Ms L Oakes v Bolton Metropolitan Borough Council: 6003967/2024 and 6009922/2024
EMPLOYMENT TRIBUNALS
Case No 6003967/2024, 6009922/2024, 2409671/2023
Between
Ms L OakesClaimantBolton Metropolitan Borough CouncilRespondent
Before
Employment Judge JohnsonIn person for claimantDate 12 July 2024
JUDGMENT
(1) The application for interim relief does not succeed.
REASONS
Background
[1]This is the second claim presented by the claimant against the respondent, (the first claim was issued under case number 2409671/2023 but which was dismissed upon withdrawal by the claimant on 17 April 2024).[2]The second claim was presented on 16 June 2024 and in this case the claimant brought complaints of automatic unfair dismissal because of making a protected disclosure contrary to section 103A Employment Rights Act 1996 (ERA); ‘ordinary’ unfair dismissal and an application for interim relief. There was a complaint of disability discrimination, but that was struck out by the Tribunal on 28 June 2024, because no early conciliation number had been provided not being a Part X ERA complaint, it could not rely upon the interim relief application ‘exemption.’[3]The application for interim relief hearing was accepted by the Tribunal and listed for today.[4]The respondent is yet to present a response and I made a case management order for one to be provided by no later than 9 August 2024.[5]The claimant produced a hearing bundle of some 291 pages, but she also provided additional documents as part of separate attachments to other emails. They were somewhat confusing and she accepted that they were disorganised which she attributed to the short notice given for today’s hearing. They consisted of many emails and other documents, but ultimately, we did not need to refer to them during the hearing today.[6]The respondent produced a hearing bundle which included the proceedings but additionally, a great deal of documentation of some 316 pages in length which focused upon the disciplinary investigation and decision to dismiss following the claimant’s suspension in July 2022.[7]Mr Lassey also provided a revised skeleton argument this morning which was helpful as it summarised the law and articulated how and why the respondent challenged the claimant’s application for interim relief.[8]I observed that the claimant was a litigant in person. I applied the principles outlined within the overriding objective under Rule 2 of the Tribunals Rules of Procedure and the relevant chapter of the Equal Treatment Bench Book relating to unrepresented parties.[9]I reminded the parties that my task at this hearing was not to hear any live evidence or to make any findings of fact. It was to consider the relevant written documents and what parties told me in oral submission (by which I mean he told me why he believed his claim of automatic unfair dismissal would succeed) and then to decide whether the claimant had established that it was likely that at the final hearing the Tribunal would find in his favour on the automatic unfair dismissal complaints under section 103A of the ERA. The claimant’s case.[10]The claimant referred to two allegations of protected disclosures made to the respondent’s manager Teresa O’Neill in their Finance Team. This concerned an invoice that a service user had received unexpectedly from the Council for £7,000.[11]In addition to her role with the Council, the claimant supported this service user and was employed by them as their PA. She was therefore employed by the Council and separately by this service user, who received money from the Council. The claimant complained to the Council on behalf of the service user about the unexpected invoice and which she believed arose from poor communication by the Council and a failure to follow requirements to regularly audit. The alleged disclosures were: a) 30 March 2022 – the initial telephone call complaint to Teresa O’Neill b) 1 April 2022 – the email that the claimant says Ms O’Neill asked her to provide and which confirmed in writing what was disclosed in the previous call of 30 March 2022.[12]The claimant understandably wanted to explain the detailed and complicated treatment she received from the respondent, but I reminded her that what I could consider was limited to the determination of the interim relief application.[13]However, I noted that the claimant was employed by the Council from 4 July 1993 and latterly as a Community Assessment Officer. She was dismissed by reason of conduct on 14 June 2024 following a lengthy period suspension from July 2022. During the later period of her employment, she had also worked outside of the Council as a PA for a service user as described above and who was a vulnerable adult receiving funding from them.[14]The alleged protected disclosures were made when she contacted the Council in her role as a PA on behalf of the service user. It was at this point that concerns arose on the part of the Council that there was a conflict between the claimant’s role as a Community Assessment Officer and her role as a PA supporting a service user who accessed local authority funding from the Council.