Ms M McHardy v Ross and Cromarty Citizens Advice Bureau Ltd: 8000010/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000010/2024

Venue Aberdeen and remotely

Hearing 29, 30, 31 July and 1 and 2 August 2024

Between

Ms Margaret McHardyClaimant

Ross and Cromarty Citizens Advice Bureau LimitedRespondent

Before

Employment Judge A Kemp

Mr L Thiel for claimant

Partner for claimant

Mr N MacDougall (instructed by Counsel) for respondent

Mr C Robertson (instructed by Solicitor) for respondent

Date 19 August 2024

JUDGMENT

The unanimous Judgment of the Tribunal is that the Claim does not succeed and is dismissed.

REASONS

[1]This was a Final Hearing into claims as to detriment and unfair dismissal in relation to what were alleged to be protected disclosures under the E.T. Z4 (WR) terms of sections 43A, 47B and 103A of the Employment Rights Act 1996. The Claim was defended.

[2]There have been two Preliminary Hearings on 4 March 2024 and 22 April 2024.

Issues

[3]At the commencement of the hearing the Judge proposed the issues that were those before the Tribunal, with which the parties agreed. The first has been slightly amended as an issue was raised in relation to one of the disclosures as set out more fully below. The issues are -(i) Did the claimant make a qualifying disclosure under section 43B which was protected under section 43A of the Employment Rights Act 1996 ?

(ii) If so was the reason or principal reason for the claimant’s dismissal the making of that disclosure under section 103A of the Employment Rights Act 1996?

(iii) Did the claimant suffer any detriment on the ground that she had made such disclosure under section 47B of the Employment Rights Act 1996? The detriments founded on [as they were identified at the start of the Final Hearing, although the claimant sought to raise others later as addressed below] were: (a) That after the first disclosure Mr Chris Spence treated her differently, (b) That she was excluded from his investigation, (c) The comments made in a report by Mr Spence about the claimant which [she alleged] were untrue, (d) The decision that she had not passed probation, (e) The denial of the fact of the disclosure in the Response Form, and (f) The allegation in the Response Form that the claimant’s allegation that she had been assaulted had been fabricated

(iv) If the claimant succeeds to what remedy is she entitled? [Although she had referred to re-instatement as a remedy initially she confirmed in the discussion that she did not wish to seek that, or reengagement.]

[4]There had earlier been an issue raised by the claimant as to a claim of breach of contract. After discussion it was confirmed that she had received all sums to which she would be entitled had such a claim been made, and in the circumstances that claim was not insisted in by her. It was not therefore included within the issues with her agreement.

[5]The parties explained that they had agreed that the respondent would give its evidence first, although the claimant had the onus of proof at least initially, and that the respondent would call more witnesses than it might normally do to accommodate a request by the claimant. The claimant wished to call two additional witnesses, in respect of whom a decision had been made after the second Preliminary Hearing but with the possibility of renewing that at this hearing. That application was renewed, and was opposed by the respondent on the ground of relevancy. The Tribunal stated it was not obvious that the proposed evidence was relevant but that the matter could be reconsidered later once it was clear from initial evidence whether the witnesses might give materially relevant evidence. On the third day of evidence it was confirmed that an order was no longer sought by the claimant.

Preliminary matters

[6]There were other preliminary matters to address. The claimant sought to amend the Claim Form by email of 8 July 2024 which the respondent opposed. For the reasons given orally the application to amend was granted. It did not include adding a new claim in law. The respondent had prepared the Bundle and the claimant objected to the amended Response Form on the basis that it was different to the one sent to her in April 2024. After hearing from parties, including an explanation from the respondent that one version of the Response Form had been sent in error, the Response Form intimated to the claimant in April 2024 was added to the Bundle as an additional production.

[7]Before the commencement of the evidence the Judge explained to the claimant, who was represented by her partner who had not conducted an Employment Tribunal hearing before, how the hearing would take place. He explained the need to give all the evidence the parties wished to on the merits of the claim and on remedy, not leading in examination in chief, about cross examination of witnesses on evidence that was challenged, or where they knew or ought to have known of a matter that was relevant particularly if to be given in evidence by the claimant, and about reexamination. He also commented that any relevant document should be referred to in the evidence and would not be read by the Tribunal unless it was. He then explained about making submissions.

The Evidence

[8]The witnesses for the respondent were Mr Chris Spence, Ms Christine McDonald, Mrs Nicola Campbell, Mrs Mary MacDonald, and Mrs Alison MacRury. With the consent of the claimant it had earlier been agreed that those witnesses give evidence remotely. Mr MacDougall appeared in person. The claimant and Mr Thiel were also present in person and gave evidence (with the fact that Mr Thiel did so after being present for the evidence of the claimant not being objected to by Mr MacDougall). The hearing was therefore conducted on an hybrid basis.

[9]The parties had produced a Bundle of Documents, most but not all of which was spoken to in evidence. One document, the April 2024 version of the Response Form, was added to it as noted above.

[10]The Tribunal asked questions of witnesses under Rule 41 where it considered it appropriate to do so, particularly in relation to Mr Spence but not only him. Mr MacDougall objected to one question asked of Mr Spence by the Judge, on the basis that it was not consistent with the respondent’s position on the reasons for the decision set out in the Response Form. The objection was repelled on the ground that the question explored the reasons for the decision and that the claimant did not accept the respondent’s position, with the reason for dismissal a key matter in dispute.

[11]The Tribunal was substantially assisted by the helpful manner in which the two representatives conducted the case before it and wishes to record its appreciation of that.

The Facts

[12]The Tribunal considered all of the evidence led and found the following facts, being those it considered material to the issues, to have been established: Parties

[13]The claimant is Ms Margaret McHardy.

[14]The respondent is Ross and Cromarty Citizens Advice Bureau Limited. It is a charity. It provides assistance to citizens in Ross and Cromarty. It has funding from Highlands Council to do so. It had at the time material to this claim offices in Dingwall and Alness. Employment

[15]The claimant was employed by the respondent with effect from 10 January 2023. She was employed as a Generalist Team Supervisor, also called a Session Supervisor. Her employment terms were set out in a Statement of Employment Particulars which the claimant signed on 21 December 2022. It had not been signed on behalf of the respondent.

[16]The statement provided that the claimant had “an initial probationary period of six months”. That period could be extended. The statement included that the respondent “will assess and review your work performance during your probation and reserves the right to terminate your employment at any time during the probationary period. Your 25 employment may be terminated on one week’s notice given by the bureau at any time during or at the end of your probationary period (including any extensions to the probationary period).”

[17]The notice due after successful completion of the probationary period was of one month where there was less than five years’ service.

[18]The respondent also operated a Disciplinary Procedure Policy. It stated in section 1 that the respondent was “committed to treating all staff fairly and equitably”, that “each case would be treated consistently and fairly”, and “the disciplinary procedure will be observed at all steps”. In section 2 it stated that employees had right to know the case against them, to reply, for due consideration of their case, to be accompanied and to appeal. It had provisions for a “thorough investigation”. It also provided in section 5 that the respondent reserved the right not to follow the disciplinary procedure if the employee had less than two years’ service. It had provision for an appeal process, which included that it be heard by a panel of up to three members of the board of directors. 9 August 2023

[19]The claimant was at work on 9 August 2023. She was working in the main office of the Alness office. The receptionist there was off on long term sick leave, and the claimant’s duties were extended partly to cover that absence. During the course of the day the claimant had a series of arguments with a volunteer, Ms Christine MacDonald. They were being curt with each other in comments. One issue concerned a telephone number that the claimant had given Ms MacDonald on a slip of paper when Ms MacDonald was on a telephone call, which had not been the correct number for the circumstances of the call. The claimant later that day denied doing. There was an argument over that. Another volunteer Ms Nicola Campbell had been meeting clients outside that room but heard their raised voices. Mrs Campbell went into the room where they were located. The discussions continued. Ms MacDonald said to the claimant words to the effect that she and the claimant needed to talk to clear up their dispute. Mrs Campbell asked if she should leave the room. The claimant said no, and Ms MacDonald said yes. Ms MacDonald said something to the effect that their dispute could not go on, she could not work with the claimant again. When the argument continued Ms MacDonald told the claimant to “shut up”. She said that she would be speaking to the deputy Manager Mr Chris Spence about that. Ms MacDonald then left the room. Mrs Campbell saw her outside the room seeking to contact Mr Spence by telephone.

