Ms M Pirie v Orka Artisan Café Ltd and HR Services Scotland Ltd: 8000051/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000051/2023

Venue Aberdeen

Hearing 21 July 2023

Between

Ms M PirieClaimant

Orka Artisan Café LtdRespondent

Before

Employment Judge J M Hendry

Date 2 April 2024

JUDGMENT

The claims against the Second Respondent having no reasonable prospects of success are struck out.

REASONS

[1]The claimant in her ET1 sought findings that she was unfairly dismissed and discriminated against on the grounds of disability and sex. She also indicated that she was making a whistleblowing claim. The claimant in her ET1 claims that she brought to her employer’s attention some health and safety issues in relation to the café in which she worked and as a consequence she was dismissed. In relation to the second respondent she writes this: “…… HR Services Scotland who sacked me. I tried to give them all the evidence and explained that they perhaps did not have the full story.”

[2]The first respondents defended the claim on the basis that the claimant was not entitled to raise a claim for unfair dismissal as she had less than two years’ service. They denied the financial basis of the claim. The second respondent defended the proceedings on a number of grounds pointing out that the claimant had provided an incorrect ACAS Conciliation number in her ET1. They also stated that they were not the claimant’s employers claiming that they were a consultancy providing HR employment law and health and safety services. Their position was that they had been wrongly included as a party in the proceedings. They accepted that they had been engaged by the first respondent and instructed to carry out termination of the claimant’s employment. They stated that they were not aware of any qualifying protected disclosure that time and acted as instructed.

[3]The case proceeded to a preliminary hearing for case management purposes following which a Note was issued to parties on 11 May 2023. The claimant was given 21 days to consider her position after it was pointed out to her that claims against the second respondent did not appear well-founded. The Note read: “I once more re-iterate to the claimant that I have some considerable sympathy for the difficulties that she faced and I can understand her focus on the second respondents as being the company that actually dismissed and the “face” of her employers. I explained to the claimant that although I had every sympathy with her in relation to the health and personal difficulties she had experienced, if she pursues her claim with no prospects of success this can lead to an application for expenses being made against her by the second respondent. As stated above, I struggled to discern any direct claims against them and certainly none, as yet have been properly articulated.”

[4]Following the issue of the Note the claimant either wrote to the Tribunal or copied the Tribunal into considerable volume of correspondence that she was involved in relating to various matters. She did not seek to withdraw the claim against the second respondents. Strike Out Application

[5]On 26 June 2023 the second respondent’s solicitors sought strike-out of the claims.

[6]I am not going to rehearse the correspondence that went back and forth in the run up to the hearing on the 21 July. The claimant had sought a postponement because of her mental health difficulties and because she intended becoming an involuntary in-patient for a period in a local hospital. There was an exchange of correspondence in which the claimant was advised that she had a right to attend the hearing personally. I was not minded to postpone the hearing. Ultimately the claimant agreed that the hearing should proceed “on the papers” in other words on the basis of written submissions which would mean that she would not have to attend the hearing.

[7]In advance of the hearing the respondents prepared a PH bundle with the relevant documentation. This had been copied to the claimant by e-mail on 20 July. I was conscious of the fact that the claimant was a party litigant. I noted that she lodged no commentary on the actual strike out application. Accordingly, I asked the Clerks to write to the claimant asking whether she had any intention of lodging submissions/arguments in relation to the strikeout application over above the correspondence that she already copied to the Tribunal. I gave the claimant 7 days to respond to this.

[8]The solicitor acting for the second respondent set out their submissions in a separate document which had been lodged referring back both to the Note and to the original strike-out application. Their primary position was that the second respondent should be removed as a party to the proceedings under Rule 34 of the Employment Tribunal Rules of Procedure 2013 as they had been wrongly included by the claimant. There could be no claim against their clients as they were not the employers. They alternatively submitted that the claims had no reasonable prospects of success under Rule 37(1)(a). As a further alternative, they submitted that the claims against the second respondent should be struck out under Rule 37(1)(b) as the manner in which the proceedings had been conducted by the claimant had been scandalous, unreasonable and vexatious. They pointed to the volume of correspondence they and their clients had received. They indicated that the correct ACAS Early Conciliation Certificate was wrong on the ET1 and that the claims should be struck out under Rule 10(1)(c) or 12(1)(f).

[9]The factual background does not appear to be in dispute in that the claimant was employed by the first respondent and not at any point by the second. The second respondent, as a consultancy business, acted as agents for the first respondent and acted in this capacity when they ended the claimant’s employment. They were not independent actors.

[10]The claimant made contact with the second respondent on 26 October 2022 enquiring whether she had been dismissed because of hygiene concerns. The second respondent confirmed they did not know about any alleged disclosure. Following her dismissal the claimant repeatedly contacted the second respondent. Discussion and decision

[11]Rule 37(1)(a) and (b) of the Employment Tribunal Rules is in the following terms: “Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a)that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;”

[12]Rule 2 (the overriding objective) is in the following terms: “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and (e)saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

[13]In general a Tribunal has to be slow to strike-out an application where the central facts are in dispute (North Glamorgan NHS Trust v. Ezsis

[2007] IRLR 603

and Mbusia v. Cygnet Health Care Ltd EAT 0118/18 that strikeout draconian steps should be taken in exceptional cases but that there was no absolute bar to striking out such cases.

[14]The respondent’s agents brought to my attention the comments of HHJ Taylor in Cox v. Adecco [

UKEAT/0339/19/AT

]: “No one gains by truly hopeless cases being pursued to a hearing.”

[15]In the present case the difficulty the claimant faces is that she was not employed by the second respondent. In general, employment legislation protects an employee vis-à-vis their employer’s actions. It is with the employer that the employment relationship is made. It was clear in this case that the second respondent are not the employers and that that they acted as agents for those employers in terminating the claimant’s employment. The claimant agreed that it was suggested to her at the preliminary hearing and has not subsequently been contested. They had no obligation to discuss the matter with the claimant beyond what the employers asked them to do.

[16]In the Note I had raised with the claimant that in certain circumstances in terms of section 47E of the Employment Rights Act an agent can be responsible for acts of detriment following the making of a protected disclosure. The claimant does not indicate that the respondents were aware or should have been aware that the claimant had made a whistleblowing disclosure. Indeed, the respondents’ position is that at the time the nearest the claimant came to indicating that she had made a whistleblowing disclosure was, she asked whether she was being dismissed for raising health and safety concerns.

[17]I had regard to the fact that the claimant was asked to set out the basis of any claim she might have under section 47B. She did not do so. Nevertheless, I will examine the matter in more detail.

[18]Section 47B(1)(a) affords a worker the right not to be subjected to a detriment by the agent of the employer. As a defence to a claim under section 47B(1)(a) the agent can show that they subjected a claimant to a detriment in reliance of a statement by the employer that the act or omission would not amount to a contravention of the Employment Rights Act. The sequence of events is important here. It appears from the claimant’s own ET1 it was only after HR Services Scotland dismissed the claimant that she tried to give them her side of the story and explained they perhaps did not have the full position. They had been asked to terminate the claimant’s employment on the grounds of her misconduct.

