C Ovens v St Stephens Pre-School Community Interest Company: 6012669/2025

EMPLOYMENT TRIBUNALS

Case No 6012669/2025

Between

Carrie OvensClaimant

St Stephens Pre-school Community Interest CompanyRespondent

Before

Employment Judge Whittall

Unrepresented for claimant

Not in attendance for respondent

Date 14 May 2026

JUDGMENT

[1]The claimant made qualifying disclosures and the claimant’s claim of detriment for making a protected disclosure is well founded and succeeds;

[2]The claimant’s claim of automatically unfair constructive dismissal is well founded and succeeds;

[3]The claimant’s claim for notice pay is well founded and succeeds;

[4]The claimant’s claim for failure to provide written particulars of employment is well founded and succeeds.

REASONS

[1]This matter was listed for a one day final hearing by CVP, judge sitting alone. The respondent had not engaged with the proceedings at all. They had not submitted an ET3. The claimant informed me that her understanding was that they were aware of the proceedings but had chosen not to engage. She had liaised with Companies House to prevent the directors from dissolving the company pending the outcome of her claim. This hearing was fixed following a case management decision that determination of the claim could not be made on the papers.

[2]I satisfied myself that notice of the hearing had been given to the respondent. A letter had been sent to the registered address on Companies House. My clerk attempted to telephone the company a number of times but there was no answer. Therefore, I was satisfied that the requirements of Rule 47 of the Employment Tribunal Procedure Rules 2024 were met and I continued with the hearing in the absence of the respondent.

[3]In addition to her own witness statement, the claimant had served a number of witness statements on behalf of herself, as follows:a. Michael Ovens – claimant’s husband who provided a witness statement about the impact on the claimant;

b. Lorraine Kirton – a colleague of the claimant’s who provided evidence about an incident on 15 January 2025 when Ms Bissell of the respondent attended her address as well as evidence about the disclosures and change in atmosphere towards the claimant after the disclosures;

c. Matthew Kirton – Lorraine Kirton’s husband who gave evidence about the incident on 15 January 2025;

d. Daniel Bowyer – giving evidence about a telephone conversation he had with Ms Bissell on 9 January 2026.

[4]All four witnesses attended and were sworn in to provide evidence and so their statements were accepted as their evidence in chief.

[5]There was an anonymous witness statement provided but I explained that that could not be considered a witness statement as it was anonymous.

[6]There was also a witness statement from Charlie Hammond contained in the bundle, who did not attend to give evidence.

[7]The claimant also provided a 172 page bundle of documents and also emailed additional documents on the day of the hearing, including an email chain between the claimant and Mark Carter dated 10 January 2025, a letter from Ofsted dated 24 November 2025 in response to a subject access request from the claimant detailing the reports she had made to Ofsted and various screen shots of messages between the claimant and others. I accepted these documents as late evidence.

[8]There was insufficient time to give oral judgment on the day of the hearing and so I reserved judgment. The parties and the claims

[9]The claimant was employed by the respondent, a preschool, as operations manager from 3 January 2024 until she resigned on 16 January 2025. The claimant was not given a contract of employment but was paid £1550.00 per month.

[10]The respondent is a community interest company operating under the name Blossoms Preschool & Children’s Centre. Companies House shows the company is active but there is an active proposal to strike off the company.

[11]The ET1 was submitted on 12 April 2025, ACAS early conciliation started on 17 March 2025 and ended on 11 April 2025.

[12]The claimant claims:a. Detriment for making a protected disclosure;

b. Automatic unfair dismissal for making a protected disclosure;

c. Harassment relating to disability; and

d. Failure to pay notice pay;

e. Failure to provide written particulars of employment.

[13]The claimant withdrew her claim for arrears of pay, namely failure to pay overtime. This claim is dismissed upon withdrawal.

Findings of fact

[14]The following findings of fact are made based on the uncontested evidence of the claimant, supporting witness evidence and documentary evidence submitted by the claimant. I make all findings of fact on the balance of probabilities.

[15]On 3 December 2024, Ofsted, the regulator of pre-schools, inspected the respondent. Following this inspection, Ofsted sent a welfare requirements notice to the respondent. In it, a director of the respondent, Ms Chrissie Bissell, was named for allegedly breaching safeguarding requirements and Ofsted were investigating her suitability as a nominated individual for Ofsted. The alleged breaches included breaching confidentiality by sharing confidential safeguarding information about a child with people who should not have had that information. Specific concerns were raised about Ofsted’s ability to rely on Ms Bissell to provide open and transparent communications to Ofsted and other agencies.

