Mrs T Shaw v Funeral Services Ltd T/a Co-Op Funeralcare: 8000560/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000560/2025

Venue Glasgow

Hearing 18 – 22 and 25 August 2025

Between

Mrs T ShawClaimant

Funeral Services Limited t/a Co-Op FuneralcareRespondent

Before

Employment Judge Campbell

Ms A Bibia for respondent

Litigation for respondent

Consultant for respondent

Date 26 September 2025

JUDGMENT

[1]detriment because of making protected disclosures;

[2]automatic unfair dismissal;

[3]constructive unfair dismissal;

[4]direct discrimination;

[5]failure to make reasonable adjustments; and

[6]harassment are all unsuccessful and are dismissed.

REASONS

Findings of fact

[1]This claim was heard over six days by a full tribunal. The claimant represented herself and Ms Bibia represented the respondent.

[2]In brief, the claimant worked as a Funeral Arranger based in Shotts, North Lanarkshire. She resigned with immediate effect on 25 February 2025 following the initiation of a disciplinary investigation into her conduct (but before a disciplinary hearing) and the handling of grievances she raised. She relied on the protected characteristic of disability in her claim, the condition in question being type-2 diabetes which the respondent accepted qualified within section 6 of the Equality Act 2010 (‘EqA’).

[3]A joint bundle and list of issues had helpfully been prepared.

[4]The claimant gave evidence on her own behalf. The respondent led the following witnesses, their titles in brackets: Clare Leighton (Funeral Service Manager), Doris Miller (Funeral Service Manager and the claimant’s line manager), Carole Davis (Employee Relations Investigator), Ashlene Robertson (Regional Operations Manager), Andrew Brown (Operational Transformation Lead), Stuart Fowler (Head of Client Retention and Enablement), Matthew Lynley (Funeral Service Manager and the claimant’s welfare manager), and Richard Bland (Funeral Service Manager).

[5]The parties both provided notes of their closing submissions and supplemented them orally after the evidence had been heard. The tribunal deliberated over an additional day and reached an unanimous view in relation to the complaints raised. Legal issues The parties had agreed a list of issues for the tribunal to determine, reproduced below with minor amendments to reflect points made during the hearing.

[1]Protected Disclosures 1.1. Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? 1.1.1. The Claimant says she made disclosures on 30 – 31 December 2024 the Claimant made a protected disclosure regarding a GDPR breach. 1.2. Did she disclose information? 1.3. Did she believe the disclosure of information was made in the public interest? 1.3.1. Was that belief reasonable? 1.3.2. Did she believe it tended to show that: 1.3.2.1. a criminal offence had been, was being or was likely to be committed; 1.3.2.2. a person had failed, was failing or was likely to fail to comply with any legal obligation; 1.3.2.3. a miscarriage of justice had occurred, was occurring or was likely to occur; 1.3.2.4. the health or safety of any individual had been, was being or was likely to be endangered; 1.3.2.5. the environment had been, was being or was likely to be damaged; 1.3.2.6. information tending to show any of these things had been, was being or was likely to be deliberately concealed. 1.4. Was that belief reasonable? 1.5. If the Claimant made a qualifying disclosure, it was a protected disclosure because it was made to the Claimant’s employer.

[2]Detriment 2.1. Did the Respondent do the following things: 2.1.1. Did Stuart Fowler send the Claimant an email on 8 January 2025, threatening that she would be subject to additional disciplinary investigations. 2.1.2. Did Carole Davis send the Claimant an email inviting her to a disciplinary investigation threatening that her sick pay might be stopped if she did not attend an investigatory reason without good reason. 2.1.3. Did Carole Davis demand additional medical evidence on 9 January 2025 beyond her existing fit note without justification. 2.2. By doing so, did it subject the claimant to detriment? 2.3. If so, was it done on the ground that she made a protected disclosure?

[3]Constructive Unfair Dismissal / Automatic Unfair Dismissal 3.1. Did the Respondent do the following things: 3.1.1. On 9 December 2024, did Doris Miller deny the Claimant’s medical needs during an investigation meeting, by refusing to permit the Claimant to use her phone to monitor her blood glucose levels during an investigatory meeting despite her visible symptoms of hyperglycaemia (vomiting, sweating profusely)? 3.1.2. On 9 December 2024, did the Respondent daily to consider the Claimant’s health deterioration during the investigation? 3.1.3. On 9 December 2024, did Doris Miller fail to conduct a returnto-work interview after the Claimant’s disability-related absence, contrary to company policy 3.1.4. Had the Respondent done a data breach by sending the Claimant another employee’s confidential disciplinary information? 3.1.5. Did the Respondent fail to follow a fair disciplinary investigation? 3.1.6. Did the Respondent include fabricated information within the disciplinary investigation? 3.1.7. Did the Respondent fail to accommodate bereavement or disability related absence? 3.1.8. On 25 February 2025, did the Respondent reject the Claimant’s appeal. 3.2. Did that breach the implied term of trust and confidence? The Tribunal will need to decide: 3.2.1. whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between the claimant and the respondent; and 3.2.2. whether it had reasonable and proper cause for doing so. 3.3. Did the Claimant resign in response to the breach? The Tribunal will need to decide whether the breach of contract was a reason for the Claimant’s resignation. 3.4. The Respondent contends that the Claimant resigned because of impending disciplinary action involving allegations of gross misconduct. 3.5. Did the Claimant affirm the contract before resigning? The Tribunal will need to decide whether the Claimant’s words or actions showed that they chose to keep the contract alive even after the breach. 3.6. If the Claimant was dismissed, what was the reason or principal reason for dismissal? 3.7. Was it a potentially fair reason? 3.8. Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant? 3.9. Was the reason or principal reason for dismissal that the Claimant made a protected disclosure? If so, the claimant will be regarded as unfairly dismissed.

[4]Disability 4.1. Whether the Claimant’s impairment of type 2 diabetes and anxiety amount to disabilities under Section 6 of the Equality Act 2010. 4.2. Whether the Respondent knew or reasonably ought to have known of these disabilities.