[19]The claimant recorded a call with the second respondent’s HR Director, Kerry Hislop on 2 November. A transcript of this was produced. The claimant begins by saying: “I know you told me not to contact you again but I am having no luck with Louis and Garry….” . The HR Director then discussed the claimant’s behaviour and made reference to her claimant trying to phone them and e-mailing them 32 times.

[20]It appears to me that the claimant has failed to present any facts which amount to a prima facia case of sex or disability discrimination relating to the second respondent. She was not employed by the second respondent. The only possible claim would be a claim for detriment under Section 47(1)(a). The claimant does not suggest from the paperwork that the respondents were aware that she had made a qualifying disclosure and it seems that she raised these matters with them only after she had been dismissed. There are however further difficulties.

[21]The respondents’ position was that they were not engaged as an agent in the sense envisaged by section 47B. They had no autonomous decision making power. The section is to protect employees treated badly by what could be described as commercial agents. The respondents’ refer to the case of Ministry of Defence v. Kemeh

UKEAT/0249/12/SM

which determined that the common law principles of agency must apply in order for true agency relationship to be made out. In brief the parties must engage in a commercial relationship where a person, the agent, is expressed as authorised to act on behalf of a principal and enter into a legal relationships and take decisions for them. That is not the situation here.

[22]I am led to the conclusion that any claim under this section made by the claimant or for automatically unfair dismissal has no reasonable prospect of success and should be dismissed on this ground alone.

[23]In relation to the other grounds for strike-out. I need not determine them.

[24]Finally, I would observe that I am conscious that the claimant as both a party litigant and someone who has a number of personal difficulties wanted to advance her case against those involved. I warned her that repeatedly contacting the second respondent would be unreasonable behaviour and lead to either strike-out of the case or possibly a finding for expenses. I noted that on 26 April 2023 Judge Hosie instructed the Clerk to write to parties quoting: “As all the relevant issues will be discussed at the hearing. Judge Hosie directs the parties to immediately desist from e-mailing the Tribunal concerning the merits of the claim and the conduct of anyone involved in the claim. In so far as relevant to the issues in this case this will be discussed at the hearing.”

[25]There were other examples of the claimant being asked not to send repeated emails to the parties or to the Tribunal. It was explained to her that this was time consuming and posed problems for all concerned as each email had to be read by the Clerks or by the respondents’ solicitors. I would nevertheless have been reluctant to strike out on the grounds of unreasonable behaviour without having given the claimant a further opportunity on pain of strike out to modify this behaviour. This at the end of the day had not been necessary.

[1]The claimant lodged a claim with the Tribunal on 3 February 2023 in which she claimed that she had been automatically unfairly dismissed for making protected disclosures. She also ticked the box in her ET1 for discrimination on the grounds of sex and disability but provided no additional information in relation to those claims. The claim was initially directed against “Orka” and against HR Services Scotland as second E.T. Z4 (WR) respondent. Prior to lodging her claim the claimant had lodged a Tribunal claim which was not accepted naming Louise Smart as first respondent and HR Services Scotland as second respondent. On 4 November 2022 the Tribunal had written to the claimant confirming that that claim could not be accepted because the claimant had not complied with ACAS conciliation requirement. The claimant made an early conciliation notification to ACAS on 16 December 2022 in which she named the first respondent as “Orka Artisan”. She also named the second respondent. The claim form which was accepted was received on 3 February 2023. Both respondents submitted a response. The first respondent in their response indicated that the name of the respondent was “Orka Artisan Cafe Limited”. On 17 March 2023 the Tribunal advised the claimant that the response had been accepted. As is the usual practice the letter stated, “Where the name given by the respondent on the response differs from that given on the claim we shall assume unless we hear from you to the contrary inviting within seven days to the date of this letter that the name given by the respondent is correct.”

[2]A preliminary hearing was due to take place on 4 April for case management purposes but the claimant wrote to the Tribunal on 23 March 2023 requesting a postponement. In this email she did not indicate that she disputed the name of the first respondent. There was then sundry other procedure in the case which included a case management preliminary hearing which took place on 9 May 2023 which dealt with a number of case management issues and a further open preliminary hearing which took place on 21 July 2023 following which the claim so far as directed against the second respondent, HR Services Scotland Limited, was struck out. It should be noted that for the reasons set out in that judgment the hearing proceeded in the absence of the claimant “on the papers”. The note issued following that hearing included at paragraph 9 a statement:- “The factual background does not appear to be in dispute in that the claimant was employed by the first respondent and not at any point by the second.” The first respondent is described in the judgment as “Orka Artisan Cafe Limited.”

[3]Thereafter, attempts were made for the case to proceed to a full hearing however the hearing fixed to take place on 2 October 2023 was postponed and thereafter the hearing due to take place on 23 and 24 November 2023 was also postponed.

[4]A feature of the case is that the claimant has written numerous emails to the Tribunal complaining about the situation she finds herself in. Whilst many of these emails are intemperate in nature and indicate that the claimant takes issue with many of the actions of the tribunal which are entirely routine and a consequence of the tribunal being an independent arbiter rather than an advice resource I accept that the claimant’s motivation is genuine and she is confused and upset at finding herself involved in a process which is unfamiliar to her. Whilst examining these emails it appeared to me that the claimant may not in fact accept that her employer was Orka Artisan Cafe Limited. Whilst the claimant made no specific application it was clear from some of her correspondence that she believed that the claim should be directed against Louise Smart. I decided that rather than have the matter be left as one to be potentially raised at the full hearing of the case which is now set down to take place on 13, 14, 15 March 2024 it would be appropriate to fix a preliminary hearing in order to determine whether the claimant’s employer was indeed Orka Artisan Cafe Limited and whether they were the appropriate respondent in the case.

[5]The preliminary hearing took place on 25 January. The claimant attended and gave evidence on her own behalf. Mr McFarlane the respondent’s representative attended but did not lead any evidence. He indicated that he had intended to lead evidence from Louise Smart a Director of Orka Artisan Cafe Limited but that due to a family situation and the weather she had been unable to attend. He invited the Tribunal to make their decision based on the papers in the case and the claimant’s evidence.

[6]On the basis of the evidence and the productions I found the following essential facts relevant to the matter to be determined by me to be proved or agreed. Findings in fact

[7]In October 2021 the claimant saw an advert on Gumtree for cafe staff at Orka Artisan Cafe. The claimant was interested in the job as at that time she worked part time as a cleaner for the MoD but her job only gave her 10 hours per week. She had previously been employed at a cafe for around seven years which had closed after the Covid pandemic. The claimant contacted and met with Louise Smart at Orka Artisan Cafe in Aberdeen for interview. Louise Smart offered the claimant the position there and then and the claimant started work on 15 November. She was to be paid £10 per hour and work 10-3 Monday to Friday.

[8]After she started she became aware that Louise Smart had the cafe in Aberdeen and also a cafe in Ballater. Louise Smart told the claimant that she was mostly based in Ballater and that her partner Garry Eunson was a part owner of the business and also based in Ballater. She advised the claimant that she and Garry owned the cafe businesses and that her son had also been made a director.