[16]In a letter dated 20 December 2024, Ofsted had detailed the respondent needed to take the following actions:a. ensure confidential information and records about children are held securely and only accessible to those who have a right or professional need to see them;

b. comply with your responsibilities under the Data Protection Act 2018 and General Data Protection Regulation 2018, particularly with regard to reporting requirements;

c. make sure that information is handled in a way that ensures confidentiality and maintains the privacy of children and families, with particular regard to recording and sharing sensitive material.

[17]After this, Ms Bissell had stepped away from her role as Director and Designated Safeguarding Lead (‘DSL’) for the respondent. The claimant became the DSL in her absence. As DSL, it was the claimant’s responsibility to ensure the safety of children and staff at the preschool setting.

[18]On 8 January 2025, Ofsted visited the setting. During this visit, they asked whether Ms Bissell had access to the software system used to store safeguarding information about children at the nursery. The Ofsted inspectors spoke to the claimant and explained that if she did not report potential safeguarding breaches to Ofsted, she would be investigated herself.

[19]In light of this, the claimant asked Ms Bissell if she still had access to the software system. Ms Bissell confirmed she had removed herself and added the claimant as admin contact for the system. The claimant checked the system and could see that Ms Bissell still had an account on the system and was still active on 8 January 2025. Furthermore, Ms Bissell had added someone to the system on 8 January 2025. This person was not an employee of the setting and had worked with Ms Bissell in the past. The claimant had no information to suggest this person should have had access to any of the safeguarding information. The claimant took steps to ensure Ms Bissell and the other person no longer had access to the software.

[20]During Ofsted’s visit on 8 January 2025, the Ofsted inspectors also informed the respondent that they do not give permission to be recorded. However, Ms Bissell was monitoring the CCTV remotely and sending messages by WhatsApp to staff informing them of the inspectors movements and what they were. The claimant’s evidence on this point is supported by screen shots of messages from Ms Bissell, including one stating ‘Ofsted are in a car outside of preschool’.

[21]On 9 January 2025, Daniel Bowyer informed the claimant that Ms Bissell had been speaking to him about confidential information, including information about Ofsted’s inspection of the setting and confidential information about a safeguarding investigation involving families at the pre-school.

[22]On 9 January 2025, the claimant informed Ofsted of the above three matters relating to Ms Bissell, summarised as follows:a. Unauthorised access to safeguarding software and confidential child data;

b. Misuse of CCTV;

c. Breach of confidentiality by discussing staff members and confidential safeguarding information with non-employees.

[23]On 9 January 2025, the claimant also wrote to Essex County Council Local Authority Designated Officer (‘LADO’) detailing the same three concerns. She wrote to the Information Commissioner’s Office in respect of the misuse of CCTV concern.

[24]On 10 January 2025, the claimant conducted a risk assessment addressing the above concerns and detailing what steps would be taken to mitigate the risks. This was agreed by Mr Carter.

[25]The claimant gave evidence that she was concerned that Ms Bissell was misusing potentially sensitive data and breaching Ofsted’s requirements despite knowing that she was being investigated by Ofsted for similar concerns. The claimant stated that the preschool has some vulnerable children with sensitive safeguarding needs if sensitive information got into the wrong hands, vulnerable children could be at risk. Therefore, the claimant’s view was that the setting needs to be particularly careful about confidentiality and ensuring safeguarding information is only given to people on a need to know basis.

[26]The claimant also stated that Ms Bissell was the director of the pre-school, the second director was Mark Carter, who was Ms Bissell’s neighbour with no knowledge of childcare or safeguarding. Other directors or people involved in the company were Ms Bissell’s partner, Mrs Raindbird, Mr Bissell’s mother. The claimant did not feel she could turn to those individuals for support and so she had to make the disclosures to the outside agencies detailed above.

[27]The claimant stated that after making these disclosures, she suffered detriments, as follows.