[20]At 3.44pm that day Ms MacDonald sent Mr Spence an email stating ‘Tve had a number of problems with Margaret [the claimant] I need to discuss with you leading to us arguing today.”

[21]At 3.45pm the claimant messaged Mr Spence via Teams stating “I need to speak to you about Christine after she finishes at 4pm.”

[22]At around 4pm the claimant spoke to Mr Spence by Teams. The claimant said that Ms MacDonald had said “you and me, out of here now” in an aggressive manner. The claimant said that she had said that no one should speak to her like that, and that she would not work with Ms MacDonald again.

[23]The claimant prepared brief notes of the dispute with Ms MacDonald on her mobile phone later that day. In those notes she stated that Ms MacDonald had “put her hand on my arm”.

[24]At some point in the evening that day the claimant called her partner Mr Len Thiel. She was very upset.

[25]At around 10.30pm that day the claimant sent another message to Mr Spence stating that she wished to make a report about the incident that day. Mr Spence did not see it until late on 11 August 2023. He did not reply as he thought that he would see the claimant the following day. 10 August 2023

[26]Ms MacDonald and Mrs Campbell had both applied for a vacancy as Outreach Generalist Adviser. They were interviewed by a Panel consisting of Mr Spence, the manager of the respondent Ms Mary MacDonald and a board member. Mr Spence was engaged with the Panel in interviews for the whole day and did not speak to the claimant. 11 August 2023

[27]Mr Spence attended at the Alness office and at around 9.15am spoke to Mrs Campbell to ask her about the dispute between the claimant and Ms MacDonald. She said that she had heard two raised voices in the main office. The claimant and Ms MacDonald were being curt with each other. Ms MacDonald had said something to the effect that they needed to clear this out now. Mrs Campbell had asked if she should leave the room. The claimant had said no and Ms MacDonald had said yes. She said that Ms MacDonald had informed the claimant that their dispute could not go on and she would be speaking to Mr Spence. Mr Spence asked her if there had been any previous issues. She referred to the claimant often being stressed.

[28]Mr Spence spoke to the claimant later that same day. She repeated what she said had been said to her by Ms MacDonald on 9 August 2023. He asked if she had been stressed and she denied being so. He asked about the reference by the claimant to her making a report. He said that she could raise a grievance under the policy or that they could look at matters informally in the first instance. The claimant said something to the effect that she was happy if he investigated matters informally first. He said something to the effect that if she was not happy with the outcome of that informal investigation she could then commence a grievance.

[29]Mr Spence spoke with Ms MacDonald later that same day. She said that the claimant often came into the office stressed. She referred to incidents on 9 August 2023 including when a client came in to seek help in applying for a Blue Badge. She alleged that the claimant initially had not helped her but later had come into the room in which she was meeting the client, and went through the form. She related further events, which included a dispute over a telephone number she said the claimant had given which was wrong, which the claimant then denied having done. Mrs Campbell had then come into the room. Ms MacDonald accepted that she was frustrated with the situation, but wanted to resolve matters and said something to the effect that “you and me need to clear this out now”. Mrs Campbell had asked if she should leave, and she (Ms MacDonald) had said no. She said to the claimant that their dispute could not go on and that she would be speaking to Mr Spence.

[30]Mr Spence asked if there were other matters, and Ms MacDonald said that the claimant had told her that she should never ask another staff member for help after Ms MacDonald had spoken to a staff member named Yvonne on a housing matter earlier.

[31]Mr Spence was separately aware of other matters from prior to 9 August 2023. They included that the claimant had informed Ms MacDonald and Mrs Campbell that all enquiries had to be dealt with the same day otherwise Mr Spence would get angry. That was not the case. He had not challenged the claimant about that directly at the time, but had emphasised to all three of them in a meeting thereafter that there was no requirement to do so. He had also been aware that it was alleged by them that the claimant had said not to bother applying for the said vacancy as if they both did neither would succeed. He had spoken to each to confirm that they could apply, and both had. He had not addressed the comment directly with the claimant. The claimant had said to him earlier that she would not work with another volunteer, who had shortly afterwards left.

[32]He spoke to another volunteer Mr John Godfrey to see if there were issues in relation to the claimant, and Mr Godfrey said that she had said to him and another volunteer that Mary Moran was off long term as her grandson was sick, when Ms Moran was on annual leave.

[33]Mr Spence had miscalculated the extent of the probationary period and thought that it was ongoing or only recently expired during a period of annual leave for him and separately for the claimant. He considered that he could undertake a probationary review. He considered that the claimant had made untrue comments, being that he would be angry if enquiries were not dealt with on the same day, that she had not provided an incorrect telephone number to Ms MacDonald when she had, the comment as to Ms Moran being off long term to care for family, and when telling volunteers not to apply for a vacancy as they would not get it due, he understood she had said, to lack of experience. He also thought these matters were controlling behaviour by the claimant. He was concerned at the dispute with Ms MacDonald and that the claimant had said both in relation to her and another volunteer that she could not work with them. He believed that the respondent relied on volunteers to provide its services.

[34]Mr Spence decided on or around 13 August 2023 to dismiss the claimant. He was nervous about informing the claimant, not having experience of that before. He conducted a search on Google to seek guidance on the best way to do so, and from that concluded that it was better not to address the details of the evidence he had obtained or the reasons for his decision. Dismissal

[35]On 18 August 2023 at 9am when the claimant arrived at the office Mr Spence handed the claimant a letter calling her to a meeting at 9.30am to discuss her performance during the probationary period and her suitability for the role she performed. It stated “I am obliged to advise you that as a result of this meeting your employment may be terminated or your probationary period extended.” There had been no possibility of the probationary period being extended, as he had already decided to dismiss.

[36]Mr Spence met the claimant at 9.30am. He referred to making investigations but did not discuss the detail, which he said was due to confidentiality. He confirmed that she was dismissed, and that he would provide a letter confirming the decision and reasons. A note of the meeting was taken by Ms Alison MacRury of the respondent and is a reasonably accurate record of it.

[37]The dismissal was confirmed by letter dated 18 August 2023 from Mr Spence. It referred to their meeting and stated “As per our discussion it is therefore my decision that your probationary period has not proved successful and your employment is terminated.” It further stated that she was not required to work her notice period and would be paid one month’s salary in lieu of notice.

[38]At about the end of August 2023 Mr Spence prepared a written report on the matters that led to the dismissal. It was generally an accurate record save that he had seen Mrs Campbell before the claimant on 11 August 2023, had only heard from Mr Godfrey about the comment witn regard to Ms Moran, and the report was a general summary of the discussions he had held with a number of parties rather than a near verbatim record of them. Appeal

[39]The claimant prepared a document titled “My Report” setting out her position. She intended it as a complaint as to the decision by Mr Spence. She sent it with an explanation of her position to Stuart Wilson of Citizens Advice, Scotland by email on 31 August 2023. Citizens Advice Scotland is an umbrella organisation for all the Bureaux in Scotland, which are members of it but independent companies, one of which is the respondent.