[15]The claimant believes that by making the alleged protected disclosures she was seen as a trouble maker by the Council. However, she believed that her complaints revealed failures if legal obligations by the Council in terms of auditing requirements and duties to service users. Within these disclosures, no reference was made to what these legal obligations and failures were with any precision.[16]The claimant believes the subsequent disciplinary process was a sham, engineered to attack her because of the disclosures, deliberately prolonged and the reasons for dismissal were principally for these disclosures and not her alleged conduct. The respondent’s case[17]Mr Lassey confirmed that the respondent dismissed the claimant for her blurring the roles that she held and it involved her fundamental failure to distinguish between them.[18]First, he argued that although the ET1 referred to an application for interim relief in section 2.3 and in section 8.1, the reference to complaints of unfair dismissal and whistleblowing were not adequately supported by background information in section 8.2. this was because she failed to assert that the dismissal decision was reached because of the protected disclosures alleged.[19]He then went on to say that even if there is an arguable s103A ERA claim within the ET1 as currently drafted, it is difficult to see how the claimant has made out a protected disclosure within the meaning of s43B ERA. Mr Lassey explained that no information was actually disclosed and at their highest they complaints made by the claimant concerned vague and unfounded allegations of financial mismanagement.[20]Moreover, he argued that there was insufficient evidence to support the claimant’s contention that disclosures were made in the public interest and that they did not tend to show one of reasons under s43B(1) such as failure of an employer to comply with legal obligations.[21]Thirdly, he said, the alleged protected disclosures were made on 30 March 2022 and/or 1 April 2022 and the claimant was not dismissed until 14 June 2022. It was therefore difficult to see how the decision to dismiss was in relation to protected disclosures as asserted.[22]Fourthly, Mr Lassey submitted that there was an abundance of evidence before me which revealed that the claimant was dismissed for her misuse of the Council’s data and that she had not previously told the Council that she was acting as a service user for a service user accessing Council monies. He provided numerous references to the respondent bundle and witness statements including the dismissing officer Ms Bruce. He added that the claimant admitted that she shouldn’t have done what she was being investigated for The suspension he acknowledged, was lengthy but this was because of external events beyond the investigating officer’s control including safeguarding matters being raised and the claimant’s grievance.[23]While he noted that the claimant alleged that the there was a ‘cover up’ on the part of the Council and that the disciplinary process was described by her as being ‘a sham’, this was something that could not be found by a Tribunal based upon the available evidence today and a final hearing was required to carefully unpick the extensive evidence that would be produced. Relevant Legal Framework The law relating to interim relief generally[24]The application for interim relief was brought under section 128 of the ERA. The test for whether it succeeds or not appears in section 129(1) as follows: ‘(1) This section applies where, on hearing an employee’s application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find – (a) that the reason (or if more than one the principal reason) for the dismissal is one of those specified in – (i) section…103A…[25]In assessing the prospects of success, I had regard to the legal framework which applies to the substantive complaints of automatic unfair dismissal and as provided by the guidance given in Hancock v Ter-Berg & anor UKEAT/0138/19/BA.[26]Moreover, I noted the guidance given in Taplin v C.Shippam Limited [1978] ICR 1068 and that when making an order for interim relief, a Tribunal should be satisfied that the relevant complaint has a ‘…pretty good chance of succeeding’. This was revisited by Eady HHJ (as she then was), and who helpfully provided a summary explaining the challenges which a Judge is confronted by in an application for interim relief and what is expected from the decision maker. Accordingly, I was reminded that: a) my decision today was a summary one, b) that I must do the best I can based upon the available materials and the short notice involved, c) avoid findings that will bind the hands of the Tribunal at a future hearing, d) adopt what can be described as an ‘impressionistic’ approach based upon how the matter looked to me, e) consider whether the claimant has a ‘pretty good chance of succeeding’, f) explain my conclusion in a way that provides the ‘gist’ and which is ‘not overly formulaic’. Dismissal because of making a protected disclosure[27]Parts IVA of the ERA defines a protected disclosure within section 43B with subsequent sections dealing with relevant persons to whom the protected disclosure can be made.