[28]First, the claimant says that shortly after making the disclosures, on 10 January 2025 her access to her work email account was restricted or blocked. She had attempted to change her password given her concerns about data security but was unable to log back in after trying to do so. The claimant says she did not receive timely assistance to help her access her emails and that Ms Bissell was the administrator. She didn’t receive any response to her request for support until 16 January 2025. The claimant stated this prevented her from carrying out her role effectively as she no longer had access to work emails.

[29]Second, Ms Bissell changed her mobile number and set up a new staff WhatsApp group excluding the claimant from this. She also did not give the claimant her new number. The claimant’s evidence is that WhatsApp messages were used for work communications and so she was excluded from this form of work communication, undermining her ability to do her job. Furthermore, Ms Bissell still had sole access to the bank accounts and to CCTV. If there was some sort of an emergency or the claimant needed funds for the pre-school, she could not contact Ms Bissell.

[30]Third, excluding the claimant from key decision making. The claimant explained that although Ms Bissell was not meant to be working she was still playing an active role and speaking to Mr Bissell whilst he was at work, they were making decisions excluding the claimant whereas as operations manager, the claimant should have inputted into the decision making. Furthermore, the telephone lines had been diverted to Mr Bissell. The claimant gave an example, as follows. On 13 January 2025 Ofsted closed the pre-school and Mr Bissell held a staff meeting to inform all staff alone. The claimant’s evidence is that as operations manager, she should have been part of the arrangements and delivery of that information.

[31]Fourth, on 13 January 2025, Ms Bissell issued a public statement to all of the parents of the setting blaming the management team for the closure of the setting, which inherently included the claimant.

[32]Fifth, on 15 January 2015, Ms Bissell visited Ms Kirton, another employee’s home and shouted outside of her home accusing the claimant of trying to take over the business. Ms Kirton and Mr Kirton both gave evidence of this incident.

[33]Sixth, on 23 January 2025, the claimant states that the respondent failed to inform the claimant of the death of a child who attended the preschool and of the funeral arrangements.

[34]Seventh, Mark Carter, another company director, agreed with the claimant’s risk assessment conducted on 10 January 2025 which included an action for the claimant to write to Ms Bissell to ask her to give them access to bank accounts and key passwords. Mr Carter later denied agreeing with this action. The claimant considers this was a detriment and done by Mr Carter with the aim of distancing himself from the claimant.

[35]Eighth, failed to acknowledge the claimant’s resignation and grievance. The claimant called in sick on 16 January 2025 and resigned on 17 January 2025 and then on 24 January 2025 submitted a grievance but, apart from an email saying they were waiting to hear from HR, the claimant did not receive a response to either.

[36]The claimant gave evidence that an individual had informed her that Ms Bissell had told that person that she had seen the claimant’s disclosures to the LADO and ICO and that she had access to the claimant’s emails. The claimant also gave evidence that Mr Carter was aware of her concerns as he had had sight of the claimant’s risk assessment. This claim is against the respondent company and I am therefore satisfied that the respondent, through both Ms Bissell and Mr Carter, had knowledge that the claimant had made the disclosures detailed above.

[37]The claimant also gave evidence that Ms Bissell used to call her ‘ADHD’ and make derogatory comments to her about her ADHD diagnosis on an almost daily basis, including shouting ‘oy ADHD’ to get her attention and commenting that she might make mistakes because of her ADHD, as well as questioning whether she had taken her ADHD medicine when Ms Bissell was concerned about her work. This occurred in front of other colleagues and Ms Kirton gave evidence that she had overheard these comments. I accept the claimant’s evidence as there is no evidence that contradicts her account and it is supported by Ms Kirton. The law Protected disclosures

The law

[38]Under the Employments Right Act 1996 (‘ERA’), an employee or worker is given certain protections if they make a protected disclosure. The first issue to determine is whether the claimant made what is called a ‘qualifying disclosure’. A qualifying disclosure is defined by section 43B, as follows: In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— a. […] (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […]

[39]In Williams v Michelle Brown AM,

UKEAT/0044/19/OO

, HHJ Auerbach identified five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure [see paragraph 9]: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’

[40]As for what might constitute a disclosure of information for the purposes of s.43B ERA, in Kilraine v London Borough of Wandsworth

[2018] ICR 1850

CA, Sales LJ provided the following guidance: ‘30. the concept of "information" as used in section 43B(1) is capable of covering statements which might also be characterised as allegations. … Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other […] 31. On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute "information" and amount to a qualifying disclosure within section 43B(1), not every statement involving an allegation will do so. Whether a particular allegation amounts to a qualifying disclosure under section 43B(1) will depend on whether it falls within the language used in that provision. […]35. In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). […]