[9]After a fairly short time the claimant had a further conversation with Louise Smart where it was agreed that the claimant’s rate of pay would be increased to £11 per hour and her role would change to that of Supervisor.

[10]The claimant worked at the Aberdeen cafe however on a couple of occasions she was asked to cover shifts at the cafe in Ballater which she did.

[11]The claimant was at no time given a statement of terms and conditions of employment or a contract of employment. The claimant was paid by direct bank transfer into her bank account. Notes of the payments were lodged (pages 66-68). The payments are noted to come from “Orka Artisan C…” I consider that on the balance of probabilities they came from an account in the name of Orka Artisan Cafe. To begin with the claimant was paid monthly but thereafter wages started coming in on a fairly random basis. Initially the claimant was aware that all staff were paid on the same date but this was fairly random. The claimant advised Ms Smart that she had direct debits coming out of her account and that she was finding the random nature of the payments difficult. She then agreed with Ms Smart that the claimant would be paid fortnightly. Thereafter she was paid fortnightly. She was aware that other members of staff still were being paid on a fairly random basis. The claimant also had some further issues where her pay was paid late.

[12]On occasions when the claimant required to speak to Ms Smart about her wages Ms Smart would say words to the effect of “oh, I will get on to the bank about it” or “I will speak to my accountant.”

[13]The claimant was aware that invoices arrived at the premises addressed to Orka Artisan Cafe Limited. She was also aware that some personal mail arrived at the premises addressed to both the claimant and her partner Mr Eunson. She understood from suppliers that there were two separate customer numbers, one for the Aberdeen cafe and one for the Ballater cafe.

[14]All of the claimant’s communications about her work were with Louise Smart. She never communicated directly with Garry Eunson. The claimant was aware that there was company headed paper and that it was a “proper business”. All paperwork came with the name of Orka Artisan Cafe Limited.

[15]On occasions the claimant asked Ms Smart about pay slips and Ms Smart would say there was a problem with her accountant or at the bank. The claimant understood that Ms Smart, her partner and son were directors of the business. The claimant did not believe that the business could be a proper limited company because she noticed at the time that no tax or national insurance deductions were being made from her wages. She has also since discovered that no payments were made to HMRC in respect of tax and national insurance which she believes ought to have been deducted during the course of her employment.

[16]There are two limited companies whose certificates of incorporation were lodged. One is Orka Artisan Cafe (Ballater) Limited which is limited company number SC690614. The registered office is in Aberdeen. That company was incorporated on 1 March 2021 and dissolved on 26 September 2023. The company documents in respect of this company were lodged (pages 60-63). The other company is Orka Artisan Cafe Limited who are the respondents in this case. Their company number is SC640136. The registered office is in Aberdeen. The claimant’s position is that she understands steps are being taken to have this company removed from the register. Matters arising from the evidence

[17]It is clear to me that the claimant was genuinely trying to give truthful evidence to the Tribunal. The claimant’s evidence at times strayed into matters which were not strictly relevant to the point at issue at the preliminary hearing and given that I will require to make findings in respect of these points at the final hearing in the case I do not make any findings at present in relation to those matters. With regard to the evidence she gave which was relevant to the matter at hand I had absolutely no hesitation in accepting her evidence as truthful.

[18]It is clear to me that the claimant, who does not have any legal training or experience, is unsurprisingly unaware of different types of business and the potential significance of whether someone is acting in a personal capacity or as director of a limited company. During her evidence she referred on many occasions to the fact that all her communications were with Ms Smart. She considered Ms Smart to be her employer at the time. She readily accepted that she had been told that there were three directors of the business and she accepted that all of the business correspondence which came to the cafe was in name of Orka or Orka Artisan Cafe. She also said that personal mail came for Ms Smart and Mr Eunson. She said that all of the invoices were addressed to “Orka”. When it was specifically put to her that Ms Smart was a director the claimant answered “Yes, she, Garry and her son were directors.” When it was put to her that this meant it was a limited company her answer was “No because limited companies pay tax and national insurance and she didn’t pay tax or national insurance.”

[19]It was extremely unfortunate that Ms Smart did not attend the Tribunal to give evidence since her evidence could have cleared matters up fairly readily. I also note that no PAYE wages records were lodged and, again, I would have thought that these would have readily cleared matters up. I can only draw the inference that, as stated by the claimant no records exist because none of the proper payments were being made. I note that previously Ms Smart has sought postponements on the basis that she is medically unfit to attend however on this occasion I understood that that was not the case and certainly she did not produce any medical evidence. Whilst it is clearly up to the respondent and those representing them to make a decision as to what evidence they can call the Tribunal shared some of the claimant’s frustration that we were being asked to determine this important matter on the basis of the papers combined with the claimant’s own evidence. In the circumstances I decided that no weight whatsoever could be given to ex parte statements from the respondent’s representative and that I required to make my decision based entirely on the evidence before me which comprised the claimant’s evidence together with those documents in the bundle to which the claimant was specifically referred in evidence. I should also say that whilst I had grave concerns regarding the way the respondent has conducted the proceedings I required to base my decision on what I believed, on the balance of probabilities, to be the factual position at the time the claimant was employed. Discussion and decision

[20]In this case the sole issue which I was required to determine at the preliminary hearing was the identity of the claimant’s employer. If I had determined that the employer was not the current respondent then I would have required to give consideration to amending the claim so as to direct it at the correct employer.

[21]It was the respondent’s position that the employer was Orka Artisan Cafe Limited. The claimant’s position was that, as she put it, she may not have dotted the ‘i’s and crossed the ‘t’s at all points but that she considered her employer to be Louise Smart.

[22]For the benefit of the claimant I will reiterate what is essentially trite law. A business can be run in a limited number of ways. It may be run by a government or local authority. It may be run by an individual. It may be run by a partnership. It may be run by a limited company. In this case there was no question of the government being the employer and the issue is whether the business which the claimant worked for which was called Orka Artisan Cafe was run either by an individual in which case the claimant’s position would be that it was run by Louise Smart as a sole trader or if, on the other hand it was run by a partnership or by a limited company.

[23]If it was being run by either a partnership or by a sole trader then there would be no need for Directors. The claimant’s evidence was quite clear that she was told that Louise Smart’s son was appointed a director of the company. This would not be possible if Louise Smart was a sole trader. It only makes sense if the employer was a limited company. I did briefly consider the possibility that the business was being run as a partnership but the claimant at no point indicated that this could potentially be the case.

[24]In addition to the claimant’s own statement that this was a company with directors we have the fact that the respondent company was set up as a limited company and that supplier invoices appeared to have been sent to the limited company.

[25]As Mr McFarlane pointed out in his submission every limited company must operate through an individual human being. All communications must come from someone within the company and the fact that all of the claimant’s communication was with Louise Smart is entirely consistent with the respondent’s position which was that Louise Smart was a director of the company.