[5]Direct Discrimination (Disability) – s.13 of the EA 2010 5.1. Does the Claimant rely on a real or hypothetical comparator? 5.2. Did the Respondent treat the Claimant less favourably in any of the following alleged ways? 5.2.1. On 9 December 2024, did Doris Miller refuse to permit the Claimant to use her phone to monitor her blood glucose levels during an investigatory meeting despite her visible symptoms of hyperglycemia (vomiting, sweating profusely)? 5.2.2. On 9 December 2024, did Doris Miller fail to conduct a returnto-work interview after the Claimant’s disability-related absence, contrary to company policy?. A colleague with different disabilities who returned two days after I received such an interview despite also being under investigation. 5.2.3. Between 8-12 January 2025, did Carole Davis demand additional medical evidence beyond the Claimant’s fit note and threatened to stop the Claimant’s company sick pay if the Claimant did not attend meetings while unwell? 5.2.4. Between 5-12 February 2025, was the Claimant repeatedly pressured to participate in disciplinary? 5.3. If so, did the Respondent subject the Claimant to the less favourable treatment because of the Claimant’s disability?

[6]Failure to Make Reasonable Adjustments – s.20 & 21 of the EA 6.1. Did the Respondent have the following PCP: 6.1.1. Prohibiting phone use during meetings without exception for medical monitoring devices 6.1.2. Failure to refer the Claimant to Occupational Health 6.1.3. Failure to conduct return-to-work interviews after disability- related absence 6.1.4. Requiring additional medical evidence beyond fit notes to avoid disciplinary meetings during certified illness 6.1.5. The Respondent ignored the Claimant’s articulation difficulties caused by anxiety. 6.2. Did the PCP’s place the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability? 6.2.1. Diabetic employees must monitor blood glucose levels regularly and need access to monitoring devices, especially during stressful situations that can affect blood sugar levels. 6.2.2. Disabled employees are more likely to require occupational health to help facilitate their return to work. 6.2.3. Disabled employees are more likely to require return-to-work interviews to discuss adjustments needed following disabilityrelated absence. 6.2.4. Disabled employees are more likely to be on certified sick leave and face additional barriers when required to provide evidence beyond the standard fit note. 6.2.5. The effects of the claimant’s increased blood sugar level included impairment to her ability to process information and respond to questions. 6.3. What steps could have been taken to avoid the disadvantage?

[7]Harassment (Disability) – s.26 of the EA 2010 7.1. Did the Respondent do the following things: 7.1.1. The conduct listed at 5.2.1 to 5.2.4 above. 7.2. If so, was that unwanted conduct? 7.3. Did it relate to disability? 7.4. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant? 7.5. If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Findings of fact The tribunal made the following findings as relevant to the legal issues it had to decide, based on the evidence presented and on the balance of probabilities.

[1]The claimant was employed by the respondent between the dates of 7 January 2008 and 25 February 2025. She resigned with immediate effect on the latter date. She was employed as a Funeral Arranger. The respondent operates a funeral services business as part of the Co-Operative group. She was based in the Shotts branch. She was one of two employees permanently working there. She worked on Monday and Tuesday of each week and her colleague worked Wednesday to Friday. Each was a lone worker at the branch and reported to a Funeral Services Manager base in another branch. The claimant’s manager from mid-November 2024 was Doris Miller and immediately before that it had been Clare Leighton.

[2]The claimant has type-2 diabetes and this was accepted by the respondent to meet the criteria of a disability under section 6 of EqA. The claimant was diagnosed around 2010. This is referred to below as her ‘condition’. In 2016 she notified her then area manager and a Human Resources colleague and, owing to the effect of the condition and other family-related circumstances, her working hours were reduced. She did not ask for any other adjustments after that. Around 2017 the respondent’s group underwent a reorganisation which included reconfiguration of management structures and outsourcing of HR support to a third party. As a result, the two individuals the claimant emailed referencing her diabetes left the business. None of her managers subsequently was aware of her condition until the claimant sent a text message to Ms Miller on Monday 2 December 2024 in which she said she was ‘unwell with some diabetes issues and unfortunately won’t be in today’.

[3]During the claimant’s absence that week Ms Miller had identified a possible discrepancy in a form the claimant had prepared for a client’s cremation. The form, commonly used, is referred to as an ‘A1’form and is prepared according to Scottish Government rules for cremations. It has to be signed by the party applying for cremation, which will be the client and normally a family member or executor of the deceased.

[4]The claimant arrived at work on the morning of Monday 9 December 2024 and found Ms Miller and Ms Leighton waiting to meet her. They asked her to come into one of the rooms and interviewed her about the client form. Ms Miller led the meeting and Ms Leighton took notes. The claimant admitted that she had written in the client’s signature on the form herself and had added the client’s initials in a separate accompanying form which dealt with matters related to the deceased’s funeral plan. She said that the client was just visiting the area and when he had come in with his brother to make arrangements, they had been unable to agree on certain aspects at the time and so the form was not signed. She added that he had contacted her shortly afterwards by telephone and authorised her to sign the forms on his behalf as he was returning to Darlington and could not come back into the office, or attend another of the respondent’s branches more local to him.

[5]There is a legal requirement that the A1 form be signed by the client. The respondent does not currently recognise any derogations from that rule. From around April 2020 and as a result of the Covid-19 pandemic, the respondent was allowed to authorise its own staff to sign on behalf of clients, but the client had to give permission in a way which could be recorded (such as an email) and in a separate section of the form the circumstances would be explained. There was also a separate declaration form to complete which explained why the applicant has not signed the form. This practice was phased out as the effects of the pandemic ceased and was no longer used by 2024. By that point the only acceptable practice was again to have the client sign the form at the office in question, have the client sign the forms at an office more local to them, or for the client to receive the forms by email, sign them and email them back. In each case the client completed the necessary declaration.

[6]During the investigation meeting the claimant asked for a break and visited the bathroom. On her return she brought her mobile telephone into the meeting and put it on the table next to her. Ms Miller believed she was trying to record the meeting and told her mobile telephones were not allowed. The claimant took her phone out of the room. The claimant’s evidence was that she had begun to experience symptoms related to her condition and wished to check her blood sugar level using an app installed on her phone which was connected to a sensor on her arm. She said that she pointed to the sensor in the meeting when Ms Miller objected to her phone being present. Neither Ms Miller nor Ms Leighton agreed that she did so, or made any reference to her condition, or noticed that the claimant was wearing a sensor on her arm despite having short sleeves. Ms Miller is herself diabetic and Ms Leighton has a daughter who has type-1 diabetes, and recognises the appearance of the sensor which the claimant uses.

