Ms S Comrie v Gateways Educational Trust Ltd: 6021217/2024
REASONS
[1]The claimant brings the following claims: 1.1. Unfair dismissal 1.2. Automatically unfair dismissal – protected disclosure 1.3. Detriment because of making a protected disclosure[2]The liability issues were identified at a preliminary hearing as follows. Time limits 2.1. Was the protected disclosure detriment complaint brought within three months and any relevant early conciliation extension (the primary period) of the act or failure to act, having regard to the last of any acts if there were a series of them? 2.2. If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 2.3. If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? Unfair dismissal 2.4. What was the reason or principal reason for dismissal? Was it that the claimant made a protected disclosure or for gross misconduct? 2.5. If it was for a potentially fair reason, gross misconduct, did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss, including: 2.5.1. Were there reasonable grounds for that belief? 2.5.2. At the time the belief was formed had the respondent carried out a reasonable investigation? 2.5.3. Had the respondent acted in a procedurally fair manner? 2.5.4. Was dismissal within a range of reasonable responses? Protected disclosure 2.6. Did the claimant make a qualifying disclosure, as defined in section 43B of the Employment Rights Act 1996, on 6 April 2023 when she submitted a complaint to Mr. Horbury, Finance Director, regarding instructions from the Principal, Dr Johnson, to bypass financial regulations, particularly concerning the failure to provide credit card receipts for reconciliation? 2.7. Was that a disclosure of information? 2.8. Did she believe the disclosure of information was made in the public interest? 2.9. Was that belief reasonable? 2.10. Did she believe it tended to show that a criminal offence had been, was being or was likely to be committed or a person had failed, was failing or was likely to fail to comply with any legal obligation? 2.11. Was that belief reasonable? 2.12. If the claimant made a qualifying disclosure, was it a protected disclosure made to the claimant’s employer? What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that? 2.13. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply Detriment 2.14. Did the respondent: 2.14.1. Make derogatory comments, by Dr Johnson referring to the claimant as “a problem”; 2.14.2. Echo the sentiment, by Mr. Horbury; 2.14.3. Foster a hostile environment; 2.14.4. When the complaint concerning Dr Johnson was officially recorded, not address it? 2.15. By doing so, were any of these detriments? 2.16. If so, were they done on the ground that the claimant made a protected disclosure? Discussion and conclusions Did the claimant make a protected disclosure?Discussion and conclusions
[3]In relation to the claims based on having made a protected disclosure, I have considered carefully the wording of the email of 6 April 2023. In order to be a protected disclosure, information has to be disclosed and that has to be information which the claimant reasonably believed tended to show, in this case, that a criminal offence had been, was being or was likely to be committed, or that a person had failed, was failing or was likely to fail to comply with a legal obligation.[4]In essence, the claimant's case is that she disclosed information showing that the respondent was failing to comply with its legal obligations as a charity or a company in relation to record-keeping and financial reporting obligations.[5]The claimant relies on two paragraphs at the top of the second page of the letter. There can be a ‘disclosure’ even if Mr Horbury already knew that information, but there has to be information included in the letter.[6]The letter relied on as the protected disclosure needs to contain sufficient information to satisfy section 43B. In deciding what information has been provided, it is the information contained in the protected disclosure that has to be considered, not additional factual material that had been disclosed at an earlier stage.[7]I find that there is no information disclosed in those paragraphs which the claimant could reasonably believe tended to show that there was a breach of any legal obligations.[8]The information included in the relevant two paragraphs is as follows: 8.1. Dr Johnson was not happy with the claimant's email saying that she had developed the credit card reconciliation process. 8.2. Mr Horbury felt that this was going to escalate into a confrontation targeted at the claimant. 8.3. Mr Horbury had stated that the process had been created and the decision taken bdy him. 8.4. That was untrue because the claimant had created the process. 8.5. Mr Horbury had done this because he wanted to protect and deflect from the claimant. 8.6. That created issues with the claimant being able to showcase her work and achievements. 8.7. Mr Horbury had insinuated that Dr Johnson had an issue with the process. This could be seen as a disclosure of information that Dr Johnson did have an issue with the process. 8.8. The process with which Dr Johnson had an issue was intended to ensure that the claimant could do her job properly. 8.9. The insinuation, or the fact that Dr Johnson had an issue with the process, made the claimant feel threatened and bewildered because she did not understand why Dr Johnson had an issue with the process. 8.10. The issue that Dr Johnson had with the process was due to the "admin", i.e. the administrative burden entailed in complying with the new process. 