[26]Matters would of course have been much more straightforward and there would have been no need for a hearing of this type had the respondent complied with the law and in particular section 1 of the Employment Rights Act 1996 which requires an employer to provide particulars of employment to an employee at the outset of the contract. It appears clear to me that the respondent were in breach of this duty and on the basis of the claimant’s evidence also in breach of their duty to provide itemised pay slips. That having been said, I am required to decide the question of the identity of the employer as a matter of fact on the balance of probabilities. The above facts together with the fact that the claimant was paid apparently from a bank account in name of the company would all lead me to the view that on the balance of probabilities there is really no question but that the employer was Orka Artisan Cafe Limited who are the present respondents. Accordingly that is my finding.

[27]I can appreciate that this may be disappointing to the claimant particularly as the claimant advises that she believes that there are ongoing steps to have this company struck off the register of companies. The claimant has already flagged up her concern that if she is successful in her claim then she may have difficulty in obtaining payment. Unfortunately this is a matter which arises out of the general law of the land which the Tribunal is bound to enforce. It is not something which the Employment Tribunal can change. If the claimant wishes to ensure that the company is not struck off the register of companies then it is open to her to write to the registrar advising of the position and seeking that this be delayed. This of course may not assist the claimant in recovering any eventual award which may be made in her favour. I also appreciate that the claimant feels aggrieved that whilst she has clearly set out a claim that she was unfairly dismissed as a result of making protected disclosures to Aberdeen Council Environmental Health Department the respondent’s defence has been to accuse her of theft and she naturally feels aggrieved at this. No doubt this is a matter which can be explored at the hearing should the respondent company still be on the register of companies at that hearing. The claimant also feels aggrieved that she believes the respondent did not make appropriate PAYE deductions from her wages and account to this to HMRC. This is not a matter for the tribunal but there is nothing to stop the claimant reporting the matter to HMRC for them to investigate.

[28]Finally, I did consider whether on the facts alleged by the claimant it would be appropriate for me to amend the claim so as to include Ms Smart as a second respondent on the basis that there are certain circumstances where an individual Director may be responsible for a claim under section 47B of the Employment Rights Act. I have decided that this would not be appropriate at the present time not least because the claimant has made no such application but also because on the basis of the facts alleged in the claimant’s ET1 there would appear to be absolutely no grounds for doing this.

[29]On the evening of 4 September the claimant went in to the cafe. She probably went in in the early evening. The claimant looked in the fridges and considered that the cafe had clearly not been following the instructions she had previously given about labelling items and ensuring that foodstuffs were on the appropriate shelves. The fridges also appeared to need cleaned with stagnant water in them. At approximately 9.00 pm that evening the claimant messaged Ms Smart advising her that she had been at the cafe and sending her various photographs which in her view tended to show that there were food hygiene problems at the cafe.

[30]There had been a previous Environmental Health inspection of the cafe in January 2022. At that time the Environmental Health Department had made two recommendations going forward. The first was that the seals on one of the fridges should be replaced. The second was that a store cupboard required to have a hole in the ceiling fixed and to be thereafter lined with a wipe down surface before the cupboard could be used for storing food. Ms Smart had ordered a new seal from her suppliers however due to supply chain issues this was still on back order from China. With regard to the cupboard Ms Smart had made the decision that the cafe could not afford to spend the several thousand pounds it would require to line the cupboard and that the appropriate course of action was to ensure that this cupboard was not used for storing food. She had instructed staff that this store cupboard should not be used but, unknown to her this instruction had not been followed and the staff were using the cupboard to store traybakes.

[31]Following receipt of the message from the claimant Ms Smart checked her telephone which allowed her to access the CCTV in the cafe. She noted that the claimant had gone into the cafe when it was dark. She had remained there for a time and then came out for a cigarette. She had then gone back in and left again. She had gone in with one bag and left with three. The claimant had been in the cafe for a total of around two hours.

[32]At this time Ms Smart was under considerable business pressure. In or about March 2021 she had taken over a cafe in Ballater. She had not anticipated how difficult it would be to obtain hospitality staff in the period immediately after the Covid pandemic. As a result she had found herself in the position of having to personally work in the Ballater cafe seven days per week. She also had to ask other people to work there as a favour. The claimant had in fact done one shift at the Ballater cafe. Ms Smart lives in Aberdeen and the cafe in Ballater is around 45 miles away. It is a journey of at least an hour each way. She was well aware that in those circumstances she had relied on the supervisor in the Aberdeen cafe to make sure everything was okay.

[33]Ms Smart also had a further difficulty on the Sunday evening the claimant sent her the message about her hygiene concerns (4 September) in that the engine of her car had overheated and then ceased to function. She therefore found herself on the Sunday evening without a car. She was therefore not in a position to deal with the claimant’s message personally by going through to Aberdeen on the Monday. What she did was instruct the three staff who were working in the Aberdeen cafe on the Monday the 5th to give the place a good clean and address the issues the claimant highlighted. In the meantime however the claimant decided that she would advise the Environmental Health Department of the issue. She wrote to them by email at 8.51 am on 5 September 2022 stating: “Hi I am hoping that someone from EHO will be able to visit Orka Cafe in Aberdeen. One of your employees Courtney attended either last year or the start of this one and gave a pass. Since then there has been issues with the owner not coming in to the cafe to work/train staff and the place had become a complete shambles. I am an employee who would like to remain anonymous but cannot in good faith allow food to be served to the public from here. There is no cleaning been done in the kitchen no stock rotation no food labelling/dates being adhered to and severe cross contamination. I have attached a couple of photos I took yesterday. Please can someone go asap and again keep the tip anonymous.”

[34]At this point the claimant was not due to be working in the cafe until Wednesday and Thursday since she and Ms Smart had agreed a phased return to work.

[35]Whilst the claimant was travelling in to work on the Wednesday an environmental health officer called at the cafe. He found a number of matters of concern. Erin who was in the cafe at the time contacted the claimant who then contacted Ms Smart. Ms. Smart was at the café in Ballater and, because her car was not working she was unable to travel through to Aberdeen immediately. Ms Smart and the environmental health officer then had a telephone conversation during which the environmental health officer suggested that given the nature and number of the issues he had identified it might be better for Ms Smart to voluntarily close the restaurant until these issues had been addressed. Ms Smart agreed over the telephone that this is what she would do. During the course of various messages which appear to have passed between the claimant and Ms Smart that day, Ms Smart stated to the claimant that it was not her fault. By this she meant that it was not the claimant’s fault that the premises were non-compliant because she accepted the claimant had been off work since June. Ms Smart’s position was that she had been working in Ballater and simply unable to give the business the attention it needed. She had made an arrangement for her son (who also has other employment) to call into the cafe once a day on his way to and from work but she accepted with hindsight this had clearly been insufficient. Given that she did not have her car Ms Smart was unable to drive to Aberdeen to deal with the situation herself at the café and therefore got on the bus. When she got off the bus she then got a taxi to the cafe.

[36]One of the issues highlighted by the environmental health officer was that the staff in attendance did not appear to know what they were doing and there were no records that they had received appropriate training. Ms Smart’s position was that certain of the staff had received training but not all of them and that where a member of staff said they had previous catering experience she had taken this on face value. She decided that the appropriate thing to do was to immediately purchase an online training module and that the staff would require to complete this training module before the café re-opened.