36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a Tribunal in the light of all the facts of the case.’ Case Number: 3200777/2024

[41]The burden is on the Claimant to prove each of the elements necessary for a qualifying disclosure under s.43B ERA. In s.43B(1)(b) ERA, ‘likely’ requires more than a possibility or risk that the employer (or other person) might fail to comply with a relevant obligation. The information disclosed should, in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable, or more probable than not that the employer (or other person) will fail to comply with the relevant legal obligation. If the claimant's belief is limited to the possibility or risk of a breach of relevant legislation, this would not meet the statutory test of likely to fail to comply (Kraus v Penna plc

[2004] IRLR 260

at [24].

[42]Where a disclosure is vague and lacks specificity, it will not provide sufficient information: Leclerc v Amtac Certification Ltd

UKEAT/0244/19

at [26-31]. Where the link to the subject matter of any of ERA s.43B(1) is not stated or referred to, or is not obvious, a Tribunal may regard this as evidence pointing to the conclusion that the information is not specific enough to be capable of qualifying as a protected disclosure (Twist DX Ltd v Armes

UKEAT/0030/20

at [86] and [87]). Did the worker believe that the disclosure tended to show one or more of the matters listed in sub-paragraphs (a) to (f)? If he did hold that belief, it must be reasonably held.

[43]Whether the Claimant held the belief that the disclosed information tended to show one or more of the matters specified in s.43B(1)(a)-(f) (‘the specified matters’) and, if so, which of those matters, is a subjective question to be decided on the evidence as to the Claimant's beliefs (Twist at [64]). Disclosure in the public interest

[44]The Court of Appeal considered the ‘public interest’ test in Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

. The Tribunal must ask: did the worker believe, at the time he was making it, that the making of the disclosure was in the public interest (at [27])? That is the subjective element. There is then an objective element: was that belief reasonable? That exercise requires that the Tribunal recognise that there may be more than one reasonable view as to whether a particular disclosure was in the public interest (at [28]). ‘Public interest’ involves a distinction between disclosures which serve the private or personal interest of the worker making the disclosure and those that serve a wider interest (at [31]). Method of disclosure

[45]A qualifying disclosure becomes a ‘protected disclosure’ if it is made by a worker in accordance with any of sections 43C to 43H, which identify the persons to whom a disclosure may be made. The relevant methods for this case are as follows.

[46]Firstly, section 43F ERA details that disclosure to a prescribed person, where the claimant reasonably believes that the subject matter of the disclosure ‘falls within any description of matters in respect of which that person is so prescribed’ and that the information disclosed is substantially true.

[47]Ofsted is listed as a prescribed person under Schedule 1 to the Public Interest Disclosure (Prescribed Persons) Order 2014 SI 2014/2418, to receive disclosures about activities falling within the remit of Ofsted, including the regulation and inspection of children services.

[48]The LADO is not a prescribed person. However, the Local Authority responsible for the enforcement of health and safety legislation is a prescribed person. In Miss K Watson v United Synagogue Case ET No 3303537/2022, the Employment Tribunal took a purposive approach and decided that simply because the disclosure was not to the designated Health and Safety officer, there was a disclosure to the Local Authority and it does not matter whether the disclosure should have been to a different department. I endorse this approach.

[49]The ICO is a prescribed person under Schedule 1 in respect of compliance with data protection legislation. Detriment

[50]Section 43B of the ERA provides that a worker has a right not to be subjected to any detriment by his or her employer or a colleague acting in the course of employment on the ground that the worker made a protected disclosure.

[51]The threshold for whether there is a detriment is low. It is not necessary for there to be physical or economic consequences to the employers act or inaction, what matters is that, compared with other worker, the complainant is shown to have suffered a disadvantage of some kind (Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

). Burden of proof and causal link between disclosure and detriment

[52]Section 48(2) ERA establishes that, once a claimant has established, on a balance of probabilities, the necessary elements of the claim, as detailed above, the burden then shifts to the respondent to prove that the claimant was not subject to a detriment on the grounds that they had made a protected disclosure. In this matter, the respondent had not engaged or put forward a defence.