[28]The key requirements are that the claimant must have made a disclosure of information rather than a bare allegation, that he must reasonably have believed that the information tended to show one of the matters set out in section 43B(1), and that he reasonably believed that his disclosure was made in the public interest. If those requirements are met, a disclosure to an employer will qualify for protection.[29]If a protected disclosure has been made, the complaint will succeed only if the reason or principal reason for dismissal is that the employee made a protected disclosure. Where the decision is that of one person it is the sole or principal reason in her mind which matters. It is not enough for any protected disclosure to have had a material influence if it is neither the sole nor the main reason for dismissal. However, this is subject to the decision of the Supreme Court in Royal Mail Ltd v Jhuti [2020] 3 All E.R. 257 where at paragraph 62, it says that ‘ … if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.’[30]Conclusions[31]Based upon the claim form, grounds of complaint, the witness statements and all of the documentary evidence available to me and what the claimant and Mr Lassey told me, I drew the following conclusions: Dismissal because of making a protected disclosure[32]I was not satisfied that it is likely; in the sense of there being ‘a pretty good chance of success’ that the claimant would succeed with his claim of dismissal because of making a public interest disclosure.[33]The claimant may ultimately be able to demonstrate that some of the alleged protected disclosures satisfied the requirements of section 43B, but for the purposes of the application seeking interim relief, I am not satisfied that they provided more than bare allegations. It may be that a full consideration of the evidence at a final hearing will on balance persuade a Tribunal that there were protected disclosures under section 43B, but that will require the provision of relevant witness evidence and documents by the parties and a full consideration of that evidence.[34]Additionally, in relation to the dismissal, I was concerned that while in terms of chronology and proximity to the alleged disclosures, the decision to suspend, investigate and dismiss the claimant may be sufficiently connected to satisfy the requirements of section 103A, the respondent has a good arguable case that there were other reasons for the dismissal. A lengthy and detailed disciplinary process took place and while delays may be an issue, based upon evidence today, that appears to be a matter of potential procedural unfairness rather than a substantive complaint of dismissal arising principally from protected disclosure.[35]The Tribunal may conclude at the final hearing that there were valid protected disclosures and that the principal reason for the dismissal was the making of those disclosures, but that will require a detailed consideration of evidence and that can only take place at a final hearing. This is not an unequivocal case and uncertainties as to the real reason for the dismissal remain. Accordingly, this is a matter to be considered at a final hearing once all relevant documentation has been disclosed and witness evidence has been exchanged.[36]Accordingly, while I am not satisfied that all elements of a complaint of automatic unfair dismissal under section 103A are likely to succeed, this is not to say that there is not an arguable case. It is a matter which requires further case management and the provision of oral evidence.[1]The claimant is seeking a reconsideration of paragraph 1 in the Judgment sent to parties on 30 July 2025.[2]I conducted a public preliminary hearing in person and by CVP on 30 May 2025 and struck out the claimant’s complaint brought under section 103A of the Employment Rights Act 1996 (“the ERA”) The Reserved Judgment and Reasons the 26 June 2025 produced following in chambers deliberations, consisted of 16- pages which I do not intend to repeat. The claimant was represented by solicitors who referred me to non-existent cases in submissions.