspondence and she wanted a pre-meeting to discuss adjustments before the hearing itself. b) The Claimant asserted that it was unachievable for the Claimant to be ready in time. c) The Claimant indicated that she wished to cross examine the Respondent’s witnesses. d) The Claimant expressed her concern over the difficulty in gathering evidence in support when she was not permitted to contact her colleagues. e) The Claimant provided lists of questions to be answered by each of the witnesses who had provided statements. The Claimant had prepared 28 pages of detailed questions for the witnesses.

[163]Again, the Tribunal considers that is just a further example of the Claimant seeking to delay matters. We observe as we have previously that the Claimant was perfectly able to correspond in detail at this time and whilst we are mindful of her dyslexia and hearing issues we have not received any cogent evidence that they were the bar to participation that the Claimant has sought to assert. The Claimant had been aware of the allegations for many months and had ample opportunity to prepare any defence she wanted to put forward on a general basis. We accept that she now had the report and individual statements to consider but the time scales still seem eminently doable, in that she was able to draft 28 pages of perfectly sensible cross examination for the witnesses and had been able to do so, no doubt with assistance, relatively swiftly.

[164]On 7 November the Claimant wrote to the Respondent (562-563). She accused the Respondent of “using tactics to significantly disadvantage her” which at this time was a pack of documents that was difficult to follow on account of missing documents and erratic pagination. The Claimant continued to ask for a pre-meeting re her adjustments, to provide a full pack which correlated with a contents page, to ensure that there were answers to the questions she had asked in writing, to provide a schedule for the day and whether any statements had been taken and not served. She finished by enquiring whether it would be reasonable to proceed on 10 November. The Claimant indicated that it was her intention to record the meeting.

[165]On 7 November Mitchell wrote to the Claimant to say that they had noted that the bundle delivery had been delayed and had only arrived on Friday 4 November and so the Claimant would not have a full five working days before the hearing as per the Disciplinary Policy and on account of that and the Claimant’s request for more time to prepare, the meeting would be put back one week until 17 November. This is an example of the Respondent not always being spot on in terms of process. It also demonstrates that where there was a concern that process had not been followed, they then sought to remedy any potential unfairness by extending time.

[166]On 11 November Ms Lacey who was conducting the disciplinary hearing wrote to the Claimant as the Claimant had been sending her previous letters to Ms Mitchell whose investigatory process had come to an end. Mitchell’s only role now would be to report to Lacey at the disciplinary hearing. We are satisfied that the “disciplinary” baton was fairly passed onto Lacey, and it was appropriate and reasonable for her to correspond with the Claimant. The Claimant asserted that the letter and the bundle was only received on 15 November. Lacey dealt with the following: a) Encouraged the Claimant to liaise and co-operate with HR in respect of an OH referral vis a vis any reasonable adjustments; b) The Respondent were calling two witnesses to the hearing; c) A revised paginated bundle was said to be attached. d) Access to any witnesses the Claimant wanted to call would be facilitated via management e) The questions that the Claimant had posed were to be put to each witness and they would be given the opportunity to attend f) Mitchell would be at the hearing and would be available to be asked any questions. g) The Claimant would be given the notes of the meeting taken to comment upon re accuracy, but no recording would be permitted.

[167]On 14 November 2022 the Claimant wrote a one-line letter to the Respondent indicating that she would be bringing a claim against the Respondent for disability discrimination (failure to make reasonable adjustments).

[168]The first hearing of the disciplinary proceedings started at 0930 on 17 November 2022. Lacey was the Chair of the meeting and Davidge and Comper were in attendance from HR. Lynton took notes and Mitchell was present as a witness / presenter of the Respondent position. The Claimant did not attend with any support and that matter was raised at the outset when the Claimant responded: “You have declined my request under reasonable adjustments. …Dixon was meant to represent. The letter about this meeting only arrived two days ago along with the paperwork” There is a copy in the bundle of an envelope that indicates that a redelivery of the same was due to take place on 15 November (581).

[169]The Claimant requested that the meeting be recorded and Comper stated that it would not be recorded but would have written notes taken. There was a later request for the same and that was also refused. Lacey indicated that she would delay the hearing by an hour so as to allow the Claimant the opportunity to get somebody along to accompany her. In the event the notes suggest an hour and a quarter was given and when the Claimant indicated that she had not been successful Lacey decided to postpone the meeting for seven days until 24 November and confirmed that that the Respondent may be prepared to accept somebody outside of the individuals the Claimant would be able to bring pursuant to the statute / procedure.

[170]The delay to the substantive part of the meeting and the extension to the person accompanying the Claimant are further examples of the Respondent extending time in order to mitigate the effects of any potential disadvantage to the Claimant.

[171]The Claimant handed four grievances to Comper in relation to Farrant, Mitchell, Davidge and Thomas and indicated the view that those four grievances required attention before the hearing was reconvened and then when the hearing was reconvened the Claimant requested that all witnesses be available for questioning (586). A fifth grievance against Matthews was forwarded later that day. The Tribunal see the use of further grievances as being another example of the Claimant utilising her time for matters collateral to the disciplinary which should have been the main focus for her time which she persistently asserted she was short of. Further we see this as still further attempts by the Claimant to delay the disciplinary process by the deployment of collateral matters.

[172]On 18 November the Respondent confirmed the 24 November hearing date by way of a letter. Clarity was provided as to who could accompany the Claimant and it was made clear that not having somebody next time would not prevent the hearing proceeding. It was denied that adequate reasonable adjustments had not been complied with and pointed out that an OH assessment which had been prevented by the Claimant’s lack of consent would have provided a more comprehensive assessment. It was confirmed that the meeting would not be recorded and that reasonable attempts had been made to get witnesses to attend “but their attendance could not be guaranteed”. It was also confirmed that the recently produced grievances would not delay the disciplinary.

[173]The meeting reconvened on 24 November. The Claimant’s son Andrew Howse attended as the Claimant’s companion. This was outside the normal process. The following matters were discussed: a) At the start of the hearing the Claimant asked for the meeting to be recorded and again that request was refused. (592) b) The Claimant confirmed that she had received the amended bundle on 15 November and so had had the bundle since that time (593) c) The Claimant announced that she had substantial documents to provide and would do so as the hearing went on. It was pointed out that on 26 October the Claimant was told that if the Claimant wished to provide any documentation in evidence, then it would need to be with the Respondent by 3 November for distribution. The Claimant asserted that she was not aware of the need to disclose documents in advance despite the clear request to do so. The Tribunal do not accept that the Claimant did not understand what she was meant to do. Lacey decided that the Claimant could rely upon that documentation, but that time would be needed for the Respondent to consider the documentation put forward. Again, this was another concession to the manner in which the Claimant was conducting the disciplinary process. d) It was confirmed to the Claimant that all witnesses had declined to attend the hearing to be questioned and the reason for this stance was disclosed as variously being no longer working for the Respondent, concerns about the hearing in terms of health and well-being, sickness absence and professional commitments. e) The process was to be that the investigating officer would present the case and then the Claimant would be entitled to challenge the same. That process would then be reversed, and Lacey would be able to make enquiries of her own during both. There would then be a chance to sum the respective cases up. Possible outcomes were discussed and then the meeting was adjourned for what turned out to be two hours (598). f) A discussion was then had about a number of matters including the Claimant asking again for delay on account of her grievances. There was then a further hour break to copy, distribute and read additional information brought by the Claimant and Verrico’s answers to questions. g) Mitchell then made her presentation for half an hour and then there was a comfort break at the Claimant’s request. There was then another 25 minutes and then the Claimant asked for a further break and 20 minutes later the Claimant indicated that she did not feel well enough to continue. Dates were considered and the Claimant asked for it to be after some grievance appeals on 7 December but that was declined, and it was decided that the next date would be 2 December.

[174]It is an inevitable conclusion that little progress (again) was made at this meeting in terms of the substantive issues being considered. We find that the needs of the Claimant were considered and acted upon patiently by the Respondent

[175]The Disciplinary Hearing reconvened on 2 December as planned with the same attendees. The issue of the outstanding grievances, Occupational Health and recording the meeting were raised and the Respondent maintained their position thereon.

[176]The substantive meeting actually discussing the issues started at 1015. Mitchell concluded her presentation. After she had there was a discussion about additional anonymous allegations and Mitchell confirmed that even though she was aware of those allegations they had not played a part in her investigation.

[177]After a break Mr Howse asked questions on behalf of the Claimant for about 40 minutes and there was then a break before which the Claimant indicated that she did not think she would conclude her presentation that day. That break lasted an hour and upon returning the Claimant indicated that she was not well enough to continue, and the meeting was adjourned until 12 December. At the end as the meeting closed at 1400, Lacey set out the following: “Just to be absolutely clear regarding the expectation of 12 December. It is an opportunity to complete a set of questions to Mitchell, I would then expect the presentation of your case to be very focused on the seven allegations and would then have an opportunity to conclude on 12 December.”

[178]A letter of confirmation was sent to the Claimant from the Respondent and the expectation set out above was reiterated. We find that the forty minutes that Mitchell was questioned by Mr Howse was the first time in around thirteen months despite many opportunities that the Claimant had actually engaged to some degree with the allegations against her as opposed to discussing numerous collateral matters.

[179]The disciplinary hearing did reconvene on 12 December and Mr Howse asked questions of Ms Mitchell for approximately an hour and a quarter. The Claimant and Mr Howse then made their presentation until there was a break for lunch and concluded it afterwards. The Claimant then summed up and the hearing was brought to a close.

[180]Within the bundle is a copy of the Claimant’s written representations which run to some seventeen pages and the Claimant goes into detail in relation to each of the seven allegations against her.

[181]On 15 December Lacey wrote to the Claimant and communicated that she found all seven of the allegations to be upheld and that “in view of the seriousness of these allegations and having taken HR and legal advice, I have concluded that your employment with the Council be terminated for gross misconduct without notice”. It was said that the reason why summary dismissal fell within “a range of reasonable responses” was that: “ The gravity of your misconduct, including in particular your failure to observe your management responsibilities in supporting and encouraging the vaccination of staff, your failure to comply with reasonable management instructions, acting in a manner that could be regarded as bullying intimidating or harassment and you're unprofessional threatening and intimidating communication both with management and other members of the council”. The Claimant was given the opportunity to appeal and was told that had to be submitted by 5 January 2023. The outcome letter did not contain a detailed analysis of how Lacey had come to her conclusions.

[182]On 20 December 2022 the Claimant submitted her appeal against all seven allegations which she considered were refutable from the evidence and in particular that she had not failed to observe legitimate management instructions (1024-1028 Full Bundle). Again, the Claimant’s letter is a detailed and substantive one.

[183]On 22 December the Respondent wrote to the Claimant about her multifarious grievances, and it was confirmed that all outstanding grievances would be finalised by a written response and there would be no grievance meetings, but the Claimant could lodge further written representations and evidence with a view to concluding all by 28 February 2023 (681).

[184]On 17 January 2023 the Respondent wrote to the Claimant to confirm that no action would be taken on the so-called anonymous complaints that had been raised on 4 August on the basis that there had been found to be no evidence to substantiate the claims (689).

[185]Mr Raudsepp, a Service Director, was appointed to consider the appeal and he set the appeal for 29 March in a letter dated 17 January (1180). The Claimant sent a further letter to Mr Raudsepp on 24 January. She pointed out that she was still waiting for Lacey’s full determinations and rationale, and she would need to know those before presenting her appeal in full. She also asked for confirmation that the process to be followed would be the Bournemouth or legacy process and asked for “specialist audio equipment.”

[186]On 31 January Lacey responded to the Claimant’s request for further written reasons for her decision the document runs to 5 pages and will be considered in detail when considering the specific issue of unfair dismissal in due course. She concluded: “Overall, the gravity of your misconduct, including in particular your failure to observe your management responsibilities in supporting and encouraging the vaccination of staff, your failure to comply with reasonable management instructions, acting in a manner that could be regarded as bullying, intimidating, or harassing and your unprofessional, threatening, and intimidating communication both with management and other members of the Council was such that, not only was, summary dismissal within a range of reasonable responses, but it was the only reasonable sanction given the circumstances.”

[187]On 10 February Mr Raudsepp replied to the Claimant’s email of 24 January. He indicated that it would be the legacy Bournemouth policy that would be followed and that the meeting would not be recorded. The accompaniment arrangements were described as was the notetaking and the fact that additional documents requested by the Claimant would be added. He indicated that he would appreciate the Claimant specifying her grounds of appeal and in particular whether there were procedural challenges the Claimant was bringing or whether it was in relation to the sanction being incorrect (710-711).

[188]On 22 March the Claimant wrote to Mr Raudsepp indicating that: a) Various grievances had still not been completed; b) That she did not believe that she had been provided with a full pack of documents for the appeal hearing and highlighted what she considered was some deficiencies. c) That the hearing should be delayed. The Tribunal notes that even at the appeal stage and after dismissal, the Claimant was continuing to look for reasons to delay the process.

[189]On 27 March, Ms Winterman, an ER Lead, accepted the Claimant’s request for delay and pushed back the appeal to Friday 14 April. The Claimant was told that the management bundle would only include documents previously available to the Claimant and that if she wished to add any then they needed to arrive before 5 April. The Claimant indicated that she could not attend on 14 April and so the Respondent delayed the appeal until 15 May 2023. It was noted that this was not the first time the meeting had been rescheduled and the Claimant was warned that if she did not attend on that date then a decision may be made in her absence. The Tribunal do not consider in the circumstances of this case such a suggestion was in any way unreasonable.

[190]The appeal went ahead on 15 May. The Claimant attended with her son accompanying her. The hearing went on for three hours and notes of the meeting are set out between pages 728 and 779 of the bundle. The form of the meeting was that after numerous preliminary matters were raised by the Claimant Ms Lacey was called to detail how she arrived at her findings, and she was then subjected to questions from Mr Raudsepp and the Claimant. Following that process the Claimant was given the opportunity to make representations and from the notes it would appear that the Claimant’s son also took a full and appropriate part in the process. In terms of the Claimant being given an opportunity to adequately challenge the previous decision making the Tribunal are satisfied that that opportunity was given.

[191]On 24 May 2023 the outcome of the appeal was communicated, although not received on the Claimant’s case until 30 May. Raudsepp indicated that the Claimant had asked for more time to produce further written representations but that none had been forthcoming. His conclusion was: “I have found through my deliberations that the BCP process and procedures were followed in reaching the original decision. In relation to the original findings and evidence to dismiss you on the grounds of gross misconduct, I concluded that management had acted reasonably, given the substantial case and evidence presented before them. You failed to follow reasonable management instructions and continue to impose personal views which went against government legislation which the council brought to follow during the COVID-19 pandemic.”

[192]The Claimant had indicated that she believed she was entitled to present her appeal to a panel but was informed that there had been procedural changes in January 2022 and that the correct process had been followed. The Claimant was told that the process was now concluded.

[193]On 31 May 2023 the Claimant responded. The Claimant raised issues which she described as “manifest errors and bias” but said that she did so not in the expectation of any change to the decision.

[194]One of the major problems during this litigation is the Claimant’s failure to deal with matters in a logical or proportionate manner. We understand that the Claimant is a litigant in person and as explained earlier in this Judgment we have done everything that we can to ensure that we have discharged our duties in that regard in pursuance of the overriding objective. In particular we have constantly explained to the Claimant the importance of the Agreed List of Issues and that whilst evidence in relation to matters outside those may inform the Tribunal in coming to a decision on those issues, it was vitally important to focus in on those issues as ultimately success or failure would depend on whether the specific allegations that had been agreed between the parties were made out on the balance of probabilities. Despite this message being relayed it was not embraced by the Claimant.

Conclusions

[195]We will approach our conclusions in the following way. We will firstly deal with each of the detriment / discrimination claims so far as they impact all matters save for the dismissal. Those findings will inform the Tribunal when we come to make our final conclusions on the ordinary unfair dismissal claim. For each head of claim we will provide a sketch of the legal tests that we need to apply and then go on to make our factual conclusions. There are a number of findings which we have made in the preceding paragraphs which we have borne in mind when completing the following conclusions. Time Limits

[196]We can deal with the issues relating to time limits reasonably swiftly without going into too much detail. The List of Issues identifies that taking into account Early Conciliation then acts or omissions going back before 17 August are potentially out of time, subject to the consideration of whether there is conduct extending over a period.

[197]The issue is dealt with briefly in the Respondent’s counsel’s closing submissions where it is noted that all of the alleged detriments save for the disciplinary and the dismissal are out of time and the Claimant has provided no evidence to demonstrate any sufficient nexus between them to give rise to a continuing course of conduct.

[198]Whilst it is correct to say that there was little or no focus from the Claimant about the issue of time limits the Tribunal are unsure what requirement for evidence there was on the continuing act point as we can consider that on the issues as set out in the List of Issues.

[199]Much of the case law on time limits in discrimination and detriment cases has centred on whether there is continuing discrimination / detriment extending over a period of time or a series of distinct acts. Where there is a series of distinct acts, the time limit begins to run when each act is completed, whereas if there is continuing discrimination, time only begins to run when the last act is completed.

[200]In Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

, CA, the Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’. The focus in Hendricks should have been on the substance of the claimant’s allegations that the Police Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the police force were treated less favourably. The question was whether that was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.