[53]The EAT summarised the proper approach to drawing inferences in a detriment claim in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17: the burden of proof lies on the claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she was subjected was a protected disclosure that he or she made by virtue of S.48(2), the employer (or worker or agent) must be prepared to show why the detrimental treatment was done. If it (or he or she) does not do so, inferences may be drawn against the employer (or worker or agent) — see London Borough of Harrow v Knight

2003 IRLR 140

, EAT however, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.

[54]The correct meaning of ‘subjected to’ in this context was considered by the EAT in Abertawe Bro Morgannwg University Health Board v Ferguson

2013 ICR 1108

, EAT, . The EAT accepted that the phrase ‘be subjected to’ in S.47B(1) appeared to have been chosen deliberately but the reason for this was that the statutory context covered both positive acts and omissions to act.

[55]In Aspinall v MSI Mech Forge Ltd EAT 891/01 the EAT held that the words ‘on the ground that’ in S.47B require a causal nexus between the fact of making a protected disclosure and the decision of the employer to subject the worker to the detriment. The EAT in Aspinall borrowed the words of Lord Scott in the Khan case when concluding that, ‘for there to be detriment under S.47B “on the ground that the worker has made a protected disclosure” the protected disclosure has to be causative in the sense of being “the real reason, the core reason … the motive for the treatment complained of”’.

[56]Elias LJ’s formulation of the causation test — i.e. whether the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower — has come to be seen as the authoritative statement of what is required under S.47B. The correct approach to the words ‘on the ground that’ in S.47B was considered by the Court of Appeal in Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

2012 ICR 372

, CA Knowledge

[57]Either the employer can be liable for an unlawful detriment under S.47B(1), or an individual employee can be liable under S.47B(1A), or both. Furthermore, under S.47B(1B), an employer can be held vicariously liable for any unlawful detriments for which an employee is individually liable under S.47B(1A) Constructive automatic unfair dismissal

[58]Section 94 of the Employment Rights Act 1996 (‘ERA 1996’) sets out the right for an employee not to be unfairly dismissed by their employer. Section 95 of the ERA 1996 defines dismissal for this purpose and subsection 95(1)(c) it includes ‘‘the employee terminates the contract under which she is employed (with or without notice) in circumstances in which she is entitled to terminate it without notice by reason of the employer’s conduct’.

[59]Section 103A states that ‘An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.’

[60]The Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

per Underhill LJ at paragraph 55, set out the proper approach, as distilled from relevant case law, as follows: 61. ‘it is sufficient for a tribunal to ask itself the following questions: i. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? ii. Has he or she affirmed the contract since that act? iii. If not, was that act (or omission) by itself a repudiatory breach of contract? iv. If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation, for the reason given at the end of para. 45 above.) v. Did the employee resign in response (or partly in response) to that breach?

[62]In Mahmood v BCCI

1997 ICR 607

it was confirmed that every contract of employment contains an implied term that the employer shall not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and employee.

[63]Morrow v Safeway Stores Ltd

2002 IRLR 9

confirmed that the breach of the implied term could be sufficiently important to entitle the employee to treat himself as dismissed.

[64]Where the breach alleged arises from a number of incidents culminating in a final event, the tribunal must look at the entire conduct of the employer and the final act relied on need not itself be repudiatory or it even unreasonable, but must contribute something even if relatively insignificant to the breach of contract see Lewis and Motor World Garages Ltd

1985 IRLR 465

and Omilaju v Waltham Forest London Borough Council

2005 IRLR 35

. In Omilaju it was said: i. ‘19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. ii.20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred. iii.

21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.’

[65]The assessment of the gravity of the conduct is an objective one. It does not depend on the subjective reaction of a particular employee or the opinion of the employer, see Omilaju v Waltham Forest London Borough Council

[2004] EWCA Civ 1493

and Bournemouth University Higher Education Corpn v Buckland

[2011] QB 323

. Harassment

[66]Sections 26 and 40 EA 2010 sets out the legal test for a claim of harassment, as follows: i. 26 Harassment b. A person(a) (A) harasses another

(b) (B) if— i. (a) A engages in unwanted conduct related to a relevant protected characteristic, and ii. (b) the conduct has the purpose or effect of— 1. violating B's dignity, or iii. (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. iv. … v. (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. vi. (5) The relevant protected characteristics are— age; disability; gender reassignment; race; religion or belief; sex; sexual orientation.