[7]The claimant went to the bathroom a second time and could be heard loudly making vomiting sounds. On her return she said she felt unwell. Ms Miller had wished to ask around two further questions but agreed to end the meeting. During the break she had taken advice and printed a suspension letter which she handed to the claimant. It confirmed that she was suspended from work on basic pay whilst an investigation was undertaken. She was not to enter the respondent’s premises or contact colleagues without permission. The claimant left the office and Ms Miller and Ms Leighton went back to their duties. Later that day Ms Leighton emailed the claimant her note summarising the meeting.

[8]On Wednesday 11 December 2024 Ms Miller and Ms Leighton met with the claimant’s colleague at the Shotts branch in relation to a similar irregularity in form signatures and also non-compliance with the respondent’s absence reporting policy. That individual was also suspended. The meeting was midmorning rather than first thing. Before it took place Ms Miller conducted a return-to-work meeting with her as she, like the claimant, had just returned from an illness-related absence the week before.

[9]On Friday 13 December 2024 the claimant submitted a written grievance to her Area Manager, and Ms Miller’s line manager, Stuart Fowler. Her complaint was about how Ms Miller had handled the meeting earlier that week. She alleged disability discrimination and a failure to maintain a duty of care. She said that during the meeting she was experiencing hyperglycaemia, alleged she had been sick three times, felt overwhelmed and was unable to respond properly to the questions put to her. She said that Ms Miller had prevented her from checking her blood sugar level. She also referred to her colleague undergoing a return-to-work meeting on her first day back from absence.

[10]On Monday 16 December 2024 the claimant received an email from Carol Davis, an Employee Relations Investigator. Ms Davis said she would take over the disciplinary investigation and the grievance. She would investigate both, the grievance would be dealt with first and then, as necessary, the disciplinary process would follow. A discussion was arranged for 2.30pm on 23 December 2024 by telephone. Ms Davis made a note of the discussion as it progressed, which she sent to the claimant around 30 December 2024.

[11]On receipt of Ms Davis’ note the claimant saw that some details did not relate to their discussion. The note had the time and date of the meeting as 1.30pm on 16 December 2024 and in Ms Davis’ introductory comments it was set out that she had said the purpose of the meeting was to discuss ‘your alleged failure to follow the absence reporting policy and the alleged falsification of legal documents for funerals and failing to follow company procedure with regard to funeral arrangements.’ The first of those matters was not something which the claimant was being accused of. The notes also contained an ‘ER services reference’ number which was different from the number allocated to her own case.

[12]Some time before her own call with Ms Davis, the claimant had spoken to her branch colleague. At that time the claimant considered herself to be on sick leave and therefore no longer suspended or subject to its conditions. She had obtained a fit note from her GP on 23 December 2024 quoting epigastric pain, vomiting, stress, anxiety and diabetes. The colleague told her she had (or was going to have) a call with Ms Davies on 16 December 2024. The claimant deduced that Ms Davies had used the same template for both discussions and had accidentally retained some of the text of the earlier meeting. This assumption, as later confirmed by Ms Davis, was correct.

[13]In keeping with the respondent’s normal practice, a welfare manager was nominated for the claimant to oversee her recovery while she was absent. Mr Matthew Lindley was appointed. He had managed the claimant around 2016 and 2017 and the two had a good rapport.

[14]The claimant sent an email to Mr Fowler on 30 December 2024 regarding the grievance meeting notes. She asked ‘Why are my grievance notes a breach on [of] GDPR? The first part of the notes are a direct copy and paste of my colleague [name] investigation notes and with only a name change’. She named the colleague. She said she would be seeking further advice as it affected her confidence in the business and caused her to doubt whether employees’ concerns were respectfully treated.

[15]Whilst Mr Fowler was looking into the matter with Ms Davis the claimant formalised her concern in a grievance which she sent to him on 31 December 2024. Mr Fowler responded by a letter the same day, saying that her concerns were being taken seriously and he would be in touch to arrange a meeting to discuss the matter. This was based on a template used when a grievance is raised. He sent her a further email on 8 January 2025 in which he said he could not understand what she considered to be a GDPR breach, as no personal data of another individual had been disclosed to her. He asked her to expand. He went on to say that additionally, he was ‘somewhat concerned by your email as quite clearly you are admitting having knowledge of the content of another colleague’s investigation notes. This on its own merits further investigation, as [it] may amount to breach of your suspension terms as well as confidentiality.’

[16]Also on 8 January 2025, Ms Davis sent the claimant a letter by email seeking to resume the process of investigating the matters raised on 9 December 2024. She acknowledged that the claimant had a fit note which did not expire until 30 January 2025 (although the expiry date was in fact 20 January) but said she thought it would be best to move forward with the process. She proposed a Teams meeting in the afternoon of 10 January. She asked the claimant to contact her if further support was needed. The letter contained standard wording stating that if the claimant did not attend the meeting or otherwise take part in the investigation without good reason, her enhanced sick pay may be stopped. The claimant responded that day to ask whether she would need to obtain a ‘secondary’ fit note to confirm she was not medically able to attend the meeting, and Ms Davis replied the following day to say any medical evidence on the point would be sufficient, and ask whether the claimant would prefer to provide written responses to her questions instead of discussing them in person. The claimant responded again to ask why Ms Davis was so keen to progress whilst she was ill. Ms Davis clarified that her invitation was in line with company policy and a reasonable instruction. She mentioned that the claimant had said to Mr Lindley in a welfare meeting that she agreed that continuing with the disciplinary process would benefit her health. She added that the fit note covered the claimant’s ability to perform her role and not necessarily attend a meeting. The claimant emailed on 10 January 2025 to say she could not attend due to ill health and that she could not provide any further material as her GP would not issue a further fit note. She wished it to be noted that she considered herself unable to participate in the process at that time. The Teams meeting therefore was cancelled.