[201]In Lyfar v Brighton and Sussex University Hospitals Trust

2006 EWCA Civ 1548

, CA it was confirmed that tribunals should look at the substance of the complaints in question, as opposed to the existence of a policy or regime and determine whether they can be said to be part of one continuing act by the employer.

[202]In Aziz v FDA

2010 EWCA Civ 304

, CA the Court noted that, in considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’.

[203]In Worcestershire Health and Care NHS Trust v Allen

2024 EAT 40

the EAT observed that there is no requirement that the ‘conduct’ extending over a period for the purpose of S.123(3) must all relate to the same protected characteristic. The EAT could see nothing in the language of the relevant provisions that would prevent the entire course of the racist and sexist behaviour constituting conduct extending over a period for time limit purposes. Similarly, there was no reason why conduct extending over a period cannot involve a number of different types of prohibited conduct, such as a mixture of harassment and direct discrimination although it may be more difficult to establish that there has been discriminatory conduct extending over a period where the acts that are said to be linked relate to different protected characteristics and different types of prohibited conduct, but there was no absolute bar that prevents there being conduct extending over a period in such circumstances.

[204]We are satisfied that looking at the substance of the complaints they are a continuing act which shows a worsening of the relationship with the Claimant’s line management as a result of issues that have arisen between them which escalates and finally leads to her suspension, investigation, discipline hearing and dismissal. Temporally all of the matters arise from the Autumn of 2021 which in turn leads into the sickness absence of a month and suspension not long after. To the extent that any discriminatory act is not part of a continuing act i.e., if we are wrong on that then we would have considered it just and equitable for time to be extended as whilst it is correct that the Claimant did not put forward a positive case, the balance of hardship is clear that she would lose the vast majority of her discrimination claims. The Respondent has not suggested any particular hardship in their closing submissions, but we are satisfied that even in the absence of Verrico the Respondent is able to, and has, defended these claims and so the balance of hardship falls in favour of giving a just and equitable extension. Protected Disclosures

[205]We deal first with the whistleblowing detriment claims. We first summarise the law in relation to such claims and then consider whether the Claimant did make a protected disclosure and then consider if protected disclosures were made whether or not the Claimant was subjected to a detriment on account of some or all of the protected disclosures.

[206]In order for a whistleblowing disclosure to be considered as a protected disclosure three requirements need to be satisfied (ERA 1996 s 43A). a) There needs to be a disclosure within the meaning of the Act. b) That disclosure must be a qualifying disclosure. c) It must be made by the worker in a manner that accords with the scheme set out at ERA 1996 ss 43C–43H. This is made out in this case because all of the alleged disclosures were made to the Respondent’s staff.

[207]The first issue that needs to be considered is whether or not there has been a disclosure for the purposes of the Act. The Act provides a very broad definition of what amounts to a disclosure and “any disclosure of information” will qualify (ERA 1996 s 43B(1)). In Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

, it was not sufficient that the Claimant had simply made allegations about the wrongdoer (especially where the claimed whistleblowing occurs within the claimant's own employment, as part of a dispute with his or her employer). As Slade J put it in that case: ''… the ordinary meaning of giving “information” is conveying facts” and went on to distinguish between a mere allegation and the conveying of information .

[208]However, in Western Union Payment Services UK Ltd v Anastasiou

UKEAT/0135/13

Eady J, following and applying the Cavendish distinction between information on the one hand and the making of an allegation or statement of position on the other, commented that 'the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact sensitive.'

[209]This comment was made in the context of one of two possible qualifications (or at least explanations) of the basic Cavendish principle, namely that although the most obvious form of disclosure will concern primary facts, there can also be cases of mixed primary facts and opinion which on balance would still qualify.

[210]In Kilraine v London Borough of Wandsworth ([2018) IRLR 846 one of four alleged protected disclosures was ruled out by the tribunal under the Cavendish approach, as falling into the category of 'allegation'. In the EAT (

[2016] IRLR 422

) Langstaff J said at [30]: ''I would caution some care in the application of the principle arising out of Cavendish Munro. The particular purported disclosure that the Appeal Tribunal had to consider in that case is set out at paragraph 6. It was in a letter from the Claimant's solicitors to her employer. On any fair reading there is nothing in it that could be taken as providing information. The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one, or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point'.'

[211]On further appeal to the Court of Appeal it was decided was that whatever is claimed to be a protected disclosure must contain sufficient information to qualify under the ERA 1996 s 43B(1) (our emphasis). Agreeing with Langstaff J, the position was said to be that, in effect, there is a spectrum to be applied and that, although pure allegation is insufficient (the actual result in Cavendish), a disclosure may contain sufficient information even if it also includes allegations. Moreover, the very term “information” must grammatically be construed within the overall phraseology which continues 'which tends to show …'. Ultimately, this will be a question of fact for the Tribunal, which must take into account the context and background. At para 41 of the judgment puts the point neatly by adapting the famous example given in Cavendish itself. The contrast was made there that if a nurse says to the management that 'the ward is filthy and there are sharps left about' that can be information, whereas if he or she simply says 'You are breaking health and safety law' that would be mere allegation. To this, the judgment adds that if the nurse made the latter remark while pointing to sharps lying around, that should be sufficient.

[212]The question therefore is whether there is sufficient by way of information to satisfy s 43B and that is a matter of fact for the tribunal. Clearly, the more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information/allegation divide.

[213]Once a disclosure has taken place it becomes necessary to consider whether or not that disclosure can be categorised as a qualifying disclosure. The definition breaks down into a number of elements. a) There must be a disclosure of information. b) The worker must believe that the disclosure is made in the public interest. c) If the worker does hold such a belief, it must be reasonably held. d) The worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). e) If the worker does hold such a belief, it must be reasonably held.

[214]As an initial starting point, it is necessary that the worker making the disclosure has a reasonable belief that the disclosure is in the public interest and tends to show one of the six statutory categories of 'failure' set out below (ERA 1996 s 43B(1)). All that is required is that the worker has a reasonable belief.

[215]It is not necessary for the information itself to be actually true. It follows that a disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect. Having said that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief the assessment of the individual's state of mind must be based upon the facts as understood by him or her at the time.

[216]It is also important to note that the statutory test is a subjective one. This is because the Act states that there must be a reasonable belief of the worker making the disclosure. It follows that the individual characteristics of the worker needs to be taken into account and the relevant test is not whether a hypothetical reasonable worker could have held such a reasonable belief. This was affirmed by the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, EAT.

[217]Where there is more than one disclosure, as here, the requirement is that there was a reasonable belief in relation to each; it is not enough that the Claimant can be shown to have believed in the general gist of his or her complaints.

[218]The issue of the public interest element of whistleblowing was considered in the leading case of Chesterton Global Ltd v Nurmohamed

[2017] IRLR 837

, that demonstrated that there is a 'bright line' between personal and public interest, with any element of the former ruling out the statutory protection. In a case of mixed interests, it is for the tribunal to rule as a matter of fact as to whether there was sufficient public interest to qualify under the legislation. The decision of the Court of Appeal (largely upholding that of the EAT) contains guidance as to how to approach that task. ''The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but [counsel for the employee's] fourfold classification of relevant factors which I have reproduced … above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.''

[219]The four factors adopted were as follows:(a) The numbers in the group whose interests the disclosure served;

(b) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;

(c) The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

(d) The identity of the alleged wrongdoer – as [counsel for the employee] put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” – though he goes on to say that this should not be taken too far.

[220]In addition, the very term 'public interest' is deliberately not defined by Parliament, leaving it to be applied by tribunals and not to be influenced by precedents from other areas where it is used in other contexts.

[221]The mental element imposes a two-stage test: a) Did the clamant have a genuine belief at the time that the disclosure was in the public interest, b) if so, did he or she have reasonable grounds for so believing? This point was explored further in Ibrahim v HCA International

[2019] EWCA Civ 207

, where it was held that the claimant's motivation for making the disclosure is not part of this test. As the judgment of Underhill LJ puts it: 'the necessary belief is simply that the disclosure was in the public interest' and 'the particular reasons why the worker believes it be so, are not of the essence'.

[222]The necessary reasonable belief in that public interest may (in an atypical case) arise on later contemplation by the employee and need not have been present at the time of making the disclosure (though as an evidential matter, the longer any temporal gap, the more difficult it may be to show the reasonable belief).

[223]Having dealt with the public interest element of the statutory test the Act sets out six categories of 'failure' to which the information must relate if the disclosure is to be one qualifying for protection (ERA 1996 s 43B(1)(a) to (f)). The categories of failure are as follows:(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health and safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been or is likely to be deliberately concealed. In this case the Claimant within the List of Issues relies upon those set out at (a), (b), and (d) above.

[224]With regard to head (b) (failure to comply with a legal obligation), the word 'legal' must be given its natural meaning, with the result that the fact that the individual making the disclosure thought that the employer's actions were morally wrong, professionally wrong or contrary to its own internal rules may not be sufficient. Subject to this possible limitation, a wide interpretation is to be given as to the nature of the legal obligation in question. Sub-s (1)(b) is in very broad terms and is capable of covering the commission of a tort such as defamation or breach of statutory duty.

[225]Case law has established that s 43B places two obligations on the employee. First, the disclosure of information in question must have identified to the employer the breach of legal obligation concerned: Fincham v HM Prison Service

UKEAT/0991/01

. It was, however, said there that this need not be 'in strict legal language'. Moreover, it has also been held that the context of the communication(s) must be borne in mind; in particular, this requirement is also met if the breach complained of is perfectly obvious.

[226]An employee wanting to rely on the whistleblowing protection before a tribunal bears the burden of proof on establishing the relevant failure. In Boulding v Land Securities Trillium (Media Services) Ltd

UKEAT/0023/06

Judge McMullen said: ''As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.

(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.'' Did the Claimant make any Protected Disclosures?

[227]The Claimant asserts that she made the disclosures within the List of Issues between 4.1.1.1 and 4.1.1.4. We will take each in turn.

[228]The first (4.1.1.1) is a verbal conversation with the Claimant’s manager Rosie Verrico on 16 September 2021. The Claimant sets out a wide spread of issues within the List of Issues that she asserts were discussed at this meeting. We do not need to list them here, as there is absolutely no evidence before us about this conversation and what was said therein. It was made clear to the parties at the outset that there would need to be evidence by way of witness statement, oral testimony or other documentary evidence that supported any allegation. There is nothing about this conversation within the Claimant’s witness statement and no notes of the meeting or any other evidence to support either that such a meeting took place or what was said within it. It is for the Claimant to demonstrate on the balance of probabilities that she made a protected disclosure, and she has failed to do so in respect of this alleged disclosure. We find that, on the evidence before us, there was no protected disclosure made to Verrico on 16 September.

[229]The next is at 4.1.1.2 and is phrased as being “by emails sent on and between 28 September 2021 and 5 October 2021 wherein the Claimant raised with her manager and with other managers and with UNISON about the way that the Respondent was pursuing its policy of compulsory COVID-19 vaccination”.

[230]The first point to make is that we do not accept that the Respondent was pursuing a policy of “compulsory COVID-19 vaccination”. We are satisfied that the Respondent would very much have preferred each member of staff to be vaccinated and we also accept that this was the message unequivocally conveyed to staff. The Tribunal can fully understand from an operational perspective management why they held that preference. Firstly, it meant that staff could be deployed to care homes and undertake work there if they were called to do it under the Regulations that were coming into force on 11 November 2021. Secondly, it would be likely to reduce the numbers of Covid among staff, both in terms of getting it and / or spreading it and thereby again increase the operation strength and flexibility of the Team as a whole.

[231]The genesis of these claims really arose as a result of the government’s decision to bring in Regulations that would oblige anybody working in or entering a care home to be vaccinated. The purpose of this is clear in that it appeared to be the best way to ensure that highly vulnerable individuals were exposed as little as possible to the Covid virus.

[232]The Respondent had no option but to comply with the law, but they were also required to ensure that they were in a position to adequately discharge all of their obligations whether statutory or otherwise. It was inevitable that some of the caseload for the Adult Social Care team would be dealing with the needs of individuals in care homes and it follows that members of staff and potentially managers may need to enter care homes and so they came within the potential scope of the Regulations.

[233]Planning would be required because of the lead times to becoming fully vaccinated by the date the Regulations were to come in. It was established that the first vaccination would need to be undertaken by 16 September. Staff were notified of the situation in the regular newsletters and on each occasion were asked to consider the guidance for colleagues and managers. That guidance set out who was covered, when you needed to start being vaccinated and set out that those who could not comply would need to be redeployed to a “position that was not required to enter a care home” and where that was not possible there may be no option but to dismiss. It went on to say that “any colleague in posts that were affected who were not medically exempt but were concerned about having the vaccine should discuss this with their manager at the earliest opportunity.” This was an opportunity for dialogue.

[234]We are satisfied that the Respondent was obliged to react to what was to be the “new normal” from 11 November and needed to clearly understand what resource they would have available to them. We remind ourselves of the uncertainty that was about at that time, and it was only natural for the Respondent to want to understand who they could deploy. We also considered and accepted the evidence given that the Adult Services team were extremely busy at the time. Mrs Smith stated that she and other managers were clear that it was an option for an individual not to declare their vaccine status and that would, of course, mean that the Respondent could not deploy that individual into a care home from 11 November. The Tribunal considers that this was an obvious alternative to any member of staff who did not wish to declare their status and was open to all.

[235]In the 28 September letter the Claimant asked the Respondent to provide a series of assurances or guarantees in relation to various aspects of the vaccine and kindred matters. She insisted upon “material evidence … beyond reasonable doubt” which the Respondent could not, reasonably, provide. Regardless of those matters we are satisfied that the opening part of the material letter, is the asking of questions and does not qualify as disclosures of information.

[236]The next paragraph suggests that staff may feel they had no option to comply which would amount to “coercion or duress”. Again, that is not the disclosure of information it is the expression of a view that the Claimant held and did not tend to show any of the statutory matters. The next paragraph reads as follows: “In addition to the above, staff contracts with council does not state that it is a requirement that they be vaccinated with a Covid 19 vaccination or that they need to disclose their vaccination status to you. You cannot change the contract without their agreement and therefore to try and force a change by threatening staff with job loss or a change of duties if they do not take a vaccination or declare their vaccination status to you is a breach of contract”. The Tribunal accepts that this is a disclosure of information as required within the Act and will return to whether it meets with the remainder of the definition of whistleblowing below.

[237]The remainder of the letter, in the view of the Tribunal, also falls to be accepted as disclosures of information line as opposed to simply being allegations, if read fairly in the context of that which has gone before. We accept that the Claimant had a reasonable belief that the matters raised tended to show a breaches of legal obligations, namely those matters set out.

[238]The last issue is whether the Claimant held a reasonable belief that the issues raised were in the public interest. The answer to that is that the Claimant held a firm belief that not only she, but a number of her staff’s contracts were being breached and looking at the criteria in Chesterton that was a reasonably large amount of staff. were being impacted. Did the clamant have a genuine belief at the time that the disclosure was in the public interest, if so, did he or she have reasonable grounds for so believing bearing in mind that the fact that she was arguably wrong and that the particular reasons why the worker believes it to so be not of the essence? We find narrowly that she did hold that genuine belief and subjectively she had grounds, all be it mistaken, for it. The parts identified above in the 28 September letter was a protected disclosure.

[239]The second letter in this period (222-223) does not contain a protected disclosure. There is no disclosure of information therein. It responds to Verrico’s letter of 30 September and asks what legal matters had been considered when Verrico asserted that she had taken legal advice and provided an extract from an Australian case.

[240]We conclude, therefore, that a small part of the 28 September 2021 letter was a protected disclosure, and it is these parts of the correspondence that we will take forward when we consider whether the Claimant was subjected to a detriment.

[241]The next alleged protected disclosure was asserted to have taken place over Teams on 2 November where the Claimant asserts that she told Verrico that the “Respondent was acting unlawfully, in breach of the Human Rights and data protection, by disclosing matters at team meetings” (4.1.1.3). At no point during the hearing did the Claimant specify precisely which part or parts of the 19 pages of transcript that she wished to rely upon for this allegation.

[242]We have read and considered the totality of that transcript which was a one hour return to work post sickness absence. It is readily apparent that the Claimant is not happy with her lot, nor is she happy with Verrico and the Claimant for the majority of that meeting and she makes complaints in relation to various aspects of what she perceives as treatment towards her. Verrico provides answers where she can and appears to remain professional constantly seeking to see a way forward but is on the receiving end of the Claimant’s ire. We do not consider, however, that the Claimant makes a protected disclosure in that meeting. In particular, we do not consider that the Claimant makes any proper disclosure of information. She makes an allegation that matters have been disclosed in team meetings and makes reference to the Nuremberg Code, but we do not consider that the statutory definition of a protected disclosure is met. It is also a meeting that largely centres on the Claimant’s personal issues as opposed to any public interest. It would have been helpful if the Claimant had at any point focussed upon why she was asserting there was a public disclosure had have given the Tribunal greater guidance as to why she considered that the statutory definition was met.

[243]The last of the alleged protected disclosures is also described widely at 4.1.1.4 as being “In 30 emails sent to Mr Stannard from 7 June 2022 to 21 December 2022 the Claimant wrote to Mr Stannard setting out concerns about the Respondent’s compulsory Covid 19 vaccination policy”.