[67]Section 40 of the Equality Act 2010 makes it unlawful for an employer to harass a person who is an employee.

[68]The need for a tribunal to take a rigorous approach to the question of whether conduct related to a protected characteristic was emphasised in Tees, Esk and Wear Valleys NHS Foundation Trust v Aslam

[2020] IRLR 495

, EAT where the EAT said: a. ‘The broad nature of the 'related to' concept means that a finding about what is called the motivation of the individual concerned is not the necessary or only possible route to the conclusion that an individual's conduct was related to the characteristic in question. Nevertheless, there must be still, in any given case, be some feature or features of the factual matrix identified by the tribunal which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claim. In every case where it finds that this component of the definition is satisfied, the tribunal therefore needs to 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. Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the tribunal may consider it to be.’

[69]Pemberton v Inwood

[2018] IRLR 542

considered the effect of the subjective and objective nature of the test in subsection 26(4), as follows: a. ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (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, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. 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 him or her, then it should not be found to have done so.’

[70]In Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

, which dealt with the legislation in place prior to the Equality Act 2010 there is a reminder of the need to take a realistic view of conduct said to be harassment. At paragraph 22 Underhill P (as he was) said: a. ‘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. Notice pay

[71]Section 86 ERA provides for minimum notice periods for employees. For employees with less than two years continuous service, as the claimant has, the minimum period is one weeks notice. Where there is no express contract, a Tribunal can imply a term that reasonable notice is given. This depends on the custom and practice in the profession, the employee’s states and the period by which their pay is calculated. Written particulars of employment

[72]Section 1 ERA places a duty on employers to provide a written particulars of employment to employees. Tribunals have the power to award compensation under section 38 of the Employment Act 2002 where, upon a successful claim being made under any of the jurisdictions listed in Schedule 5 to the Employment Act 2002, which includes unfair dismissal and claims for discrimination, it is evident that the employer is in breach of that duty.

[73]A Tribunal must award a minimum amount of two weeks pay but can, if it considers it just and equitable, award four weeks pay (see section 38 (2) – (5)). Findings and conclusions Protected disclosure

[74]The first question is whether the claimant made a qualifying disclosure. I will deal with each disclosure the claimant is relying on in turn. Disclosure 1 – unauthorised access to safeguarding software and confidential child data

[75]In this disclosure, the claimant specifically set out specific information about what her concern was, identified the individual she was concerned about, timings, the basis for her belief and steps she had taken. This clearly is disclosure of information, not opinion.

[76]The claimant gave evidence that, she considered this was in the public interest issues, relating to matters such as domestic violence and social services involvement. She felt that mismanagement of safeguarding information could put a vulnerable child at serious risk.

[77]I have decided that the claimant clearly believed the disclosure was made in the public interest, it was not in the pursuit of her private interests. The claimant did have concerns about how the respondent was treating her but she raised those separately in a grievance. There is a clear distinction between those matters and the matters she was raising with Ofsted, the LADO and ICO.

[78]I also consider that the belief was reasonably held. The claimant had taken on data. It is clearly objectively reasonable for the claimant to believe she was making a disclosure in the public interest.

[79]The claimant gave evidence that she considered the matters she raised were respondent was breaching data protection legal obligations. I find that this was a reasonably held belief, particularly given the warning notice from Ofsted and conversation the claimant had had with Ofsted on 8 January 2025.

[80]I then go onto consider the method of disclosure. This disclosure was made to Safety Officer and I take a purposive approach to this. Disclosure 2 – misuse of CCTV

[81]In this disclosure, the claimant specifically set out specific information about what her concern was, identified the individual she was concerned about and the basis for her belief. This clearly is disclosure of information, not opinion.

[82]The claimant gave evidence that, she considered this was in the public interest issues, relating to matters such as domestic violence and social services involvement. She felt that mismanagement of personal data or safeguarding information could put a vulnerable child at serious risk. She had specific concerns about Ms Bissell due to the concerns raised in Ofsted’s warning requirement notice about her handling of sensitive data.

[83]I have decided that the claimant clearly believed the disclosure was made in the public interest, it was not in the pursuit of her private interests. The claimant did have concerns about how the respondent was treating her but she raised those separately in a grievance. There is a clear distinction between those matters and the matters she was raising with Ofsted, the LADO and ICO.