[3]The claimant instructed new solicitors and in a letter dated 14 August 2025 a reconsideration was sought on the following basis:[4]“The Respondent’s letter to the service user and its contents dated 28th March 2022 [page 776-778 of the 30th May 2025 hearing bundle] was not given due consideration by the Tribunal Judge when considering which of the Claimant’s disclosures constituted protected disclosures. As this letter was not considered by the Judge, there was no evidence that the Respondent had breached any of their legal obligations, in which case the Tribunal Judge concluded that the Claimant’s disclosures did not amount to protected disclosures. If this error in law had not been made by the Tribunal Judge and adequate weight had been given to this evidence, the Claimant has no doubt that their disclosures would satisfy the test for protected disclosures under S43B(1)(b) Employment Rights Act 1998 (“ERA 1996”), and the reserved judgement following the 30th May 2025 hearing would have mirrored the same.”[5]The claimant’s newly instructed solicitors had not appeared at the preliminary hearing held on 30 May 2025 and is likely to have been unaware of the documents in the bundle to which I was referred.[6]The claimant, acting in person as she was no longer legally represented, emailed the Tribunal on the 14 October 2025 with a supplementary application in support of the reconsideration and new evidence. The new evidence considered of an undated document titled “Adult Social Care Review” 1 and 2 of 9 (pages 3 to 9 could not be downloaded) and a note from the claimant that an appointee had been appointed “covertly and hidden well” and the respondent’s actions including the claimant’s “suspension, disciplinary proceedings and police referral were to punish the claimant for speaking up about financial irregularities. “ The claimant complains that she was prevented from questioning a key witness responsible for the financial arrangements and was “pressured” into withdrawing the evidence. The claimant alleged the Tribunal had excluded documents which supported her disclosure.[7]In the written application attached to the 14 October 2025 email, the claimant clarified that she had found the “new evidence” by reviewing the client’s documents showing that the respondent had “diverted” the client’s benefits to a council appointee bank account controlled by the respondent ”…to fund care that was allegedly being forced upon her…” The claimant complains that she had raised concerns about the debt “they caused but two years later they used the same debt to enact an arrest…I was on bail for a year…and did not check her mail until she asked me.”
Law
[8]Rule 68 provides that reconsideration of a judgment will take place where the Employment Tribunal considers that it is necessary in the interests of justice to do so.[9]Rule 69 provides that applications for reconsiderations of judgments should be presented in writing within 14 days of the date on which the written record of the judgment was sent to the parties, and should set out why reconsideration is necessary. In this case, the Claimant submitted her application within the stipulated time period, however, I was not satisfied that her explanation of why she considered reconsideration was necessary had been set out.[10]Rule 70(1) notes that the Tribunal must consider any application made under Rule 69, and Rule 70(2) notes that if the Tribunal considers that there is no reasonable prospect of the original decision being varied or revoked then the application must be refused, and the Tribunal must inform the parties of the refusal. Alternatively, Rules 70(3) to (5) set out the process that is then to be followed for further consideration of the application.[11]In Outasight VB Ltd v Brown 2015 ICR D11, EAT, HHJ Eady QC (as she then was) indicated that the wording “necessary in the interests of justice” in Rule 701 allows employment tribunals a broad discretion to determine whether reconsideration of a judgment is appropriate in the circumstances. She confirmed that that 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” In that case the EAT also held the law regarding reconsideration of a judgment in the light of new evidence did not change with the introduction of the Tribunal Rules 2013 and presumably the 2024 Rules also.[12]Achieving finality in litigation is part of a fair and just adjudication. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714. It has also been the subject of comment from the then President of the Employment Appeal Tribunal in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 (paragraph 34) in the following terms: “A request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”
Conclusion