[17]Ms Davis carried on investigating the claimant’s first grievance (of 13 December 2024) by interviewing Ms Miller on 10 January 2025. She had interviewed Ms Leighton on 31 December 2024. Copies of notes of both discussions were produced which were accepted to be sufficiently accurate summaries. Ms Davis passed the grievance investigation to a Regional Operations Manager named Ashlene Robertson to review and decide upon, which she confirmed to the claimant she was doing on 27 January 2025.

[18]On 28 January 2025 the claimant re-sent the notes of her grievance investigation meeting of 23 December 2024 to Mr Fowler. She again pointed out the errors and confirmed her belief that there had been a ‘breach on personal data of others’. He replied to say that as stated in his email of 8 January, it had been confirmed that no personal data was leaked and that she should raise any further concerns with Ms Davis directly. She sent him a further email the next day attaching the notes and another document from the process to highlight that the reference numbers were different.

[19]Ms Robertson considered the documents relating to the claimant’s grievance of 13 December 2024 and issued an outcome letter on 29 January 2025 [294- 300]. In particular she found that the claimant had not indicated feeling unwell or appeared unwell before the meeting with Ms Miller and Ms Leighton began, a return-to-work meeting would have been held after the investigatory meeting but was superseded by the claimant leaving the office, it was not irregular for Ms Miller to begin the meeting without explaining that it was a disciplinary investigation, that the claimant only mentioned feeling unwell after the last break in the meeting (upon which it was brought to an end), that neither Ms Miller nor Ms Leighton saw the claimant’s blood sugar sensor on her arm and neither did they recall the claimant requesting to use her phone to check her blood sugar reading. Ms Robertson also answered some questions about the timing of the running of the grievance and disciplinary procedures. The grievance was not upheld. She suggested some next steps including a facilitated meeting with Ms Miller.

[20]On 31 January 2025 Mr Fowler emailed the claimant to say that he was now able to respond to her concerns about a data breach. He said that the errors made were clerical and that he apologised on behalf of Ms Davis, but that there had not been a GDPR breach. The claimant was not satisfied with the response and on 3 February 2025 sent a reply, saying that it was inadequate and insulting to ‘meekly conclude’ that there had been a clerical error. She quoted some of the text of her grievance form of 31 December 2024 to reinforce her position.

[21]The claimant appealed against Ms Robertson’s decision by completing a form and submitting it on 3 February 2025 [306-312].

[22]On 7 February 2025 the claimant submitted a third grievance. This related to how she perceived Ms Davis’ attempts to engage her in the disciplinary process between 8 and 10 January 2025, which she called disability harassment.

[23]By this time Mr Andrew Brown, Operations Transformation Lead, had been nominated to hear her appeal against the outcome of her first grievance. He was asked to deal with the new grievance as part of that. A Teams meeting with the claimant was proposed for 13 February and moved to 17 February at the claimant’s request.

[24]Ms Davis passed the task of managing the disciplinary investigation into the claimant’s conduct to a colleague named Danielle Poole. Between around 7 and 12 February 2025 she and the claimant engaged by email. The claimant continued to maintain that she was too unwell to attend a meeting even by video, and felt unable to provide written submissions. She wished the investigation to be postponed. Ms Poole sent a set of written questions which she wished the claimant to answer. The exchange ended with Ms Poole saying that she would pass the existing information to James Potts, a Care Logistics Manager, to consider whether there was a disciplinary case to answer. Mr Potts introduced himself to the claimant by email on 13 February 2025. She sent him a written note of submissions dated that day [344-346]. This did not take the format of answering each of Ms Poole’s questions in sequence but gave the claimant’s account of the events referred to.

[25]The claimant attended the grievance appeal meeting with Ms Brown on 17 February 2025 by video. Notes were taken which are accepted as a suitably accurate summary. The issues raised in the grievance appeal form together with the claimant’s second grievance (about the alleged data breach) and her third grievance (about Ms Davis) were discussed.

[26]Mr Potts meanwhile decided that the claimant had a disciplinary case to answer and Mr Richard Bland, Funeral Service Manager was identified to arrange a hearing. On 19 February 2025 he wrote to the claimant, asking her to attend a Teams meeting with him on 3 March 2025.

[27]On 20 February Mr Brown met with Ms Davis in connection with the claimant’s grievance appeal and in particular the new matters she had raised in her second and third grievances. He met with Ms Miller the same day to discuss her involvement.

[28]Mr Brown set out his decision in the appeal by letter dated 25 February 2025 [368-374]. He concluded that no personal details of a colleague had been shared with the claimant in the notes of her grievance investigation meeting, that the only way she could have identified a colleague from those notes was to have seen the notes of the colleague’s own meeting, that she had been late arriving at work on 9 December 2024, that neither manager she met at that time thought she appeared ill, that they were entitled to assume the claimant was fit enough to participate in an investigatory discussion given she had returned to work, that it was not irregular for the claimant to have been asked to hand back her keys to the office when suspended, that the claimant had not shown there to be any material inaccuracy in the note of the meeting in that day, that her health was suitably considered once the managers became aware it was an issue, that Ms Miller did not know the claimant wished to use her blood sugar monitoring app and so did not consciously refuse her the opportunity to do so, that she had not been unfairly pressured or harassed by Ms Davies to resume participation in the investigation in early January 2025, and that although the claimant wished her complaints about Ms Davies to be dealt with under a separate grievance process, he considered they were closely enough related to the subject of the appeal that he could appropriately respond to them at that time.

[29]The culmination of Mr Brown’s letter was that the claimant’s appeal was not upheld. He proposed measures to be applied in conjunction with the claimant returning to work, including the continued availability of Mr Lindley as welfare manager and a facilitated conversation with Ms Miller. He confirmed that there was no further right of appeal against his conclusions.

[30]The claimant resigned on the same day as Mr Brown’s letter and upon receipt of it. She prepared a letter of resignation [376] which was posted and emailed to the respondent that day. She emailed a copy to Mr Lindley, thanking him for his support as her welfare manager. The letter made clear that she was resigning with immediate effect. She said that followed a series of actions which amounted to a repudiatory breach of contract and a fundamental breach of the implied term of trust and confidence. She gave a non-exhaustive list of the breaches she considered had occurred. She said that in particular the grievance appeal outcome was a final straw under the doctrine of constructive dismissal.