[40]Mr Wilson replied that day to state that he had forwarded the report to Mrs Mary MacDonald [that message to Mrs MacDonald was not before the Tribunal].

[41]The claimant made a subject access report to the respondent and was provided with a heavily redacted version of the report by Mr Spence, which was done under advice from Human Resources of Citizens Advice Scotland.

[42]Mrs MacDonald, the Area Manager of the respondent and line manager of Mr Spence, who is also the Secretary of the respondent, wrote to the claimant on 21 September 2023 offering an appeal hearing on 26 September 2023.

[43]Prior to 26 September 2023 Mrs MacDonald met Mr Spence to discuss matters and ask him questions about the points raised in the report. He told her that the allegation of the claimant’s arm being grabbed by Ms MacDonald had not been raised at the meetings held with the claimant on 9 and 11 August 2023. No notes of that meeting between Mrs MacDonald and Mr Spence were kept.

[44]The claimant replied on a date not given in evidence with regard to the appeal. There were emails exchanged with regard to the preparations for the appeal on and around 25 September 2023 in which Mrs MacDonald referred to the claimant having a right of appeal.

[45]The initial date for the appeal hearing was adjourned when Mrs MacDonald suffered an accident. It was then heard on 11 October 2023. The claimant’s partner Mr Thiel attended as her companion. A note of the meeting taken by Mrs MacRury is a reasonably accurate record of it, although it omitted reference to the demonstration referred to below. At the meeting Mr Thiel tendered a written document with his arguments and position, which he read out and was taken as included within the minutes. His written document referred specifically to a protected disclosure. During the hearing the claimant demonstrated on Mr Thiel how she said that her arm had been grabbed by Ms MacDonald.

[46]Mrs MacDonald wrote to the claimant by letter dated 3 November 2023 providing her decision on the appeal which was that the decision to dismiss the claimant was reasonable and stood. In effect she dismissed the appeal.

[47]The claimant was then sent a less redacted version of Mr Spence’s report, which Mrs MacDonald considered appropriate. Other matters

[48]The claimant had worked on three days per week for the respondent. She was paid £260 per week both gross and net, and had pension contributions under an auto-enrolment scheme. She did not claim Benefits after the dismissal. She made eight applications for alternative employment in 2023. She made two further applications in April 2024. To date she has not commenced employment.

[49]She was substantially distressed by the dismissal. She sought assistance from her General Practitioner. She found difficulty sleeping and eating, and became upset when asked to explain about the termination of her employment and related matters.

[50]The claimant commenced early conciliation on 26 October 2023 and the Early Conciliation Certificate was issued on 7 December 2023. The Claim Form was presented to the Tribunal on 5 January 2024.

[51]Mrs MacDonald is the aunt by marriage of Ms MacDonald.

[52]No allegation of assault was made by the claimant to the police. The claimant’s partner Mr Thiel is a former long-serving police officer. Respondent’s submission

[53]Mr McDougall helpfully produced a written submission, which he supplemented orally, and the following is a basic summary only. He argued that there had been no criminal offence or breach of health and safety regulations during the events on 9 August 2023, secondly even if there was the claimant had not disclosed such facts to the respondent, thirdly that even if she had what was disclosed was not a protected disclosure, and fourthly even if it was it was not causative of any detriment or dismissal. He pithily put it that the protected disclosure provisions, generally called whistleblowing, were a shield not a sword. It was argued that the arguments over protected disclosure were self-serving and not ones made in the public interest. Claimant’s submission

[54]Mr Thiel also helpfully produced a written submission which he supplemented orally, and the following is again a basic summary only. The claimant had reasonably believed the allegations made. There were four protected disclosures, on 9 August 2023, 11 August 2023, 31 August 2023 and at the appeal on 11 October 2023. It was argued that there had been qualifying disclosures that a criminal offence had occurred, a failure to meet a legal obligation, a miscarriage of justice at the meeting on 18 August 2023, breach of health and safety, and the deliberate concealment of the demonstration of the grabbing of the arm in the appeal minutes, which omitted that.

[55]The detriments were the way Mr Spence treated the claimant after the disclosure, not being given a chance to submit a grievance, failure to confirm her in a permanent position, and a sham probationary review meeting, and not notifying the claimant of a right of appeal. There had been detriments and an automatic unfair dismissal.

[56]Details were provided as to why the claimant’s evidence should be preferred. The claimant had a concern for vulnerable members of the public attending the respondent. Her belief was reasonable. Allegations against the claimant by Mr Spence were fabricated, or came from Ms MacDonald. Comments were made in reply to remarks by the respondent as to remedy.

The law

[57]The relevant section of the Employment Rights Act 1996 are as follows: “43A Meaning of ‘protected disclosure’. In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection. (1) 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) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.”

[58]The terms of Section 47B of the Act are as follows “47B Protected disclosures [(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. [(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done—(a) by another worker of W's employer in the course of that other worker's employment, or

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

[59]Section 48(2) of the Act states that on a complaint being made under section 47B, amongst others, “it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

[60]The terms of section 103A of the Act are as follows “Section 103A Protected disclosures 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 his dismissal is that the employee made a protected disclosure.”

[61]The words 'in the public interest' in s 43B(1) were introduced by amendment with effect from June 2013. In Chesterton Global Ltd v Nurmohamed

[2017] ICR 731

, the Court of Appeal held that the question for the tribunal was whether the worker believed, at the time he or she was making it, that the disclosure was in the public interest; whether, if so, that belief was reasonable; and that, while the worker must have a genuine and reasonable belief that a disclosure is in the public interest, this does not have to be his or her predominant motivation in making it. Lord Justice Underhill commented on the issue of what was meant by “in the public interest” - “Parliament has chosen not to define it, and the intention must have been to leave it to employment tribunals to apply it as a matter of educated impression.”

[62]Further guidance was given by the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

and Dobbie v Felton t/a Feltons Solicitors

[2021] IRLR 679

[63]The issue of what amounts to a ’disclosure of information', was addressed in Kilraine v Wandsworth London Borough Council

[2018] ICR 1850

, in which it was confirmed that there was no rigid distinction between information and allegations, and that the full context required to be considered. What was necessary was the disclosure of sufficient information.

[64]The question of the reason or principal reason for dismissal in such a claim was addressed in Eiger Securities LLP v Korshunova

[2017] IRLR 115

. The test is not the same as for detriment, or in discrimination law, but to apply the statutory language and ascertain the reason or principal reason for the dismissal.

[65]In Abernethy v Mott Hay and Anderson

[1974] ICR 323

, the following guidance on what the reason for a decision to dismiss means was given by Lord Justice Cairns: "A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”

[66]These words were approved by the House of Lords in W Devis & Sons Ltd v Atkins

[1977] AC 931

. In Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

, Lord Justice Underhill observed that Lord Justice Cairns’ precise wording was directed to the particular issue before that court, and it may not be perfectly apt in every case. However, he stated that the essential point is that the 'reason' for a dismissal connotes the factor or factors operating on the mind of the decision-maker which caused him or her to take that decision.

[67]The law in this area was reviewed by the EAT in Watson v Hilary Meredith Solicitors

UKEAT/0090/20

. A Tribunal must be careful that arguments as to the reason or principal reason for dismissal being other than for making any protected disclosures are not abused.

[68]The interrelationship between detriment and dismissal in this context was considered by the Court of Appeal in Melia v Magna Kansei Ltd

[2006] IRLR 117

. In that case it was confirmed that the relevant provisions as to detriment and dismissal must be construed as part of the overriding statutory scheme. Accordingly, an employee who made a complaint of unfair constructive dismissal was entitled to rely upon the statutory protections relating to detriment right up until the effective date of termination when the dismissal in question became effective. It was only after this moment in time that the provisions relating to dismissal came into play.