[37]By the time Ms Smart arrived at the cafe the environmental health officer had gone. All of the food in the fridges had been thrown in the bin and bleach poured over it so that it could not be retracted from the bin and reused. It was between 2.00 and 3.00 pm. On arrival Ms Smart was extremely surprised to be verbally attacked by the claimant. The claimant behaved extremely aggressively towards her. She raised the issue of staff not being paid in time. The position was that the claimant had been paid on time ever since she had raised the matter with the respondent soon after she started employment. The claimant was however aware that other members of staff were being paid erratically and although they had not raised the issue with Ms Smart the claimant decided it was appropriate for her to raise it with her. During the course of this altercation the claimant called Ms Smart a liar. Ms Smart noted that by this time it was nearly three o’clock when the claimant was due to leave and reminded the claimant that she should leave to be in time to collect her children from school. The Tribunal was in no doubt that this verbal attack had come as an unpleasant surprise to Ms Smart. It was the claimant’s position that during this altercation the claimant had advised Ms Smart that she i.e. the claimant was the one who had informed Environmental Health. The Tribunal did not accept this evidence which was contradicted by Ms Smart, the reasons for this are given below.

[38]Ms Smart then arranged for the staff to complete the appropriate training module that day.

[39]That evening Ms Smart and her mother spent several hours cleaning the cafe. She arranged for the environmental health officer to call round the following day to confirm he was happy with the steps which had been taken. The environmental health officer duly called round. He confirmed that he was happy with the steps taken and was happy for the cafe to reopen. With regard to the fridge seal he accepted Ms Smart’s explanation that she had ordered the seal and was awaiting its arrival. With regard to the cupboard he accepted the position which was that the cupboard could not be used for storing food. As noted above, unknown to Ms Smart, a practice had arisen whereby traybakes were being stored in the cupboard.

[40]There was a brief discussion over text between the claimant and Ms Smart about whether the claimant should come in the following Wednesday/Thursday. By this time the claimant was referring to a court case she was involved in. She led Ms Smart to believe that this was a court case in connection with her husband having assaulted her. Ms Smart responded stating that given the court case was going to be stressful it was perhaps better for the claimant to stay off until the court case is over. She asked what the claimant’s doctor and support worker thought. The claimant never in fact returned to work. During this time Ms Smart continued to pay the claimant £100 per week sick pay.

[41]On or about 20 October the claimant wrote to Ms Smart stating: “Hiya sorry I haven’t sent my latest sick line I need to pick it up from the surgery I’m signed off until January and have weekly court appointed sessions for 12 months with the Women’s Department of Social Work. They said that its court ordered so I have to go, you can have my wages for that day reimbursed. Did you get the other one ok.” (p88) This was at 22:48. At 22:49 the claimant sent a message to Ms Smart stating: “I have an interview with the reporter tomorrow from the Press & Journal she wants to do a story.” (p88) The claimant then sent a photograph showing the journalist’s card and a note from the journalist referring to her court appearance.

[42]At some point subsequent to this the claimant sent Ms Smart a message indicating that she had sent the journalist copies of the photographs and documentation in relation to the environmental health inspection of the cafe. The next day Ms Smart was taking a day off to take her mother on a short break. This involved leaving early and she appears to have received the claimant’s emails and responded to them at around 5.00 am in the morning. Ms Smart was extremely concerned that the claimant was speaking to a journalist about the cafe. She was concerned that if an article appeared in the paper saying that the cafe was unsanitary then the cafe would have to close and everyone would be out of work. She asked the claimant to contact the journalist and ask that things not be used. There then appears to have been a number of other messages between Ms Smart and the claimant which were not lodged. During the course of these it would appear that the claimant stated that she would be taking the respondent to a Tribunal. A screenshot of the claimant’s phone was lodged (page 89) which shows that by this stage the claimant was threatening to take the respondent to a Tribunal for “not acting appropriately when I brought health and safety issues to you, bullying her, pay coming late, no pay slips no communication.” Ms Smart wrote to the claiming saying that if she wished to make a formal complaint she should do so by emailing the respondent.

[43]Ms Smart contacted her family solicitor. She could not really understand what was going on. Her family solicitor said it was very odd that Kathryn Wylie would be interested in the cafe being inspected by Environmental Health since she was the Press & Journal’s criminal court reporter. Ms Smart felt that she was out of her depth and required to obtain legal advice. She contacted a couple of employment law advisers recommended to her by the family solicitor before being put in touch with HR Services Scotland. In the meantime, Ms Smart had spoken to the journalist involved. She had left a message for the journalist on or about 21 September but it was a few days later before the journalist returned her call. The journalist told her that the claimant had been in court on a shoplifting charge and had been convicted of shoplifting. The journalist said that she was interested in the story because the claimant had said that she had been forced to do shoplift as a result of the cost of living crisis and the domestic abuse she had suffered. The journalist confirmed that she had been sent documents in relation to the cafe and a visit by Environmental Health but that it was not her intention to use these. She advised that she understood the claimant had been the person who wrote to Environmental health alerting them to the food hygiene problems in the café.

[44]During this period Ms Smart was bombarded by the claimant with emails and messages. She felt extremely pressurised. No sooner would she have read one message and be in the course of replying to it when another would arrive. The messages were aggressive. Ms Smart felt extremely upset by what was going on. She contacted HR Services Scotland and advised them of the situation. She said that she had now discovered that the claimant had a conviction for shoplifting. In the circumstances, given that the claimant had unrestricted access to the till she was not keen for the claimant’s employment to continue. She also felt she could not continue when the claimant had clearly decided that Ms Smart was her enemy. HR Services Scotland advised her that given the claimant had less than two years’ service and there appeared to have been a complete breach of trust and confidence there was no impediment to simply dismissing her. Ms Smart told them that she wished to terminate the claimant’s employment. The reason for this was the fact that she had now discovered the claimant had been convicted of shoplifting and, in addition, the claimant was behaving aggressively towards her.

[45]HR Services Scotland contacted the claimant by telephone to advise her of her dismissal and followed this up with a letter confirming that her employment would end on 26 October 2022. They stated within this that the claimant would receive her pay and other benefits that she was due including holiday pay. These sums were paid to the claimant on 31 October. There was a minor issue regarding holiday pay which was corrected a few days later. In the meantime, the claimant bombarded HR Services Scotland with a vast number of emails. On one day she sent 32 emails. The claimant lodged a transcript of a telephone conversation she had with HR Services Scotland which clearly shows that she accepted she had been asked by them not to contact them further but was doing so in any event. She made it clear during the transcript that she was not prepared to listen to a word that was said to her. The Tribunal found the transcript to be an accurate record of what was said. The claimant did initially seek to lodge a video which the Tribunal had understood to be a video of this conversation however in the event the video only showed various 10 second excerpts of the conversations.

[46]The claimant sent her initial application to the Tribunal on 4 November. This application was not accepted due to the claimant’s failure to provide an early conciliation number. At around this time the claimant claimed that she had made an application for interim relief. She refers to this on numerous occasions during the telephone call with the former second respondent. She is critical of them for stating that this was somewhat unusual. In any event, no application for interim relief was made during the appropriate statutory period.