[84]I also consider that the belief was reasonably held. The claimant had taken on data by Ms Bissell. It is clearly objectively reasonable for the claimant to believe she was making a disclosure in the public interest.

[85]The claimant gave evidence that she considered the matters she raised were respondent was breaching legal obligations. I find that this was a reasonably held belief, particularly given the warning notice from Ofsted and conversation the claimant had had with Ofsted on 8 January 2025.

[86]I then go onto consider the method of disclosure. This disclosure was made to Safety Officer and I take a purposive approach to this. This disclosure was also made to the ICO, the organisation responsible for monitoring data breaches and a prescribed person. Disclosure 3 - Breach of confidentiality by discussing staff members and confidential safeguarding information with non-employees

[87]In this disclosure, the claimant specifically set out specific information about what her concern was including details of the alleged breaches, identified the individual she was concerned about, timings, the basis for her belief and steps she had taken. This clearly is disclosure of information, not opinion.

[88]The claimant gave evidence that, she considered this was in the public interest issues, relating to matters such as domestic violence and social services involvement. She felt that mismanagement of safeguarding information could put a vulnerable child at serious risk.

[89]I have decided that the claimant clearly believed the disclosure was made in the public interest, it was not in the pursuit of her private interests. The claimant did have concerns about how the respondent was treating her but she raised those separately in a grievance. There is a clear distinction between those matters and the matters she was raising with Ofsted, the LADO and ICO.

[90]I also consider that the belief was reasonably held. The claimant had taken on data by Ms Bissell. The information disclosed is that Ms Bissell had continued to disclose private and safeguarding data inappropriately. Ms Bissell was a director in a position of responsibility. It is clearly objectively reasonable for the claimant to believe she was making a disclosure in the public interest.

[91]The claimant gave evidence that she considered the matters she raised were respondent was breaching legal obligations. I find that this was a reasonably held belief, particularly given the warning notice from Ofsted and conversation the claimant had had with Ofsted on 8 January 2025.

[92]I then go onto consider the method of disclosure. This disclosure was made to Safety Officer and I take a purposive approach to this. Detriment

[93]I will deal with each of the alleged detriments, detailing my findings in relation to each one in turn. The claimant alleges she suffered the following detriments:a. Blocked access to work emails meaning she could not fulfil her role. i. The claimant’s evidence was this happened after she changed her password. There is insufficient evidence to decide that this was a proactive attempt by the respondent to block her access but she did not receive any help by the administrator, who was Ms Bissell, to unblock her account prior to her resignation and so I am satisfied that the delay is a detriment as access to work emails is a necessary part of the role of an operations manager.

b. Ms Bissell excluding the claimant from a new staff WhatsApp group with her new number. i. I find this is a detriment as it was excluding the claimant from work place communications and again could negatively impact on her ability to fulfil her role.

c. Mr Carter and Ms Bissell excluding the claimant from decision making and delivering as operations manager. i. I have carefully considered this as it is reasonable for directors to conduct some work confidentially. However, the claimant gave two examples and in the context of her exclusion from a staff WhatsApp group and delaying her access to emails, as well as the accusations Ms Bissell made against her to Mrs Kirton on 15 January 2025, I am satisfied that steps were taken to exclude the claimant and that this is a detriment to the claimant as it prevented her from fulfilling her role as operations manager.

d. The notification of nursery closure which named management as the reason for the closure. i. Whilst I consider this is arguably a detriment as parents of the preschool would consider the operations manager as part of management, I consider it is reasonable for the respondent to give a statement without including specific names and so this is not a detriment suffered due to making protected disclosures but something that follows on from being in a management position.

e. Ms Bissell attending Mrs Kirton’s address and shouting in the street making accusations that the claimant was trying to take over the preschool. i. I find that this is a detriment. It is clearly negative to experience your employer going to a colleagues house and making accusations about you in public outside of their house.

f. Failure to notify the claimant of the death of a child. i. The claimant had resigned without notice prior to this alleged detriment and was no longer an employee of the respondent and so I do not consider this was a detriment.

g. Mr Carter later denying he had agreed to the claimant’s proposal to write to Ms Bissell to seek access to the passwords and bank accounts after she had stepped aside. i. I find that this does constitute a detriment as it left the claimant feeling that she was being targeted and isolated.

h. Failing to acknowledge the claimant’s resignation again was a detriment as it was a failure to communicate acceptance and clarity around the claimant’s entitlement to notice pay. However, the claimant was no longer an employee at the time she submitted a grievance and so not receiving a response cannot be considered a detriment.