[69]If it can be established that a worker has made a protected disclosure, as defined, it then becomes necessary to consider whether or not the worker has been subjected to a detriment on the grounds of having done so. When considering this question it is important that a tribunal should, in reaching and explaining its conclusions, set out separately the elements necessary to establish liability and . consider them separately and in turn: Harrow London Borough v Knight

[2003] IRLR 140

. There was further guidance given to tribunals dealing with protected disclosure issues in Blackbay Ventures Ltd v Gahir

[2014] IRLR 416

[70]How the burden of proof is to be applied in such cases was considered by the Court of Appeal in Kuzel v Roche Products Ltd

[2008] IRLR 530

. The burden initially falls on the employee, and in the present case that arises where she does not have the service necessary to claim unfair dismissal under section 94 such that there is no burden on the respondent to prove the reason for dismissal for such a claim. The burden may then shift to the respondent if the claimant raises what amounts to a prima facie case, to establish that the protected disclosure, if made, was not the sole or principal reason for the dismissal.

[71]The term 'detriment’ is not defined in the Act but it is a concept that is familiar throughout discrimination law and the term should be construed in a similar fashion such that a detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment, as held by the Court of Appeal in Jesudason v Alder Hay Children's NHS Foundation Trust

[2020] IRLR 374

. A detriment can occur after the relevant relationship with the employer has terminated: Woodward v Abbey National pic

[2006] IRLR 677

[72]An onus of proof is placed upon the employer to show the ground upon which any act, or any deliberate failure to act, which is alleged to be a detriment was done, by section 48(2) of the Act. The employer must prove on the balance of probabilities that the act, or deliberate failure, complained of as being a detriment was not on the grounds that the employee had made the protected disclosure which means that the protected disclosure did not materially influence (in the sense of being more than a trivial influence) the employer's treatment of the employee: Fecitt v NHS Manchester

[2012] IRLR 64

. Should the employer fail to prove that the act, or deliberate failure, complained of was not on the prohibited grounds, the question or issue must be determined in favour of the employee: Edinburgh Mela Ltd v Purnell

[2021] IRLR 874

[73]The test for each of sections 47B and 103A is different, and are to be applied differently, as confirmed in Secure Care UK Ltd v Mott [2021] EA- 2019-000977. Observations on the evidence

[74]Mr Spence accepted that in some respects his evidence both written and oral was not fully accurate. He accepted that his Report had the order in which he spoke to the claimant and Mrs Campbell the wrong way round. He said that when he spoke to the claimant on 9 August 2023 she had not made mention of Ms MacDonald being “aggressive” but that he had used that word in his Report. His report stated that he had spoken to two other volunteers but in evidence accepted that he had spoken only to one. He said that the information had come partly from Hazel McKay but it was pointed out to him that the Response Form stated that it had come from Emily Ross. He then said that it may have come from both of them, but that he was not certain. He accepted that he had only spoken to Mr Godfrey in relation to Ms Moran.

[75]The manner in which he had addressed the concerns raised in relation to the claimant was hard to understand. It appeared to start as an investigation into an argument there had been, but became a form of probationary review after the probation had ended without being extended, was partly a disciplinary matter but where the claimant did not know what allegations were made or what evidence against her there was, and where a decision to dismiss was taken on or around 13 August 2023 but where there was a letter provided on 18 August 2023 at 9am, half an hour before the formal meeting, which referred to that meeting which may lead to dismissal or extended probation. Leaving aside the issue that probation had ended some time before then without extension the reference to it being extended, therefore employment continuing, was simply untrue. The explanation that it was a form of template letter was not an adequate one.

[76]In summary these several and significant issues raised at the least doubts over the reliability of the evidence Mr Spence gave. We appreciated that for him this was the first dismissal and that he was somewhat nervous of doing so, but some of the issues raised are very basic indeed.

[77]We required to assess whether he had been told by the claimant that she had had her arm grabbed by Ms MacDonald when they spoke on 9 and 11 August 2023. We address this more fully below, but for the reasons given did not consider that he had been, and we accepted his evidence on that even in light of the concerns over reliability to which we have referred.

[78]Ms Christine MacDonald we considered gave credible and reliable evidence. We accepted her evidence that there had been no physical contact with the claimant on 9 August 2023, and that the words she had used were a form of message to the effect of a need to discuss their differences to try to resolve them and not, as the claimant suggested, an aggressive form of threat. We also accepted her evidence that the claimant had been highly stressed, and had made comments as to Mr Spence being angry if enquiries were not dealt with on the day received, and that she should not apply for the vacancy. We accepted her evidence that the claimant had passed her a note during a call with a client with a telephone number on it, but had then denied doing so. We noted that she accepted that there had been an argument, and that at the end of their doing so she had said to the claimant to “shut up”. We considered that there was a degree of candour in her evidence in accepting her share of fault that matters got to such a stage.

[79]Mrs Campbell was we considered a credible and reliable witness, and she was the most independent of those present on 9 August 2023. We considered that she had a good perspective on what had occurred, or not occurred, that day. Her evidence broadly confirmed that given by Ms MacDonald, and was in a number of respects directly contradictory to that of the claimant. She stated that she had not seen the claimant’s arm being grabbed as alleged, and when it was put to her in cross examination that she might have had her back turned at that point accepted that that was possibly so, but that she had not seen or heard anything that would indicate that having taken place. She did not agree with the claimant’s written report that the claimant had seemed intimidated, she disagreed with the tenor of the words used by Ms MacDonald being aggressive in any way, but to the contrary. She did not accept the suggestion in the claimant’s report that she had been bullied, rather she said that each protagonist was equally involved in their disagreement.

[80]She said that the claimant had not discouraged her from applying for the role directly but that the claimant had said that if both Ms MacDonald and Mrs Campbell had applied, the respondent would not choose one over the other. That was not the same as the allegations in Mr Spence’s report, and was more helpful to the claimant. She explained that the comment from the claimant about keeping matters within the team was more a matter of fostering the team than excluding seeking advice from other staff. That evidence in our view confirmed the impression that Mrs Campbell was an independent and reliable witness.

[81]Mrs Mary MacDonald gave evidence on the appeal she conducted. She was clearly seeking to give honest evidence. She had not kept any note of her discussion with Mr Spence, which took place before the appeal hearing, and did not conduct any other investigation either after that hearing or by speaking to anyone else. Her recollection of some points of detail was not perfect given the passage of time. She did not appreciate that the probationary period had passed, and appeared to rely on advice from HR on the process to follow. She both said that there was a right to appeal for the claimant, and that one was given by the respondent not by right, but had written to the claimant to refer to there being a right of appeal.

[82]She spoke to the letter of outcome, and explained how she had come to her views. Of significance for the purposes of the present case is that the allegation of what was described as a low level assault, meaning the claimant’s arm being grabbed as referred to above, was raised with Mr Spence who said that it had not been referred to at either discussion with the claimant on 9 or 11 August 2023. His comment to her was therefore consistent with his own evidence more generally. We accepted her evidence that that is what she had been told by him, as she put in her letter of decision.

[83]Mrs MacRury gave brief evidence to speak to the notes of the dismissal meeting and the appeal hearing she had taken. We accepted that evidence, and considered the notes a reasonably accurate record, with one matter missing which was that the claimant demonstrated what she said was a grabbing of her arm using Mr Thiel when doing so.

[84]The claimant gave evidence that we considered she genuinely believed to be honest. We did not consider that she had fabricated matters deliberately as was contended by the respondent. We were however concerned at the reliability of the evidence she gave in several respects. We set out the reasons for that below. The claimant’s general position was that she had tried to explain to Ms MacDonald in detail on 9 August 2023 how to do various jobs at work and that Ms MacDonald had become increasingly agitated and aggressive, but that the claimant had remained in effect calm. She alleged that she was not engaged in training, when her own written report referred to that, and to related issues such as teaching.