[244]There can be no doubt at all that the Claimant intended her complaint to be a protected disclosure. She refers to that proposition constantly. It is written pursuant to the Respondent’s whistleblowing policy to the person who would normally deal with such matters as Head of Audit & Management Assurance within the Respondent. The Tribunal does accept that the email dated 10 June 2022 was, on balance, a protected disclosure. We do accept that by a narrow margin the Claimant has made a disclosure of information which goes beyond mere allegation and does place some information to support why she believes what she does. As an example, the Claimant does provide information about what she contends are breaches of health and safety.. She also identifies, all be it broadly, that the Respondent is allegedly in breach of employment contracts of staff and that are in breach of the Equality Act 2010 There is much of the letter which deals with her own individual circumstances which we acknowledge does not fall within any form of public interest, but taking into account all we have learned about the Claimant on balance we find that this opening letter to Mr Stannard was in fact a protected disclosure at law.

[245]We do not consider it to be helpful, in the circumstances, or indeed necessary that there is any need for us to make specific findings in relation to each and every one of the 30 emails that the Claimant wrote to Mr Stannard. That would be a time-consuming exercise and these reasons are long enough already. We accept that the Claimant indicated she was making protected disclosures, or they were letters following up the original disclosure. That correspondence was very self-contained.

[246]That is the extent of the protected disclosures in this case and next we consider the alleged whistleblowing detriments. The bulk of these can only be linked to the disclosure made in the 28 September letter as many of the alleged detriments pre-date the letter to Mr Stannard. Conclusions on Whistleblowing Detriment Claims 247. 1. Section 47B of the ERA 1996 reads as follows, so far as is material: “(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. (1A) A worker ('W') has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.”

[248]The use of the phrase 'subjected to' imports ordinary ideas of causation and does not require a further element of wilfulness and/or control of events on the part of the employer. 'Detriment' is not defined in the statute, but it is a well-known concept in discrimination law, and it is proper for us to apply that case law there under this section i.e., that there is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment: In particular, 'detriment' is to be given a wide interpretation.

[249]This formulation means that there is a causative element, namely that the protected disclosure needs to have materially influenced (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower: Fecitt v NHS Manchester

[2012] IRLR 64

. Moreover, the test here is not the same as that for dismissal for whistleblowing in s 103A where it must be shown that the protected disclosure was the reason or principal reason for the dismissal, a far tougher test.

[250]The requirement of causation means that, in common with victimisation in discrimination law, it is possible for an employer to defend a claim on the basis that the reason for the detrimental treatment was not the doing of the protected act in question, but the unacceptable way in which the claimant did it. This was established in Martin v Devonshires Solicitors

[2011] ICR 352

, EAT (a discrimination law case). In the whistleblowing case of Panayiotou v Kernaghan

[2014] IRLR 500

, EAT, it was said that the distinction is logical and that there is no requirement of exceptional circumstances, though it was also accepted that a tribunal must be alive to the possibility of spurious defences by employers relying on such circumstances.

[251]S 48(2) ERA applies to all detriment claims which are brought under s 47B ERA (which includes whistleblowing cases) and is drafted in the following terms: “On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

[252]The statutory burden is on the employer to show on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer's treatment of the employee: Fecitt.

[253]However, it is important not to cast that burden too highly and to apply the statutory wording. Although it may at first look like the well-known statutory reversal of the burden of proof in discrimination law (EqA 2010 s 136]), it appears that a direct analogy is not to be drawn with that discrimination law position which mandates a finding for the Claimant if the employer fails to convince the tribunal of its version of events. Serco Ltd v Dahou

[2017] IRLR 81

. This concerned detriment on trade union grounds, under TULR(C)A 1992 s 148 which uses similar wording (“…it shall be for the employer to show what was the sole or main purpose…”). The tribunal had considered that this was indeed to be interpreted in the same way as the burden of proof reversal in discrimination law, but the EAT (

[2015] IRLR 30

) pointed out that the wording there is different, actually requiring the tribunal to find against the employer if it does not satisfy the burden. TULR(C)A 1992 s 148, however, was said to be cast in terms which are more in line with those in the ERA 1996 s 48(2) which, according to Kuzel v Roche Products Ltd

[2008] IRLR 530

, CA (a case on whistleblowing dismissal, but showing a similar approach; This means that if the employer fails to show an innocent ground or purpose, the tribunal may draw an adverse inference and find liability but is not legally bound to do so. At para 53 Simler J summed the position up as follows: ''Accordingly, if a tribunal rejects the employer's purported reason for dismissal, it may conclude that this gives credence to the reason advanced by the employee, and it may find that the reason was the one asserted by the employee. However, it is not obliged to do so. The identification of the reason will depend on the findings of fact and inferences drawn from those facts. Depending on those findings, it remains open to it to conclude that the real reason was not one advanced by either side.'' That was endorsed by the Court of Appeal.

[254]One other point of law arose in the appeal in Dahou, concerning the position of the claimant in a case such as this and the whole question of when the statutory reversal is triggered. Does he or she have to produce some evidence of the illegal reason in order for the ultimate burden to be reversed? The EAT decision in Yewdall v Secretary of State for Work and Pensions

UKEAT/0071/05

suggested that, like discrimination law, there is an initial burden on the claimant to show a prima facie case. It has been argued that as a matter of policy this places too high an onus on the claimant, but in the Court of Appeal's decision Yewdall is cited at some length and with approval, the judgment stating that 'the burden of proof only passes to the employer after the employee has established a prima facie or arguable case of unfavourable treatment which requires to be explained'. To this limited extent, discrimination law does act as a precedent here.

[255]We take that legal position into account when coming to our conclusions. We will deal with each of the allegations in chronological order as opposed to the order in which they appear on the Issues but will continue to identify them by number for ease of reference. Prior to dealing with each one specifically we make some further general findings about the period leading up to the suspension which was a clear watershed in this case.

[256]This was a time of great stress for everybody due to the demands of Covid and one can only imagine the strains that the situation placed upon the Council in the adequate discharge of their daily duties and upon the staff who needed to carry them out. The Respondent were not on a frolic of their own they needed to be assured that Adult Services could provide those who used their services to the required standard in light of the strictures which were about to be imposed and that they were legally compliant. They knew what the position would be as of 11 November, and they had to plan for it. Proper planning was a perfectly reasonable exercise taking into account the obligations upon them and part of that planning inevitably required knowing precisely what resources they had to hand to deploy in respect of ensuring any duties in care homes were covered. It was a reasonable management expectation that staff would support them in their quest to ensure that their statutory duties could be complied with.

[257]We have already found that a strong preference was for staff to be vaccinated and we have already expressed the view that we consider there were good business reasons for that. We accept the evidence we have heard that there was encouragement to be vaccinated and that for example Butlin did express her views that was her strong preference and sought to lead by example in that regard. We accept that there was a limited number of staff who did consider, from their own perspective, that there was too much pressure being applied. Each individual looks at it in a different way, but, on balance, objectively we do not accept that the Respondent’s conduct crossed the line so as to amount to placing staff under duress or could be described as coercive. We are satisfied that at no time was there a compulsory vaccination policy at the Respondent.

[258]The messaging was not perfect all the time from the Respondent. Much of their messaging was to the effect that if you are not vaccinated or exempt from vaccination then consideration would need to be given to redeployment or if that was not possible dismissal. It would probably have been better if the Respondent had have emphasised from the outset what was the absolute reality of the situation that between those two states of affairs there would be a consideration of the reallocation of duties. The evidence particularly from the Claimant’s witness Ms Smith was that it was abundantly obvious that in reality there was no chance of people losing their jobs or even of being redeployed as the department were already short staffed and if visits to a care home were relatively rare, as the Claimant herself asserted, there was plenty of work to do for a non-vaccinated member of staff if someone took their place on a visit. We find that that position of very low risk should have been obvious to all and should have been obvious to the Claimant with her lengthy experience. Looking forward the risk of dismissal was minimal and in actual fact that was the way it turned out with no dismissals taking place for unvaccinated staff.

[259]So, we accept that the messaging could have been expressed slightly differently but consider that a reasonable employee would have fully understood the realities. Had the Claimant taken a step back and considered things logically then she too would have seen the reality of the situation. The Claimant, however, was absolutely focussed on what she considered was the Respondent’s failings that she was blinkered, if not blinded, by following her own agenda.

[260]The Claimant has failed to provide us with any clear evidence as to what factually took place in the period between mid-September and the suspension. Verrico against whom a number of the allegations have been made no longer works for the Respondent and so has given us no direct evidence on the allegations against her. Butlin has some insight but from a more senior position. We have a limited number of emails to consider, two transcripts of conversations in early November and we make our findings from the relatively little information we have.

[261]Whilst we consider that the Claimant at this early stage was not motivated malignly the Claimant was clearly feeling disenfranchised with the Respondent especially with the recent changes that had taken place which included the fact that her job title had changed. She provided a litany of complaints when speaking with Verrico at the Teams meeting of 2 November. The Claimant also held some strong views in respect of matters relating to or flowing from Covid and what she perceived as unlawful interference with the rights of herself and others.

[262]What is revealing is the way in which the Respondent dealt with the Claimant over this period and vice versa and a chronological consideration of it follows: a) On 21 September at a Team Meeting – In response to Verrico indicating, in our view not unreasonably, that she would like to know who she can deploy into care homes from 11 November or to put it another way who cannot go in as they are not vaccinated / have an exemption, the Claimant tells the Team that she believes that the policy is in breach of their contracts of employment and cited legislation and regulations as to why that was the case. This meeting is not cited as a meeting at where a protected disclosure was made, although arguably the Claimant’s comments are closely aligned to what we have found was a protected disclosure on 28 September. Verrico’s response was not to censure or shut down what potentially would cause her from a business perspective issues if more staff did not get vaccinated / were not prepared to disclose it but brings the meeting back into line by saying that individuals could speak with the claimant individually if they wanted to follow that up. There is no evidence that she took any further action at that point. Her actions at this meeting appear proportionate and the fact of the Claimant speaking about perceived illegality is not taken further by Verrico. b) Verrico then writes a letter in which she asks for evidence as to the various employee’s status which we have already accepted was a perfectly reasonable thing to do. We accept that for absolute clarity Verrico could have highlighted that a further option was not to disclose anything, but the Tribunal consider that this option would have been obvious to the staff. She specifically asks that any response be on a 1 to 1 basis, but the Claimant ignores that instruction and asks a series of questions of the Respondent for assurances beyond reasonable doubt (which they could never give) and makes further assertions that they are breaking the law. Verrico’s reaction to this letter is that she has a concern that there may be an issue of misconduct because she considers that the letter may amount to unreasonable conduct, could be seen as anti-vax and was not being supportive of the Respondent’s quest to comply with their legal obligations going forward. We can understand why Verrico might make that enquiry of HR but note that no immediate action was taken despite the public nature of the Claimant’s challenge. c) It would appear as if there was no appetite in the direct aftermath of the 28 September letter to take any disciplinary action taking the letter as a whole let alone the parts that amount to a protected disclosure. The response is proportionate and as stated earlier a letter is sent, in all probability drafted by HR, to place before the Team, to counter to the Claimant’s allegations and to inform all, including the Claimant, that she was available to discuss the issues on a confidential basis moving forward. This letter is proportionate and reasonable. There was a clear channel if the Claimant wished to discuss further, and the Respondent had set that parameter for that discourse. d) The Claimant responds to all again and perpetuates the debate by raising a number of other issues to the Respondent. The Claimant is in the early throes of sick leave. The email is described again by Verrico as anti vax, and it is clear that so far as she was concerned that was the message the Claimant was putting out. She is not expressing specific concern about the specific part of the protected disclosure where the Claimant asserts that the Respondent was in breach of contract / in breach of EqA etc.. The response this time is that it is escalated to Butlin who writes simply that if there are any further points in relation to the matters raised then they should be directed to herself. This is an appropriate escalation by Verrico and the Claimant now has the ear of a more senior manager who presumably would be more able to effect change if thought necessary. The Claimant also had the option to take matters higher if she did not feel at ease with discussing matters with Butlin. e) The Claimant’s reaction is to send the two communications to Ms Butlin (257-258). These were the strangely worded documents drafted by Nereus. It complied with the request to address only Butlin with the issues but did so in an outlandish and bizarre fashion. We are in little doubt that the manner and style that the letters were written was intended to impact upon Butlin adversely. Again, however, there was no immediate reaction by the Respondent to the Claimant in relation to these letters. f) The Claimant returns to work in early November and is fairly hostile to Verrico in two meetings. Verrico seeks to be upbeat and starts by trying to be chatty, but the transcripts show that the Claimant is simply wishing to air her various grievances in a forceful fashion. g) On 3 November Verrico becomes aware of the supervision with Ms Miles and what was recorded in the notes is set out earlier in this Judgment. Not only was the Claimant sending letters to her senior manager warning her of the consequences of the harm she alleged was being caused in strange language, she was now passing information that she was doing so and onto a level below her. The Tribunal can readily understand why this might move the situation onto the next level of concern and was not in keeping with the Respondent’s reasonable request to simply address matters with Ms Butlin.

[263]We are satisfied that it was the disclosure on 3 November, as captured in the supervision between the Claimant and Ms Miles, that was the straw that broke the camel’s back in relation to making a decision to suspend and commence the investigatory process. Having made those background findings which contextualise matters, we move on to addressing each specific alleged detriment.

[264]The first detriment we consider chronologically is set out at 6.1.2 of the List of Issues where the alleged detriment of the Claimant not being permitted “to apply for a new post following the restructure which would have removed the Claimant from the line management of Ms Verrico around September 2021”. We remind ourselves that there was no protected disclosure prior to 28 September. The Claimant herself gave no evidence about this allegation within her witness statement. We saw an email dated 3 September which is an update from Butlin to the Claimant (208). That demonstrates that the Claimant was interested in a potential Team Manager role in Poole and was told by Ms Butlin, in oral evidence, that what had been decided by the Service Managers (pre-28 September disclosure) was that: a) They would seek to maintain the minimum disruption to the Teams. b) One Team manager was being approached and was to be offered either the Poole area or the area covering the Hospital, and there would then be a vacancy in the area which he or she did not want. c) Any team manager would then be able to go for the remaining role and the Claimant was asked to raise any questions with Butlin about that situation.

[265]The vacancies had come about as a result of the very recent restructure. Butlin was cross examined on the subsequent decision making and explained that as it turned out the selection made was for the Poole post as the candidate lived near Poole. It was not deemed logical to move the Claimant out of where she was and then recruit for her position as it made more sense to keep the Claimant where she was and seek an external candidate or someone to cover the Hospital on an interim basis.

[266]The Tribunal considered the explanation proffered and accepted it. There was no evidence to support the fact that this decision post-dated the disclosure, but in any event the reason put forward by Butlin was sound and we accepted it as clear and cogent evidence. The detriment allegation at 6.1.2 is not well-founded and is dismissed.

[267]At 6.1.4 the Claimant asserts that following her sickness absence in October, the management of the Claimant’s team was removed from her, and an acting manager took over from the Claimant between 1 November and 8 November. The Claimant’s Fit Note expired on 31 October 2021 and so the Claimant would, all things being equal, be back for Monday 1 November. We have seen a letter dated 26 October, re an OH referral so it would appear that there was some query in the mind of the Respondent as to whether the Claimant was returning or not. Although that was when the certificate ended we have no evidence of any concrete confirmation that the Claimant would return at the end of the certificate.

[268]There was a conversation between Verrico and the Claimant on 1 November when Verrico was at Court from where she updated that there had been a number of absences and that two social workers had been acting up as managers. She confirmed that was a temporary measure due to not only the Claimant’s absence (268) but because she needed to bolster management, so that staff felt supported at what was a difficult time. The Claimant’s staff had been managed by Ms King and the necessary supervisions had been done. We are satisfied that as Verrico and the Claimant had not communicated about whether the Claimant was definitely to return on 1 November and that was a further reason why the additional supervisors had been maintained (270). King was waiting for Verrico to decide how everything should be shared out on 2 November moving forwards.

[269]Some decisions were clearly made as on 4 November the Claimant emailed Ms Miles to say that Ms King had made a success of managing “Pod 1” in the Claimant’s absence and that it made sense for her to continue in her new role as acting Team Manager. The Tribunal are unable to find any evidence that the decision for any changes of management were for anything other than sound operational reasons as described above. The Claimant has offered nothing in support of her contention that part of the 28 September letter had any influence over her continued supervision of staff. The detriment allegation at 6.1.4 is not well-founded and is dismissed.

[270]We consider that it is a similar situation in respect of the allegation at 6.1.3, namely that between 1 November 2021 and 8 November 2021 Verrico told the Claimant’s team that they were not to contact her, meet with her, or engage in conversation with her. Again, the evidence is relatively sparse save for the transcript of the meeting on 2 November. The Claimant does not deal with the matter in her statement and did not in evidence explain any building blocks for how it is asserted this came about. We can see that there was communication on 1 November (263 -265). In the Teams meeting (276) the Claimant raises the issue that meetings with staff had been cancelled. We can see emails where the reason given is again that Verrico needed to decide “how work can be divided up” moving forwards (264).

[271]The Claimant appears to take this (276) as an instruction by Verrico that staff do not contact the Claimant. We do not find that that is the same thing at all. The explanation given by Verrico at the meeting at a time when litigation was not even contemplated was that, “…In terms of your wellbeing it is to make sure you have the time and space to come back to work, I’m sure you have a million emails and we do have an additional manager , which doesn’t happen very often and Marie can come and bolster and support your return to work and Suzanne’s return to work too, so I think it’s a positive thing to split the work and have her pick up things and I think that will be very supportive of you and Suzanne”.