[31]Mr Lindey wrote to the claimant on 5 March 2025 asking her to reconsider her decision. She replied to say that she wished it to stand. Discussion and decision Protected disclosure claim

[32]The claimant relied on her email to Mr Fowler on 30 December 2024 and her grievance form, also emailed to Mr Fowler, the following day as protected disclosures. Both were sent to a more senior person in organisation and so were sent to her ‘employer’. The focus was therefore whether either or both was a ‘qualifying disclosure’ within section 43B of ERA.

[33]The claimant clarified that the type of situation she was raising was that within section 43B(1)(b), that the respondent had failed or was failing to comply with a legal obligation, namely to abide by data protection laws. She maintained that she conveyed information in each communication which she reasonably believed to be about such a breach, and in the public interest.

[34]Analysing the email and grievance, the tribunal was satisfied that each conveyed ‘information’ in the sense that they provided details about a particular event which was clear and specific, rather than voicing a general concern about compliance with the law. The tribunal also accepted that it was reasonable for the claimant to believe that her disclosures were in the public interest. The meaning of that term has been judicially considered to be relatively wide, so that it need not extend to the public at large and could affect only individuals within a given organisation. The claimant’s evidence, which the tribunal accepted, was that she believed the respondent had breached the rights of a colleague and that made her genuinely doubt how safely they would safeguard her own personal information, including details relating to her health, in the same process and more generally. This was sufficient for her to have reasonably held a public interest motive for making her disclosures.

[35]The tribunal therefore considered whether she held a genuine and reasonable belief that her disclosures tended to show there had been a breach of a legal obligation. Mr Fowler was correct to say that no personal details had been disclosed in the additional parts of the claimant’s grievance notes which related to her colleague. However, personal data can include information which can be combined with other information in order to identify an individual – what is often referred to as ‘jigsaw identification’. The claimant could not identify her colleague from the information disclosed alone, but combining that with what the colleague told her, she could. As such, the tribunal concluded that although it could not be shown that there had been an actual breach of the colleague’s data protection rights, the claimant had a reasonable belief that there had been. This took into account what she knew and thought at the time, recognising that she was not an expert on data protection law.

[36]On this basis, both alleged disclosures were protected disclosures. The tribunal therefore considered next whether the claimant had suffered a detriment ‘on the grounds’ that she had made them. She alleged that had happened in three ways as follows:a. By Mr Fowler’s email of 8 January 2025 in which he allegedly threatened additional disciplinary investigation;

b. By Ms Davis (also on 8 January 2025) inviting the claimant to a continued disciplinary investigation meeting and threatening that her sick pay might be stopped if she did not attend without good reason; and

c. Ms Davies on 9 January 2025 demanding additional medical evidence beyond her existing fit note to vouch her inability to attend the meeting.

[37]Taking those in turn the tribunal concluded as follows:a. Mr Fowler did say that the claimant would receive an invitation to an investigation meeting to discuss further whether she had breached the terms of her suspension as a result of identifying whose meeting notes the additional text had come from. This could be considered a detriment in the sense that the claimant would not have wanted that to happen and it could have led to an adverse outcome. However, it was not ‘on the ground that’ she made either disclosure as section 47B(1) requires. This was because the reason for Mr Fowler proposing further investigation was that he believed the claimant had disobeyed the instruction given to her in her suspension letter not to speak to colleagues and not because she had disclosed that text from the colleague’s meeting notes had been included in hers. In other words, his concern was not with the data breach she believed she was raising, and which in substance he was untroubled by, but how she had verified whose information was at the centre of it. This distinction may seem fine but it is important – see for example Bolton School v Evans

[2006] EWCA Civ 1653

b. Ms Davis inviting the claimant to a continued disciplinary interview was not in itself a detriment. It was a reasonable instruction. The claimant had been certified as unfit to work via the same fit note when participating in a Teams meeting with Ms Davis on 23 December 2024 in relation to her grievance. The only difference was that now Ms Davis wished to ask her questions more focused on her personal conduct. Ms Davis’ view was partly based on the claimant herself telling Mr Lindley that she would rather the process be reactivated. There was a risk that failure to attend a meeting without good reason could lead to loss of enhanced sick pay but this was set out in standard wording for the letter template Ms Davis was using, removal of sick pay was not automatic and it was not seriously being threatened in the claimant’s case. Nor was the invitation something which was done on the grounds that she made a protected disclosure. Ms Davis simply wished to make progress with a process which started a month before and had stalled almost immediately after. She would have done the same even if the claimant had not made her disclosures. There was no evidence of a connection between the two and Ms Davis herself denied that there was one.

c. Ms Davis did not demand additional evidence. She respondent to a request by the claimant for clarification of why a fit note focussed on the claimant’s ability to carry out her full range of normal duties did not in itself prove she was unable to take part in a Teams meeting. In the circumstances this was not a detriment for the same reasons as for (b) above. Nor was the sending of the email in question, or its contents, on the grounds that the claimant made protected disclosures. It was a valid response to the claimant’s query.

[38]Therefore, none of the alleged detriments based on the making of protected disclosures were established on the evidence. Constructive unfair dismissal

[39]The claimant relied on the following acts or events to support her claim of constructive unfair dismissal:a. Ms Miller denying her medical needs in the meeting on 9 December 2024, by refusing to allow her to monitor her blood sugar level via the app on her phone and despite visible symptoms of hyperglycaemia including vomiting and sweating;

b. In the same meeting, Ms Miller generally failing or delaying to consider the deterioration in her health;

c. Ms Miller not conducting a return-to-work meeting before commencing the disciplinary investigation meeting that same day;

d. Committing a data breach via the minutes of her grievance meeting with Ms Davis on 23 December 2024;

e. Failing to conduct a fair disciplinary investigation, clarified by the claimant to be by Ms Miller not interviewing the client whose signature the claimant had simulated and not explaining adequately at the outset of the investigation meeting what its purpose was, being asked to meet with Ms Davis when ill and dealing with bereavement, and by passing the investigation from Ms Miller to Ms Davis and then to Ms Poole;

f. Fabrication of information by Ms Miller in the meeting on 9 December 2024 by suggesting that in the original meeting the claimant held with the two sons of the deceased, their sister was also present;

g. Failure to accommodate the claimant’s disability- and bereavementrelated absence by Ms Davis putting her under pressure between 8 and 10 January 2025 to continue the disciplinary investigation; and

h. Mr Brown’s rejection of her grievance appeal on 25 February 2025.