[85]She alleged that Ms MacDonald was lying about the incident. She also alleged that Mrs Campbell was lying about it, as was Mr Spence in relation to what she had told him. We did not agree with the claimant that those three witnesses were lying. Mrs Campbell in particular we considered had no particular interest in these disputes. Whilst Ms MacDonald and Mr Spence were involved at different stages and in different circumstances and were seeking to protect their positions to an extent, Mrs Campbell was not. She simply happened to be present at the incident, did not take sides, and was balanced and clear in her evidence. That the claimant alleged that she was lying given all that was in our view indicative that the claimant did not have a reliable perspective on what had occurred.

[86]There were a number of inconsistencies between the written documents we considered and the oral evidence of the claimant, which we did not consider were adequately explained. Again that focussed on the disparity between details in her report dated 31 August 2023, and the evidence of Mrs Campbell. There were also disparities in the claimant’s own written evidence as noted below.

[87]That there were three witnesses for the respondent to such matters, and the claimant on the other side, is not determinative. It is not a question of numbers, nor is the assessment of evidence a scientific exercise. Taking all of the evidence we heard into account, we concluded that the evidence of the claimant was not sufficiently reliable and that her evidence could not be preferred to that of the respondents on disputed matters of fact.

[88]We separately considered her evidence as to what was in the public interest not reliable. Whilst we accepted that she had the genuine belief she spoke to, for reasons addressed below we did not consider it reasonable.

[89]Whilst we did not consider the evidence reliable for the reasons given, we did not accept the respondent’s argument that the evidence had been fabricated. We considered that the claimant genuinely believed it to be true. Whilst it was not in our view reliable for the reasons given, we took into account the shock of the nature of the dismissal, which came not only without warning but purportedly at what was to be a probationary review meeting, and was followed by a refusal to give reasons for the decision. The claimant may then have sought to review in her mind what had occurred on 9 August 2023 to lead to such a conclusion, which then we consider led to what was an exaggeration of those events. We did not consider however that that exaggeration was simply manipulation of the events to create a claim that otherwise did not exist, but her rationalisation of what had happened.

[90]Mr Thiel gave brief evidence on the appeal hearing in particular, and of the reaction of the claimant to the events on 9 August 2023, as well as what she told him. We accepted that his evidence was credible. There is one matter on which we require to comment. When being asked a question by one of the lay members, he volunteered an additional remark that during the call from the claimant on 9 August 2023 she had told him that Ms MacDonald had grabbed her arm. We had a concern over the reliability of that. It was not pled, even although in the Further Particulars document the claimant had otherwise responded to the Response Form. It had not been in the claimant’s evidence that she had told Mr Thiel that. It had not been given in evidence in chief, when the claimant asked questions. It was not in answer to the question asked by the member of the Tribunal. In light of all of the evidence we heard, we did not consider that it was evidence that was reliable.

[91]There were therefore issues in relation to the evidence for both parties, and deciding on the disputed matters was not straightforward as a result.

Discussion

[92]The Tribunal reached an unanimous decision. It addresses each of the issues identified above as follows: (i) Did the claimant make a qualifying disclosure to the respondent under section 43B which was protected under section 43A of the Employment Rights Act 1996?

[93]The first issue is whether the claimant made a protected disclosure. This has a number of elements, including what exactly was or was not said. It was disputed whether or not the alleged incident of the claimant’s arm being grabbed by Ms MacDonald took place at all. It was also disputed whether or not she had told Mr Spence that when they discussed matters by telephone that day, or at a meeting on 11 August 2023. It was also disputed whether, if it had been, the claimant had reasonably believed that it was in the public interest. There were separate disputes over whether the report sent on 31 August 2023 was a protected disclosure in the circumstances, although that is of lesser significance as it post-dated the dismissal.

[94]Some of the disputes are over fact. We required to assess them on the basis of the evidence led before us. We apply the test of the balance of probabilities to such issues of fact.

[95]We concluded that the claimant had not told Mr Spence on 9 or 11 August 2023 that Ms McDonald had grabbed her arm on the former date. There are a number of reasons for that conclusion:(i) The only contemporaneous written records of the events of 9 August 2023 are the two messages from the claimant and Ms Christine MacDonald and the claimant’s notes made on her phone. The former message does not mention any grabbing of an arm or assault or anything similar to that at all. We consider that if such an event had happened the claimant would have mentioned that specifically, and not written in the more general terms that she had. The latter message from Ms MacDonald referred to an argument. That accorded with her own evidence and that of Mrs Campbell. The claimant’s notes made on her phone do not state that there was a grab of her arm, but that Ms MacDonald had put her hand on her arm. That is far from the same thing. A grab in our view indicates a degree of force, and in this context at least a partial encircling of the arm with the hand. One dictionary definition of grab is to seize someone suddenly and roughly. Putting a hand on an arm is more of a form of touch, which is less forceful than a grab as so understood. The written records are in our view more consistent with a verbal altercation and at highest for the claimant a minor touching of the arm, if any touch at all, rather than anything that might be regarded as a low level assault as was alleged by her.

(ii) The claimant’s written report submitted to Mr Wilson on 31 August 2023 which was lengthy and detailed did not suggest that she had told Mr Spence on 9 or 11 August 2023 that Ms MacDonald had grabbed her arm.

(iii) Mr Spence’s written report prepared around the end of August 2023 had some errors of detail, as did his oral evidence including the terms of the letter calling the meeting on 18 August 2023, but in general terms those errors were not such that we considered his evidence incredible and wholly unreliable, and he was clear in his evidence that he had not been told of the alleged grabbing of the arm on either 9 or 11 August 2023. Whist his report was written two to three weeks after the events, we did not consider that it had been deliberately falsified to hide the fact of a disclosure of an assault he had been provided with by the claimant, as she alleged.

(iv) The evidence of the claimant as to aggressive words being used by Ms MacDonald was not supported by the independent witness Mrs Campbell. Mrs Campbell’s evidence supported that of Ms MacDonald and was to the effect that Ms MacDonald had said that their dispute required to be discussed between them. She specifically denied the suggestion that there had been aggression shown by Ms MacDonald. It appeared to us that the claimant was wrong in what she alleged had been said, its context and intent. It was not the kind of threat she alleged, and her evidence on the events was not we considered reliable, although we accepted that she genuinely believed that it was what had happened. We preferred the evidence of Mrs Campbell and Ms MacDonald.

(v) The claimant had made other comments which were not accurate at best. They included that Mr Spence would get angry if enquiries were not dealt with on the same day. The claimant denied making that comment, but it was said in evidence that she had done so, including by Mrs Campbell, and we considered that the claimant’s denial of the remark was not accurate. Both the denial of the remark, and the remark itself, were inaccurate. She also denied providing a wrong telephone number to Ms MacDonald, saying that she accepted that she had given the number and only realised during the call with the client that a different one was needed, but Ms MacDonald’s evidence was very different. She claimed that the claimant had denied giving the number at all. On balance we considered Ms MacDonald’s evidence to be more reliable on this point. Separately, both Ms MacDonald and Mrs Campbell said that the former had told the claimant to “shut up” just before Ms MacDonald left the room, and not at a much earlier stage as the claimant had alleged. We preferred their evidence to that of the claimant on this aspect also.

(vi) The claimant had denied to Mr Spence that she was stressed during the altercation with Ms MacDonald on 9 August 2023. Mrs Campbell had however heard both ladies using raised voices, and said that the claimant was stressed. It appeared to us that there was clear evidence of stress, that included the raised voices, and that the claimant denying it was inaccurate. There was also evidence we accepted that the claimant had been stressed on other occasions. We concluded that the claimant had a lack of insight into her own demeanour and manner at that time, and more generally. We again preferred Mrs Campbell’s evidence in particular.