[47]As noted above, the claimant initially raised proceedings against HR Services Scotland as second respondent. Their response was lodged. Their position regarding the factual background is: “The second respondent was engaged as an external consultant to the first respondent. During a phone call on 24 October 2022 the first respondent instructed the second respondent to carry out termination of the claimant’s employment. It is not known and not admitted that the claimant made a qualifying protected disclosure prior to that time. The reasons given by the first respondent for the claimant’s dismissal were ostensibly related to her conduct. In light of the claimant’s length of service at the time of her dismissal she was not afforded protection from unfair dismissal under sections 94 and 98 ERA. The claimant’s dismissal by the first respondent was communicated by the second respondent verbally and in writing on 26 October 2022. Following termination of her employment the claimant contacted the second respondent repeatedly with questions which they were unable to answer. The claimant was redirected to her former employer the first respondent but continued to contact the second respondent. It is understood that the claimant recorded a call to the second respondent’s HR director Kerry Hyslop without her consent. The claimant continued to contact the second respondent as did a personal friend of the claimant who was posing as a journalist. The claimant raised a formal complaint against the second respondent which was duly investigated but not upheld. The second respondent found no wrongdoing in their communication with the first respondent’s decision to terminate the claimant’s employment.”

[48]On or about 14 October 2022 the claimant was interviewed over the telephone in connection with her application for Employment Support Allowance. A copy of the note taken of this call by Ms Esther Mortley, the member of staff she spoke to was lodged (pages 98-99). She was assessed as not being fit for work or any work related activity. It was noted that she was being treated for anxiety and depression and was on medication. It noted that she was smoking cannabis on a daily basis. The claimant also lodged a photograph of various medication which she advised she is currently taking. One of these is Mirtazapine which is an antidepressant and the box shows it was picked up on 20 April 2023. One of these is Propranolol which is a betablocker which the box shows was issued in August 2022. She is also taking Amitriptyline and Co-codamol, Zeroderm and there is another box where the name of the drug is impossible to make out. The claimant’s position is that the effect on her ability to carry out day-to-day activities as a result of her anxiety and depression is as she stated in to the representative of DWP. She is noted as saying: “She stays in her night clothes during the day will put joggers over her clothes if she needs to go out she will shower without prompting she is making meals without prompting she tidies up around the home does the washing she does struggle with leaving the home to appoint the children attendance at school has been poor and truancy officer has become involved. It is lack of motivation and anxiety that restricts her on days the kids do not go to school she says in bed and does not get up until later in the afternoon. Realistically she is not leaving the home by herself she has her children with her and the only time she is alone is when she is driving back from the school after dropping them off this is not reliable she has no routine to her day but if there were changes relating to her children she will cope. She takes her children to the supermarket but she stays in the car while they go in with a list this is due to her anxiety and fear of being around people she has friends that message her but she does not meet them she parks and stand away from the school to avoid other parents she will not answer the door but she does not have any problems with her behaviour towards anyone. She was highly emotional throughout the interview she needed prompting and a gentle approach so she did have difficulty coping with the interview. …. Based on the evidence significant functional restrictions are likely in areas of going out and social interaction but unlikely in other areas of mental health.”

[49]The claimant has remained on benefits since her dismissal. Her position is that she remains unfit to take part in any work related activity and so has not been looking for other work. Observations on the evidence

[50]As noted above we have made these findings in fact on an alternate basis given that if we are incorrect in stating that the claimant withdrew her claim under Rule 51 then we would be required to proceed under Rule 47 which provides that if a party fails to attend or to be represented at the hearing the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Accordingly, our findings in fact are based on the evidence which we heard to the point where the claimant walked out. There was actually a substantial amount of agreement between the evidence of the claimant and the respondent. During her evidence the claimant accepted that she is in the habit of bombarding people with messages. She said that “sometimes I can be a bit manic over the messages”. She did not offer any apology for this.

[51]Both parties were in agreement that the claimant had sent a vast number of messages to Ms Smart in October. Given the terms of the messages we saw we have little doubt that Ms Smart found this very difficult to deal with. Somewhat surprisingly, there was a difference in evidence between the two witnesses as to the point at which Ms Smart became aware that the claimant was the person who had contacted Environmental Health. Both witnesses essentially gave evidence which was against their own interests. The claimant’s position was that she had told Ms Smart on 5 September just after Ms Smart had arrived at the cafe. Ms Smart’s position was that she had not discovered this until around 22 October when she had spoken to the journalist albeit in the day or so prior to this she had begun to wonder how the claimant had access to the various photographs sent to Environmental Health.

[52]Most of the other factual disputes were about matters which were not particularly relevant to the case. As noted above, the claimant’s attitude to cross examination was extremely confrontational and unhelpful. She appeared to be much more interested in making points than answering questions which were put to her. She accepted in evidence that she had been convicted of shoplifting. This was a matter which at the previous hearing in January she had stated was an untrue allegation. The claimant tended to answer questions with another question. When it was clear that the answer to the question was probably not going to suit her case she would become aggressive and make allegations against the respondent and Ms Smart personally. It was clear that the claimant’s view is that if her position on matters is challenged in any way then this is evidence of corruption and “lying”. She accused Ms Smart of lying about saying she had travelled to the cafe on 5 September by both bus and taxi. Quite frankly this was something where the claimant could not possibly have any information to counter what Ms Smart said. She accused Ms Smart of being corrupt in that she continued to operate the cafe in Ballater as a sole trader following the liquidation of the company. She accused her of trading without a licence. She also made other allegations. It was clear to us from Ms Smart’s demeanour and her evidence that Ms Smart has found the whole experience devastating. The claimant appears to have absolutely no understanding of the effect of her behaviour on others. Ms Smart gave several instances where the claimant has tried to damage Ms Smart’s interests by taking scurrilous allegations against her. During a period when Ms Smart was trying to sell the business in 2023 the claimant wrote to the surveyors alleging that the building was suffering from subsidence and was unsafe. She has also contacted members of Ms Smart’s family. Ms Smart’s position was that her husband died many years ago in tragic circumstances. She was able to get through this without the use of antidepressants. The claimant’s campaign against her however has caused her to have to consult her doctor and be prescribed antidepressants. At the end of the day we preferred the evidence of Ms Smart over that of the claimant where there were clear differences. Ms Smart said that she had not discussed her own personal issues with the claimant at the interview. We rejected the claimant’s contrary assertion since we thought it highly unlikely that Ms Smart would have discussed highly personal issues with someone she had just met. We preferred Ms Smart’s version of events in relation to when she found out that it was the claimant who had advised Environmental Health. It seemed something which it was unlikely that Ms Smart would lie about if the claimant had indeed told her on 5 September as the claimant said. It should be noted that the claimant had initially offered to bring a witness to this conversation (Erin). Prior to the hearing she indicated that Erin would be giving evidence in person. Immediately prior to the hearing she said that she would be asking for Erin to give her evidence by CVP. At the outset of the hearing the Employment Judge confirmed that the respondent had no objection to this and asked the claimant to contact the clerk with a view to getting the appropriate log-on details. The claimant said that Erin was on a course and would not be able to give evidence that day but would be able to give evidence the following day. The Employment Judge secured the agreement of the respondent’s representative that he would have no objection to Erin’s evidence being taken out of turn after the start of Ms Smart’s evidence if this proved necessary. Subsequently the claimant indicated that in fact Erin had not anticipated giving evidence in the normal way but thought she could simply call in on her telephone during her lunch hour. The employment judge indicated that she would require to give her evidence over CVP but again having secured the agreement of the respondent’s representative to this he said he would be happy to arrange matters so that she was called to give evidence over her lunch break. Subsequent to this the claimant advised that despite what she had been told to do she had not in fact got the log-in details from the clerk and passed this on to Erin. She said she would not be calling Erin as a witness.