8.11. The claimant was happy to undertake this, i.e. to perform the administrative side and obtain Dr Johnson's sign-off to confirm that she was happy with the allocation of budget.[9]Of this information, the information relating to the credit card reconciliation process was that the claimant had introduced it to ensure that she could do her job properly and that Dr Johnson was unhappy with, and had an issue with, the new process because of the administrative burden, and that the claimant was offering to take on that administrative burden. There is no reasonable basis for an opinion that the fact that Dr Johnson was unhappy with the credit card reconciliation process because of the administrative burden tended to show any criminal offence or breach of a legal obligation.[10]None of the information disclosed in the relevant part of the letter could reasonably be viewed as tending to show any breach of a legal obligation or criminal offence, even assuming the claimant is right that failure to provide receipts is a breach of the school's legal obligations as a charity or company.[11]The fact that the claimant might have made comments previously to Mr Horbury is relevant to the context in which the letter is construed, but that does not remove the requirement for there to be, in the letter itself, a disclosure of information with sufficient specificity and that the claimant reasonably believed tended to show one of the prescribed matters. I find that that is not the case with this letter. Accordingly I conclude that it does not satisfy the definition of a protected disclosure.[12]As there was no protected disclosure, the claims for protected disclosure detriment and automatic unfair dismissal are dismissed.[13]In any event, it is very clear that the respondent, understandably and entirely reasonably given the wording of the letter, did not appreciate that any complaint was being made about financial recording, Dr Johnson's failure to comply with processes, or any failure to provide receipts relating to the credit card reconciliation process. The respondent understood it as a complaint against Martin Horbury. Even if there had been a disclosure of information relating to the credit card reconciliation process in that letter, the respondent was not aware of that disclosure of information and therefore it could not have formed any part of the reason for the subsequent treatment of the claimant. Ordinary unfair dismissal What was the reason or principal reason for dismissal?[14]It is the reason for dismissal, not the reason for the start of the investigation that the respondent has to establish. That requires identifying the decision maker, and what was operating on their mind.[15]The investigation was triggered by disclosures made by Arron Todd that came to light whilst the claimant was on leave and were reported to Dr Johnson, who initiated the investigation.[16]Neither Arron Todd nor Dr Johnson made the decision to dismiss. There is no evidence before me that Dr Johnson or Arron Todd had any influence on the decision to dismiss. Sir Roger Marsh has not given evidence, and his evidence has not been subject to cross-examination, but it was not put to Dr Johnson that she influenced or sought to influence Sir Roger Marsh or Stuart Watson in their decision making and no evidence on which I could base a finding that either Dr Johnson or Arron Todd had any influence on the decision to dismiss or uphold that decision.[17]Taking into account the evidence that was before the decision makers, considering the outcome letter drafted by Sir Roger Marsh and having heard the evidence of Stuart Watson I accept that the principal reason for dismissal was conduct, namely the second two allegations set out in the dismissal letter, rather than any other actions of the claimant or any hostile animus by, in particular, Dr Johnson. Were there reasonable grounds for the respondent’s belief?[18]The first allegation against the claimant, the overtime issue, resulted in a written warning and did not form part of the reason for dismissal. For that reason, it is not necessary for me to make any findings on the overtime issue.[19]Taking the other two allegations in turn, not substituting my own view, and looking at those issues in the light of the information before the decision-makers, rather than additional information before me in the Tribunal, I reach the following conclusions. Emailing confidential documents to a home email address without permission[20]There was evidence before Sir Roger Marsh of the documents that had been sent by the claimant to her private email address. Sir Roger Marsh was plainly entitled to conclude that those documents were confidential. The claimant does not assert that she had permission to email the documents to her private email address.[21]Sir Roger Marsh concluded, based on the information before him, that the confidential data could have fallen into the wrong hands, for example due to an error in the email address the claimant was sending it to or by her home PC being compromised. He was entitled to reach that conclusion on the evidence before him. It is reasonable to conclude that information sent to a private email address, over which the respondent had no oversight or control in terms of virus protection or encryption led to a risk of information falling into the wrong hands.[22]On that basis Sir Roger Marsh had reasonable grounds for his belief that the claimant was guilty of the alleged conduct.