(vii) Mrs Campbell’s evidence in a number of other respects contradicted that of the claimant, including the matters raised in the claimant’s written report which were addressed in detail in the examination in chief of Mrs Campbell. The evidence of Mrs Campbell we accepted, and we formed the conclusion that the claimant had in her recollection of events exaggerated the nature of the interaction with Ms MacDonald but minimised her own involvement in it. Despite the claimant’s position that it was not an argument, in our view it clearly was, with each party equally contributing to that, as Mrs Campbell stated.

(viii) The claimant had spoken to Mr Spence about the possibility of a grievance, had been told that an informal process was possible as part of that, or a precursor to it, and had agreed to the informal process initially. That appears to us less likely to have been agreed had there been the form of grabbing of the arm alleged. That is all the more so when the claimant’s position was that she had felt threatened and intimidated at the time, and had not wished to leave the room with Ms MacDonald.

(ix) The claimant did not raise the matter with the police, despite her partner Mr Thiel being a former police officer and she having spoken to him on the evening of 9 August 2023. Reporting a crime is not a requirement in this context, however the fact that it was not done is an adminicle of evidence.

(x) When Mrs Mary MacDonald asked Mr Spence about the issues raised in what became an appeal, he said to her that the alleged grabbing of the arm by Ms MacDonald had not been raised with him. We accepted both the evidence of Mr Spence and Mrs MacDonald on that point. That appears to us to support the conclusion that he had not been aware of the position at the time of the discussions with the claimant on 9 and 11 August 2023.

[96]We did consider both the claimant’s evidence which was that Ms MacDonald had grabbed her arm, and that of Mr Thiel. He said that she was “incredibly upset” at that time. We did not consider it likely that the claimant had told Mr Thiel that Ms MacDonald had grabbed her arm during the call, as he said and is addressed above. Taking all of the evidence before us into account our conclusion was that the alleged grabbing of the arm had not occurred, nor had the claimant told Mr Spence that it had either on 9 or 11 August 2023.

[97]We concluded that the basis for the first two alleged disclosures did not take place. We did not therefore consider that the facts relied on for the first two alleged disclosures had been proved by the claimant.

[98]For completeness we address points made in submission. There was an argument that Mr Spence failed in a legal obligation to protect the claimant’s health and safety. It was alleged that he failed to take the protected disclosure seriously. We did not accept that the alleged grabbing of the arm had been said to him, and what was said was not we considered a matter that did raise an issue of health and safety as a legal obligation. From the information given to him he was dealing with an argument that had escalated, not a matter of health and safety.

[99]It was alleged that a miscarriage of justice had occurred from the claimant being called to what was said to be a probationary review meeting on 18 August 2023 when it was not. Whilst that letter was not in terms that we considered appropriate, as already addressed, we did not consider that what happened met the definition of a miscarriage of justice.

[100]It was alleged that there had been an actual breach of health and safety from the grabbing of the arm and abusive and threatening language Ms MacDonald is said to have used. For the reasons given above we did not consider that that had happened.

[101]It was also alleged that there had been deliberate concealment of the demonstration of the grabbing of the arm at the appeal. For the reasons given above we did not consider that that was correct as a characterisation of what had occurred. It is true that there had been a demonstration of what is said to have occurred and that the minute did not include that, but there was no concealment of it as alleged. What had been included in the written submission provided at the hearing was not the evidence before us, and had not been put to either Mrs MacDonald or Mrs MacRury.

[102]Even if there had been disclosures of such matters, however there was also the issue of whether the claimant reasonably believed them to be in the public interest We address that issue further below but for essentially the same reasons as we shortly give we did not consider that the first two alleged disclosures met that test even if otherwise they could be said to be qualifying disclosures.

[103]The third alleged disclosure was in a report the claimant provided in writing. We did not consider that that met the statutory definition for a protected disclosure when emailed to Mr Wilson. It was not sent to the respondent, but Citizens Advice Scotland. That did not we consider meet the statutory test. But it did get passed on to the respondent, and we proceeded on the alternative basis that indirectly it had been sent to the 15 respondent and as it was also referred to in correspondence the claimant had with the respondent on and around 25 September 2023 as well as in the appeal hearing itself.

[104]We considered that although the claimant professed to a belief that the disclosure was in the public interest it was not reasonable for her to have such a belief. It was we considered a minor issue between two employees having a disagreement at work. It was not the kind of matter that was in our view sufficiently significant to be one that was reasonably believed to be in the public interest.

[105]It seems to us more likely that if there was any contact at all that Ms MacDonald may have touched her arm, which is what her own near contemporaneous note referred to, and that may have been entirely inadvertent such that Mrs Campbell neither noticed it, nor intended it. It was not we concluded done aggressively or as a means of intimidating or threatening the claimant. It was not likely in our view that the claimant’s arm had been grabbed as alleged, and making an allegation of an untrue fact is not within the statutory definition.

[106]Even if the claimant’s arm had been grabbed as suggested by the claimant in the circumstances of fact set out by her that would have been simply a short low level inappropriate act during a heated argument in which both participants had generally been equally involved up to that point. There was no suggestion of any physical injury, and the incident was not noted by Mrs Campbell who was in the room. One would have expected that if the grabbing of the arm was of such a nature as was contended for that the claimant would have reacted in some way and that would then have been noted by Mrs Campbell. That did not happen. The lack of such reaction is indicative of the very low level of the incident at worst.

[107]The context is also relevant. The disputed words said to have been used by Ms MacDonald were, we concluded, those of seeking to resolve matters and not the threat that the claimant contended for. The context of what happened was a series of arguments between the claimant as the supervisor and Ms MacDonald as a volunteer. It was not the lengthy pattern of one-way aggression that the claimant contended for. But even if it had been it was within the workplace involving one employee and two volunteers, one volunteer being in effect an observer, with no impact on the public or more widely, in our view.

[108]Such low level incidents between employees or volunteers who are working together, as with employees more generally, are not uncommon. They are not we concluded the kind of matter that is close to being reasonably regarded as in the public interest. Whilst the respondent is an advice organisation and deals with clients of all kinds there is in our view no sensible basis to consider that such behaviour, even if it had occurred, would be repeated or might in future have impacted on a client as the claimant alleged. We did not therefore accept the claimant’s evidence that her belief that it was in the public interest was reasonable, even if that had been in her mind at the time, as to which the evidence from her was far from clear.

[109]For these reasons we did not consider that the first two of the alleged disclosures had been made, and none of the three relied on which had been pled were in law qualifying and protected.

[110]There was a fourth alleged protected disclosure raised in submission, which was in relation to the appeal hearing. That had not been pled however. We considered it given that the claimant was represented by someone not legally qualified and experienced. What was said in submission was that there had been a demonstration at the appeal hearing, and that that had been omitted from the minute as deliberate concealment. That, however, was not the evidence, and such an allegation had not been put to Mrs MacDonald or Mrs MacRury in crossexamination. It was in questioning by one of the lay members of Mrs MacRury that the nature of the minute that had been taken was explored. Mrs MacRury explained that she took handwritten notes, typed them up so that they were legible, then destroyed her handwritten notes. She had not had advice to do so. She had prepared draft minutes and sent them and those for the appeal had been met with a “very small” change. She did not specify what that was, but the impression from her evidence was that it was not one that was of any significance. She had accepted that there had been a demonstration of the alleged grabbing of the arm when cross-examined by Mr Thiel. It was not suggested to her that the omission was deliberate however. No application was made by the claimant to ask additional questions of her. We did not consider that there had been concealment as alleged. The evidence before us did not provide a sufficient basis for an allegation of concealment in our view, even had there been pleading of that. Even if there had been a protected disclosure made in relation to the appeal hearing that post-dated the dismissal, and it was not a reason for the refusal of the appeal in any respect, in our view.

