Ms D Macdonald v Highland Health Board: 8000591/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000591/2025Venue GlasgowHearing 1 – 5 December 2025
Between
Ms Dawn MacdonaldClaimantHighland Health BoardRespondent
Before
Employment Judge S MacLeanMr R Clarke (instructed by Solicitor) for claimantMr D James (instructed by Advocate) for respondentDate 23 February 2026
JUDGMENT
The Judgment of the Employment Tribunal is that(a) the respondent’s acts on 5 November 2024 and 15 November 2024 did not amount to detriments, and those allegations having no merit could not operate to extend time or be said to be part of a continuing act; and(b) the Tribunal does not have jurisdiction under section 147 of the Trade Union and Labour Relations (Consolidation) Act 1992 to consider the remaining alleged detriments which are accordingly dismissed.
REASONS
[1]The claimant commenced early conciliation on 30 January 2025, and a certificate was issued on 14 February 2025. She submitted a claim with the Tribunal on 6 March 2025, alleging that the respondent subjected her to detriments with the sole or main purpose of preventing her from participating in the activities of an independent trade union, or penalising her for doing so, in breach of section 146(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). She seeks a declaration and compensation.[2]The respondent asserts that the acts or omissions relied upon had nothing to do with the reasons proscribed by TULRCA. It also asserts that some of the claims may be time barred under section 147 of TULRCA.[3]At the final hearing, the parties provided a joint list of issues identifying the following for determination: Time Bara. In consideration of section 147 TULRCA were(i) the claimant’s complaints presented before the end of the period of three months beginning with the date of the acts which the complaint relates; or(ii) where those acts were part of a series of similar acts, the last of them; or if not(iii) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable. Section 146(1)(b) TULRCAb. Did the respondent breach section 146(1)(b) by subjecting the claimant to any detriment or detriments by any act, or any deliberate failure to act, for the sole or main purpose of preventing or deterring her from taking part in the activities of an independent trade union at an appropriate time, or penalising her for doing so?c. The alleged detriments are: i. The letter of complaint from Caroline Cherry and Jillian Torrens to Mary Watt and Fiona Broderick dated 4 August 2023 (the August 2023 Letter) ii. The collective grievance raised by Nicola Gillespie, Jillian Torrens and Dev Balluck dated 30 January 2024 (the Collective Grievance). iii. The letter of complaint from Catriona Watt to Ken Matthews dated 10 July 2024 (the July 2024 Letter) iv. The letter of complaint from Jane Williams to Ken Matthews dated 1 August 2024 (the August 2024 Letter). v. The letter of complaint from Nicola Gillespie, Jillian Torrens, and Dev Balluck to Unison dated 5 November 2024 (the November 2024 Letter). vi. Evan Beswick stating to Gillian Ballantyne during a telephone conversation on 15 November 2024 that the respondent did not want the claimant involved in the Succoth grievance (the November 2024 Telephone Conversation). Remedyd. If the claimant was subjected to any detriment(s) what, if any, injury to feelings award is the claimant entitled to as a result of this conduct?
Remedy
[4]Following the evidence the parties exchanged written submissions and replied orally.[5]I have set out the findings in fact essential to my reasoning and understanding of the evidence. The parties’ submissions have been considered in the context of these findings, the relevant legal framework and its application to the facts. Findings in fact[6]The respondent is an NHS Scotland board. The claimant is employed by the respondent as a registered nurse and from 2020 serves as Branch Secretary of the Unison Highland Health Branch, which covers the Highland mainland and certain islands.[7]The respondent has a grievance policy applicable to all employees who wish to raise concerns about their work situation (the Grievance Policy). Grievances, whether individual or collective, should initially be raised with the employee’s line manager, or if that is not appropriate, with the next level of management for early resolution. The manager must acknowledge the grievance in writing using the grievance acknowledgment letter and invite the employee to a meeting within 14 days of first notification. The outcome should be confirmed in writing within seven days.[8]If the matter is not resolved, the employee may initiate the formal procedure by submitting a Stage 1 Grievance Notification Form. A Stage 2 process is available if the employee remains dissatisfied. Where an issue has wider organisational consequences and cannot be resolved at Stage 2, it may be referred to the Director of Human Resources and Employee Director who consider if a formal hearing is to be organised. A separate policy covers bullying and harassment. The August 2023 Letter[9]Around 27 July 2023, Caroline Cherry, Head of Health and Community Care for Argyll and Bute Health and Social Care Partnership, and Jillian Torrens, Head of Acute and Complex Care, attended a quarterly meeting with managers in Adult Services Community Care. During the meeting, concerns were raised about trade union representatives whose manner and approach were not considered conducive to partnership working.[10]Ms Cherry recalled attending a session in 2019 with trade union representatives and managers involving face-to-face “courageous conversations,” which she believed had improved working relationships. With this in mind, she and Ms Torrens agreed to write to the Joint Chairs of the Joint Partnership Forum (JPF), Mary Watt (Unison Council Branch) and Fiona Broderick (Unite steward).[11]On 4 August 2023, Ms Cherry and Ms Torrens sent a letter to the Joint Chairs titled “Working in Partnership” which reflected managers’ experiences of partnership working with some trade union colleagues (the August 2023 Letter). It highlighted concerns about some behaviours perceived negatively by managers, including threats to escalate matters to the Chief Executive, talking over managers during meetings, and some managers leaving meetings feeling intimidated. No union or trade union representative was named in the letter. The letter requested dedicated time for a “courageous conversation” to improve collaborative working and asked that this be considered at the JFP.[12]The August 2023 Letter was circulated and placed on the agenda for the JPF meeting on 15 August 2023 under “AOCB” which was attended by approximately 30 people, including the claimant. Concerns were raised about the item being included on the agenda due to potential politics and without following established policies and procedures. Ms Cherry clarified that the intention of the August 2023 Letter was not to raise concerns but obtain the JPF’s views on what was working well and what was not.[13]On 29 September 2023, the claimant emailed the then Employee Director and the Joint Chairs, expressing concerns that the August 2023 Letter referred to “some” unions, which she considered unfair. She noted that no union knew to whom the August 2023 Letter referred and sought clarification.[14]In October 2023, the Joint Chairs of the JPF and the Heads of Service met to discuss the August 2023 Letter, following which a statement was issued confirming that it was agreed an in-person development session for the JPF in 2024. The Collective Grievance[15]Around November 2023, Unison sent an email to Ms Torrens listing staff concerns about the Succoth ward and requesting a discussion. There was no specific request for early resolution or grievance notification. Ms Torrens arranged a meeting on 21 November 2023 which she attended along with Nicola Gillespie, Senior Manager for Mental Health and Addictions (whose remit covered the Succoth ward) and Dev Balluck, CSM for Succoth. Ms Torrens prepared an agenda in advance. The managers understood this to be a collaborative, round‑the‑table meeting, and an administrator was present to take notes.[16]The claimant attended the meeting with Gavin Smith and Patrick Harvey, both trade union representatives, along with five staff members, all of whom sat together. The trade union representatives described the meeting as an early‑resolution meeting and objected to an administrator taking notes; as a result, she did not do so although remained in the meeting. Mr Smith took notes on an iPad. There was confusion about the purpose of the meeting, which quickly became difficult and contentious.[17]The agenda proposed by Ms Torrens was not followed. The claimant dominated the meeting and made personal comments about the managers’ understanding of the process. She spoke firmly, referring to clinical care, governance, and the possibility of escalation to Stage 3. She cited the Sturrock report. She questioned the cover and clinical duties undertaken by managers and their qualification and competency to do so. The claimant stated that the responsibility, or “the buck,” lay with managers, as they were accountable for the clinical environment and for supporting new nurses.[18]After the meeting the administrator said to the managers that she had felt uncomfortable. The managers had expected robust challenge but could not comprehend what they experienced as a personal attack on the management team. They felt undermined, devalued, and humiliated in front of staff. Although they initially attempted to move forward, both Ms Gillespie and Mr Balluck became anxious and worried about carrying out their roles. Ms Gillespie continued to ruminate on the events, and Mr Balluck resigned from his post in part because of what he regarded as the claimant’s threatening and intimidating manner during the meeting.[19]Owing to the continuing impact, the managers decided to raise a collective grievance to ensure that they would not be subjected to similar treatment again. They accepted the need for robust challenge but considered that such challenge should be delivered with dignity and without humiliation in the presence of staff.[20]As the claimant was employed by the respondent on a facilities‑relief basis, the managers, acting on the advice of their RCN representative, submitted the collective grievance to the respondent’s HR People Services (the Collective Grievance). The RCN representative met the People Services Lead Adviser, who advised that, because the complaint concerned the claimant’s behaviour in her capacity as a trade union representative, the grievance should instead be directed to Unison.[21]On 15 March 2024, the People Services Lead Adviser emailed a copy of the Collective Grievance to Evan Beswick, Interim Chief Officer, together with guidance on how it should be progressed. She maintained her view that the grievance related to the claimant’s conduct in her role as a trade union representative. Although framed as a collective grievance, it concerned working relationships and ought therefore to be addressed under the Once for Scotland Bullying and Harassment Policy. She suggested that Mr Beswick contact Ken Matthews, Regional Organiser for Unison, to advise him that a bullying and harassment complaint had been raised and to discuss how the matter and the parties should be managed. She further suggested that Mr Beswick meet the managers individually to explore why early resolution had not been appropriate and to offer all possible support to facilitate early resolution.[22]Mr Beswick considered the concerns. It was an unusual situation and the appropriate route forward was unclear. On 5 April 2024, he emailed the managers, explaining that their concerns would likely fall within the Once for Scotland Bullying and Harassment Policy, rather than the Grievance Policy. In the interests of achieving a positive outcome, rather than immediate reliance on a formal process, he proposed a meeting to discuss and inform next steps.[23]Around 2 June 2024, Mr Beswick met with Ms Gillespie and Ms Torrens. Mr Balluck and Ms Torrens were no longer employed by the respondent. Those present agreed that the Collective Grievance should be passed to Unison. They were willing to participate in early resolution. They anticipated that Unison would lead that process which would be conducted in a supportive manner. Given that the claimant and Ms Gillespie continued to work together Ms Gillespie sought an apology and support in repairing the working relationship.[24]On 4 June 2024, Mr Beswick wrote to Mr Matthews advising that in accordance with the Bullying and Harassment Policy he was enclosing a copy of the Collective Grievance notification for his attention and investigation. Mr Beswick also advised that Ms Torrens and Mr Balluck had terminated service with the respondent. Mr Beswick acknowledged Unison’s role and proposed an approach involving facilitated, supportive discussions between the claimant and Ms Gillespie.[25]Mr Matthews subsequently informed Mr Beswick that he was not willing to discuss the matter with him. He made no further contact with the managers or with Mr Beswick regarding the Collective Grievance or any investigation.[26]In late July 2024, Mr Matthews attached a copy of the Collective Grievance to an email sent to the claimant. The claimant subsequently went off sick due to workplace stress. The July 2024 Letter[27]On 23 April 2024, the claimant emailed Catriona Watt, Local Area Manager for Mid Argyll Hospital, advising of her intention to raise a grievance at the early‑resolution stage for a staff member concerning on‑call and overtime protection (the on-call issue). Ms Watt acknowledged the email and asked the claimant to submit a grievance notification form as soon as possible to maintain the appropriate timescale. The claimant responded by quoting from the relevant policy and asking whether Ms Watt was indicating that the matter should proceed to Stage 1 of the formal process, in which case Ms Watt would not be the appropriate recipient of the grievance. Ms Watt replied that she was aware of the policy and had merely requested the grievance notification form. She confirmed that the matter would be handled under early resolution. Ms Watt confirmed that she was not the claimant’s direct line manager, naming who was. Ms Watt said that as the staff member had approached her, and she was happy to undertake early resolution. The email exchange, all of which was copied to the staff member continued, addressing the maintenance of the status quo, the cessation of on‑call duties on 31 March 2024, who had taken that decision, and the level of partnership working involved. Ms Watt considered the tone of the claimant’s emails to be aggressive, incorrectly suggesting that Ms Watt was escalating the matter, stating that the process for working in partnership was not followed as a decision had been taken without Unison.[28]An early‑resolution meeting took place on 2 May 2024 and the member was advised of the outcome. The claimant then emailed Ms Watt to indicate that she would be submitting a formal Stage 1 grievance, quoting from the policy and stating that she expected a manager senior to Ms Watt to deal with it. The claimant continued by asserting that early resolution should have been conducted by the line manager, but that Ms Watt had “decided to take this case on as you have others from Hotel Services and Estates and this really needs to stop and policy should be followed in line with and according to the scheme of delegation”.[29]Ms Watt replied on 16 May 2024, asking the claimant to reflect on the tone of her emails before sending them. She considered it inappropriate for the claimant to discuss Ms Watt’s role with staff from other departments and stated that the information being circulated was inaccurate. Ms Watt confirmed that she had checked with HR and confirmed that the Stage 1 could be heard by a named area manager as previously advised in the outcome letter.[30]The claimant replied to Ms Watt stating that the grievance was sent to Ms Watt as she had written to the staff member. The claimant copied the grievance policy. She asked Ms Watt to explain what in her correspondence was “not to your liking” and stated that she would seek to consider her position and reflect on whether she could improve going forward.[31]Ms Watt felt that the claimant was making a personal attack. The staff member’s line manager had no budget for on-call and the decision which was the subject of the grievance had therefore been taken by Ms Watt. For that reason it was Ms Watt who wrote to the staff member to advise of the decision which Ms Watt was willing to discuss at early resolution. Ms Watt had consulted HR and had endeavoured to explain the position to the claimant. Ms Watt was at the end of her tether. She felt that she could do not right for doing wrong. She could not sleep and was anxious every time she received an email from the claimant. Ms Watt raised an adverse event report (Datix).[32]At the end of June/early July 2024, the claimant continued to email Ms Watt about the seniority of manager who should hear the Stage 1 and that Ms Watt’s involvement took away the option of early resolution by the line manager. The email stated that they had not been notified of the manager that would hear the Stage 1 within the scheme of delegation. The emails were copied to the staff member and HR and said that in the absence of a response it would be escalated to Ms Watt’s line manager. The email was copied to HR and Ms Watt’s line manager. Ms Watt reiterated the named area manager, which had been previously advised, and confirmed the name of her line manager.[33]On 2 July 2024, the claimant emailed HR, Ms Watt and her line manager copying the staff member stating that Ms Watt had stepped in on this case like others and taken away the option of early resolution by a line manager. Ms Watt expressed concern about the accuracy of the email and it being copied to the staff member. The claimant’s reply copied Mr Matthews into the email so that Ms Watt could raise her concerns directly with him.[34]Around 21 June 2024, the claimant and Ms Watt were engaged in another exchange of emails concerning the redeployment of a staff member whom the claimant was representing (the redeployment issue). Ms Watt considered that the claimant’s emails, which were copied to the staff member, commented on a meeting at which the claimant had not been present; referred to a line manager who was no longer responsible for the staff member following an earlier grievance of which the claimant was aware; and criticised Ms Watt’s handling of another redeployment which, given the small number of individuals involved, Ms Watt regarded as identifiable even though unnamed.[35]On 1 July 2024, Ms Watt emailed the claimant directly, expressing concern about the communication, which she considered disrespectful to her position as manager, and proposed a facilitated meeting to explain how the communication made her feel. The claimant replied that day, saying that she did not breach GDPR and maintaining that her correspondence was factual. The claimant stated that she was sorry that Ms Watt felt as she did and asked what she was doing wrong in her role as Branch Secretary supporting members. The claimant then commented on Ms Watt’s behaviour at a meeting, which she described as dismissive when Ms Watt did not receive the response she wanted.[36]Ms Watt felt that the claimant was making a personal attack on her; did not read what was said in emails; and responded quickly without fully understanding what was being said.[37]On 2 July 2024, Ms Watt submitted a further Datix report. She understood the claimant’s role, was accustomed to dealing with trade union representatives, and expected to be challenged. However, she felt that the claimant’s conduct amounted to a personal attack and that she was treated with disrespect in the presence of other staff. She stated that she felt unable to do anything right and that whatever she did was criticised. Ms Watt became anxious about attending meetings with the claimant, describing the situation as “no win”, and reported losing sleep beforehand. She noted that no other trade union representative had ever behaved towards her in this manner.[38]On 3 July 2024, the claimant responded to an email sent by Ms Watt on 24 June 2024 regarding the on-call issue, which she had previously overlooked. In her reply, sent to HR, Ms Watt’s line manager, and copied to the staff member, and Mr Matthews, the claimant stated that she regarded the email as a personal attack arising from her support of a union member. She reiterated that any concerns about her should be directed to Mr Matthews, as she had previously requested. The claimant asked HR to escalate the on-call matter to the next manager in the scheme of delegation. She indicated that, despite having a good working relationship with Ms Watt’s line manager, she did not consider it appropriate for him to be involved as he was Ms Watt’s husband and manager, creating a conflict of interest.[39]On 10 July 2024, Ms Watt wrote to Mr Matthews complaining about what she described as the claimant’s disrespectful communication, both in person and in emails involving staff members. She stated that the behaviour compromised her dignity at work and her position as a manager. She also expressed concern about the possibility of the claimant sharing information about other staffing situations with union members, and about the accuracy of some information being circulated. She recorded that she had proposed a facilitated discussion but regarded the claimant’s response as hostile, suggesting that Ms Watt was unwilling to hear the claimant’s views. Ms Watt said this was untrue, and maintained that the information provided by the claimant was inaccurate and that, despite efforts to correct it, Ms Watt’s explanations were not accepted. Ms Watt confirmed that she remained willing to discuss the complaint with Mr Matthews.[40]Mr Matthews did not contact Ms Watt. Instead, he forwarded the July 2024 Letter to the claimant while she was absent on sick leave. The claimant said that she was devastated by this and initially contemplated stepping down from her union duties to focus solely on her nursing role. She did not do so.[41]Ms Watt heard nothing further from Unison until she received a letter dated 3 October 2025 from Lilian Mercer, Scottish Secretary. The letter referred to an investigation report by Mr Matthews, although a copy was not enclosed. It stated that there appeared to be a lack of understanding regarding the role of a Unison representative and the distinction between representation and partnership working. It further stated an intention to raise what was described as ongoing hostility towards the claimant with the Chief Executive and the Executive Director of People and Culture. The complaint was not upheld. The letter confirmed that the matter had been addressed at Stage 2 of the procedure and stated that, if Ms Mercer had not followed processes in investigating the matter, an application for a review of the handling of the complaint could be made to the Member Liaison Unit within 28 days. The August 2024 Letter[42]In November 2023, Jane Williams, Area Manager for Bute Adult Services and her line manager, met with the claimant and Mr Matthews to discuss communication and the tone of meetings. Ms Williams and her team considered that the claimant’s manner was neither positive nor conducive to identifying solutions, in contrast with their experience of working with other trade union representatives. There was discussion about the role of the staffside representative. Ms Williams accepted that strong views required to be expressed, but considered that this must be done with an appropriate level of respect. Mr Matthews suggested a follow‑up meeting within two to three months, but no such meeting took place.[43]On 14 June 2024, Ms Williams attended a meeting requested by a healthcare and social worker in the community care team. The claimant was present, along with other middle managers. After the meeting, two new team leads spoke to Ms Williams to express concern about what they described as the claimant’s aggressive and confrontational manner, including raised voices, personal attacks and management-blaming. They were experienced managers, but stated that they felt reluctant to attend future meetings if they were to be treated in that way. Ms Williams considered that the claimant’s behaviour was causing a break down in working relationships.[44]Ms Williams accepted, with hindsight, that she ought to have intervened during the meeting, either by proposing a break or by bringing it to an early conclusion. She regarded the claimant’s style as a matter of personal choice, but she considered it necessary to take account of the position of those on the receiving end, who could choose whether they were willing to be spoken to in that manner. In Ms William’s view, concerns could be expressed in a strong and passionate way, but that did not excuse behaviour that made others feel unwilling to attend meetings.[45]On 2 July 2024, Ms Williams emailed Mr Matthews to state that communication and engagement with the claimant had not improved and that matters had continued to deteriorate, including conduct she regarded as disrespectful and unprofessional. Although she preferred to resolve issues informally, she now wished to raise the matter with Unison. She sought Mr Matthews’s involvement to assist in repairing and improving the working relationship.[46]Mr Matthews replied on 10 July 2024, requesting that the complaint be submitted in writing and attaching a copy of Unison’s complaints procedure.[47]Ms Williams wrote to Mr Matthews on 1 August 2024. She referred to the meeting in November 2023 in which he had participated and to her efforts to re‑establish effective working relationships between the trade union and the new team leads. She referred to the meeting on 14 June 2024 and how managers reporting to her felt during the meeting. Ms Williams explained that she could not continue to work in partnership without some significant change in the approach, professional conduct, and respect. Ms Williams stated that strong feelings about an issue, or the desire to make a point, did not justify this type of communication in any forum, and that had damaged relationships to the extent that staff no longer wished to attend meetings. She concluded by saying that she would appreciate Mr Matthews’s involvement in attempting to restore working relationships and was willing to discuss matters further.[48]Ms Williams heard nothing further from Unison until she received a letter dated 3 October 2025 from Lilian Mercer. The letter referred to an investigation report prepared by Mr Matthews, although no copy was enclosed. It stated that, notwithstanding Ms Williams’s assertions to the contrary, there was a lack of understanding of the role of a Unison representative and the distinction between representation and partnership working. It further stated an intention to raise what was described as ongoing hostility towards the claimant with the Chief Executive and the Executive Director of People and Culture. The complaint was not upheld. The letter confirmed that the matter had been addressed at Stage 2 of the procedure and stated that, if Ms Mercer had not followed proper processes in investigating the matter, an application for a review of the handling of the complaint could be made to the Member Liaison Unit within 28 days.[49]Ms Williams wrote to the Member Liaison Unit on 5 November 2025. She stated that the response had not addressed any of her concerns or offered any solutions to the longstanding difficulties, and she expressed surprise that a trade union did not appear willing to propose solutions or adopt a proactive approach. She explained that her only recourse was therefore to raise concerns about the investigation procedure. She observed that she had been given no information about how the investigation had been conducted; she had not been contacted or spoken to, and she was therefore unsure how a balanced view of the complaint could have been reached. The November 2024 Letter[50]By June 2024 Mr Balluck and Ms Torrens were longer employed by the respondent. Mr Matthews had told Mr Beswick that he was not going to speak to him and the invitation to facilitate the supported decision was not progressed. Ms Gillespie had heard nothing from Unison.[51]On 20 September 2024, Mr Beswick emailed Mr Matthews seeking an update. Mr Matthews replied on 23 September 2024, that the complaints were confidential to Unison and that he was not at liberty to discuss them. He advised that the individuals would receive a written response from Lilian Mercer the Scottish Secretary, and that the matters identified by the investigation not the complaint would be raised directly with Unison, the Chief Executive, and the Executive Director of People and Culture.[52]Ms Mercer sent a letter to Ms Gillespie dated 3 October 2024 (the Unison Letter). It confirmed that Mr Matthews had provided an investigation report setting out his findings, although the report itself was not enclosed. The Unison Letter stated that the investigation findings did not support Ms Gillespie’s assertions about the meeting on 21 November 2023. That meeting was an early‑resolution meeting under Stage 1 of the Once for Scotland Grievance Policy, brought on behalf of fourteen Unison members represented by the claimant and Mr Smith, who were accompanied by five Unison members. The Unison Letter stated that management had failed to understand the role of Unison representatives and the distinction between representation and partnership working, and that they lacked an understanding of the early‑resolution process. It further stated an intention to raise what was described as ongoing hostility towards the claimant with the Chief Executive and the Executive Director of People and Culture. The complaint was not upheld. The Unison Letter confirmed that the matter had been addressed at Stage 2 of the procedure and stated that, if Ms Mercer had not followed proper processes in investigating the matter, an application for a review of the handling of the complaint could be made to the Member Liaison Unit within 28 days.