[53]During the course of the claimant’s cross examination on the Wednesday afternoon the claimant had stated that she considered Ms Smart to be lying when Ms Smart said she had contacted the journalist Kathryn Wylie. The claimant repeated her allegation that this was a lie on several occasions. She indicated that she would be calling Ms Wylie to give evidence to refute this. The employment judge stated that this was up to her but that she should arrange to contact Ms Wylie as soon as possible in order to organise this. The claimant advised on the Thursday morning that she would not in fact be calling Ms Wylie.

[54]With regard to the issue of whether or not Environmental Health had reinspected the property in October 2022 the claimant did not give any specific evidence herself about this but in cross examination she put it to Ms Smart in some detail that this had happened. Ms Smart’s evidence was quite clear that she had no knowledge of it. If it had happened then she was unaware of it. The claimant initially suggested that Environmental Health had closed the business down and that was why it had shut but she then withdrew from this position in cross examination and said that Environmental Health had failed everything apart from two specific items. Given that this was a very specific allegation and the claimant claimed to have this information from a Freedom of Information request the employment judge spent some time as indicated above trying to get to the bottom of why the response to the claimant’s Freedom of Information request was not lodged. Apart from making generalised accusations of corruption against the respondent, the Tribunal and everyone else the tribunal is still no further forward in establishing how it came to be that if such a document exists it was not lodged. As noted above, the only document lodged in relation to this was contained in pages 69-70 of the bundle for the 25 January 2024 preliminary hearing on identity of respondent. It contains a copy of the claimant’s application which states: “Please provide me with any documentation held by ACC Environmental Health in relation to their inspection of Orka Cafe Aberdeen from September 22 to date.” It also contains a copy of the response which states that the requested documentation is attached. It states that some documentation in the photographs would be emailed separately. It notes that various things had been redacted. None of the documentation was attached. In general terms it has to be recorded that whilst both parties referred to a number of messages as noted above only a fraction of these were lodged. They were also lodged in no particular order that could be discerned and in many cases the date and in some cases the identity of the party is impossible to make out. At the end of the day the Tribunal felt that in order to comply with our duties under Rule 47 we require to make whatever findings we could and our findings in fact are based on this. Issues

[55]The claimant’s principal claim was that she had been automatically unfairly dismissed for making a protected disclosure. She relied on the protected disclosure made to the environmental health officer on 5 September 2022. She had also ticked the box on her ET1 to indicate that she was making claims of sex discrimination and disability discrimination. Despite it being noted in the initial preliminary hearing which took place in May 2023 that she should provide further details of these claims she never in fact did so. At the outset of the hearing the employment judge tried to establish what the claims were. With regard to sex discrimination it was her position that her dismissal was an act of direct sex discrimination in that if she had not been a woman then she would have been treated differently. During the course of the remainder of the hearing she neither asked any questions of Ms Smart in relation to this nor did she put forward any evidence on which to support this contention. The respondent’s representative had suggested that she may wish to make a claim of indirect sex discrimination if it was her position, as it sometimes appeared to be, that she had been dismissed because the respondent’s manager was unhappy that she was going to be off work until January at least. It could be argued that this placed her as a woman who suffered from domestic violence at a disadvantage as opposed to others. Despite being invited to do so by the Tribunal the claimant did not take up the respondent’s suggestion and indeed, once again, there was absolutely no evidence to support this contention either given or referred to during the course of the hearing.

[56]With regard to the claim of disability discrimination it was the claimant’s position that she was disabled as a result of suffering from anxiety and depression. She confirmed that she was making a claim of discrimination arising from disability which appeared to be on the basis that the reason for her dismissal was connected to the fact that she had been signed off until January. There also appeared to be at least a suggestion from her that if she had been dismissed because she was sending too many emails and messages to the respondent and that these were inappropriate then this was something arising from her disability. Discussion and decision

[57]The respondent’s representative had submitted written representations in relation to the issues in the hearing which he had written in advance.

[58]We do not propose to deal with these reasons in detail however they are referred to for their terms. In general terms we accepted the respondent’s representative’s analysis of the relevant law. Automatic unfair dismissal

[59]Our position was that it had been established that the claimant did make a protected disclosure. She disclosed information to the environmental health officer in her email of 5 September. It was information in relation to health and safety and also that the respondent were in breach of a legal obligation. Our view was clearly in the public interest that this should be disclosed. We should say that had the old law been in force and we required to make a finding that the disclosure was made in good faith then we would have struggled to do so however there was no doubt in our mind that the claimant’s email did qualify as a protected disclosure. The timing of the disclosure coming early on the Monday morning after she raised the issue with Ms Smart late on the Sunday night left us in little doubt the claimant’s motive was to cause as much difficulty to Ms Smart as she could that is not a relevant consideration and the claimant is entitled to the full protection the law offers to those who make protected disclosures.

[60]The key question then is whether in terms of section 103A of the Employment Rights Act 1996 the sole or principal reason for the claimant’s dismissal was that she had made that protected disclosure. We were referred by the respondent’s representative to the case of Kong v Gulf International Bank (UK) Limited

[2022] EWCA civ 941

which is a recent case where the Court of Appeal examined the authorities on the subject and confirmed the approach which tribunals should take. As noted above the claimant’s case was that she had told Ms Smart on 5 September that she the one who had made the report. Ms Smart’s case was that she had only found out that the claimant was responsible on or about 22 October when she had spoken to the journalist. We preferred Ms Smart’s version of events. Ms Smart’s position was that the reason that the claimant was dismissed was a breach of trust and confidence. There were two aspects to this. The first was that she had discovered that the claimant had a conviction for shoplifting and indeed had been disingenuously told her that the reason for having to attend court was due to her husband’s assault case. The other reason was that Ms Smart simply could not cope with the claimant bombarding her with aggressive, threatening, vitriolic messages and emails. Ms Smart had found these extremely upsetting and indeed one of the reasons she gave for the fact that these emails had not been properly stored by her and lodged with the Tribunal was that she found the existence of them on her phone to be too upsetting. She had been advised to arrange a separate file for them to go in, she didn’t have to read them.

[61]At the end of the day we felt that this was a matter which the Tribunal required to judge based on our assessment of Ms Smart’s evidence and her honesty. It appeared to us to be quite clear that she regarded the visit of the environmental health officer as something which was unfortunate but also a wake-up call which she did not resent in any way. Her position was that she had not realised that standards in the cafe had deteriorated to the extent they had. She had made an arrangement for a replacement supervisor to be appointed while the claimant was off. She had also arranged for her son to go in on his way to and from work. She had had no reason to believe that these steps had not been successful in ensuring that the standards were kept up. She accepted that she had not been in the cafe herself due to the pressure of having to work in Ballater seven days a week.