[111]It follows from finding that protected disclosures had not been made that the claim must be dismissed. Lest however we be wrong in that, and in deference to the evidence and arguments presented to us by the claimant and Mr Thiel, we addressed the second and third issues separately. (ii) If so was the reason or principal reason for the claimant’s dismissal the making of that disclosure under section 103A of the Employment Rights Act 1996?

[112]The second issue is whether the making of those disclosures, on the assumption that they were made, was the reason, or principal reason, for dismissal. It is not a question of the fairness of the decision, as the claimant does not have the service to claim under section 94 of the Act. It is also not a question of whether or not the claimant did commit an act of gross misconduct, or whether the allegations were proved on the balance of probabilities. The issue is rather whether the respondent’s alleged reason for dismissal was a genuine one, as the sole or principal reason for it, or was in effect a smokescreen to hide the true reason being the protected disclosures.

[113]Matters therefore depended to a material extent on our assessment of the evidence of the decision maker Mr Spence. Matters were not handled as effectively as they could have been, but we did not consider that the protected disclosures if earlier made, had they been as argued by the claimant, played any part in his decision.

[114]The context of the matter was we considered relevant. Both the claimant and Ms MacDonald sent messages to him within a minute of each other. Each was in effect complaining about the other. The claimant then spoke with him by telephone. It appeared to us that he believed that he was investigating competing allegations which were of some form of work dispute between them which was not a particularly serious one. He was not investigating solely a complaint by the claimant.

[115]He did not do so in a vacuum. He was already aware of some matters involving the claimant from his prior knowledge. The claimant and Ms MacDonald also occupied different positions as employee and volunteer respectively, such that the claimant was the manager of Ms MacDonald. He spoke to the claimant twice, and also spoke to Ms MacDonald and Mrs Campbell, as well as some others. He then formed the belief that his trust in the claimant to continue in employment was irrevocably destroyed. Whilst the process of a probationary review was entirely incompetent as the time to do so had passed, and the letter calling the meeting was improper as it was not a review but a meeting to inform her of the dismissal already decided such that its terms were misleading, his investigation was not we considered a sham, as the claimant had submitted.

[116]We considered from the evidence as a whole but particularly his own that, even if there had been a prima facie case established by the claimant, the respondent had discharged the onus that would shift to it to show that the sole reason for the dismissal was his belief as to the claimant’s conduct. He considered, genuinely, that she had told untruths both to him and to others. He considered, genuinely, that her behaviours had been controlling. Whilst not all of the evidence we heard supported the conclusions he had reached, the issue before us is not what we would have concluded, or what we would have done, and what was before us was different in material respects to what was before him, some of which he knew from before the complaints, and some he was then told.

[117]His genuine belief was that he was conducting a probationary review, notwithstanding that the date of that period had passed. He made an error in computation, and in holding a belief that the probationary period had been in some way extended as a review could not take place because of leave. His view was wrong, as although probation could be extended the respondent simply had failed to do so.

[118]But the issue is not whether his view was the right one, it is whether what he gave as the reason for dismissal was credible and reliable. It was accepted by us to be that. However incompetent the processes followed were, however odd it seems that a discussion starting about an informal grievance investigation ended in termination of the claimant’s employment for reasons she knew nothing about, had no chance to comment on, and no hearing to explain her position, we accepted that his evidence about her performance in various respects not meeting the respondent’s values was the sole reason for the dismissal. Even if there had been a protected disclosure made to him, although our conclusion was that there had not been, that was not the reason either sole or principal for the dismissal.

[119]That was so even although his letter calling the claimant to a probationary review meeting did not lead to a probationary review, and there was no prospect of probation being extended as the letter stated. That lack of candour at the least was concerning. The meeting was simply to inform the claimant of dismissal which had been decided, but without telling her the reasons for that. That lack of transparency was also concerning. The claimant did not have the service to claim unfair dismissal, but even those who are in their probationary periods would ordinarily be expected to be treated with a minimum level of decency in an explanation as to why their probation had been unsuccessful, and all the more so in the claimant’s circumstances where her own period for probation had passed and she had asked Mr Spence about a grievance. It is not surprising that she considered there to be some form of ulterior motive for the sudden dismissal and secrecy as to why that had been done that she was subjected to. (Hi) Did the claimant suffer any detriment on the ground that she had made such disclosure under section 47B of the Employment Rights Act 1996?

[120]The third issue is that of detriments. We did not consider that the claimant had established any detriments on the grounds of a disclosure under the terms of the Act. We address each of the alleged detriments as follows:(i) “That after the disclosure Mr Chris Spence treated her differently”. We did not consider that any aspect had been established to meet the statutory definition. There was a reasonably short time-period between the events on 9 August 2023 and the decision to dismiss on or around 13 August 2023. The claimant was off work until 18 August 2023 on leave. Such difference in treatment as there was that day was on the ground of the information Mr Spence obtained during his investigation as to what the claimant had done and said, as a result of which the decision to dismiss had been taken, not any protected disclosure even if that had taken place.

(ii) “That she was excluded from his investigation”. She was partly, although he did speak to her on 11 August 2023 after doing so 30 initially on 9 August 2023. What she did not see was the fruits of the investigation. Initially it was kept from her, then a redacted version was sent, followed by a less redacted version after the appeal. We did not consider that that was on the ground of any protected disclosures if made, but from his view of how to hold the meeting on 18 August 2023, about which he had sought assistance from Google. We accepted his evidence as honest and reliable even if we were surprised by it.

(iii) “The comments in the report by Mr Spence about the claimant which [the claimant alleged] were untrue”. Some we consider were untrue on the basis of the evidence before us. For example it was not within the evidence we heard that the claimant told Ms Campbell that she should not apply for the vacancy as she did not have the experience, it was more a comment that if both volunteers applied neither may be successful. It was also not fully established in the evidence before us that the claimant had said not to speak to other staff, rather that she was seeking to foster a team spirit. To some extent we considered that the claimant was justified in alleging that the report had untrue details within it. But the comments in the report were not made on the grounds of her having made disclosures, but his belief in what others had told him or from his existing personal knowledge. That they were not consistent with the evidence before us did not detract from our view that he genuinely believed that the report was accurate. The sole reason for the inclusion of the details of the report was his view that it was what had happened, and it had not been manipulated or fabricated by him because of a protected disclosure as was alleged.

(iv) “The decision that she had not passed probation”. Whilst that decision was incompetently taken as the probationary period had passed, it was the genuine belief of Mr Spence, based on his view of her performance and conduct and not at all on any protected disclosure, if held to be made.

(v) "The denial of the fact of the disclosure in the Response Form”. For reasons we gave we consider that no disclosure took place. It did not appear to us that pleading that that was the position could amount to a detriment as that term is to be understood.

(vi) "The allegation in the Response Form that the claimant’s allegation that she had been assaulted had been fabricated.” The evidence before us was that the allegation of having her arm grabbed by Ms MacDonald had not happened, for the reasons given above. We did not consider the pleading could amount to a detriment as that term is to be understood. We did not share the view that it had been fabricated in the sense of an allegation made known to be untrue, for the reasons given earlier, but we did not consider that detriment. In any event it was their position and not one on the ground of her having made a protected disclosure.

[121]For completeness we address the appeal, which was discussed during evidence and had been in effect referred to in the context of the claim under section 103A. We considered however that it was, if anything, a matter arising as a detriment, and not in relation to the dismissal. Dismissal is defined in section 95 of the Act, and is a single date by reference to the termination of the contract. In the event of a successful appeal that has retrospective effect - Patel v Folkestone Nursing Home Ltd

[2018] IRLR 924

but in the absence of such a successful appeal the original date remains, which was the decision by Mr Spence.