[40]The tribunal’s evaluation of each of those matters in turn was:a. On the evidence it was not proven that Ms Miller denied the claimant’s medical needs, whether by refusing the use of her blood monitoring app or in any other way. Ms Miller did not observe the claimant to be unwell or experiencing any particular symptoms and only became aware that the claimant felt that way after her return from the bathroom for the final time during the meeting, at which point the claimant had said she had vomited and felt unwell. At that moment Ms Miller suggested asking her last handful of questions so the meeting could be concluded. The claimant said she felt unable and so the meeting was ended at that point. Ms Miller had no detailed knowledge of the claimant’s diabetes, whether it was type-1 or type-2 and what issues or symptoms it had caused. The claimant did not ask to use her app in any clear way. Her own evidence was that she had pointed to the sensor on her arm but neither Ms Miller nor Ms Leighton recalled her doing so, On each of these matters the corroborating evidence of Ms Miller and Ms Leighton was preferred. Both had personal experience of diabetes and would have been likely to do what the claimant said they should have, had they known more about the condition, had the claimant referred to it during the meeting and had she genuinely asked to check her blood sugar reading;

b. As explained immediately above, Ms Miller was only put on notice of any issues with how the claimant was feeling at the end of the meeting, whereupon she agreed to bring it to a close;

c. Unlike (a) and (b) above, it was factually correct that Ms Miller did not conduct a return-to-work interview with the claimant when she arrived at work on 9 December 2024. It was normal practice for managers to conduct such meetings, but not necessarily before the individual restarted work on their first day back and there was no contractual term to that effect. The evidence of the respondent’s witnesses was accepted to the effect that ideally a meeting would be held at the beginning of the first day back, but that is not always practicable, particularly when the manager is not based at the same office as was the case for Ms Miller. However, Ms Miller clearly could have held the meeting first thing on 9 December 2024 had she chosen to, as she had visited the premises and was waiting for the claimant to arrive. Her reason for not doing so was that she wished to deal with the investigatory meeting first and hoped that the answers the claimant gave would result in the discussion being short with no immediate follow up action. Ms Leighton could have been released and the returnto-work meeting could then have been carried out. This was an approach she was entitled to take. The claimant had presented herself as fit to resume her duties and there was no reason for Ms Miller to think that she might be hampered in answering her questions. On the day, the claimant’ answers led to Ms Miller suspending her. It was then impractical and somewhat pointless to conduct a return-to-work meeting.

d. Sending the claimant her meeting notes with information relating to her colleague’s meeting was an error but not a breach of mutual trust and confidence between the respondent and the claimant. It was too innocuous to meet that threshold given how little information was included – essentially the four details of reference number, date, time and mention of alleged breach of absence reporting policy. Those all appeared at the very beginning of the note and the rest (and vast majority) of the content was correct.

e. The criticisms of the respondent’s investigation were things that could have been done but were not necessary or even reasonably to be expected. Ms Miller had the opportunity to speak to the client about his interactions with the claimant but that carried the risk of flagging up a potentially serious breach in internal procedures and may have upset the family of the deceased. It was unclear in any event what further information could reasonably have been gained from the client given that the claimant had already admitted signing in his name. Nor was a lack of detailed introduction to the investigatory meeting essential. There are times when employers can justify interviewing employees without preamble where the issues are simple and clear or before an opportunity to fabricate evidence arises. The claimant was capable of answering the questions properly and was not in any way ‘ambushed’. Similarly Ms Davies was entitled to propose an investigation meeting by video with the claimant despite a fit note having been issued by her GP given that it was a request and not an order, that the claimant had attended a video meeting with her less than three weeks before as part of the same process, and when the claimant’s welfare manager reported that she would prefer to have the process continue. The investigation being passed on was not unreasonable given that first the claimant could not complete the original meeting with Ms Miller, and then later the claimant complained about Ms Davis in her second and third grievances.

f. Ms Miller did not fabricate evidence. On the balance of probability she merely made an error in giving her account of what she understood had happened when the claimant met the family members of the deceased in question. This was not a breach of the claimant’s contract.

g. The appeal outcome Mr Brown issued dealt with a number of different issues and extended to just over six pages. Save the fact that he did not uphold any of her appeal points it is difficult to see how issue could reasonably be taken with his method or conclusions. There is nothing obviously inappropriate or suggestive of bias or a lack of due care being given to the claimant’s concerns. He itemised the issues under review in turn and gave a reasoned response to each. In her evidence the claimant raised that because the allegations making up her third grievance (about Ms Davies seeking to engage her in the disciplinary process) were combined with the appeal against her first grievance, she could not appeal Mr Brown’s decision on them. She said she felt that this was a last straw and resigned in response. Mr Brown explained at the outset of the grievance meeting that he would deal with the third grievance (and the second) and the claimant did not object. The issues were discussed in detail. It would therefore be very difficult for her to argue now that this approach was a breach of mutual trust and confidence. Her point about effectively being denied the right of appeal for her third grievance was a separate matter, and the tribunal considered this closely. Mr Brown’s approach to that grievance was that it related to the same process as the first grievance, namely the investigation of alleged misconduct by way of the claimant wrongly completing A1 and related forms. As such he viewed it as a further complaint about that process rather than a completely new matter and said that in both the appeal meeting and his outcome letter. The claimant raised in the meeting whether there would be an opportunity to appeal his decision, to which Mr Brown replied that it was being considered as part of the appeal. He did not say that there would be an opportunity for it to be reviewed further. The tribunal reached the view on the evidence that it was not a breach of a specific term of the claimant’s contract nor a breach of mutual trust and confidence not to offer a right of appeal against his conclusions on this relatively narrow matter.

[41]A breach of mutual trust and confidence can occur by way of one act or a linked series of individual acts, each of which may or may not be a breach in itself but which, when viewed as a whole, amount to a breach.

[42]None of the individual contributing factors alleged by the claimant was a breach of mutual trust and confidence in itself. Of those which occurred at all in some way, namely all but the first two, they were simple errors or matters of exercise of discretion but not fundamental things the claimant had a right to expect to be done, or done the way she wished. Considering therefore whether the matters as a whole amounted to a breach of mutual trust and confidence the tribunal judged that they did not. They were a group of innocuous and unconnected occurrences. Some were genuine errors (Ms Miller’s recollection of who attended the initial client meeting with the claimant, Ms Davis including information from another meeting in the claimant’s grievance meeting notes), some were simply decisions open to those taking them which the claimant disagreed with (Ms Miller not conducting a return-towork meeting before beginning the investigatory meeting, Ms Davis proposing a follow-up investigatory meeting before the claimant’s fit note expired, Mr Brown deciding the issues raised in the third grievance).

[43]The tribunal considered that the issue which came closest to being a breach of mutual trust and confidence was the decision by Mr Brown to incorporate the substance of the third grievance into the appeal he was hearing, and in particular not to offer a right of appeal against his findings in relation to those issues. The tribunal recognised that the claimant felt she had been denied the right to have that complaint fully considered as a result. It was noted that the respondent’s grievance procedure did not deal with such a situation, and the matter was one for Mr Brown’s discretion. The tribunal accepted that he genuinely believed it to be best to deal with the issues in the third grievance at the same time as the appeal in the first, for the sake of achieving quicker resolution within a less procedurally onerous process. He reasonably viewed the complaints about Ms Davis as ones which were suitable to explore in conjunction with those made about Ms Miller earlier in the process. He told the claimant this is what he was doing and she made her representations accordingly which were noted. It was undoubtedly open to him to offer a right of appeal against his findings in relation to the third grievance but on balance it was not a breach of mutual trust and confidence that he did not. He was entitled to view the third grievance as part of the fabric of the first and, as there had been no previous breach to which it could be linked, nor could the decision be a last straw.

[44]As a consequence, the respondent did not breach the obligation of mutual trust and confidence by way of any individual events relied upon by the claimant, or when assessing them together.

[45]In any event, the tribunal concluded that, had there been a breach of mutual trust and confidence as alleged, the claimant did not resign by reason of it. The tribunal concluded on the evidence that the claimant resigned when she did because she recognised that the process of dealing with her grievances had been concluded without them being upheld, and therefore that the disciplinary process would resume. She had received a letter on 19 February 2025 inviting her to take part in a disciplinary hearing with Mr Bland on 3 March 2025, which made clear that, based on admissions she had already made, she was accused of committing acts of gross misconduct which could result in her immediate dismissal. On the balance of probability, the tribunal found that the claimant resigned in recognition of the strong prospect of being dismissed the following week and wishing to prevent that. Such a dismissal may have been fair or unfair, and the tribunal itself could not speculate, but it was clear to the tribunal both that dismissal was a real possibility and that the claimant knew that. She did not argue that the proposed hearing amounted to an anticipatory breach and the tribunal did not consider in the circumstances that it was.

[46]The complaint of unfair dismissal is therefore not upheld. Direct disability discrimination – section 13 EqA

[47]The claimant alleged four discriminatory acts as follows:a. Ms Miller refusing to allow her to check her blood sugar level in the meeting of 9 December 2024;

b. Ms Miller not conducting a return-to-work meeting on the same day, contrary to company policy;

c. Ms Davis demanding additional medical material between 8 and 12 January 2025 and threatening to stop payments of sick pay if it was not provided; and

d. Repeatedly pressurising her into participating in a disciplinary process between 5 and 12 February 2025. In relation to allegation (b) the claimant relied on a real comparator, namely her colleague at the Shotts branch who did have a return-to-work discussion with Ms Miller. She relied on a hypothetical comparator for the other allegations.

[48]It is for the claimant to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that a discriminatory act had occurred – Igen v Wong

2005 EWCA Civ 142

. If she does not do that, the complaint fails. If she can establish such facts, the onus of proof shifts to the respondent to prove on the balance of probabilities that it did not act in a discriminatory way.

[49]As set out in the findings of fact and discussed in relation to the constructive unfair dismissal claim, allegation(a) was not proven to have occurred. It cannot therefore be an act of discrimination. Both

(b) the reason why Ms Miller did not conduct a return-to-work meeting, and

(c) Ms Davis’ communications in relation to medical material additional to the claimant’s fit note were also considered in those sections of this judgment. To the extent and in the way that they occurred, they could be considered unfavourable from the claimant's perspective as she wanted there to be a return-to-work meeting and would likely have mentioned her diabetes if there had been one, and also she did not want to be asked to provide further medical vouching for her unwillingness to attend Ms Davis’ Teams meeting. She was less favourably treated than her branch colleague who had a meeting with Ms Miller, but she could not establish primary facts to show that this was ‘because of’ her disability. There was no evidence for example to suggest that she had not been offered a return-to-work meeting on the morning of 9 December 2024 for a reason relating to her disability. Ms Miller knew only that she had the condition and nothing else at that point. The evidence pointed to Ms Miller wishing to prioritise asking questions about the completion of the form, which she anticipated being a much briefer conversation, and discuss the details of her absence afterwards. As such, what evidence there was would have rebutted any provisional assumption that disability was the reason why a return-to-work meeting was not offered to the claimant, but was provided to her colleague. That colleague having a return-to-work meeting before her investigatory interview was unconnected to the question of whether she was non-disabled and also unconnected to what had happened with the claimant two days before. They were two unrelated situations.

[50]Similarly, to the extent that Ms Davies told the claimant of a risk of losing eligibility for sick pay were she to decline a meeting without an adequate reason, there was no evidence which could have amounted to primary facts allowing a provisional finding of discrimination to be made. She was using a generic template which would have been sent to any employee in the same circumstances, namely being asked to attend an investigatory interview whilst absent from work, whether disabled or not. In other words, the claimant’s hypothetical comparator - a non-disabled employee who was suspected of misconduct and who at the time was certified as unfit to work via a fit note - would have been treated the same and not more favourably. They would have received a letter in the same terms.

[51]The last alleged act of discrimination was said to be the pressuring of the claimant into resuming the disciplinary investigation between 5 and 12 February 2025. This appears to relate to the claimant’s exchanges with Ms Poole. They were in essence a continuation of Ms Davis’ efforts to persuade her to re-engage with the disciplinary process. The nature of the complaint is at its heart the same, as is the legal analysis of it. Again, the claimant could not prove preliminary facts suggesting that Ms Poole’s attempts to have her attend a virtual meeting, and ultimately to state her position in the form of written answers to questions, were related to her disability. As for Ms Davis, the evidence available suggested that most probably Ms Poole would have used the same approach for any absentee colleague under disciplinary investigation. Failure to make reasonable adjustments – sections 20 and 21 EqA

[52]The claimant alleged six provisions, criteria or practices which she said put her at a particular disadvantage because of her disability. Those are analysed in turn below:a. Prohibiting phone use during meetings without exception for medical monitoring devices – there may have been a practice of not allowing colleagues under investigation to record meetings within the process, and therefore to prohibit the prominent placement of mobile phones in those meetings. This is what Ms Miller did in the meeting of 9 December 2024. On the evidence however, there was no practice (whether in the sense of always being followed or at least generally) of prohibiting the use of blood monitoring apps and the claimant was not prevented from doing so. Had there been such an application of a PCP, Ms Miller did not know about the particular disadvantage the claimant was put to by it, and so the obligation to make reasonable adjustments would not have arisen.

b. Failure to refer the claimant to occupational health – again there was no evidence of a uniform or general practice of not referring employees who were ill, or who suffered from the particular combination of symptoms which the claimant did, to occupational health. This accusation appeared to me about a one-off decision specific to her which could not therefore be a provision, criterion or practice. Again, to the extent that the decision could have been a PCP, it was unclear what disadvantage it put the claimant to as compared with someone who did not share her disability, as employees can be absent from work for a variety of reasons and a non-disabled colleague could have been equally disadvantaged.

c. Failure to conduct return-to work interviews after disability-related absence – the evidence presented in this case was that there was a practice of conducting such meetings – i.e. the opposite of what the claimant argued, but that the timing of them could be such that they did not always happen at the beginning of the employee’s first day back. There was thus no PCP as alleged.

d. Requiring additional medical evidence beyond fit notes to avoid disciplinary meetings during certified illness – this was a practice applied by the respondent to the claimant. It did not take fit notes which certified an employee as unable to perform their role as automatic confirmation that the individual could not participate in an investigatory process, for example by attending a meeting or answering questions in writing.

e. Ignoring the claimant’s articulation difficulties caused by anxiety – this was a reference to the meeting of 9 December 2024. It was clearly framed as a one-off decision specific to the claimant on one occasion. It was not a provision, criterion or practice. In addition, there was no established evidence that the claimant had difficulty expressing herself in that meeting, and therefore it was not found that the Ms Miller ignored such difficulty.

[53]Therefore only the fourth PCP was properly established. The tribunal considered whether it put the claimant as a disabled person ‘at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled’ as per section 20(3) EqA. It did not do so. Her comparator would be a non-disabled colleague suspected of the same misconduct who was certified as unfit to work by their GP. Hearing her evidence, Ms Davis would have taken the same approach with that person. She held the view that a fit note related to a person’s ability to perform their role in full for the whole of their normal working time, but did not necessarily exclude something potentially less demanding in terms of its physical or intellectual requirements, or the time that it took. That view was not specific to whether the colleague in question had a disability. It applied equally to anyone absent from work for health-related reasons.

[54]As section 20(3) had not been satisfied in relation to any of the alleged provisions, criteria or practices, the respondent was not under a duty to make reasonable adjustments for the claimant. Harassment – section 26 EqA

[55]The claimant relied on the matters said to be direct discrimination as also being instances of harassment.

[56]The tribunal therefore considered whether the alleged acts had occurred (or to what extend they had), whether if so they were ‘unwanted conduct’, whether they were ‘related to a relevant protected characteristic’ (i.e. disability), and if so whether they had at least one purpose or effect set out in section 26(1)(b) EqA. If any act had such effect, the tribunal had to consider, in line with section 26(4), what was the claimant’s perception of it, whether that was reasonable, and the other circumstances of the case.

[57]The allegations therefore were:a. Ms Miller refusing to allow the claimant to check her blood sugar level in the meeting of 9 December 2024;

b. Ms Miller not conducting a return-to-work meeting on the same day, contrary to company policy;

c. Ms Davies demanding additional medical material between 8 and 12 January 2025 and threatening to stop payments of sick pay if it was not provided; and

d. Repeatedly pressurising the claimant into participating in a disciplinary process between 5 and 12 February 2025.

[58]The first allegation (a) did not occur and therefore it was not ‘conduct’ whether unwanted or not.

[59]The second allegation (b) occurred (albeit not contrary to any company policy) and the tribunal accepted that it was ‘unwanted’ conduct from the claimant’s perspective. However, and consistent with the complaint under section 13, the decision was not ‘related to’ disability. The decision was taken for an unconnected reason, namely the expediency of undertaking what was anticipated to be a short fact-finding conversation first, at a point where Ms Miller did not know that the claimant had a disability.

[60]The third allegation (c) was also unwanted conduct. Again however it was not ‘related to’ a protected characteristic. It was a standard approach adopted with any employee under investigation who cites a ‘general’ fit note as evidence of unfitness to participate in an investigatory discussion. Nor was it established that the reason for the claimant’s absence at the time was her disability. Her fit note stated ‘epigastric pain, vomiting, stress, anxiety, diabetes’. That was a list of factors, only one of which was evidently her disability. The claimant’s oral evidence was that there was a combination of medical issues and other environmental circumstances such as the recent passing of a close relative and other caring responsibilities. She did not say that her diabetes was part of the reasons for her absence. Stress and anxiety were the predominant health issues at that point.

[61]The final allegation (d) occurred up to a point, in that Ms Poole had tried a number of approaches to persuade the claimant to resume the disciplinary investigation. The claimant considered this unwanted conduct, but once more it was not ‘related to’ her disability. As with (c), according to the evidence she was not absent because of her disability and Ms Poole was following an established policy designed to unblock any obstacles to the progression of a disciplinary process.

[62]No allegations of harassment were therefore proven.

Conclusions

[63]On the application of the relevant legal tests to the claimant’s complaints as framed in the list of issues, and based on the evidence presented to the tribunal orally and via documents, none of her claims were established and they therefore require to be dismissed.

[64]Consequently there was no requirement to consider remedy in this case. 26 September 2025