[272]This is evidence submitted by the Claimant who recorded the meeting. The Claimant does not take issue with the rationale given by Verrico and moves onto other matters of complaint at the time. She does not suggest that Verrico is subjecting her to a detriment because of her previous protected disclosure or indeed make any reference thereto in lay terms. We acknowledge that Verrico has not given evidence before us, but we know as a fact what her contemporaneous response was at the time because the Claimant recorded it. We have no evidence of any ongoing instructions by Verrico to freeze the Claimant out and we know as a fact that the Claimant met with Ms Miles, one of her Team for a supervision on 3 November as we have seen the supervision record. There is also an email between the two of them (Miles / Claimant) on 4 November. Taking into account all of the above we are satisfied that there was no blanket ban on communication as alleged and to the extent that there was any delay on 1 November that was for proper and good business reasons. In any event any action had nothing to do with the protected disclosure outlined above. The detriment allegation at 6.1.3 is not well-founded and is dismissed.

[273]At 6.1.5 the Claimant asserts that her suspension was a detriment. We accept that it was a detriment, but we do not accept that the small part of the letter on 28 September which we have cited as being the protected disclosure was a material influence i.e., we accept there was not a more than trivial influence. We have absolutely no evidence that the protected disclosure itself had any bearing on the decision to suspend.

[274]The decision to suspend came about as a direct consequence of the Claimant’s supervision meeting with Ms Miles when she disclosed to her subordinate that she would in effect be calling into account her superior Ms Butlin when she had been told to ensure that any communications should be with Ms Butlin. That is abundantly clear from the Employee Relations record. The Claimant had been tolerated up until that point and we have found that the Respondent acted reasonably and proportionately in how they dealt with the Claimant’s conduct as it emerged. It was when the Claimant went too far, in the eyes of the Respondent that they acted as they did because there was a concern that the Claimant was involving subordinates inappropriately and was not complying with direct instructions. The detriment allegation at 6.1.5 is not well-founded and is dismissed.

[275]At 6.1.1 the Claimant asserts that the Respondent refused to deal with the whistleblowing complaints made to Mr Stannard. Factually, this allegation is not made out because Mr Stannard did deal with the Claimant’s whistleblowing complaints but just not in a way that was to the Claimant’s satisfaction. We have dealt in detail with the Claimant’s interactions with Mr Stannard and will not go over that ground again but suffice to say that taken as a whole we consider that Mr Stannard did his very best to understand the Claimant’s position but was hampered often by the Claimant’s failure to adequately particularise matters. Our overall finding was that the Claimant utilised the whistleblowing process in order to try, in another way, to delay and obstruct the disciplinary process. She believed that it would act as a brake to the process that she was going through and that was her primary motivation with bringing those matters to Stannard. Whilst we do not doubt that she did hold concerns the main reason for the letter to Stannard and the painful process that followed was the Claimant’s desire to try and disrupt as much as she could. We do not believe that the disclosure to Stannard was one made in good faith, although of course that would only be relevant in compensation.

[276]We heard Stannard be cross examined and carefully considered his statement. It is clear that he was a very methodical man who took a pragmatic view as to what he was required to do in dealing with the Claimant’s complaint. Whilst it may well have been the case that others may have handled the issues differently and others may have had a different methodology and even different conclusions, we are unable to criticise what he did faced with what he was or suggest that he acted unreasonably.

[277]The Claimant puts forward a difficult proposition in that the man who was tasked within the Respondent to deal with whistleblowing complaints by the Respondent did not deal with the whistleblowing complaints and a significant influence in that was that the Claimant had made whistleblowing complaints. We find that Stannard took his role very seriously and sought to discharge it to the best of his abilities. He did deal with it ultimately by rejecting it. The detriment allegation at 6.1.1 is not well-founded and is

[278]At 6.1.6 it is suggested that Mitchell, subjected the Claimant to the detriment of being subjected to disciplinary proceedings in or around October or November. Factually that is correct in that Mitchell did determine that the correct course at the end of her investigation was that a disciplinary hearing should be held. It is also clear that to do that was to subject the Claimant to a detriment. The question in this allegation was to what extent was she influenced by the Claimant’s protected disclosures?

[279]The Claimant asserts that the whole process was pre-ordained from the start and that Mitchell was not an independent arbiter of the allegations. Either Mitchell herself was against the Claimant or alternatively she had been instructed to find against the Claimant by multiple other members of staff. We listened carefully to the evidence of Mitchell as she was involved with the Claimant for a lengthy period. She was robustly and appropriately challenged by the Claimant and issues were raised with her by the Tribunal. Whilst we are mindful that all staff have other things to do in their role than an investigation, they conduct we still consider that at the start of the investigation Mitchell could be criticised for failing to start the interviews at an earlier stage. We have considered her interviews with staff and accept the notes she took and consider that she conducted those interviews proportionately and fairly. We also bear in mind the leading questions she posed of Vitty, but having considered her oral evidence accept that was simply an error as opposed to being a deliberate attempt to secure the answers she wanted.

[280]It was important for Mitchell to establish a wider context by interviewing other members of staff as that would then enable her to focus more in the investigation. Mitchell was hampered by the Claimant’s attitude to the process which was designed to obstruct and was, in fact successful in delaying the process. That is not to say that some of the postponements were not at the fault of the Respondent, but by and large the Claimant just placed obstruction after obstruction thus making the process incredibly difficult.

[281]We accept that Mitchell did enough in order to try and get a clear and cogent response to the allegations from the Claimant. Even when there was a short meeting there was no progress. The investigatory process took the best part of a year and at the end of it Mitchell was no better informed of the Claimant’s specific position that she was at the start. We will deal with the reasonable adjustment claims below but whilst not perfect by any means we consider that the Claimant was given the opportunity to engage and the fact she did not is properly laid as a result of her own actions. We are satisfied that Mitchell conducted a reasonable enquiry taking into account the difficulties the Claimant presented.

[282]In respect of the specific question, we have to answer here we do not consider that the protected disclosures, as found, or indeed even those alleged, played any part in influencing Mitchell’s decision to put this matter forward for a disciplinary hearing. There is absolutely no evidence of that link in relation to letters in September. So far as the disclosure to Stannard is concerned, we are satisfied that was a very much self-contained discourse between Stannard and the Claimant and was not in the mind of Mitchell at all. The allegation at 6.1.6 is not well-founded and is dismissed.

[283]The last detriment allegation is the dismissal and so that is properly dealt with pursuant to section 103A of the ERA. We remind ourselves that to be successful in such a claim the Claimant would need to show that the protected disclosure was the principal reason for dismissal. We will deal with the reason for the dismissal and how we come to our conclusions later in these Reasons but for now we will simply record that we consider that the principal reason for dismissal was conduct which is a potentially fair reason. We do not accept that the protected disclosures as found had any material influence at all in the Respondent’s conduct that concluded in the Claimant’s dismissal. The automatically unfair dismissal claim pursuant to section 103A ERA is not well-founded and is dismissed. Direct Religion and Belief Discrimination

[284]Following the hearing before EJ Roper it was made clear that the only philosophical belief permitted to be relied upon at this hearing is a belief in bodily autonomy. In the List of Issues, it was understood (para 8.1 at 176) that “that individuals including herself should be allowed to refuse medical treatment including vaccination against Covid 19”. Her application to amend her claim to rely upon her belief in medical privacy was not permitted. Despite this previous ruling, which was not the subject of an appeal, the Claimant persisted in framing her belief as being inclusive of the medical privacy issue (see Claimant’s statement at 32.11). This is an example of the Claimant not accepting a situation and ploughing her own furrow regardless.

[285]What does a belief in bodily autonomy mean? It can be defined as the right to make decisions about one’s own body, life, and future, without coercion or violence, and in the context of this case the main issue is that the Claimant believed that individuals were being coerced / forced into being vaccinated. The Respondent has accepted that the belief is one that is capable of being a philosophical belief under the EqA and also accepts that the Claimant did hold that belief. In light of that no further enquiries were made into those areas at this hearing.

[286]We set out here the legal background for such claims as it is through that prism that we need to assess the facts in this case.

[287]

Article 9(1) of the ECHR

provides that: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”

[288]Article 9(2), however, inserts a proviso in respect of the right to manifest the freedoms enshrined in Article 9(1). It provides that: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitation as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

[289]The relationship between these two elements of Article 9 was considered by the ECtHR in Eweida and ors v United Kingdom

2013 IRLR 231

which described the position in the following terms: “Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9(1), freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practise in community with others and in public… Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9(2). This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”

[290]A person’s beliefs, whether religious or otherwise, are also protected under Article 9. This is clear not only from the fact that the Article guarantees freedom of thought and conscience in addition to religion but also from the express references to the right to ‘manifest religion or belief’. Not every belief qualifies for protection but in this case that is not an issue because it is accepted by all parties that the Claimant’s philosophical belief does fall within the ambit of a valid belief.

[291]It is important to note that the right to ‘freedom of thought, conscience and religion’ in Article 9 is expressed to include a freedom to ‘manifest’ religion or belief. And in Kalac v Turkey

1999 27 EHRR 552

, ECtHR, the Court made it clear that, ‘while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion not only in community with others, in public and within the circle of those whose faith one shares but also alone and in private’.

[292]Article 9(1) spells out the forms that manifestation of one’s religion or belief may take — i.e. worship, teaching, practice and observance. But, crucially, the Court in the Kalac case concluded that Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising freedom to manifest one’s religion, an individual may need to take the specific situation into account.

[293]The issue was revisited in Eweida where the ECtHR explained that even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief. So, for example, acts or omissions that do not directly express the belief concerned or which are only remotely connected to a precept of faith are to be regarded as falling outside the protection of Article 9(1). In order to count as a ‘manifestation’, the act in question must be intimately linked to the religion or belief. However, the manifestation of religion or belief is not limited to such acts: the existence of a sufficiently close and direct nexus between the act and the underlying belief held by the individual concerned must be determined on the facts of each case. In particular, there is no requirement on one to establish that he or she acted in fulfilment of a duty mandated by the religion in question.

[294]Article 10 deals with Freedom of Expression which is also a qualified right and section 3 of the Human Rights Act 1998 provides that where possible to do so primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention Rights.

[295]Although the right to manifest one’s religion has been consistently recognised, it is also well established that inappropriate manifestation, such as proselytising or promoting one’s beliefs in an intrusive or offensive manner, can still be sanctioned by employers without breaching

Article 9 ECHR

or S.13 EqA. Although manifestation of religious belief includes the right to persuade others of the tenets of the belief in question persistent and unwanted persuasion may constitute a legitimate basis for disciplinary action.

[296]There is a distinction between disciplining an employee because of the employee’s beliefs and disciplining an employee because of the way those beliefs are manifested see Wasteney v East London NHS Foundation Trust

2016 ICR 643

, EAT.

[297]The Court of Appeal reviewed the case law in this area in Page v NHS Trust Development Authority

2021 ICR 941

. The Court pointed out that the central issue in a direct discrimination claim is whether the act complained of was done ‘because of’ the protected characteristic (or whether the protected characteristic was the ‘reason for’ the treatment). It is thus necessary in every case properly to characterise the putative discriminator’s reason for acting. In a case where the reason is that the claimant has manifested his or her belief in some particular way to which objection could justifiably be taken, it is the objectionable manifestation of the belief, not the belief itself, which is treated as the reason for the act complained of. However, the Court cautioned that, if the consequences of the employee’s conduct are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself. The Court also endorsed HHJ Eady’s characterisation of the distinction in Wasteney as being between the manifestation of the religion or belief and the ‘inappropriate manner’ of its manifestation. The Court considered that this was an acceptable shorthand so long as it is understood that the word ‘manner’ is not limited to things such as intemperate or offensive language.

[298]Employers also have to deal with the situation where objection is taken to the expression of non-religious philosophical beliefs. There is a high bar for the exclusion of philosophical beliefs from the protection of S.10 EqA on the ground that they are not worthy of respect in a democratic society, and beliefs that are offensive, shocking or even disturbing to others can be as deserving of protection as religious convictions. When the public expression of such beliefs causes offence in the workplace, or opens the employer up to potential reputational damage, the question arises of whether the employer can take steps to restrain it.

[299]In Forstater the EAT referred to the EAT’s decision in Wasteney and the Court of Appeal’s decision in Page and directed itself that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner that is inappropriate or to which objection could reasonably be taken, bearing in mind an individual’s qualified right to manifest his or her belief under

Article 9 ECHR

. The tribunal concluded that F’s social media posts and other communications were little more than an assertion of the core protected belief, which could not be objected to even though it was capable of causing offence.

[300]In another appeal concerning ‘gender critical’ beliefs, Higgs v Farmor’s School (No.3)

2023 ICR 1072

, EAT, the EAT revisited the principles governing when an employer’s response to an allegedly inappropriate manifestation of a philosophical belief will constitute direct discrimination under S.13 EqA. Applying those principles to the present case, the EAT concluded that the tribunal’s findings on the reasons for the school’s actions 29 July 2024 did not follow the correct approach. The tribunal found that the school’s reason for disciplining and dismissing H was its concern that she might be perceived to hold ‘homophobic’ or ‘transphobic’ beliefs. The EAT held that, putting to one side the dangers that can arise from the use of labels that might mean different things to different people, the difficulty with the tribunal’s analysis was that it did not engage with the question whether this was, nonetheless, because of, or related to, H’s manifestation of her beliefs. The EAT accordingly allowed the appeal and remitted the case on the basis that H’s conduct was a manifestation of her beliefs. It will therefore be for the tribunal to determine, in accordance with Article 9, whether the measures adopted by the school were prescribed by law and, if so, whether those measures were necessary in pursuit of the protection of the rights, freedoms or reputation of others.

[301]Although the EAT was reluctant to lay down general guidance for such cases, it set out the basic principles that underpin the approach to be adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and freedom of expression: a) First, the foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend. b) Those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression. c) Whether a limitation or restriction is objectively justified will always be context specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment. d) It will always be necessary to ask:(i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question;

(ii) whether the limitation is rationally connected to that objective;

(iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and

(iv) whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter. e) In answering those questions within the context of a relationship: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience;

(v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;

(vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;

(vii) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;

(viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; d)

(ix) whether the limitation imposed is the least intrusive measure open to the employer. e) Higgs was considered by the EAT and handed down on 12 February 2025. The Judgment in this case had been drafted and was waiting for final sign off from the lay members but despite the delay in finalising the Judgment which had already accrued, as both parties had cited the EAT Judgment in their closing submissions EJ Self deemed it prudent to provide a short window for counsel to provide brief addendum submissions arising solely from the Higgs case. Two weeks were allowed and both parties lodged their submissions promptly. Those have been distributed to the members and a discussion has been held leading to this Judgment now being ready for promulgating. The matters set out there have been taken into account and considered against the facts of this case. f) 27. At paragraph 55 of the Higgs Court of Appeal judgment, Lord Justice Underhill wrote as follows: “It is worth clarifying one point that came up in the submissions before us. There will be cases where the treatment complained of by the employee was ostensibly on the ground of conduct which manifested a religious or other belief but where it is found that the real reason was an animus against the belief in question. Such a finding may be straightforwardly because the employer’s account of its reasons is disbelieved; but it may also be because, as I put it in McFarlane v Relate Avon Ltd

[2009] UKEAT 0106/09

/3011,

[2010] ICR 507

, it is in the circumstances of the particular case “impossible to see any basis for the objection other than an objection to the belief which it manifests” so but not the latter may be regarded as a distinction without a difference” (see para. 18). Neither kind of case is in truth a manifestation case at all, because the employer is motivated simply by the fact that the employee holds the belief. In a manifestation case proper the employer genuinely has no objection to the employee holding the belief and is motivated only by the conduct which constitutes its manifestation. Most claims of discrimination on the ground of religion or belief are likely to be genuine manifestation cases of this kind.” Conclusions on Religious and Belief Discrimination

[302]The allegations at 8.2.2 to 8.2.4 inclusive mirror the alleged protected disclosure detriments at 6.1.2 to 6.1.4. In summary they are: a) Not allowing the Claimant to apply for a new post; b) The Claimant’s team being told not to contact her; c) Management of her team was moved to an acting manager.

[303]We have made our findings of fact in relation to these allegations when we were considering them in light of the alleged whistleblowing detriment. We will not repeat our findings again but in short we found either that we accepted the Respondent’s explanation for why things had happened, or we did not accept the Claimant’s characterisation of what had happened. It follows therefore that factually these allegations are not made out / we accept the non-discriminatory reason given by the Respondent and so the Claims at 8.2.2 to 8.2.4 inclusive and so those claims are not well-founded and are

[304]The allegation at 8.2.1 was the subject of an amendment application before EJ Roper and refused so there is nothing to consider there.

[305]There was no evidence to support the allegations set out at 8.2.5 that: a) Verrico incited staff against the Claimant; b) Verrico tried to isolate the Claimant at work; c) Verrico laughed at the Claimant in Team meetings; d) Wed other managers to try and force the Claimant to be vaccinated.

[306]We have not heard any evidence from Verrico and for that matter the Claimant has not supplied us with any supporting evidence for that period either to support any of the individual allegations. Verrico was seeking to manage her team. We have already commented at Verrico’s reasonable dealings with the Claimant as presented through the Team meeting notes when the Claimant raised issues of her concerns. The Claimant has provided a transcript of two meetings with Verrico at a later point in the process where Verrico provides cogent explanations and delas reasonably with the Claimant and we consider that we have ample evidence which suggests that Verrico was trying to deal with matters in a proportionate and reasonable fashion. We bear in mind at she would have been speaking without knowing that she was being recorded. We find that the Claimant has failed to provide any evidence that the behaviours alleged at 8.2.5 took place and we have sufficient evidence before us about how Verrico conducted herself to find that the alleged behaviour did not take place. Accordingly, allegation 8.2.5 is not well-founded and is dismissed.

[307]Similarly, there is no evidence to support the allegation at 8.2.6 that Verrico asked other staff (Sampson, Oldfield and Cremin) to make complaints against the Claimant. It was for the Claimant to bring evidence to support these allegations and she failed. Whilst Verrico did become exercised by the Claimant’s conduct and spoke with HR about it from the end of September and took advice on the same, we have no evidence to support the fact that she was asking other staff to make complaints. Allegation 8.2.6 is not wellfounded and is dismissed.

[308]The Claimant’s belief that is in issue is her belief in bodily autonomy as recorded in the List of Issues. The original reasons for suspension was the Claimant’s failure to follow what was considered to be reasonable management instructions (2) and (3), her communication was said to be bullying and harassing and it was said she was being overbearing and insensitive in the manner that she was expressing her views (4) and (5). The final reason was that then Claimant was placing her personal views ahead of what were considered to be her management responsibilities and by so doing was placing individuals at risk. We are satisfied that whilst the Respondent held a different view to the Claimant about the Covid vaccination it did not hold a hostile animus against the Claimant holding the belief itself. Their concern was against the manifestation of that belief within the organisation which they tolerated for some time, and which culminated in a suspension following the Claimant’s conduct in the supervision meeting with a subordinate.

[309]We reiterate our primary findings above that the Respondent had grounds for wanting as many staff as possible to be vaccinated, that staff still had the right not to be vaccinated and we find that the Respondent’s conduct fell short of being coercive or threatening. We have also found that on any objective view it would have been clear that it was incredibly unlikely that anybody would have to be redeployed or dismissed.

[310]We do consider in light of our previous findings that the objective the employer was seeking to achieve i.e., gaining information to be compliant with the law that the government had determined was required to keep those in care homes safe was sufficiently important to justify the limitation of the Claimant’s right to be in the workplace and espousing threats to subordinates about how she was going to call senior members of staff into account. The Claimant was increasingly uncontrollable, and her behaviour was escalating via the first letters from Nereus and then her conduct in the supervision meeting.

[311]Following on from the considerations we need to look at, a decision to suspend and so seek to try and minimise the threat that the Claimant was posing was rationally connected to the objective of making safe those in care homes. The Respondent had tried less intrusive methods by permitting to staff to speak to the Claimant initially if they wanted and then providing the Claimant with conduits to discuss issues on a more limited or one to one basis. These strictures were ignored, and it was reasonable for the Respondent to see the Claimant’s escalation would be a threat to the aims of the Council, which lest we forget were imposed upon them by central government. We are satisfied that, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the latter outweighs the former.

[312]For the above reasons we do not accept that the direct discrimination re suspension claim is made out. The Claimant was suspended because of the way she conducted herself and her refusal despite patience from the Respondent to maintain any dialogue with her managers. We are satisfied that this is not a case where there was any objection to the Claimant’s belief itself and the Respondent was solely concerned with other issues such as the Claimant’s threatening behaviour and the Claimant’s inability to deal with matters in a manner reasonably prescribed. We are satisfied that the limitation or restriction imposed was objectively justified given the manner of the manifestation or expression and is properly understood as not being action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression and the likelihood of it continuing. For those reasons the suspension allegation at 8.2.7 is not well-founded and fails.

[313]Once the Claimant had been suspended and the investigation had started it was incumbent upon her to cooperate with that process and to take the opportunities afforded to her to seek to persuade the Respondent that no action was required. The Claimant did not take up those opportunities and in those circumstances, it was inevitable whatever the subject matter of the disciplinary allegations that the Claimant would be then subject to a disciplinary hearing. There was no less favourable treatment on account of the Claimant’s philosophical beliefs as the reason why moving to a disciplinary was on account of the Claimant’s abject failure to properly engage in the process and the evidence gathered against her. Allegation 8.2.8 is not well-founded and is dismissed.

[314]The final allegation direct discrimination allegation is in relation to dismissal and that will be dealt with in the context of the unfair dismissal discussion below. Broadly, however we are satisfied that the Claimant’s conduct was the reason for the dismissal, and we do not accept the Claimant’s philosophical belief was part of the reasoning related to the decision to dismiss. Harassment related to Philosophical Belief Section 26 of the Equality Act 2010 reads, so far as is relevant to this case as (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B…. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are….religious or philosophical belief.

[315]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, the EAT stated that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue and that, in each context, 'harassment' is defined in a way that focuses on three elements:(a) unwanted conduct;

(b) having the purpose or effect of either: (i) violating the claimant's dignity; or (ii) creating an adverse environment for him/her;

(c) on the prohibited grounds (that is, of sex, race, disability and so on). That refers back to wording of the statute before the Equality Act 2010 and now the consideration needs to be whether it is related to the relevant protected characteristic which in this case is a philosophical belief.

[316]The EAT remarked that it would normally be a 'healthy discipline' for tribunals to address each factor separately and ensure that factual findings are made on each of them.

[317]In Dhaliwal, the EAT went on to make the following general points:(a) Older case law decided before the modern statutory coverage is 'unlikely to be helpful'. Similarly, assistance is not to be sought from the 'entirely separate provisions' of the Protection from Harassment Act 1997.

(b) The alternative bases in element (b) above of purpose or effect must be respected so that, for example, a respondent can be liable for effects, even if they were not his purpose (and vice versa).

(c) In each case, there is a proviso that means that, even if the conduct has had the proscribed effect, it must also be reasonable that it did so. There is of course a subjective element ('… having regard to … the perception of that other person …') but ultimately the proviso can deal with cases of unreasonable proneness to take offence. Although 'purpose' is not determinative, it can be a factor: 'the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt' (at para 15 of the Judgment). Ultimately, this is all 'quintessentially a matter for the factual assessment of the tribunal'.

[318]In Pemberton v Inwood

[2018] EWCA Civ 564

, the Court of Appeal took the opportunity to re-visit the guidance given in Dhaliwal, to address what was identified to be a subtle change in wording in the Equality Act 2010 s 26, as compared to the earlier formulation under the RRA 1976 s 3A. Although not considering that this gave rise to any difference of substance, Underhill LJ reformulated the guidance to better reflect the language of the Equality Act, as ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under subparagraph (1)(b), a tribunal must consider both (by reason of subsection 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).''

[319]The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for them, then it should not be found to have done so.

[320]Dhaliwal concluded as follows: ''We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

[321]The question of whether or not the conduct is unwanted requires an assessment of the Claimant’s reaction to what has taken place. The Claimant has set out in the List of Issues the specific conduct that he asserts was unwanted and an assessment needs to be made if that is truly the case.

[322]'Conduct' can be physical or oral and can cover messages and images contained in documents or sent by email or distributed or displayed by other means. The conduct complained of as an act of harassment may be a dismissal. This was confirmed in relation to positive dismissals in Urso v Department for Work and Pensions

[2017] IRLR 304

, EAT.

[323]Although a complaint of harassment carries the implication of conduct persisting over a period of time, there is no requirement that this be so. A single act, if of sufficient seriousness, can be enough. It is important to remember not to take each allegation as an isolated incident, but each successive episode has its predecessors, and the impact of successive incidents may accumulate, and the work environment created may exceed the sum of the individual episodes (Reed v Stedman

(1999) IRLR 299

[324]Harassment will be unlawful if the conduct had either the purpose or the effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them) hereafter the prescribed effect).

[325]A claim based on 'purpose' would plainly require an analysis of the alleged harasser's motive or intention. This may, in turn, require the Employment Tribunal to draw inferences as to what that true motive or intent actually was as the person against whom the accusation is made is unlikely to simply admit to an unlawful purpose. In such cases, the burden of proof may shift from accuser to accused, as it does in other areas of discrimination law.

[326]Where the claim simply relies on the 'effect' of the conduct in question, the perpetrator's motive, or intention, which could be entirely innocent. is irrelevant. The test in this regard has, however, both subjective and objective elements to it and the EqA says that the following must be taken into account: the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have had the effect. The assessment requires the Tribunal to consider the effect of the conduct from the complainant's point of view; the subjective element. It must also ask, however, whether it was reasonable for the complainant to consider that conduct had that requisite effect; the objective element.

[327]As a consequence of the objective element to the test of whether conduct amounts to 'effect' harassment, the fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not necessarily mean that harassment will be shown to exist. In this regard, see the guidance given by the EAT in Driskel v Peninsula Business Services Ltd

[2000] IRLR 151

, which concerned the approach to be taken by employment tribunals, in determining whether alleged harassment constituted discrimination on grounds of sex. In Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered. That said, harassment giving rise to the defined effect may arise as a result of nicknames, teasing, name calling or other behaviour even when this is carried on without malicious intent.

[328]Although the focus will be on the behaviour which is complained of as harassment, the conduct of the complainant themselves may not be entirely irrelevant. Tribunals will wish to be careful not to engage in 'victim-blaming', but the complainant's own behaviour and perspective will be part of the context in which the alleged 'harassment' will have to be seen.

[329]There is no requirement for the complainant to put forward a comparator (hypothetical or real). The conduct must, however, be 'related to' a relevant protected characteristic. Ultimately, the protection is against harassment that is, itself, a form of discrimination. Bullying is, of itself, not discrimination, except in the unhelpful sense that it involves treating some individuals differently to others.

[330]All that said, 'related to' imports a potentially very broad test, leaving the scope of the term largely to employment tribunals to apply on a case-bycase basis. Having established on the evidence what was the conduct of the particular individual or individuals in question, the employment tribunal has then to apply an objective test in determining whether it was 'related to' the protected characteristic in issue; the intention of the actors concerned might form part of the relevant circumstances but will not be determinative of the question the tribunal has to answer.

[331]Whilst the view of the complainant that the conduct in question is related to the protected characteristic in question is a relevant matter, it is not determinative. The Tribunal should articulate distinctly, and with sufficient clarity, what feature or features of the evidence or facts found have led it to the conclusion that the conduct is related to the characteristic as alleged. It may be “because of” the protected characteristic but case law dictates that related to is wider than just “because of”.

[332]Section 136 of the Equality Act 2010 deals with the burden of proof to be applied for both harassment and direct discrimination claims. That section reads as follows so far as is relevant: 136(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

[333]As discrimination is frequently covert and therefore can present special problems of proof, section 136 EqA provides that, once there are facts from which an employment tribunal could decide that an unlawful act of discrimination has taken place, the burden of proof ‘shifts’ to the respondent to prove a non-discriminatory explanation.

[334]If a Claimant is unable to establish a clear case of discrimination, he or she can attempt to shift the burden of proof onto the respondent by establishing what is commonly known as a ‘prima facie case of discrimination’. It is clear from S.136(2) that a prima facie case of discrimination is established if there are facts from which the court could decide, in the absence of any other explanation, that the Respondent has contravened the provision concerned (i.e. unlawfully discriminated against the Claimant).

[335]The issue of what amounts to a prima facie case of discrimination lies at the heart of the shifting burden of proof. It will depend on what inferences can be drawn from the surrounding facts.

[336]In Madarassy v Nomura International plc

2007 ICR 867

, it was stated that: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

[337]A failure of the Respondent to provide an explanation, without more, is not capable of shifting the burden of proof. Having said that Tribunals have been encouraged to retain a flexible approach when applying the burden of proof. In Laing v Manchester City Council and anor

2006 ICR 1519

the EAT, emphasised that “the process of drawing an inference of discrimination is a matter for factual assessment and is situationspecific”. Conclusions on Harassment

[338]There are five allegations of harassment that mirror some of the allegations of direct discrimination. Findings of fact have been made which are sufficient for four of those claims to be dismissed on the basis that the factual allegations themselves are not proven and those are in summary: a) Claimant not to meet with her team on Verrico’s instructions 10.1.1; b) Management removed from her 10.1.2 c) Verrico inciting staff against the Claimant 10.1.3 d) Soliciting complaints 10.1.4 e) Suspension 10.1.5 In those circumstances the Tribunal does not need to go through each of those in any detail in terms of the specific legal test of harassment.

[339]So far as the suspension is concerned, we accept that it was unwanted conduct. We do not accept that it was related to her philosophical belief in itself, but we have already explained why taking that action was fully justified in relation to the Claimant’s manifestation of belief as expressed in her conduct.

[340]Although the Claimant did not directly address the point, we accept that she would have considered the behaviour to be intimidating and hostile, but we consider that in the context of the whole circumstances of the case (as previously described) objectively a suspension at that point it was not reasonable for it have that effect.

[341]Taking all those matters into account the claims of harassment at 10.1.1 to 10.1.5 inclusive are not well-founded and are dismissed. Reasonable Adjustments Claim

[342]The legal background for the reasonable adjustments claim is as follows. The duty to make adjustments under S.20 EqA comprises three discrete requirements, any one of which will trigger an obligation on the employer to make any adjustment that would be reasonable. A failure to comply with the requirement is a failure to make reasonable adjustments and an employer will be regarded as having discriminated against the disabled person. So far as this claim is concerned, we only need consider two requirements, the first of which is where a provision, criterion, or practice (PCP) has been applied by the employer that places the disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled or in relation to where an auxiliary aid or the failure to provide an auxiliary aid placed the Claimant at the same substantial disadvantage.

[343]By this provision the employer falls under a duty to take such steps as it is reasonable to take to avoid the disadvantage in question. The first task is to identify the relevant PCP or auxiliary aid. The Claimant has set those out in the List of Issues at paragraph 9.

[344]An employer has a defence to a claim for breach of the statutory duty (and, in fact, is relieved of any legal obligation to make reasonable adjustments) if it does not know and could not reasonably be expected to know that the disabled person is disabled and is likely to be placed at a substantial disadvantage by the PCP. As set out earlier, actual or constructive knowledge must be had of the disability and also of the likelihood that the disabled employee would be placed at that disadvantage. Accordingly, the question is what objectively the employer could reasonably have known following reasonable enquiry. But case law has established that employers do not have to make every possible enquiry in circumstances where there is little or no reasonable basis for so doing.

[345]Although not defined in the statute, some assistance as to the meaning of provision, criterion or practice is afforded by the Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’), which states that the term “should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications, or provisions. A [PCP] may also include decisions to do something in the future — such as a policy or criterion that has not yet been applied”, as well as a “one-off” or discretionary decision’ (para 4.5).

[346]Where a disabled person claims that a ‘practice’ (as opposed to a provision or criterion) puts him or her at a substantial disadvantage, the EAT has held that the alleged practice must have an element of repetition about it and be applicable to both the disabled person and the non-disabled comparators (Nottingham City Transport Ltd v Harvey EAT 0032/12).

[347]A flawed implementation of a workplace procedure was also held not to amount to a ‘practice’ in London Borough of Haringey v Oksuzoglu EAT 0248/18. There, the EAT overturned an employment tribunal’s finding that the failure properly to apply the redeployment provisions in the employer’s absence management policy entailed the application of a PCP such as to trigger the duty to make reasonable adjustments. In the EAT’s view, what had occurred was no more than a one-off act done in error and the necessary element of general application or repetition was accordingly missing.

[348]A one-off act can, however, amount to a practice if there is some indication that it would be repeated were similar circumstances to arise in the future (Ishola v Transport for London

2020 ICR 1204

). In Simler LJ’s view, the function of the PCP in a reasonable adjustment context is to identify what it is about the employer’s management of the employee or its operation that causes substantial disadvantage to the disabled employee. The act of discrimination that must be justified is not the disadvantage, but the PCP. To test whether the PCP is discriminatory or not it must be capable of being applied to others. However widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. The words ‘provision, criterion or practice’ all carry the connotation of a state of affairs indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. Simler LJ agreed that although a one-off decision or act can be a practice, it is not necessarily one.

[349]A tribunal needs to be wary of overly technical arguments that a PCP has not actually been ‘applied’ to a disabled person to preclude an otherwise valid claim. In Rider v Leeds City Council EAT 0243/11 the EAT was satisfied that the instruction to return to the previous post, repeated on a number of occasions, without any consideration of alternative posts, amounted to the application of a PCP.

[350]Also relevant in this Claim is the third and final situation in which the duty to make reasonable adjustments arises where, but for the provision of an auxiliary aid, a disabled person would be put at a substantial disadvantage in comparison with non-disabled persons — S.20(5) EqA

[351]In its ordinary meaning, an auxiliary aid is a piece of technology or equipment that is intended to assist a disabled person. In practice, the provision of auxiliary aids in the form of equipment, is one of the most common types of reasonable adjustment made by employers.

[352]The tribunal needs to consider: a) Whether the claimant was put at a substantial disadvantage by not having the auxiliary aid complained of. If not, the duty to make adjustments does not arise b) Consider whether the adjustment would reduce or avoid the disadvantage to the claimant, and c) Consider whether the adjustment was a reasonable one to make.

[353]Since both requirements are couched in terms of putting the disabled person at a ‘substantial disadvantage in comparison with persons who are not disabled’, it is clear that the concept of substantial disadvantage is a significant one. The EqA is defines ‘substantial disadvantage’: as something that is “more than minor or trivial” (S.212(1) EqA). It is necessary to identify the nature and extent of the disadvantage to which the claimant is subjected with some degree of precision. And since substantial disadvantage must be established via a comparison of “persons who are not disabled”, the duty to make reasonable adjustments will only be triggered if it is established that the relevant PCP causes greater disadvantage to the disabled claimant than it does to non-disabled people, not generally but in relation to persons to whom the requirement is applied.

[354]The Claimant bears the burden of establishing a prima facie case that the duty to make reasonable adjustments has arisen and that there are facts from which it could reasonably be inferred — absent an explanation — that the duty has been breached. Once the Tribunal is satisfied that the S.20 duty has potentially been triggered, the Tribunal is obliged to consider what adjustments could and should have been made which will entail identifying. the ‘step’ or ‘steps’, if any, the employer could reasonably have taken to prevent the Claimant from suffering the disadvantage in question. Again, the onus falls on the Claimant, not the employer, to identify in broad terms the nature of the adjustment that would ameliorate the substantial disadvantage. Having done so, the burden then shifts to the employer to show that the disadvantage would not have been eliminated or reduced by the proposed adjustment and/or that the adjustment was not a reasonable one to make.

[355]It is crucial to bear in mind that the S.20 duty only arises in respect of those steps that it is reasonable for the employer to take to avoid the disadvantage experienced by the disabled person. The test of reasonableness in this context is an objective one. The reasonable adjustment provisions are concerned with practical outcomes and the focus must therefore be on whether the adjustment itself can be considered reasonable rather than on the reasonableness of the process by which the employer reached the decision about the proposed adjustment.

[356]The EqA does not specify the factors that go to reasonableness in this regard, but considerable assistance can be drawn from the list set out in the Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’) and case law. The courts have held that one factor above all others is crucial: the effectiveness of the proposed step or steps. It is most unlikely to be reasonable for an employer to have to make an adjustment that involves little or no benefit to the disabled person in terms of ameliorating the disadvantage to which he or she has been subjected by the PCP. There does not have to be absolute certainty, or even a good prospect, — of an adjustment removing a disadvantage in order for that adjustment to be regarded as being a reasonable one. It would be sufficient to conclude, on the evidence, that there would have been a chance of the disadvantage being alleviated. The Tribunal needs to consider whether the adjustment would, or might, be effective in removing or reducing the disadvantage that the claimant is experiencing at work as a result of the disability and not whether it would, or might, advantage the claimant generally or, indeed, disabled people as a whole.

[357]The first claim relates to an admitted PCP namely the Respondent’s disciplinary procedure. The pleaded PCP specifically refers to that including “the time frames” within it. For the avoidance of doubt, and as discussed with the parties, the time frames that the Tribunal consider are within that policy are as follows: a) The employee must be given the opportunity at reasonable notice (no less than 10 working days unless by agreement) to attend a disciplinary hearing. b) Papers (statement or other evidence to be considered) shall be agreed up to 5 days before the hearing. c) If not made at the hearing the decision will be communicated within 5 working days of the hearing as will written notice of the right to appeal.

[358]The substantial disadvantage asserted by the Claimant in relation to this PCP is that as the Claimant required more time that those without a disability to read and absorb documentation quickly in advance of meetings. The reasonable adjustment asserted was giving the Claimant documents well in advance of meetings so that she had time to read and process them. The disability relied upon for this claim relates to her dyslexia alone.

[359]We accept that the Respondent did apply the disciplinary policy to the Claimant, and we are satisfied that amounted to a PCP under the EqA. In the List of Issues, the substantial disadvantage asserted was (9.3.1), “The claimant required more time than those without her disabilities to read and absorb documentation quickly in advance of formal meetings such as disciplinary meetings.”

[360]The Tribunal does not accept that the time scales within the disciplinary process itself, which can be described as generous, would have caused the Claimant a substantial disadvantage compared to a non-disabled person. Whilst we accept based on the evidence of the Claimant’s dyslexia that she would benefit from more time than a non-disabled person, we consider that the time limits within the disciplinary process (and indeed the whole of the policy) would have given the Claimant sufficient time to prepare as it would have done a non-disabled comparator. It may well be that a non-disabled person would require less time, but we consider that the policy allowed sufficient time for the Claimant as well and we note that she was able to write a number of substantial emails during the period which seems to show her capacity to engage fully with the process.

[361]The Claimant is correct to say however that there were times when because of postal issues or errors by the Respondent that the time limits in the policy were not always adhered to fully. The one thing that characterises the internal process is inordinate delay, and we are satisfied that on any occasion when a time scale between provision of documents for meetings and the meeting itself was too short which may have caused the Claimant a substantial disadvantage then the meeting was postponed to a later date, thereby affording the Claimant sufficient time to prepare. That was an adjustment that was applied. If anything, the Respondent were too generous in their allowances for the Claimant re time scales in this case.

[362]In conclusion therefore in respect of the PCP at 9.2.1 and the substantial disadvantage at 9.3.1 we are satisfied that the Respondent knew or ought to have known of both the disability and the substantial disadvantage. Whilst it is correct that no OH referral was made due to an impasse that arose between the parties the Claimant was vocal enough about her condition to provide the Respondent with sufficient knowledge that short time scales could cause a substantial disadvantage.

[363]The substantial disadvantage, which would only have been present when time scales shorter than the disciplinary policy were used. We are satisfied that when that situation presented itself the Respondent delayed meetings so that the Claimant did in fact have the documents well in advance of the meetings so that she could have time to read and process them. To that extent reasonable adjustments were granted when necessary. The Reasonable Adjustment claim at 9.2.1, 9.3.1 and 9.6.2 is not well-founded and is dismissed.

[364]The second claim (9.2.2) relates to a failure to provide an auxiliary aid in that the Respondent did not allow the recording of formal meetings such as disciplinary meetings. The substantial disadvantage compared to nondisabled comparators was that the Claimant found it harder to absorb and process information during the course of formal meetings and the adjustment suggested was to allow the Claimant to record meetings. This was linked to the Claimant’s impairments of dyslexia and hearing loss.

[365]The third claim asserted was not appointing an independent note taker to formal meetings and that was linked to the same disadvantage as the second claim above and the reasonable adjustment contended for was providing the Claimant with assistance to take notes during the meeting.

[366]These two allegations are broadly similar in that they both relate to the means by which the events and speech within disciplinary meetings were captured and so can be conveniently dealt with together.

[367]In the Disciplinary Policy for the Investigatory Meeting the Rules at 3.5.4 simply say that notes should be taken of the interview and made available to the employee prior to any disciplinary meeting (1142). In actual fact a notetaker is not mentioned at the disciplinary hearing stage. There was a notetaker engaged by the Respondent, Mr Lynton, who the Claimant described in her evidence as a very nice man, but she formed the view that he was pressured by management to provide an inaccurate note. The Claimant was due to bring a Trade Union Representative to the investigatory meeting but that did not ultimately work out and during her disciplinary meetings her son accompanied her and additions were made to Mr Lynton’s notes.

[368]The Respondent did apply a PCP that the meetings should not be recorded. The Respondent were very firm about this at all stages. The Tribunal were somewhat puzzled by the firmness of the stance taken as it would not have been difficult for a recording to be made and it would have provided a comprehensive and complete transcript of all that was said and done and would have saved a lot of discussion and angst. We have considered whether the Respondent’s refusal can be said to be suspicious in any way or an attempt by the Respondent to manipulate matters in their favour.

[369]We do not accept that it was suspicious. They had a policy and stuck to it and the most likely reason is that they did not wish to set a precedent for others. That reasoning, of course, would not save them from a finding of disability discrimination if the Claimant can show that to do so would have been a reasonable adjustment that would have ameliorated any relevant substantial disadvantage.

[370]There was a notetaker provided by the Respondent who did not have any direct knowledge or involvement with the matters that were in issue. He provided his notes which were not verbatim but provided a general overview. In the disciplinary hearing the Claimant was able to produce a record of the meeting which provided a fair amount of additional material, especially related to the Claimant’s side’s responses. We have considered those notes with the additions and are satisfied that with the Claimant’s input a comprehensive note was taken of each of the hearings, and which was then available for the Claimant to review and plan her next steps. There are few if any occasions where the Claimant disputes a note that was taken, and the main differences are additions which provide additional context or explanations as to how one moves from one stage of the meeting to another.

[371]The substantial disadvantage asserted in the List of Issues is that the Claimant found it harder than those who did not have her disabilities to absorb and process information during the course of the meetings. This substantial disadvantage focusses upon what is taking place during the meeting. Having considered the notes the Claimant does not appear to be struggling to absorb and process information and appears to have a ready answer to what is put to her. Indeed, most of the time she effectively takes control of the meetings and takes them to the areas that she wishes to discuss, relevant or not. Having considered the notes and having listened to the evidence we do not consider that the substantial disadvantage asserted is present and we do not accept that the Claimant has demonstrated that she suffered any disadvantage during the meeting itself let alone in comparison to a non-disabled person. Even if there was a disadvantage it is difficult to see that having a recording of the meeting would have assisted the Claimant. It is possible she could have asked the meeting to be paused so she could listen again to what the Respondent had said but she had the ability to ask for a point to be repeated which would have served the same purpose and there were many times where the same point was gone over on more than one occasion.

[372]We are also not satisfied that the Claimant suffered any substantial disadvantage compared to a non-disabled person by not having a transcript after the hearings. The Claimant had the notes taken by Mr Lynton and they were supplemented by her son who was taking a note. Having absolute precision would not, in our view, have made a material difference. The Claimant has not demonstrated that she suffered a substantial disadvantage as required in the EqA and the reasonable adjustment claim at 9.2.2, 9.3.2 and 9.6.3 is not well founded and is dismissed.

[373]So far as the claim flowing from the PCP re the independent notetaker is concerned that is also not well-founded. There was a notetaker. It was in our view perfectly reasonable to get somebody who was within the organisation but outside of the facts of the case to take a note. We are satisfied Mr Lynton was “independent” of the facts and so we consider that he was, to all intents and purposes, an independent observer. To the extent that he was not wholly independent of the Respondent as he was an employee of them we do not accept that the Claimant has demonstrated that his presence as opposed to an independent third party caused any substantial disadvantage to her. The allegation at 9.2.3, 9.3.2 and 9.6.3 are not well founded and are dismissed.

[374]The Claimant suggests at 9.6.1 that a reasonable adjustment would have been to provide the Claimant with assistance to take notes during the hearings. The Respondent allowed her son to take notes at the disciplinary hearings and the appeal and so to the extent that a reasonable adjustment was required that adjustment was made.

[375]Taking into account all of the above the reasonable adjustment claims are not well-founded and are dismissed. Unfair Dismissal

[376]The first stage of an unfair dismissal claim is that the Respondent has to demonstrate that the principal reason for dismissal, which must be a potentially fair one, and if that is done a consideration must then be made of whether the dismissal is fair or unfair having regard to the reason shown. That will depend (section 98(4) ERA) upon “in the circumstances (including the size and administrative resources of the Respondent) the employer acted reasonably or unreasonably in treating it as a sufficient reason to dismiss, determining the same in accordance with equity and the substantial merits of the case.”

[377]As stated above the first step in an unfair dismissal claim is to find the principal reason for dismissal, which for over fifty years has been defined as “the set of facts known to the employer or beliefs held by him which caused him to dismiss the employee” (Abernethy V Mott Hay and Anderson

(1974) IRLR 213

and the burden of showing that reason lies with the Respondent. The Respondent’s pleaded case is that the dismissal was on account of the Claimant’s alleged misconduct.

[378]In a conduct dismissal the Tribunal will need to consider the three-fold test in British Home Stores Limited v Burchell

(1980) ICR 303

. That is that the employer had a genuine belief that the employee was guilty of misconduct and that it had reasonable grounds upon which to sustain that belief following a reasonable investigation taking account the circumstances.

[379]We remind ourselves that when assessing whether the Burchell test has been met that we have to consider whether what occurred fell within a range of reasonable responses of a reasonable employer both in relation to the decision to dismiss and when considering the procedure that was employed to reach that decision. We are in particular, not entitled to substitute our own view.

[380]In so far as process is concerned Lord Bridge in Polkey v AE Dayton Services Limited

(1988) ICR 142

itemised the necessary procedural steps as being an investigation into the conduct and then a fair hearing in order to see what the Claimant says about the allegations.

[381]In her closing submissions the Claimant asserts as follows: “The dismissal was based upon my advocacy for fully informed consent and adherence to legal and ethical standards regarding the Respondent’s vaccine mandate. The disciplinary process leading to my dismissal was procedurally flawed, lacking independence, transparency and fairness. Multiple breaches of employment law occurred demonstrating that the process was designed to reach a pre-determined outcome rather than to assess the facts impartially.”

[382]We are satisfied that the principal reason for the dismissal was in relation to the Claimant’s conduct, which we have also found previously in this Judgment was not tainted by either discrimination in relation to religion / belief or disability or by whistleblowing detriment. In reality there was no alternative put forward as an alternative reason for the dismissal, rather the Claimant approached the case on the basis that she should not have been dismissed because of the conduct alleged. This is a claim that rests upon the reasonableness of the decision to dismiss taking into account all the circumstances of the case. We take into account, as enjoined by the statute, the size and administrative resources of the Respondent. They are a relatively large Local Authority and are better equipped to deal with a disciplinary process than many other employers, although we recognise that even for a comparatively large employer like the Respondent, their resources are not boundless and the Claimant during the course of the process was certainly exceptionally challenging and time consuming.

[383]In the List of Issues, the Claimant raised some specific issues in support of her primary contention that her dismissal was unfair. So far as a fair procedure is concerned each will be dealt with in turn: a)2.5.1 -The Claimant was refused extra time for answering complex correspondence - The Tribunal are quite satisfied that the principal reason why matters turned out to be so complex and took so much time was that the Claimant and her approach and attitude to internal disciplinary proceedings. Whilst the Respondent did make the occasional errors which accounted for some delay there was intrinsically no reason at all why the disciplinary process could not have been a relatively simple process as the allegations themselves were relatively straightforward. Matters were complicated by the Claimant pushing back on everything that the Respondent suggested and raising grievance after grievance to seek to delay and undermine the process. The Tribunal are quite satisfied that the Claimant did so as a deliberate act so as to seek to delay the process as much as possible and in that aim she largely succeeded. Any complexity in the correspondence was as a result of the multiple letters the Claimant sent raising over twenty grievances, involving Mr Stannard in the whistleblowing, writing to the disciplinary officers and also to various individuals in HR and wider in the organisation. There was a great deal of correspondence to deal with but only because of the way the Claimant decided to conduct herself. We observe that to a large extent the Claimant appears to have been able to cope with these various aspects and responded with lengthy detailed ripostes. We find that any complex correspondence was as a result of the Claimant’s own actions and the Respondent was consistently afforded extra time throughout the process. We do not consider that the Respondent did generally refuse the Claimant extra time, and this is not an example of unfairness on the part of the Respondent. b)

2.5.2 – The Claimant was sent multiple pieces of correspondence at once with unreasonable deadlines – As stated above the multiple element was due to the way the Claimant herself decided to act within the disciplinary proceedings and so any difficulty was a result of her own conduct. The deadlines were largely not unreasonable, and we reiterate there were countless times where time limits were extended to facilitate complaints made by the Claimant. c)

2.5.3 – The Respondent refused a written request (made on 4 separate occasions) to discuss reasonable adjustments – Reasonable adjustments were regularly spoken about in the correspondence. We have found that in actual fact there was no failure on the part of the Respondent to make reasonable adjustments. It was not that the Respondent refused to talk about reasonable adjustments but more that they did not accept that what the Claimant was asking for, was a reasonable adjustment. On our findings they were correct and no material unfairness flows. d)

2.5.4 – It is correct that the Claimant did not see OH. The offer was there but like a number of other things in this case it never took place, and we are satisfied that the reason it did not take place was because of the Claimant’s conduct. The Claimant could have provided her own medical evidence to support the adjustments she was seeking but never did. Even at this hearing there was no medical evidence supplied to suggest that there was a need for the reasonable adjustments contended for or even that the Claimant would be placed at a substantial disadvantage. e)

2.5.5 – The Respondent would not let the Claimant record the disciplinary meetings. They could have done but they did not. It is not part of their standard process and many employers do not habitually record such meetings but instead opt for notetakers instead. Of itself, and in the circumstances of this case we have found that the Claimant was not materially disadvantaged by the stance taken by the Respondent, and we do not consider in light of there being a full note compiled between the Claimant’s son and the Respondent’s note taker that there was any material unfairness in the stance taken by the respondent in the way they recorded the meeting. f)

2.5.6 – This allegation is not made out as the standard policy of who could accompany the Claimant was widened in scope to allow Mr Howse to attend with his mother. g) In summary of the specific matters raised between 2.5.1 and 2.5.6 none are found by the Tribunal to have been materially unfair to the Claimant.

[384]The Claimant set out at paragraph 2.3 four other matters that she asserted rendered the dismissal unfair and again we will deal with each of these in turn: a)2.3.1 – We have found earlier in this Judgment that the Claimant was not treated unfavourably because of making protected disclosures / her philosophical beliefs and we will not repeat our findings again here. b)

2.3.2 – The chair of the disciplinary hearing was biased. We have no doubt that the Claimant firmly believes that and did so throughout the process. The Claimant has asserted on a number of occasions that shadowy forces with the Respondent (line management team, HR officers and senior management) had determined from an early stage that she was to go and were effectively pulling the strings and instructing both Mitchell and Lacey. We heard from Mitchell, and she gave clear and cogent answers when challenged and we are satisfied that she sought at all times to discharge her duties with diligence and integrity. We do not accept that either knowingly or by way of unseen manipulation Mitchell was influenced by the Respondent as to the way she conducted things or when she came to her conclusions. She will have sought advice from HR as to process but the steps she took were perfectly reasonable in the Tribunal’s view. In reality, she had a series of serious allegations that the Claimant never provided her a proper explanation of, and we find it is difficult to envisage how she could not have recommended anything other than a full disciplinary hearing. We did not have the benefit of hearing from Lacey. We did hear from Comper who again provided clear and cogent evidence all be it from her observational perspective. Comper was professional and we are satisfied that she was an appropriate guardian to ensure that rules were as far as they could kept to. The Claimant was unable to offer anything to the Tribunal other than the fact Lacey found against her to suggest bias. She did raise the issue of Lacey responding to letters she had sent to Mitchell, which was said to evidence collusion, but we find that it was entirely appropriate for Lacey to respond to matters that pertained to the hearing she was ultimately going to adjudicate at. We are not satisfied that the Claimant has demonstrated that either Mitchell or Lacey were biased. Having considered the documents within the bundle we cannot fins anything there that would suggest bias or that there were forces outside of the nominated decision makers who were actually making the decisions. c)

2.3.3 - It is right to say that the Claimant’s grievances were not disposed of prior to the disciplinary allegations were finalised. There was vast array of grievances and almost anything that anybody did at one stage elicited yet another grievance. The Claimant was of course entitled to raise grievances, but the Tribunal are satisfied that the Claimant raised them with the intention of seeking to disrupt the investigatory and disciplinary process. The Tribunal are satisfied that the Respondent acted in accordance with section 46 of the ACAS Code of Practice wherein where there are overlapping grievance and disciplinary cases there is a discretion as to whether to suspend the disciplinary to deal with the grievance, but it may also be appropriate to deal with them concurrently. The Tribunal is satisfied that thought went into how to deal with the situation by the Respondent and most importantly there was no material prejudice to the Claimant who was on our finding raising the grievances in bad faith so as with the intention of disrupting the process. Many of the grievances were not detailed within the main bundle but we are satisfied that there was no material unfairness in dealing with the disciplinary matters when they were. d)

2.3.4 – There is the same finding in respect of not allowing the whistleblowing process with Stannard to be completed. Again, we have found that the Claimant used that as a device to try and delay matters. We find that the Claimant’s actions did cause much delay and issues but ultimately it was perfectly fair and reasonable for the disciplinary hearing to go ahead and be determined. In any event Stannard did consider the issues raised by the Claimant and simply reasonably disagreed with her view.

[385]We have commented from time to time about things that the Respondent could have done better. This was an extreme HR situation and would have tested the capabilities of any organisation. When coming to our final decision we take into account the errors which we have identified at paragraphs 73 (initial delay in investigation), paragraph 92, (leading questions to Mr Vitty), paragraph 90 (Davidge referring to a disciplinary instead of investigatory), paragraph 160 (Mitchell arguably going beyond her remit).

[386]We have also considered the fact that the Claimant was not able to cross examine the various witnesses and was only able to ask them written questions. Taking into account the circumstances that was a proportionate, pragmatic, and ultimate fair decision in the context of this case. Mitchell was questioned in person. Lacey had those answers and challenges to weigh in the balance and from her detailed exposition off how she came to her findings we are satisfied that the Claimant was treated fairly and was able to challenge maters appropriately.

[387]So was the dismissal an unfair one. We find that it was not. Taking into account all the findings which we have made we consider that the decision to suspend, investigate and then determine the disciplinary allegations were overall dealt with in a way that fell within a band of reasonable responses taking into account all the circumstances outlined above.

[388]We have gone through and dismissed the specific aspects that the Claimant has identified as rendering the dismissal unfair. We consider that the investigation was a reasonable one. Of course, things could have been done differently, other individuals could have been spoken to etc, but we are satisfied that the enquiry was proportionate and reasonable. Efforts were made at the investigation stage to hear from the Claimant, but the Claimant preferred to delay matters by way of a host of collateral matters that she elected to bring to the fore.

[389]As previously stated, we are satisfied that taking into account the way that the investigation went Mitchell’s outcome could not have been anything other than that which it was.

[390]We are satisfied that Lacey had a genuine belief on reasonable grounds of the Claimant’s guilt and that was following a reasonable inquiry. The decision to dismiss fell within a band of reasonable responses and the letter setting out Lacey’s conclusions is clear and cogent. On her findings we are satisfied that the Claimant’s conduct can properly and reasonably be said to amount to gross misconduct and taking into account the massive gulf between the parties and the breakdown between them not only was the appropriate sanction dismissal, there was no other option but to dismissal in our view. We do not accept that the protected disclosures as found had any bearing on matters let alone be the principal reason and we further reject that it was anything to do with the Claimant’s philosophical belief. It was the Claimant’s failure to comply with reasonable management instructions and the threatening letters that she sent which was the cause of her dismissal Wrongful Dismissal

[391]The Claimant was dismissed for gross misconduct and in those circumstances her contract ended summarily, and no notice is payable. The Claimant seeks her notice pay and by doing so challenges the finding of gross misconduct that the Respondent is relying upon.

[392]In a wrongful dismissal claim the tribunal is concerned, not with the reasonableness of the employer’s decision to dismiss, but with the factual question: was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract? We have answered that question in the affirmative above, but we deal with it further here

[393]In Briscoe v Lubrizol Ltd

2002 IRLR 607

, the Court of Appeal approved the test set out in Neary and anor v Dean of Westminster

1999 IRLR 288

, where Lord Jauncey asserted that the conduct “must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment”. The Court of Appeal in Briscoe stressed that the employee’s conduct should be viewed objectively, and so an employee can repudiate the contract even without an intention to do so.

[394]Cases involving repudiatory breaches by employees typically rely on serious misconduct by the employee, such as dishonesty, intentional disobedience or negligence. They often speak of ‘gross misconduct’ but the underlying legal test to be applied by courts and tribunals is not whether the employee’s negligence or misconduct is worthy of the epithet ‘gross’, but whether it amounts to repudiation of the whole contract. This is a question of fact.

[395]In determining whether an employee has repudiated the contract of employment, factors such as the nature of the employment and the employee’s past conduct will be relevant. An employee who disobeys his or her employer’s lawful instructions is likely to be in breach of the implied duty of cooperation However, not all acts of disobedience are repudiatory breaches. In Laws v London Chronicle (Indicator Newspapers) Ltd the Court of Appeal thought that, to be repudiatory, ‘the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions. A single act of disobedience or insubordination may amount to a repudiation.

[396]An employer faced with a repudiatory breach of contract by an employee can choose to waive that breach and affirm the contract. This does not necessarily require any positive action on the employer’s part, as it may be taken to have acquiesced and affirmed the contract if it fails to respond to the breach.

[397]The primary allegations against the Claimant can be broken down into smaller categories: a) A failure to carry out “reasonable management instructions” to only communicate the legal position and the Respondent’s guidance on vaccination of staff and to only discuss concerns about the Respondent’s views on those things wither Service Director b) Communicating with management in an unprofessional and threatening way designed to intimidate them and continued when asked to desist.

[398]For all of the reason set out above we are satisfied that the Claimant did fail to abide by reasonable management instructions and also did write to management in an unprofessional and threatening way. Objectively her conduct was such that it did meet the test set out in Neary above. The claim of wrongful dismissal is not well-founded and is dismissed.

[399]It follows, therefore, that all claims made by the Claimant stand dismissed. THIS ORDER HAS BEEN APPROVED BY

Conclusions

[1]By a document headed “Application for Reconsideration of Reserved Judgment” the Claimant seeks a reconsideration of the Judgment promulgated and sent to the parties on 6 June 2025. That document runs to some fifty-five pages and was accompanied by a number of annexes. On the first page the Claimant asserted that “the length of the application is proportionate to the number and seriousness of the tribunal’s omissions and procedural irregularities”. That may be the Claimant’s view but there was repetition within the document and the application was found to be opaque and difficult to fully understand in parts.

[2]Rules 68–71 of the Tribunal Rules 2024 sets out the procedure for tribunals to ‘reconsider’ judgments. Any reference to the Rules hereafter are to those 2024 Tribunal Rules.

[3]So far as is relevant a ‘judgment’ is defined in rule 2(1) as “a decision, made at any stage of the proceedings, which finally determines a claim, or part of a claim, as regards liability, remedy or costs …”

[4]Under rule 68, a judgment will only be reconsidered where it is “necessary in the interests of justice to do so”. Clearly a tribunal dealing with the question of reconsideration must seek to give effect to the overriding objective to deal with cases “fairly and justly” under rule 3. This includes: a) ensuring that the parties are on an equal footing b) dealing with cases in ways which are proportionate to the complexity and importance of the issues c) avoiding unnecessary formality and seeking flexibility in the proceedings d) avoiding delay, so far as compatible with proper consideration of the issues; and e) saving expense.

[5]In Outasight VB Ltd v Brown 2015 ICR D11 Her Honour Judge Eady QC accepted that the wording “necessary in the interests of justice” allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. However, this discretion must be exercised judicially, “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”.

[6]The reconsideration procedure can be used to correct errors that occur in the course of proceedings, regardless of whether the error was a major or a minor one.

[7]In Williams v Ferrosan Ltd

2004 IRLR 607

the EAT made it clear that in light of the overriding objective, there was, in fact, no reason for the circumstances for a reconsideration to b exceptional as earlier case law on the then rules had suggested.

[8]Events that occur subsequent to a hearing may justify a reconsideration in the interests of justice. However, not every change in circumstances after a decision has been reached will justify a reconsideration.

[9]Reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the tribunal at the time it made its judgment. The underlying principles to be applied by tribunals in such circumstances are the same as those which apply in civil litigation by virtue of the well-known case of Ladd v Marshall

1954 3 All ER 745

.. There, the Court of Appeal established that, in order to justify the reception of fresh evidence, it is necessary to show: a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing b) that the evidence is relevant and would probably have had an important influence on the hearing; and c) that the evidence is apparently credible. Where new evidence relates to a crucial finding of fact, it is clear that the appropriate course is to apply for a reconsideration rather than to appeal to the EAT.

[10]In AB v Home Office EAT 0363/13 the Appeal Tribunal clarified the correct approach to be taken to applications for reconsideration where an employment tribunal has failed to determine an issue, or where an issue has been determined but the tribunal’s reasons for the decision are inadequate. The EAT held that there was a distinction to be drawn between a) overlooking an issue altogether and therefore not deciding it, and b) deciding an issue and giving reasons for it which were inadequate or incomplete.

[11]An employment judge who, on receiving an application for reconsideration, appreciated that the tribunal had overlooked an issue, should usually arrange for the tribunal to reconsider its judgment: it would be necessary in the interests of justice for the tribunal to determine that issue. The tribunal could hold a further hearing, or it might give the parties a reasonable opportunity to make further representations. On the other hand, if the judge considered that the tribunal had decided the issue and the reasons were incomplete or inadequate, but there were no reasonable prospects of the judgment being varied or revoked, the judge must not order reconsideration.

[12]The decision in AB was applied in Ameyaw v PricewaterhouseCoopers Services Ltd EAT 0291/19. The EAT held that an application for reconsideration is not a vehicle for challenging a tribunal’s reasons or, in so far as they do not form part of the essential reasoning upon which the decision is based, other things said by the tribunal in arriving at its decision. A’s application for reconsideration was a clear example of the situation in which a judgment cannot be re-opened simply to address alleged errors in the tribunal’s reasoning. A did not wish to have the judgment on the employer’s strike-out application — which was to her advantage — varied or revoked. Her challenge was only to the reasons given by the employment judge. What she was seeking to achieve was an alteration in the content of the tribunal’s reasons, not a change in the result. In those circumstances, the application for reconsideration was not one permitted by the Tribunal Rules .

[13]This application for reconsideration has been presented in writing and copied to all other parties within 14 days of the date on which the original decision of the final Judgment was sent to the parties. The reserved decision was sent out on 6 June 2025 and the application for a reconsideration was received on 20 June 2025. The only exception is the matter raised at K16 of the application (page 31) which relates to a Judgment on recusal that was sent to the parties on 5 February and time is not extended for that matter to be reconsidered. In addition, rule 69 directs that the application must set out why a reconsideration of the original decision is necessary i.e., in the interests of justice. An application for reconsideration should normally include an indication of which decisions within a judgment a party is inviting an employment tribunal to reconsider.

[14]At this point of the process and pursuant to Rule 70 of the Tribunal Rules 2024 I am simply considering whether there is no reasonable prospect of the original decision being varied or revoked. I will undertake that step without seeking any representations by the Respondent as to do so is in accordance with the overriding objective and in particular to saving costs. In accordance with the Practice Direction on panel composition issued by the Senior President of Tribunals on 29 October 2024, this step is to be undertaken by a judge sitting alone. . If he or she considers that there is no reasonable prospect of the original decision being varied or revoked, the application will be refused and the tribunal will inform the parties accordingly.

[15]In the event that the application is not refused in its totality, the tribunal will send a notice to the Respondent setting a time limit for any response to the application by the Respondent and seeking the parties’ views on whether the remainder of the application can be determined without a hearing (rule 70(3)). The notice may also set out the tribunal’s provisional views on the application, although it does not have to do so. The matter will then proceed to a hearing, unless the tribunal considers, having regard to any response to the application, that a hearing is ‘not necessary in the interests of justice’ (rule 70(4)). If the reconsideration proceeds without a hearing, the parties shall be given a reasonable opportunity to make further written representations (rule 70(5)). In TW White & Sons Ltd v White the EAT explained that the Tribunal set out a structured and mandatory process for the consideration of applications for reconsideration. The employment judge must first take rule 70(2) decision and decide whether there are reasonable prospects of the original decision being varied or revoked. This aspect of the procedure provides an important protection to the party opposing the application, in that the party should not be put to the time and expense involved in responding to the application if the employment judge does not consider that there are reasonable prospects of the judgment being varied or revoked.

[16]At 1 (a) 1 of the Reconsideration application (hereafter the application) the Claimant requests that “the Tribunal issues a reasoned determination on each point made” and broadly asserts that the Tribunal failed to record findings of fact and law sufficient to explain its decisions. The Claimant asserts that the Tribunal’s reasons are not Meek compliant and nor do they comply with Rule 62 (5). The Tribunal does not consider that a fully reasoned response to each and every point raised would be commensurate with the overriding objective as it would not be proportionate.

[17]In Meek v City of Birmingham District Council

1987 IRLR 250

, the Court of Appeal held that a Tribunal’s reasons are not required to be an elaborate formalistic product of refined legal draftsmanship, but must nonetheless contain: a) An outline of the facts of the case that gave rise to the complaint b) A summary of the tribunal’s basic factual conclusions, and c) A statement of the reasons which led it to reach its conclusions on the facts as found.

[18]In Frame v Governing Body of Llangiwg Primary School and anor EAT 0320/19 the EAT reviewed the authorities on the adequacy of a tribunal’s reasons and summarised the key principles as follows: a) The duty is to give sufficient reasons so that the parties can understand why they have won or lost, and the appellate tribunal or court can understand why the judge has reached his or her decision b) The scope of the obligation to give reasons depends on the nature of the case c) There is no duty to deal with every argument d) The judge must identify and record the matters critical to his or her decision. It is not possible to provide a template for this process and it need not involve giving a lengthy judgment e) The judgment must have a coherent structure so that it is clear how the judge got from his or her findings of fact to his or her conclusions f) Where the judge refers to the evidence or submissions he or she accepted or rejected, it may not be necessary to detail, or even summarise, them g) It is not acceptable to use a fine-tooth comb on a set of reasons for hints of error or fragments of mistake and try to assemble them into a case for oversetting the decision or saving a patently deficient decision.

[20]Rule 60(7) of the Tribunal Rules 2024 (which is almost old rule 62(5) of the Tribunal Rules 2013) currently provides that the reasons given for any employment tribunal judgment must (so far as is relevant to this application): a) Identify the issues which the tribunal has determined b) State the findings of fact made in relation to those issues c) Concisely identify the relevant law d) State how that law has been applied to those findings in order to decide the issues, and

[21]The Reserved Judgment under reconsideration runs to 98 pages and just over 46,500 words and the Judgment dismisses the following claims: a) Unfair Dismissal b) Automatically unfair dismissal – Protected Disclosure c) Wrongful Dismissal d) Protected Disclosure Detriments e) Direct Philosophical Belief Discrimination f) Philosophical Belief Harassment g) Failure to make reasonable adjustments

[22]The List of Issues had been agreed by the parties before EJ Roper at a hearing on 2 May 2024 and ran to some eleven pages. Paragraph 24 of the Judgment deals with them in summary form and each head of claim is referenced within the various conclusions sections and can be cross referred to the List of issues.

[23]Findings of fact have been made throughout the Judgment but in particular paragraphs 25-194 and the conclusions for each head of claim are set out from para 195 onwards identifying the law and then the law has been applied. In broad terms the Tribunal is quite satisfied, upon reconsideration that both the requirements pertaining to the Rules in respect of Reasons and the provisions of Meek are met. At the start of the Written Reasons the Tribunal sought to assist the parties (and the Claimant in particular) to navigate the Reasons with an index.

[24]It needs to be remembered what this Claim was about. The Respondent dismissed the Claimant allegedly unfairly and wrongfully for gross misconduct. In the lead up to the Claimant’s suspension, throughout it until dismissal and then to the end of the appeal the Claimant asserts that the Respondent acted in a discriminatory fashion on account of her philosophical belief and her disability and also subjected her to detriments on account of the Protected Disclosures she made. The misconduct in question which led to the dismissal was the Claimant’s alleged failure to follow reasonable management instructions and the writing of threatening communications even when told not to do so.

[25]The hearing notes are substantial, there are three sets of long bundles to navigate, substantial statements, lengthy submissions and openings. Whilst the Claimant has provided occasional references many points are not referenced specifically by page, which has increased the difficulty in dealing with this reconsideration.

[26]I have to consider at this stage what if any of the reconsideration application has no reasonable prospects of leading to either a revocation or a variation of the Judgment. The following matters are deemed to demonstrate this and brief reasoning is given for each. The Judge consider that to be proportionate and reasonable:26.1 Paragraph (a) pages 2-5 – Concealed contractual variation – Procedural Unfairness by the Respondent’s legal team – the Claimant has been steadfast in her view that anybody who has had anything to do with her situation whether during employment, after employment, during the legal process, including the Respondent’s legal team, and those hearing the claim have been in some way acting contrary to her interests. The Tribunal does not accept that there was a central contractual issue that directly affected the fairness of the decision to dismiss and the fairness of the decision based upon the material allegations of unfairness made by the Claimant in the List of issues have been considered in the Judgment. Wrongful dismissal was addressed in the Judgment (paras 391-399) and the automatically unfair dismissal considered after all of the whistleblowing detriment claims at paragraph 283 and then when the principal reason for dismissal was concluded to be the Claimant’s conduct at paragraph 382. There were no findings as to the financial consequences as it was made clear that liability would be considered first and then a further hearing would be convened for remedy if necessary.

26.2 Paragraph (b) pages 5-6 – Falsified Authorship and Evidentiary Credibility – There were around 25 grievances raised by the Claimant. The Tribunal has no recollection at all of the matters raised in this paragraph and nor are there page references which would assist. Mr Kippax did not appear to give evidence and nor is it likely that the identity of the author of this grievance response would have made any difference to the outcome. The Tribunal cannot see that a finding of fact would have affected its Judgment on any of the claims.

26.3 Paragraph (c) Data Protection Violations – Article 9 GDPR - The Tribunal did not make any conclusions on breaches of Article 9 of the GDPR because it did not need to do so to determine any of the claims.

26.4 Paragraph (d) Breach of contractual notice and reasonable adjustments contrary to contractual terms In terms of reasonable adjustments this is addressed at paragraphs 357-361 of the Judgment. Findings were made that there were multiple postponements of meetings and the criticism of the Respondent was that it allowed the process to go on too long. The Tribunal was satisfied that when short notice was given it was extended and so did not render the dismissal unfair.

26.5 Paragraph E – Procedural Irregularity – Undisclosed Procedures, Legal Misapplication and Whistleblowing Detriment – E1 to E9 – The Tribunal found as a fact that the allegations against the Claimant in the disciplinary process were sufficiently clear for her to understand them (para 158). E10 to E16 – The Tribunal found as a fact that the Respondent acted reasonably and within a band of reasonable responses thereby rendering the Dismissal fair. The Claimant’s allegations that those who undertook the process were biased and prejudicial were not upheld for the grounds extensively stated E17 to E21 – The Tribunal did make findings that the relevant management instructions were lawful, necessary and appropriate (e.g. para 60.) E22 to E27 – The Tribunal gave careful consideration as to what actually constituted protected disclosures and formed the view that they were limited. The Tribunal then considered the detriments alleged and made its conclusions (paras 205-283). E28-E33 – The Claimant was fixed upon various matters that the Tribunal simply did not accept were relevant to the core issues in the case. As stated at paragraph 17 of the Judgment the Claimant largely decided to ignore direction from the Tribunal as to the appropriate matters to cover. There were occasions when the Claimant was prevented from exploring areas which had no apparent relevance to the issues the Tribunal had to cover. E34-38 The Tribunal considered matters as a whole and made their conclusions that the dismissal was a fair one. Having reviewed the Judgment it is considered that the necessary findings were made to come to that conclusion. E39-44 The Tribunal made its findings re the philosophical belief claim and set then out adequately at 315-341 of the Judgment. E45-E49 The Tribunal does not accept that the Claimant was prevented from putting her case, save to the extent that the Tribunal did seek to keep the Claimant on point. The Tribunal assisted the Claimant greatly in translating questions from her which the witness found incomprehensible into a question they could potentially answer as well as asking questions that were relevant which the Claimant missed or ignored. E50-56 - The Tribunal gave careful consideration as to what actually constituted protected disclosures and formed the view that they were limited. The Tribunal then considered the detriments alleged and made its conclusions (paras 205-283). E57-62 – The Tribunal considered the evidence and came to conclusions which were permissible and upon review no change is required.

26.6 Paragraph F – page 18-19 – Anonymous Complaint – Red Herring Mischaracterisation and Denial of Natural Justice and Paragraph H – pages 20-22 – Withheld anonymous complaint and Investigative Failure - The fact that an anonymous complaint had been raised against the Claimant was dealt with at paragraphs 147 and 148 of the Reasons. Davidge raised it as an issue that was going to be dealt with (para 147 (c)). Mitchell gave evidence that she never saw it and it was not proceeded with. The Tribunal makes a finding of fact that Mitchell was not influenced by it in her investigation, and we accepted that evidence having heard all sides. The disclosure application was held in December 2024 and so any issue re disclosure is out of time in relation to reconsideration.

26.7 Paragraph G – page 19 -20 Suppressed and Misleading Evidence – Breach of Fair Process – The Claimant highlights: a) The submission of a misleading legal report; b) False attribution of a grievance report; c) Destruction of grievance evidence. The Tribunal disagrees that these were central to the issues in the case and that they would in any way have contributed to a different outcome in the claim or mean that they should conclude that the outcome should be revoked or varied. 26.6 Paragraph H – Withheld Anonymous Complaint and investigative Failure – This is not dissimilar to the issues raised at Paragraph F above and the matters raised in relation to that paragraph are repeated. This is a clear example of the Claimant wanting an enquiry into a matter that was, on the findings of the Tribunal, of no consequence in relation to the issues in the case. The Claimant sets out the effect on her personally and professionally at H3 but none of those are relevant in determining the issues in the case. There was no need for the level of scrutiny that the Claimant wanted the Tribunal to undertake. 26.7 Paragraph I pages 22-25 – Risk Assessment Fabrication and Procedural Cure - The Claimant sought disclosure of a document in December and that application was granted. That document had peripheral importance at the final hearing and there was no need for any specific findings of fact to be made on it or its provenance in relation to the issues that had to be determined. To the extent that the Claimant considers that the Tribunal should have carried out an enquiry into the conduct of the Respondent’s counsel then that is rejected as disproportionate and unnecessary to make the necessary findings required in the issues in the case. The Tribunal did consider the scope of Mitchell’s investigation and found that what she did fell within a band of reasonable responses (para 387-389 and utilising previous findings throughout the Judgment).

26.8 Paragraph J pages 25-27 – Mischaracterised Protected Activity – Legal Notices Framed as Misconduct - It is correct that the Tribunal did aver to “threatening letters” at paragraph 390. Previously in the Judgment those documents had been referred to as communications so as not to trouble the Claimant who was very insistent that they were legal notices. The Tribunal did not accept that the Claimant’s communications conferred any special legal status upon them and believes that letters is an adequate description of them. The Tribunal made findings of fact in light of the totality of the evidence. The Tribunal did not accept that the Claimant was acting with pure motive in relation to several aspects of her case and the finding that withdrawing the communications was not genuine was one that the Tribunal were quite entitled to come to at paragraphs 77 to 79 of the Judgment. The evidence surrounding uses at J4 and J5 were considered and taken into account in the overall picture.

26.9 Paragraph K pages 27-31 – Disability Discrimination – Continuing Acts Adjustments and Procedural Unfairness – K1-K8 - The disability claim was limited to three PCPs / auxiliary aids and all related to adjustments which were allegedly not made during the disciplinary process. The Claimant asserts that the Tribunal failed to engage with time limits but this is dealt with at paragraphs 196-204 and in the final paragraph it is concluded that natters are either in time, part of a continuing act or if the Tribunal was wrong on that then it was still just and equitable to extend time. The Claimant was successful on all points and the Claimant’s desire to revoke or vary those findings is puzzling and has no prospect of succeeding. K9-11 – The issue of whether or not there had been reasonable adjustments was carefully scrutinised in the terms of the issues as drafted and all relevant matters were taken into account. K12 - K15 and K17-19 – The Tribunal was given every possible accommodation in respect of her disability and they are clearly set out in the Judgment. The Tribunal does not recognise the Claimant’s characterisation of the hearing suggesting that the Tribunal repeatedly failed to accommodate her disability and are satisfied that the Claimant had every opportunity to participate fairly. The numerous steps taken are set out within paragraphs 1-24 of the Judgment and then scattered throughout the Judgment

26.10 Paragraph L - Procedural Disadvantage, Psychological Impact and Limitation Mischaracterisation – L1-L3 Whilst the Tribunal fully acknowledges the difficulties that a litigant in person and especially a disabled litigant in person has in conducting any litigation within the Employment Tribunal especially in a lengthy multi day hearing. L4-12 – The Claimant raises issues (again) in relation to time limits an area which was found in her favour and has been dealt with at the findings at paragraph K above. Removal of the finding that the Claimant gave little or no focus to time limits will not cause any revocation or variation of the Judgment. It is that finding of fact that the Claimant seems to take issue with and to remove the same is not within the scope of a reconsideration.

26.11 Paragraph M pages 33-35 – New evidence – legal advisor identity and misconduct or the Respondent’s legal advisor - The Claimant had a clear focus on Mr Richings, the Respondent’s internal solicitor, who provided a very limited number of communications within the bundle. There was little to support the Claimant’s contentions in this regard. The Claimant did write to the Tribunal after the hearing with further queries about Mr Richings and the Respondent at the Tribunal’s invitation responded. The Tribunal is unable to see how any issues relating to Mr Richings (and in particular that discovered after the hearing) went to the heart of procedural fairness. 26.11 Paragraphs N & O – Missing witnesses and Reliance on Untested Allegations and Social Work’s Findings It is a matter for the Respondent who they decide to bring along to give evidence at a hearing. The Claimant can seek witness orders and in this case one such application was granted. The Tribunal took into account that two important witnesses were missing and that they no longer worked for the Respondent. The Tribunal also took into account the other disciplinary witness statements. Findings were made and there was a sound evidential basis for them as set out, at length, in the Judgment. The fact that a social work investigation by Social Work England came to other conclusions is a matter of no relevance as we do not know what they had before them or anything else about that particular process. It is not of itself exculpatory and the Tribunal considered the Claimant’s conduct and made appropriate findings about them, having listed to evidence over many days.

26.12 Paragraph P – Disputed Authorship, False Attribution, and procedural Flaws in the Grievance Process – The disputed authorship of a grievance report has been dealt with elsewhere. The Tribunal found that the grievances were a method the Claimant employed to try and avoid the disciplinary process. The Tribunal are satisfied that sufficient findings were found to allow the Judgment to be made and does not need revision

26.13 Paragraph Q – Suspension Timing, whistleblowing retaliation and unlawful instruction – Regulatory Chronology - The Tribunal made clear reasoned findings as to how it came to be that the Claimant was suspended (paras 256-263 and 273-274) and in particular made a finding that it had nothing to do with the part of the correspondence found to be a protected disclosure. The matters raised at Q4 are all dealt with so far as they were relevant.

26.14 Paragraph R – Disparate Treatment – Comparator Analysis and Equality Act - The only direct discrimination claim was in relation to the Claimant’s philosophical belief. There was not a direct disability discrimination claim within the List of Issues so the Tribunal was not obliged to deal with such a claim as suggested by the Claimant at r 3 (i) page 41. Similarly, the whistleblowing detriment does not require a comparator. The Tribunal has explained between paragraphs 302 - 314 their reasoning for rejecting those claims. Primarily it was because either factually the allegation was not made out or that the Claimant’s philosophical belief was not deemed to be a relevant factor in other allegations.

26.15 Paragraph S – Form over Substance – Disregard of Lay Presentation of the Law - The Tribunal fully took into account the law that was necessary to deal with the issues in the case. It is correct to say that the Tribunal did take a different view to the Claimant as to what law it needed to refer to and did not accept that the constitutional and international law references were ones to which they needed to consider in coming to a decision. That view of the Tribunal has been considered and still prevails. So far as making adverse comments about “choice of language” and “stylistic framing” the Tribunal simply sought to assist the Claimant present her case in the best way possible, by clearly indicating matters that were relevant to the issues and matters that were not. Much of that advice was ignored but the advice was given in good faith and with the overriding objective in mind.

26.16 Paragraph T – Mischaracterised Grievances – ACAS Guidance Ignored and Misinterpretation of Grievance Conduct – The Claimant raised multiple grievances against a wide number of individuals and sought to use those grievances to delay the disciplinary hearings against her. The Tribunal found as a fact that from around early April the Claimant made a concerted effort to “seek to delay and obstruct the (disciplinary) investigation moving forwards” (para.84) and raising grievances was primarily motivated by the that desire (para 96). The Claimant was entitled to raise grievances and no doubt if she spoke to ACAS they would have told her that, but although the Claimant may not like the finding there was ample evidence upon which the finding could be made. There is no basis to vary or revoke any decisions based on that.

26.17 Paragraph U - Unexamined Assumptions, Vaccine Efficacy, Product classification and informed consent – It was not for the Tribunal to enter into the arena of the pros and cons of the vaccine. It was carefully explained what the Respondent had to do in respect of discharging their statutory obligations and how they went about it. The issues the Tribunal had to consider was the treatment of the Claimant in the context of the situation. The Tribunal made clear findings of fact as the effect the Claimant’s protected disclosure and philosophical belief had on her treatment and there was no need to make any finding on the “product’s legal classification, the SEC Regulatory findings etc.as set out in this paragraph. The Claimant consistently invited the Tribunal to go into areas which the Tribunal believed, and still believe, were not relevant for them to determine the issues which had been set out by EJ Roper.

26.18 Paragraph V – Ultra Vires Enforcement – Constitutional Breach and Foundational Law – The Tribunal gives a similar answer into the Claimant’s complaints that the Tribunal failed to engage with the Claimant’s desire to go into depth with “the constitutional limits on executive authority and the impermissibility of acting without legislative backing”. The Tribunal did not and does not consider that an enquiry into that would have assisted the fact finding that was required in this case. The Tribunal engaged with the legal background it considered it needed to in order to deal with the issues in the case set out by EJ Roper.

26.19 Paragraph W – Cumulative Error – Judgment rendered unsafe and justifying Reconsideration – The Claimant indicates that the various complaints set out at W3 (page 47) breached the Claimant’s right to a fair hearing. That is really a matter for the Employment Appeal Tribunal but the Judgment has been reviewed and notwithstanding the smorgasbord of complaint it is not considered that any of the specific findings require variation of revocation

26.20 Paragraph 3 (which follows W) page 48 – Legal Authorities misapplied or ignored including Trotman and Jhuti – The Tribunal considers it applied such statutory provisions and appellate case law that were relevant and necessary to the decisions it had to make. The Tribunal does not consider it proportionate to go through the 38 provisions /cases set out in the tables at pages 49-52 of the application one by one or indeed at all. It took heed of such cases as were necessary

26.21 Paragraph 4 Failure to Resolve or Address the Agreed List of Issues – The Tribunal followed the list of issues and persistently encouraged the Claimant to do the same. In fact, from paragraphs 195 to the end of the Judgment at paragraph 399 findings were made on those matters and the Claimant’s criticism is unfounded.

26.22 Taking into account paragraph 5 of the application (page 54) the Tribunal considers that taking into account all of the circumstances it did take into account relevant arguments and evidence, considered any procedural irregularities that were relevant and might impact upon the outcome, did provide adequate reasons over just under 100 pages and has not identified any errors that would suggest that any part of the Judgment should be revoked or varied.

26.23 As for paragraph 6 the Claimant has been denied any remedy for her claims because none of her claims have been successful. The List of issues has been faithfully considered and dealt with.

26.24 The Tribunal has taken a step back to consider whether notwithstanding the finding that each individual point made demonstrates that there is no reasonable prospect of this Judgment being varied or revoked, whether piecing various points or combination of points together a different picture appears. It does not.

26.25 The application for reconsideration has no reasonable prospect of success and is refused. APPROVED BY