[122]We concluded therefore that this issue could only arise by way of detriment, but we considered it appropriate to address it as the claimant did not have legal representation, the facts were before us, and having regard to the line of authority which includes Mathebula v Time 4 U Ltd

[2024] EAT 89

, where the claim was of direct race discrimination made by a party litigant but where it was held that there should have been proactive consideration by the Tribunal whether it was more naturally one of harassment, with direct discrimination as an alternative. Whilst the issues in the case was different to those in this, the claims being addressed before us remaining the same, but their characterisation and detail go beyond the list of issues identified at the start of the hearing. We considered that addressing them was within the overriding objective.

[123]It was not clear whether the appeal was held under the formal disciplinary procedure. The respondent’s evidence was less than clear on that, and we had the impression that it had not directly been considered. For the reasons given the probationary period had passed, and no separate probationary procedure was before us. The disciplinary procedure was not followed. Whilst the claimant did not have the service to claim unfair dismissal no right of appeal was referred to in the dismissal letter.

[124]She was however offered an appeal, and one was held. Mrs MacDonald spoke to Mr Spence, and appeared to be satisfied with his answers, which had occurred before the appeal hearing itself. No further investigation took place, and no witness beyond Mr Spence was spoken to as a part of the appeal. There was no note of the conversation between Mrs MacDonald and Mr Spence, and it was not entirely clear what he had been asked by her, or what he had said, other than that he said that the argument as to grabbing the claimant’s arm had not been raised with him during his discussions with the claimant on 9 and 11 August 2023.

[125]During the appeal hearing Mr Thiel tendered a document he had prepared and which was in effect incorporated into the minutes, which in terms referred to a protected disclosure. It was not however contended that that document was itself a protected disclosure. Even if it had been however it did not add materially to what Mrs MacDonald had been told as to the claimant having her arm grabbed.

[126]As the issue is one of detriment the onus is on the respondent to prove the reason for the decision to refuse the appeal, and the test is the lower one for detriment as set out above. We were however satisfied from Mrs MacDonald’s evidence that the respondent had discharged the onus on it. The dismissal was not in any sense whatsoever affected by any disclosure made by the claimant alleged to be protected. It was solely because of the perception held as to her conduct, as referred to in the letter of decision on the appeal and in her oral evidence, which we accepted.

[127]The letter set out Mr Spence’s comments to her, and concluded that “it boils down to the irrevocable loss of trust in your ability to continue in the post unsupervised moving forwards.” We concluded that the respondent had proved that that loss of trust was the sole reason for the refusal of the appeal. Mrs MacDonald believed Mr Spence on that point, and we in turn accepted her evidence as credible and reliable that that was the only reason she refused the appeal. If a protected disclosure had been made at any stage, that was not any part of the reason for the refusal of the appeal.

[128]Whilst the claimant noted the absence of reference to her Report in the appeal outcome letter and that was part of her argument that the appeal was a sham, we did not consider that the failure to refer to the terms of that report in the outcome letter meant that it had not been considered. As already stated, the fairness of the process including the appeal is not a matter before us.

[129]It is true that the claimant was not advised in the dismissal letter of a right of appeal. The respondent did not as we have stated have a clear line on what procedure the dismissal took place under. If it was for probation, the notice period was one week. If it was under a disciplinary procedure, the notice period was one month. If there had been gross misconduct, amounting to repudiation, no notice was necessary. In fact one month’s notice was paid in lieu. That was consistent with the position after probation from the disciplinary procedure. Whilst the appeal itself did not follow the terms of the disciplinary procedure, and holding it before Mrs MacDonald was not consistent with the disciplinary procedure, this is not a case of fairness. We did not consider that the procedure not being followed in the appeal was a matter that affected the issues before us, given the evidence of Mrs MacDonald that we accepted.

[130]The claimant argued for further detriments in her submission. Although they had not been identified at the start of the hearing when this issue was addressed we do so for completeness. It was alleged that the claimant was not given the chance to put forward a grievance formally. That was not what the evidence supported. The claimant accepted that she had been told about the grievance and its reference to an informal process, which she had consented to. We considered it clear that she could have submitted a grievance had she wished to. Mr Spence did not prevent her from doing so, but had explained the grievance process. That he did so given his understanding of the nature of the issue at the time is entirely understandable. Doing so was in our view not inappropriate in the circumstances at that time. We did not consider that any such detriment had been proved, and it had not been identified in any event at the start of the hearing.

[131]It was alleged that there was a failure to confirm the claimant in a permanent position with a sham probationary review meeting and dismissal. Reference was made in submission to another Employment Tribunal case, which is not binding on us and in different circumstances. We did not derive assistance from it. We have addressed above the probationary period. The respondent did not address that issue competently. But its reasons for that are based on incompetence not on the ground of the claimant having made a protected disclosure.

[132]Although not specifically stated to be a detriment it was alleged in submission that Mr Spence had taken comments from the claimant’s report sent on 31 August 2023 and used those to fabricate details in his own report. That had not however been put to him when he gave evidence, and we did not consider that that is what happened. It is an argument we rejected.

Conclusion

[133]We answer each of issues one, two and three in the negative. Issue four does not therefore arise. In light of these findings we must dismiss the Claim.

[134]The Tribunal considers it appropriate to make the following comments. It considers it disappointing that an organisation such as the respondent, which performs such an important advisory and advocacy role for so many people, dealt with the issues before it in the manner it did. The Tribunal has commented above that it seems to it to be common decency for any employer to tell an employee, if there were concerns over conduct or performance whether viewed as probationary matters or otherwise, what they were and to give the employee an opportunity to comment on them before deciding what to do, whether as a matter of probation or of conduct

[135]The claimant’s probationary period had passed, as a very simple check would have confirmed. The respondent’s disciplinary policy document permitted the disciplinary procedure to be disapplied if the employee had less than two years’ service, as was the case for the claimant, but that was a comment in section 5 of the policy headed “The Disciplinary Procedure” and did not appear to the Tribunal to mean that it was intended to apply to sections 1 - 3 on the policy and purpose, investigation and principles. It did not appear to the Tribunal to be intended from that one sentence that the respondent entirely ignore the comments in those earlier and separate sections. That is so whether or not an employee has the service to make a claim of unfair dismissal under section 94 of the Act.

[136]It was entirely unsurprising to us that the manner in which the respondent handled the issues, including the letter given to the claimant at 9 a.m. on 18 August 2023 purportedly for a probationary review, the summary dismissal in a short meeting half an hour later, the lack of process or transparency as to why that was being done, and the somewhat brutal requirement for immediate delivery of keys and laptop as might be done in a case of dishonesty, caused the claimant the distress and upset she eloquently gave evidence about.

[137]Any dismissal can be difficult for both the employee and the manager conducting the meeting, but the manner in which it is handled can either reduce or increase the levels of stress and upset caused. A simple explanation of the reasons for the dismissal would have been entirely possible. Had Mr Spence asked HR at Citizens Advice Scotland about that issue rather than search on Google he might well have been told something to that effect. The absence of common decency shown to a person in the claimant’s position can be fertile ground for a former employee to make claims such as the present.

[138]Mrs MacDonald also alleged in the appeal outcome letter that the respondent did not have to give reasons for dismissal. The respondent did not appear to be aware of the terms of section 92 of the Act. Whilst it is the case that the claimant did not directly ask for such reasons in writing, and that is a requirement under sub-section (2), her own report did confirm that she had asked him to elaborate on the reasons given, which in essentials does seek reasons for dismissal. The letter from Mrs MacDonald appeared to suggest that the right did not exist.