[94]The claimant relies on the proximity of the detriments to the protected disclosure and also gave evidence that she was working hard over the Christmas period to prevent closure of the pre-school. She disclosed WhatsApp communications with Ms Bissell that pre-dated her disclosures and were pleasant in manner. I also accept that the respondent was aware of the disclosures for the reason set out in the factual findings section. Therefore, I am satisfied that the detriments detailed above were because the claimant had made a protected disclosure and therefore her claim for detriment as a result of making a protected disclosure succeeds. Constructive dismissal

[95]The claimant gave evidence that the reason for her resigning was the detriment she was suffering because of the disclosures she had made. Specifically, after Ms Bissell had attended Mrs Kirton’s house, the claimant felt like she could not return to work. She went on sick leave the following day and on 17 January 2025 resigned from her role. I accept that the incident where Ms Bissell attended Mrs Kirton’s house was the trigger for the claimant’s resignation given she did not return to the workplace and resigned within 2 days. The claimant did not do anything to affirm the contract between the incident and her resignation.

[96]The act was a repudiatory breach. No employee should have their employer attend another colleague’s house, shouting and making accusations about them in public and to another colleague. This was wholly inappropriate behaviour. I also find that the detriments set out above at paragraph 93, viewed cumulatively, would constitute a repudiatory breach of contract as the claimant was being excluded and placed in a position where she could not fulfil her role.

[97]Finally, the claimant resigned in response to the breach. Her evidence was clear on this point and she resigned within 2 days of the final incident. As I had set out above, the reason the claimant was suffering the detriments, including the incident on 15 January 2025, was because of the protected disclosures she made. Therefore, I find that her claim for constructive automatic unfair dismissal is well founded and succeeds. Harassment

[98]The claimant gave evidence, corroborated by Mrs Kirton’s evidence, that Ms Bissell made repeated derogatory references to her having ADHD, including shouting ‘oy ADHD’ across the office to catch the claimant’s attention, making comments like ‘you’re being ADHD’, ‘you’re going to make a mistake, that’s your ADHD’ and ‘have you taken your tablets’, implying something was wrong.

[99]The claimant stated that the comments were made loudly, in front of others and regularly, almost on a daily basis. Furthermore, the claimant told Ms Bissell to stop as she did not like these comments. Ms Bissell did not stop.

[100]The claimant gave evidence that she felt belittled, unable to be herself, reduced to a label and upset and undermined.

[101]I accept the claimant’s evidence that this was unwanted conduct and it was clearly relevant to a protected characteristic, namely disability, as Ms Bissell was expressly referencing her diagnosis of ADHD. Furthermore, the conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. The claimant gave evidence to the effect that she found it a violation of her dignity, degrading and humiliating. I am satisfied that it was reasonable for the claimant to feel that way, being called ‘ADHD’ clearly meets this threshold.

[102]Therefore, I find the claimant’s claim of harassment is well founded and succeeds. Notice pay

[103]The respondent paid the claimant in two instalments each month, one payment of £450 and one payment of £1,100. The claimant gave evidence that she expected her notice period to be until the end of the half term, which was standard practice in the pre-school industry so that staff do not leave in the middle of term time. I accept her evidence on this point as it is uncontested and reasonable when considering the standard timetable for preschools. She resigned on 17 January 2025 and stated that her notice period should have ended on 28 February 2025. She was only paid £450 in January and nothing in February.

[104]The claimant was entitled to notice pay and I find that a notice period that is more than the statutory minimum, one week for the claimant, and concludes at the next school holiday is a reasonable notice period for an operations manager of a pre-school that follows school term times as it ensures continuity of staff for the children. Therefore, the claimant is entitled to notice pay up to 28 February 2025. Written particulars

[105]The claimant gave evidence that she did not have a written contract of employment, despite asking for one. As operations manager she was responsible for ensuring other employees had a written contract and so was aware of the right to have one.

[106]The claimant is therefore entitled to an award for failing to provide written particulars of employment. Approved by: