Miss S Messi v Royal College of Psychiatrists: 6002653/2025
EMPLOYMENT TRIBUNALS
Case No 6002653/2025
Between
Miss S MessiClaimantRoyal College of PsychiatristsRespondent
Before
Employment Judge MoorIn person for claimantMr Gus Baker (instructed by counsel) for respondentDate 4 April 2025
JUDGMENT
INTERIM RELIEF The application for interim relief does not succeed.
REASONS
[1]This hearing was held to hear the Claimant’s application for Interim Relief.[2]Both parties asked for written reasons. Procedural Background[3]The claim form was presented on 25 January 2025. The Claimant applied for interim relief but did not wish to have a hearing in March 2025. The soonest the Tribunal could practicably list the hearing was today.[4]I had the following documents: 4.1. A large bundle of documents provided by both parties. At the outset I informed the parties that I would not read all 1000+ pages of the bundle but would look at those documents referred to me. (While initially we had difficulty identifying relevant page numbers we soon referred to both the PDF and internal numbering and I am satisfied that I could see all the pages referred to me by the parties). 4.2. A witness statement of Ms W Cummings, Head of HR for the Respondent. 4.3. The Respondent’s Skeleton Argument. 4.4. The claimant sent an email with submissions at 09.53 on the morning of the hearing. I read this in a 25 minute break late morning and I considered the attachments to it.[5]The Claimant says she is disabled including with anxiety. She had indicated she could attend video hearings in her claim form. After describing the hearing day to her with two 10-minute mid-session breaks and an hour for lunch, she indicated no other adjustment was required. In fact, when it came to the time for a mid-morning break both parties wished to continue and I did so until taking a longer break at 11.45 until 12.10. At the start of the hearing, for which a Notice of Hearing had been provided on 20 March 2025, the Claimant said she had a GP appointment at 2pm and needed half an hour to get there. While this could have been a problem, given that interim relief applications must happen quickly, I indicated we would see how we went and attempt to accommodate the Claimant. I reassured her that we were likely to manage submissions in the morning session. Normally, I would have asked for evidence of such an appointment, given that parties should prioritise the hearing listed, but it seemed to me sensible to adopt a flexible approach.[6]As I had explained to both parties at the outside, I aimed to adopt a structured approach to the hearing in order to ensure I understand what each said to me and that meant me asking structured questions to understand the claim and response. This became even more important given the time limitations imposed by the Claimant’s need to attend her appointment. At one point, early on, the claimant appeared stressed and expressed her unhappiness with how I was conducting the hearing. I asked whether she wanted a break. She said no. She put her camera off and we subsequently progressed well. I ensured that the Claimant had a good opportunity to deal with each issue in turn and tell me what her argument was: with the help of my questions, she did so in a structured and clear way. She had an opportunity to make oral submissions on each issue in addition to those she had put in her email and I gave her an additional opportunity, because she was a litigant in person, to reply to Mr Baker’s submissions. At times I reflected my understanding of her submissions back to her thereby ensuring that she could tell me more if necessary to ensure I had the point. During Mr Baker’s submissions I summarised what he was saying from time to time so as to ensure my and the Claimant’s understanding.[7]I gave oral judgment at 12.45 ending around 1.25pm. Immediately afterwards, the Claimant told me she had been able to change her GP appointment to 4pm, so indicated she would be able to stay until 3.30pm. This was extremely helpful and we planned to return at 2.30 after a full lunch hour. This was to deal with the Respondent’s costs application and case management orders. I indicated my reasons for hearing the costs application that afternoon: there was time; there was no requirement that the Claimant was given a ‘costs warning’ as she had submitted; costs did not normally follow the event but the Tribunal Rules allowed for such an application to be made and it was logical that it was made on the same day to avoid further costs. The Respondent wished also to make a strike out and deposit application. Mr Baker explained the deposit application was on very much the same basis as the costs application and would not take long. I made it clear I would not hear any strike out application, the necessary notice not having been given. I indicated I would consider whether or not to hear the deposit application after lunch and only if there was time. In the event, Miss Messi did not return after lunch and, while I could have heard the application in her absence, instead I listed two further hearings and made case management orders. I set those out in a separate Order.