[62]When the claimant reported her concerns to her on the Sunday night she was somewhat concerned that the claimant had gone in after hours but did not dwell on the issue. Her evidence, which we accepted, was that she had told the three staff who were in the cafe on the Monday to clean the place properly. When the environmental health officer came on Wednesday she did not seek to argue with him or minimise the position. Indeed, her position was that she and her mother personally cleaned the property in order to make sure that everything was being done correctly. She also made arrangements for the staff to complete the training modules. It appeared to the Tribunal that in her view that was really the end of the matter. It is part of the warp and weft of running a catering business. The environmental health officer had reinspected the property and was satisfied. The matter was effectively closed.

[63]We have no doubt that what did concern Ms Smart was the fact it became evident to her that for some reason the claimant had decided shortly after this to go on a mission to attack her in every way. We have no doubt that Ms Smart was extremely alarmed and concerned that the claimant contacted a journalist. By the time she dismissed the claimant however she was well aware that the journalist was not going to put anything in the papers since the journalist had personally told her this. We note that the response put in by the second respondent clearly states that the reason for dismissal was a loss of trust and confidence. Whilst they could not be cross examined on this this no doubt reflects their understanding at the time of what Ms Smart told them.

[64]Given that on the claimant’s own evidence there were very few controls on the cash proceeds at the cafe. (Her evidence in January was that no X or Z readings were taken) and that Ms Smart would simply call in from time to time to remove excess cash, it appears to us that it must have been quite devastating for Ms Smart to discover that the claimant had a conviction for dishonesty. It is also clear that by this time the claimant had for some reason taken into her head that she would treat Ms Smart as an enemy. As against that we have the claimant’s assertion that Ms Smart must have been motivated by the protected disclosure. Given that the claimant’s position is that from the outset everyone has been corrupt and lying we felt that her evidence on this matter lacked any kind of credible basis. Having considered Ms Smart’s evidence most carefully we felt that this was one of these situations where although protected disclosures had been made the protected disclosure was neither the sole nor the principal reason for the dismissal. The claimant’s claim of automatic unfair dismissal therefore fails.

[65]With regard to the claim of disability discrimination the Tribunal noted that the burden of proof was on the claimant to prove that she was disabled. The claimant lodged no medical evidence. It is noteworthy that in May 2023 EJ Hendry went into considerable detail with the claimant as to the definition of disability and the steps she should take in order to prove this aspect of her case at the preliminary hearing. The tribunal also specifically advised the claimant of the steps she should take in order to obtain and lodge her GP medical records with the tribunal in an email sent to the claimant on 19 May 2023. Given this clear guidance it is disappointing that the only evidence the claimant did lodge was a copy of the report from DWP which was based entirely on information which the claimant provided to the DWP officer in a telephone call and the evidence of the photo of the pillboxes. The claimant’s position in evidence was that she had previously suffered from anxiety around 20 years ago but that at the time she applied for the job she was not suffering from it and was not receiving any medication. She did not give any direct evidence of the effect of her anxiety on her ability to carry out day to day activities. When asked by the Employment Judge she confirmed that what she had told the DWP manager was correct. She then went on to say that when she has things to do she does not spend all day in her pyjama attire as suggested. In all the circumstances we agreed with the respondent that the claimant had not fulfilled the burden of proof which lay on her to show that she was disabled at the relevant time. Her evidence was essentially that she had become unwell around May/June which coincided with her marital breakdown. Any anxiety and depression was situational. At the time when the claimant was dismissed in an allegedly discriminatory way in October she had suffered from this for less than 12 months. There was no corroboration of the claimant’s suggestion that she had previously received treatment or indeed that the condition which she had previously had was the same as she suffered from in 2022.

[66]As we appreciate this is a somewhat narrow decision at the end of the day it was for the claimant to prove that she had disabled status. The claimant had had the requirement spelled out to her on a number of occasions but as she has done throughout these proceedings has totally ignored any suggestions made by the Tribunal and indeed treated them as hostile.

[67]The Tribunal did consider whether off our own volition we could make a finding that the claimant’s self-admitted tendency to bombard people with hostile and critical emails could be regarded as a disability. It was our view that it would be inappropriate for us to do so. There was absolutely no evidence that this tendency of the claimant (well-established in the evidence) is in any way linked to an impairment.

[68]If the Tribunal was wrong in this we were in no doubt that the respondent did not have either actual or constructive knowledge of her disability at the time of the claimant’s dismissal. The claimant was not entirely clear as to what she considered the link between her dismissal and her disability was however if the claimant’s allegation was that she had been dismissed because she had told the respondent that she would be off work for a further three months then there was absolutely nothing in the evidence to suggest that this was in the mind of Ms Smart at the time of dismissal. In evidence, she quite clearly stated that she had no difficulty with the claimant being off. The business had been able to cope with the claimant’s absence between June and September and there was no reason this would change. Various contemporary messages also show that far from seeking to chase the claimant back to work Ms Smart was very solicitous of her welfare and wanted to ensure that she was fit before she returned.

[69]The claim of disability discrimination is therefore dismissed.

[70]With regard to the claim of sex discrimination there was really no evidence on which to base the claimant’s assertion that her dismissal had been in any way linked to her sex. It was established that 90 per cent of the employees of the business are female. The respondent had given the claimant child friendly hours when she asked for them. There was absolutely nothing to suggest that if the claimant had been a man who had similarly sent abusive emails to Ms Smart and who Ms Smart had similarly discovered to have a shoplifting conviction would have been treated any differently. For this reason the claim of sex discrimination also fails.

[71]At the end of the day the Tribunal found this to be a very difficult case. The claimant does not assist herself by sending voluminous emails and messages to all and sundry particularly when these contain serious allegations which are made without any evidence or indeed thought. If the claimant’s difficult tendencies are due to an underlying mental health condition we have to record that we have seen absolutely no evidence to support this. The tribunal deal with many claimants who suffer from anxiety and depression which are the impairments claimed by the claimant who do not exhibit this tendency. Despite being told on various occasions what she has to do in order to promote her claim to be disabled the claimant has not provided any evidence.

[72]The claimant’s position throughout has appeared to be that on the one hand she bemoans the fact that she is not an employment law specialist and does not have access to assistance whilst on the other hand she refuses point blank to take on board any advice from the Tribunal or anyone else as to what the correct law on the subject is. The claimant appears to find a sinister explanation for straightforward everyday business matters. All members of the Tribunal consider that the Tribunal tried our very best to cope with the claimant’s unreasonable behaviour. This process has no doubt had a deleterious effect on the respondent who also it has to be recorded have tried their best to ignore the intemperate behaviour of the claimant at all times and seek to have the case determined fairly. At the end of the day the Tribunal members do not consider there is anything more that we or the respondent could have done by way of a reasonable adjustment. We are satisfied that if we were incorrect in our finding that the claimant had withdrawn her claim then if we had approached the matter in terms of rule 47 we would have dismissed all the claims based on the evidence before us.