[23]I have considered below whether it was reasonable to conclude that this amounted to misconduct (or gross misconduct). Instruction not to contact anyone connected with the school[24]Sir Roger Marsh’s interpretation of this instruction, ie. that former employees were connected with the school and that Jane Charles, as a current occasional employee, was included within the instruction, was a reasonable one. There were reasonable grounds for his belief that this conduct had occurred. At the time the belief was formed had the respondent carried out a reasonable investigation and did the respondent act in a procedurally fair manner?[25]First, I deal with issue of whether Helen Wallis was the appropriate person to investigate given the allegations in the grievance and whistleblowing complaint. Stuart Watson considered the claimant’s request in relation to Helen Wallis and refused it.[26]I note that Helen Wallis was unaware of the content of the whistleblowing complaint and grievance, so that could not itself lead to a risk of bias.[27]Although the complaints mainly related to the conduct of Dr Johnson, I do accept that complaints were also made about Helen Wallis, including reporting a comment that Martin Horbury had said that Helen Wallis was "out to get her", and those matters had not yet been determined by the respondent.[28]I accept that ideally it would have been better to appoint a different investigator, but: 28.1. Helen Wallis was the investigator and not the decision-maker. 28.2. I am satisfied, on the basis of the detailed questions evidenced in the bundle, that the investigation was thorough and that the claimant had an opportunity to put forward her position.[29]I find that it was also not ideal to conduct the investigation wholly in writing. If an employee provides a fit note certifying that the employee is unfit to work due to stress at work, I would ordinarily expect a reasonable employer to wait at least some period of time to allow recovery before insisting on proceeding with an investigatory meeting. However, both parties eventually agreed to a process conducted in writing and I accept that the detailed series of written questions and answers gave the claimant an adequate opportunity and sufficient time to provide her version of events. As well as conducting written interviews with the claimant, Helen Wallis interviewed a number of other relevant witnesses.[30]Although some aspects of the investigation were not ideal, overall, I conclude that this was an investigation process that a reasonable employer could have adopted.[31]Moving to the procedure adopted at the disciplinary and appeal stages, again it would have been preferable for these meetings to be carried out in person. However, the claimant was invited to attend the disciplinary hearing and wrote to the respondent on 19 September to say that she would not be attending, and she provided her response in writing. She had the opportunity to put her version of events, and in all the circumstances it was fair to carry out the disciplinary stage in writing.[32]In relation to the appeal stage, there was no invite to an appeal hearing and the appeal was determined on paper. However, the claimant had already given a clear indication to the respondent that she wanted to conduct the disciplinary process in writing. In the circumstances I find that the process, taken as a whole, was one that a reasonable employer could have adopted. Was dismissal within a range of reasonable responses?[33]I conclude that dismissal for the second allegation alone was within the band of reasonable responses.[34]I do not need to determine whether the third allegation, taken in isolation, would justify dismissal. Having concluded that dismissal was within the band of reasonable responses by reason of the second allegation alone, it necessarily follows that dismissal would also fall within the band of reasonable responses where both the second and third allegations were established."[35]The question is not whether or not I would have dismissed for that conduct, the question is whether or not a reasonable employer could have dismissed for that conduct.[36]I note that there were no clear instructions in the respondent’s policies and procedures not to send work documents to home email addresses. However, the disciplinary procedure gives the following as an example of gross misconduct: "A failure to ensure that confidential information in your possession is kept secure."[37]That section of the handbook, in my view, was sufficient warning to any employee that, if they were found not to have kept confidential information in their possession secure, they might face dismissal.[38]The findings of Sir Roger Marsh, which he was entitled to reach on the evidence before him, were that confidential information in the claimant’s possession, by being sent to a home email address, had not been kept secure. That fell clearly within the conduct given as an example of gross misconduct in the disciplinary procedure. Given the potentially serious consequences for the respondent if data of this nature is not kept secure, I conclude that the outcome of dismissal was within the band of reasonable responses.[39]On that basis I conclude that the dismissal was fair. Time Limits[40]Because I have concluded that there was no protected disclosure, the detriment claim must fail. In those circumstances it is not necessary for me to determine the issue of time limits in relation to that claim. Approved by: Employment Judge Buckley 10 August 2026 Notes Written full reasons will not be provided unless requested by any party by a written request received by the Tribunal within 14 days of the sending of the written summary reasons. All judgments (apart from judgments under Rule 51) and any written full reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/