[13]With reference to the first reconsideration ground, set out in the solicitor’s letter dated 14 August 2025 that “The Respondent’s letter to the service user and its contents dated 28th March 2022 [page 776-778 of the 30th May 2025 hearing bundle] was not given due consideration by the Tribunal Judge when considering which of the Claimant’s disclosures constituted protected disclosures, I no longer have the bundle which ran to 856 pages. The important documents to which I was referred to have bene noted in the Judgment. I do however had access to a bundle of witness statements that were in the Tribunal file marked “Bundle of Witness Statements”. The claimant’s witness statement makes no reference to the 28 March 2022 letter, page 776-778 is not referred to, and I cannot say with any certainty if I was taken to that letter by either party. The claimant’s solicitors do not set out why the letter is relevant and how it undermines the conclusions reached in the Reserved Judgment and Reasons that the claimant was not a credible witness and her disclosure was not in the public interest. The first ground for reconsidering the Judgment does not meet the test, and it is an attempt at a “second bite of the cherry” by newly instructed solicitors who were not the same solicitors representing the claimant at the preliminary hearing.[14]With reference to the second reconsideration ground relied on by the claimant, there is no date on the documents she has produced and I can only infer from the claimant’s comments that the document was generated before the preliminary hearing and if this is the case, given the claimant was working for the client in question, there is no good reason why she could not have accessed them through the client as indeed she had done to support the evidence given in the preliminary hearing and now in this reconsideration application.[15]The claimant has indicated that those documents were not available to her before the hearing due to her being on bail and the client’s unawareness. I accept reconsideration of a judgment may be necessary if new evidence was not available to a party by the time of the hearing, and the principles set out in Ladd v Marshall 1954 3 All ER 745, CA by the Court of Appeal are relevant here. It is necessary for the claimant to satisfy me that:15.1 The evidence could not have been obtained with reasonable diligence for use at the original hearing, the claimant has not persuaded me that it was not.15.2 The evidence is relevant and would probably have had an important influence on the hearing; and I am not satisfied that the document referred to would have any relevance, least of all have an important influence.15.3 That the evidence is apparently credible. I did not find the claimant a credible witness at the preliminary hearing for the reasons set out, and the claimant’s allegation that she was reported to the police for whistleblowing when the respondent was aware the client’s funds were being diverted to a bank account that was in control of the respondent was not persuasive, not least, during a police investigation the diversion of the funds could have been discovered in an audit trail. The evidence does not assist the claimant in satisfying me that she had made a protected disclosure, which is a completely different issue in respect of the automatic unfair dismissal claimed, which I was not considering. Had the claimant succeeded in satisfying the burden on her, as set out in the agreed list of issues at 6.1, the claim would have proceeded to a liability hearing.[16]Turning to the claimant’s allegation that she was prevented from questioning a key witness responsible for the financial arrangements and was “pressured” into withdrawing the evidence, this was not a matter raised by her solicitors. Had it been I would have dealt with it in the Judgment and Reasons including any outcome. The claimant alleged the Tribunal had excluded documents which supported her disclosure, and yet, this was another matter that was not raised by the claimant’s solicitors either before or at the hearing. I have no knowledge of the documents the claimant is referring to, and she has not given any indication of what these are. The bundle before me at the preliminary hearing was a “shortened bundle” of 856 pages and had there been in existence any key documents they would have bene included in the bundle by her solicitors and referred to in the claimant’s evidence and crosscross examination.[17]Theresa O’Neil, financial administration officer in the directs payments team, gave evidence tested by cross-examination conducted by the claimant’s solicitor. She was the only witness dealing with the financial arrangements. Neither the claimant when she was acting in person, nor her solicitors submitted an application to call any other witness. 18. it is not generally in the interests of justice that the claimant should be given a second bite of the cherry simply because her litigation strategy has failed, and the new evidence referred to by the claimant is unlikely to have any bearing let alone an important bearing on the case and influence the decision made.[19]Rule 68 provides that reconsideration of a judgment will take place where the Employment Tribunal considers that it is necessary in the interests of justice to do so. I do not consider this necessary in the claimant’s case.[20]In conclusion, having reviewed the Judgment and Reasons in the context of the Claimant's reconsideration application, I did not consider that there was a reasonable prospect of the decisions being varied or revoked, and I therefore refused the application.