Legal Principles
[8]The well-established legal principles were essentially agreed. I need to no more than summarise them below.[9]Only employees can pursue claims of unfair dismissal (section 98 and, for these purposes, section 103A Employment Rights Act 1996 (‘ERA’)). An employee has a contract of employment (sometimes called a contract ‘for’ service) directly with the employer, section 230(1) ERA. A contract is an agreement between two parties whereby the employee agrees to do work and the employer agrees to pay them a wage or salary or some other kind of consideration for that work (‘the essential work/wage bargain).[10]Where a claimant seeks to imply a contract: it must be necessary in all the circumstances to do so (James v LB Greenwich [2007] ICR 577).[11]A disclosure must be a disclosure of information (section 43B(1) ERA). This does not require a great deal and depends on the context but generally information has some factual basis, however limited. A very generalised allegation where the context is not understood may not be sufficient. (This derives from a line of cases ending with Kilraine v LB Wandsworth [2016] UKEAT, which is probably the most helpful.)[12]The information must, in the reasonable belief of the employee, tend to show that one of the matters sent out in section 43B of the Employment Rights Act 1996 is engaged. Here the Claimant relies on sections 43B (1)(b) and (d): that her disclosures tended to show that the Respondent had failed, was failing or was likely to fail to comply with a legal obligation or that the health and safety of a person (in this case, her) had been or was or was likely to be endangered.[13]What is reasonable has a subjective and objective element. In Chesterton Global Ltd and anor v Nurmohamed 2017 IRLR 837 the Court of Appeal para 8. I note that the words ‘tending to show the wrongdoing’ are a lower bar than ‘did show’. And I note the statutory wording of ‘likely’ lowers the threshold further.[14]The employee must have reasonably believed they were making the disclosure in the public interest. There is no bright line between public and private interest. The question is fact specific but note Mr Baker’s interesting argument that, in relation to breach of a legal obligation, public interest must mean something in addition to the requirements of section 43B(1)(b) otherwise it would be redundant. In Chesterton it was established that a worker must have an objectively reasonable belief that the disclosure is in the public interest. The court identified four factors to weigh in the analysis: the numbers in the group whose interest is served; the nature and extent of the interests affected; the nature of the wrongdoing; and the identity of the wrongdoer.[15]The disclosure is protected if it was made to the employer (as is alleged here) even if it were also made to others.[16]Interim relief is available in claims of unfair dismissal where it is alleged the sole or principal reason was that the claimant was dismissed for making a protected disclosure or disclosures. The Claimant must show they are likely to win their claim at the final hearing. The test of what is ‘likely’ here means ‘a pretty good chance’, not just 51%, Taplin v C Shippam Ltd [1978] ICR 1068.[17]The interim relief application is essentially an emergency application – the judge must make a rough and ready analysis on the information available. She does not hear evidence and makes no findings of fact. The remedy is as close to injunctive relief as the Tribunal gets.
Issues
[18]I started by clarifying the key issues in the unfair dismissal, protected disclosure claim today so as sufficiently to understand the claim before I could then assess its chances of success. They are as follows: 18.1. Was the Claimant an employee of the Respondent? 18.2. If so, did she make disclosures? The Claimant relies on three emails:• One sent on 22.1.25 at 14.20 in which she raised concerns that the Respondent was not complying with its legal obligation ‘under Health and Safety legislation 1974’. She stated ‘I should not be required to send a consent form for them to carry out risk assessment or display screen equipment as this is a legal obligation for them to do so’. She alleged that they had failed to make reasonable adjustments for her disability, failed to refer her to OH and failed… ‘to provide equipment such as ergonomic chair, table to support to me at work and at home’ She alleged this was disability discrimination and asked for Sonia Walker’s intervention. She copied the consent form she had been asked to sign and copied in the Health and Safety Executive, EASS, ACAS and others.• Another sent on 22.1.25 14.19 in the same terms.• A third sent on 24.1.25. (The Claimant first thought this was dated 23 January but once she found it in bundle it was dated 24 January before her engagement was ended). She sent it to the Respondent and a long list of others outside the Respondent including Liz Kendall the Secretary of State for the Department of Work and Pensions. (The Claimant explained this was because the DWP runs the Access to Work scheme). The subject of the email stated ‘From Posturite website which they have to refer me – awaiting reasonable adjustments/DSE assessments from Posturite.’ And attached to the email was the display screen equipment consent form she had been asked to sign. This email body comprised a screen shot of suggested workplace adjustments by DSE in general rather than in particular for the Claimant. 18.3. If so, were those disclosures made in the reasonable belief that the information tended to show the matters set out at section 43B(1)(b) or (d)? The Claimant clarified that the legal obligation she thought that was being breached was the duty under the Equality Act 2010 to make reasonable adjustments. She also identified that it was her own health and safety that she was alleging was likely to be endangered. 18.4. If so, were they made in the reasonable belief that they were made in the public interest. 18.5. If so, was the sole or principal reason for the Claimant’s dismissal on 24 January 2025 that she made those disclosures.
Analysis
[19]Interim relief, by its nature, is a quick assessment on what I have been shown, of the likelihood of succeeding at the final hearing. I have heard no evidence and nothing I say below should be treated as a finding of fact.[20]I am grateful for the parties’ submissions: I will refer to them where it is necessary to do so in my analysis.[21]The Claimant appears to have been engaged on a short-term contract by The Graduate Agency, an employment agency, to work at the Respondent for between 6-8 weeks as a finance executive (accounts payable) to help with the end of year audit and implementation of a finance system.[22]She was supposed to start on 16 January 2025, but her boiler needed repairing, so her first day was Friday 17 January 2025. On that day she raised, quite properly, that she was disabled and needed adjustments including ergonomic equipment to work at home. Very quickly the next week on 21 January 2025, the Respondent arranged and she attended a health assessment meeting.[23]The Respondent wanted to instruct a third party to conduct an assessment to see what equipment the Claimant needed. I generally see at the Tribunal where things go wrong, where organisations drag their feet when workers raise disability issues. Not so the Respondent. It appears to have adopted best practice: acting promptly to find out more. If the Claimant’s case is that the Respondent should have made adjustments on 17 January 2025 that is a bold and risky argument: there are lots of different kinds of equipment available to help disabled workers: chairs, tables, screens all differ according to the disability and what the worker has already available to them. It was perfectly understandable for the Respondent to want to find out more and do a proper assessment to work out what it should reasonably provide.[24]The Respondent decided to use a Third Party provider to do the workplace assessment: again this is not unusual and good practice, many organisations do not have expertise available in-house. It asked the Claimant therefore to consent to such an assessment, which she did. And to consent to the Respondent giving her details (only for the purpose of the assessment) to the third party, which she refused. And for the Claimant to consent to the third party sharing its report with the Respondent, which she refused. All this is clear on the face of the consent form. The Claimant’s refusals effectively meant the Respondent’s chosen method of assessment could not be done. It is understandable that the Respondent characterised the Claimant as uncooperative in this regard.[25]On the information I have heard and seen, the Claimant appears to have taken exception to the idea that the Respondent should look into her needs before deciding what the adjustments were that she needed and whether they were reasonable. That word reasonable includes many factors: including need; cost; availability.[26]Stepping back from the legalities for a moment: it does not make sense that you ask your employer for adjustments and then do not allow them to do the assessment they reasonably seek to do to work out what adjustments are appropriate and reasonable. This is an unreasonable position to take.[27]The day after the assessment meeting, on 22 January 2025, the Claimant then wrote her emails (see above) in which she complained about having to sign the consent form and not being provided with a chair or table at home. She did this not only with HR but to many people within Respondent including taking her complaint quickly to the CEO and outside to the HSE and others.[28]Again this appears to be unreasonable conduct because: 28.1. the Claimant did not give the Respondent a reasonable time after the health assessment meeting to act on the information she gave them before accusing them of failing to make adjustments. 28.2. the Claimant did not simply raised her concern with HR but to senior people immediately and a large number of others. This was unnecessary and likely to have been administratively disruptive. 28.3. it was obviously far too early to complain externally because the Claimant had not given the Respondent any reasonable period within which to organise any adjustments and had not exhausted any internal grievance process.[29]The Respondent alleges the emails were prolix and became more aggressive. The Claimant takes exception to that description. I have not looked at the documentation on those points. Further, although the engagement was only for 6-8 weeks it may well be that Claimant did not do any work in the first week at all.[30]By 24 January 2025, the Respondent decided to terminate engagement. The termination email to agency does not say anything about the reason. In Ms Cummings’ statement, she points to a number of factors: 30.1. the need for the work to start straight away 30.2. the Claimant’s refusal to cooperate with the assessment by not giving the necessary consents. 30.3. the Claimant’s behaviour – including the way in which she raised her concerns.[31]The Claimant submitted essentially that I should doubt Ms Cumming’s statement because she did not write the termination email to the agency. That is correct but Ms Cummings as Head of HR shows in her witness statement that she knew of the circumstances and reasons for the termination. While the Claimant can of course seek to undermine this at trial, at this stage, given there is nothing surprising in the factors she relates, and given her role, in my judgment the Claimant will struggle with such an argument.[32]Further the Claimant submits the coincidence in timing with her emails shows it was her disclosures that were the reason for the termination. The difficulty for her with this argument is that of course so was her failure to cooperate and so she will struggle to argue that it was solely or principally her three emails that were the cause of the termination. Issue 1 Employment Status[33]I consider the Claimant is not likely to succeed in showing she had an employment contract with the Respondent for the following reasons.[34]The facts as I have provisionally assessed them, supported by documents, suggest that this was no more than a short-term engagement as an agency worker: an engagement of the Claimant by the agency. This is crucial because the contract, in those circumstances, is far more likely to be found to exist between the Claimant and the agency, not the Claimant and the Respondent. The Respondent requested the agency to find a worker. It was the agency who recruited the Claimant. The relationship between the Respondent and the agent was under a long standing contract, a term of which required the agency worker to have a contract with the agency. Further the Claimant was not paid directly by the Respondent but by Liquid Gold on behalf of the agency. (It was a payroll company used by the agency).[35]It is going to be difficult for the Claimant to undermine that proposition and persuade the Tribunal, to the contrary, that she entered into a contract directly with the Respondent. There is nothing in the facts that I have been made aware of to suggest a need to imply a contract between it and the Claimant. The document she relies on is not a contract. The email negotiations on salary, which were between Respondent and the agency (who referred to the Claimant’s wishes), do not suggest otherwise. This looks very much like a standard supply by an agency of an agency worker, not a contract of employment with the end user, the Respondent.[36]Given that I have decided the Claimant is not likely to succeed on the first issue that is sufficient to dispose of the interim relief application. But, if I am wrong, I go on to give briefly, my reasons on most of the other issues. Protected Disclosures[37]There is enough information in the 22 January 2025 emails (I refer to one as the other is a repeat) for it to amount to a disclosure of information.[38]As to the first part of this email: a complaint that she should not have had to sign a consent form. I agree with the Respondent’s submissions that the Claimant has no good chance (in fact not any chance at all, on the information I have heard) that she had a reasonable belief that that this information tended to show either a breach or a likely breach of the legal obligation to make reasonable adjustments or that her health and safety was or was likely to be endangered. As I have already indicated, asking the Claimant to sign such a form was an appropriate approach to the disability issue she had raised. It was reasonable to seek an assessment of what kind of equipment was required; reasonable to ask an expert outside the organisation to do it; and therefore reasonable seek the necessary consents expressly limited to that assessment. No reasonable person could have thought that it was somehow going to endanger her to sign the form; or that the request was somehow in breach of the duty to make adjustments: that would have been to put the cart a long way before the horse because the request was so that the Respondent could seek to comply with any duty.[39]As for the allegation in the email of a failure to make adjustments by a failure to provide a chair or table or equipment. Again there is obviously sufficient information in this disclosure so it is highly likely to surmount the first hurdle. But I consider that the Claimant is not likely to show she made this disclosure with any reasonable belief that the matters set out at section 43B(1)(b) were engaged. I reach this finding easily because of the timing: it was plainly unreasonable to believe, knowing the context, that such a failure was a breach of the law so soon after informing the Respondent of her disability. Even if it had been obvious what kind of chair or what kind of table the Claimant required (a matter usually far from obvious for the reasons I have given above), the Claimant was suggesting the Respondent should have provided one 3/4 working days after first telling them about her disability and only 1 working day after the health assessment meeting. No reasonable person would consider there was a failure after so short a time: ergonomic chairs and tables would need to be identified, most likely ordered, and certainly despatched. The word ‘reasonable’ in ‘reasonable adjustments’ means something. Would any reasonable person think there had been a failure after so short a time? In my view the Claimant does not have a pretty good chance of showing this at trial.[40]Further, while the Claimant might well have needed a chair or table to work safely at home, I have not heard from her that she actually was working. There is less information on this point but in the absence of any evidence that she was working, she is likely to struggle to show that she reasonably thought the information about not being provided with a chair or table or other equipment had endangered her health or was likely to do so, her given the very narrow time span.[41]On whether the Claimant made her disclosures reasonably believing them to be in the public interest – the Claimant submitted that it was in the public interest to draw attention to a failure of the Equality Act. It was not just about her but ‘others’. She identified those others as ‘members of the public’. I would tend to agree with Mr Baker, given the structure of the Employment Rights Act, that it is likely the Claimant has to show more than that otherwise an employee could argue that any information tending to show breach of a legal obligation was also in the public interest and so make the additional requirement redundant. It would depend on the context. In her submissions to me she did not persuade me that she reasonably believed at the time that the concerns she was raising were about anything more than her private interest and a breach of her private rights. While the test is not a high one and only depends upon a reasonable belief: the Claimant did not explain why the public interest was engaged. On balance I would have found the Claimant had not shown that she has a pretty good chance of proving that she reasonably believed she made her disclosures in the public interest.[42]In relation to the third disclosure. It seems to me the Claimant will struggle to show that it was a disclosure of information that tended to show anything that engaged section 43B. All her email shows, in the subject line, is that she was waiting for an assessment: that fact alone tended to show that the Respondent were attempting to comply with their duties not that they were not doing so. No reasonable person would think otherwise The additional information in the email and attachments gave no more than general information about workplace assessments and the consent form: again neither amounted to information that anyone could reasonably believe tended to show the likely breach of a legal obligation or the likely endangerment of health. The Claimant can argue that this email should be read in context with the first email, but even if one does so, it is not at all clear from it what the information in it tends to show other than that the Claimant is waiting for an assessment, which on no basis could form information it was reasonable to believe tended to show the matters within section 43B(1)(b) or (d), in fact the opposite. For that reason the Claimant does not have a pretty good chance of showing this third disclosure was protected. Reason for Termination[43]If I am wrong about all of the earlier issues, I then go on to consider the reason for the dismissal. The key question here is whether the Claimant had a good chance of showing that her disclosures were the ‘sole or principal reason’ for the dismissal (section 103A ERA) i.e. either the only reason or the main reason for the dismissal.[44]I consider the Claimant has a fairly good chance of showing the emails she relies on as disclosures were partly the reason for the termination of her engagement. Nevertheless, on the material I have been shown, I do not consider she has as pretty good chance of showing that they were the sole or the principal reason. On her own case she clearly failed to cooperate in the assessment process (by refusing the relevant consents) and it would be surprising if that were not a factor in the decision. Further this was a 6-8 week engagement, work was needed within a short space of time, and again it would be unsurprising that were not a factor in the decision. The Respondent might reasonably have predicted further delay once it saw the Claimant’s approach to her complaints (emails to all and sundry and refusing the consents) and terminating the engagement quickly gave the Respondent time to find a replacement before the yearend. Those two factors alone show the Claimant will struggle to establish that it was the disclosures that were the sole or principal reason.[45]There will also be a question at trial as to whether it was the manner in which she pursued her complaints rather than the three disclosures that was the true factor. This manner: in raising complaints too soon, before the Respondent had had a chance reasonably to make adjustments or assess her for those adjustments; sending them to far too many people, a matter that creates administrative overload; and sending far more than the 3 emails I have considered here, might well be distinguished from the disclosures themselves. It would again be unsurprising if that approach was a factor in the decision to dismiss. The higher courts warn against too easily separating the manner of the disclosure from the disclosure itself, so this factor may be more open to argument at trial.[46]Overall, it seems to me the Claimant will struggle to argue that the other factors were not relevant and weighty. Thus the Claimant does not have a pretty good chance of establishing that the disclosures were the sole or principal reason for the dismissal.[47]For all of those reasons the interim relief application is refused. Subsequent Case Management[48]At around 2.15pm during the lunch break the Claimant wrote to say that she had had a panic attack, she was unhappy with the way the hearing had been conducted and would not be returning. She wanted the opportunity to make submissions in writing on the costs application. I do not accept that the hearing was conducted inappropriately: where time is short it is necessary to structure a hearing and keep parties on track. I was courteous at all times and made a real effort to understand the Claimant’s submissions by asking questions and reflecting back to her my understanding. Obviously, however, hearings can be stressful and I took at face value that the Claimant felt unable to return. Mr Baker pointed out to me about half an hour later that the Claimant had sent the Respondent a lot of emails in that time, which would suggest she was capable to some extent of making her points, but I did not take this into account in the balancing exercise I undertook in deciding whether or not to continue. The Respondent also indicated that in addition to costs and a deposit order it would also be seeking a strike out application hearing.[49]I reconvened. In considering whether or not to hear the costs application in the Claimant’s absence, I applied the overriding objective: in particular avoiding unnecessary expense; avoiding delay; ensuring the parties were on an equal footing. While it would have been far more efficient from the Tribunal’s point of view to continue with the costs application, which was part of this hearing, I balanced the prejudice to the Claimant in no longer being in attendance against the loss to the Respondent in make an application it had prepared for. I decided to list for a further hearing at which the strike out application; costs application and deposit application could all be heard together. As Mr Baker had indicated, the points in them were similar; it was necessary to list a further hearing for the strike out application in any event and therefore, in this approach, the Respondent would not be put to further unnecessary cost and the Claimant would have an opportunity to make submissions.[50]I had also seen, in looking for Miss Messi’s case on the electronic filing system, that she had brought another claim against the same Respondent number 6008724 2025 on 13 March 2025. While that claim had not yet gone through the Tribunal’s process of ‘vetting’ and had not yet been therefore ‘accepted’ as a claim, it seemed to me relevant to consider how it was likely to be dealt with in anticipation that those processes would be successfully navigated. That claim would be sent to the Respondent for a Response and at the same time listed for a Preliminary Hearing to clarify its issues and make case management orders. Given that it was about the same very short period of engagement, there were likely going to be obvious benefits to both parties in having it heard together with this claim.[51]I therefore listed two 3-hour video hearings on consecutive days on 15 and 16 July 2025. I split the hearings across 2 days as an adjustment to the Claimant to keep the hearings both shorter and therefore hopefully less wearing. The first would be to clarify the issues in the second claim and consider whether the claims should be heard together. The second to hear all strike out, deposit and cost applications. I made case management orders for the preparation of those hearings (see separate order).