[53]Ms Gillespie had been on leave and returned to work on 21 October 2024. She had been unaware that an investigation had taken place or that a report had been prepared. There was reference to ongoing hostility toward the claimant and intention by Unison to escalate matters. Ms Gillespie felt crushed. She had tried to move past the November 2023 meeting and to rebuild her confidence, but the letter left her feeling humiliated, devalued, and that her concerns had been brushed aside. No one had spoken to her to understand her account of events or the impact on her, and the Unison Letter did not address issues that had been raised, nor suggest, how the working relationship might be rebuilt. She perceived the tone of the Unison Letter as threatening.[54]The Unison Letter was addressed to Ms Gillespie. She contacted Mr Balluck and Ms Torrens, neither of whom had received a response or been spoken to during the investigation. The only recourse identified in the Unison Letter was a right to apply for review with 28 days directed to a generic postal address in London.[55]In the hope of obtaining some transparency and understanding around the process, Ms Gillespie drafted a letter, which she discussed with Mr Balluck and Ms Torrens during a Teams meeting. The letter, dated 5 November 2024, raised concerns about the transparency of the process, the timeline adopted, the nature of the investigation, and the failure to address the points raised in the Collective Grievance (the November 2024 Letter). It clarified that the Collective Grievance was not about clinical governance, partnership or trade union working, nor about any managerial failure to recognise these, but was solely concerned with the attitude, conduct, and behaviours of a Unison officer, which were not in keeping with the respondent’s cultural expectations of staff being treated with dignity and respect at work. Those matters, it stated, had not been addressed. The 15 November 2024 Telephone Conversation[56]On 27 July 2024, the claimant emailed Mr Beswick attaching a Stage 1 Collective Grievance Notification in respect of the Succoth Ward collective grievance (the Stage 1 Succoth Grievance). As Ms Torrens had left, the claimant assumed that the Stage 1 process would fall to Mr Beswick to consider. She advised that she would be passing the case to Gillian Ballantyne, Regional Officer for Argyll and Bute HSCP, to take forward Stage 1 of the grievance.[57]Ms Gillespie was the only manager still employed by the respondent who had oversight of Succoth ward. She had been involved in managing the Succoth ward and since November 2023, preparing an ongoing document about the issues identified, the recommended action, and the person responsible and the date for implementation/completion. She was the manager who was leading the respondent’s response to the Stage 1 Succoth Grievance.[58]Mr Beswick was aware of the Collective Grievance, which he had referred to Mr Matthews and Ms Gillespie’s concern about interacting with the claimant without a supported presence. He had requested an update from Mr Matthews by email on 20 September 2024 and was informed that it was confidential and the Scottish Secretary would reply to the individuals.[59]On 26 September 2024, Mr Beswick and Ms Ballantyne met to discuss the Stage 1 Succoth Grievance. Mr Beswick referred to the commissioning of an external Quality Care Review and was keen for the two processes to dovetail. Ms Ballantyne agreed to consult with her members and revert thereafter.[60]On 23 October 2024, Ms Ballantyne emailed Mr Beswick, copying in the claimant. She confirmed that the members wished to proceed to Stage 1, and that she and the claimant would be jointly representing the members. She asked that both representatives be copied into all correspondence relating to the collective grievance.[61]Mr Beswick was concerned about Ms Gillespie working with the claimant on the Stage 1 Succoth Grievance. Their working relationship was strained, and he was unsure how this would affect the prospect of holding a productive Stage 1 grievance hearing or reaching a resolution. He also considered that he owed a duty of care to Ms Gillespie as an employee who had alleged bullying and harassment at work.[62]Ms Ballantyne’s email referred to joint representation. Mr Beswick sought clarity on who the principal contact would be. He respected and understood Unison’s right to appoint the staff representative. He did not know to what extent, if any, Ms Ballantyne was aware of the Collective Grievance, the Unison investigation and the Stage 2 outcome. Mr Beswick considered it appropriate to make Ms Ballantyne aware of his concerns, which he hoped she would recognise so that they could explore a constructive way forward.[63]On 15 November 2024, Mr Beswick telephoned Ms Ballantyne to discuss the way forward with the Stage1 Succoth Grievance (the November 2024 Telephone Conversation). Towards the end of the conversation, he asked who would act as the Unison representative. Ms Ballantyne confirmed that it would be the claimant as Branch Secretary, supported by Ms Ballantyne in her capacity as full-time officer. Mr Beswick indicated that he did not wish to breach confidentiality but had concerns regarding the appointment of a manager. Ms Ballantyne stated that this was a decision for him. She confirmed her awareness of the complaints that had been investigated and advised that there was no case to answer. Mr Beswick responded that the process was not complete and that he and others in HR knew the outcome. Ms Ballantyne was concerned about this. Mr Beswick explained that, as the Collective Grievance related to an individual working for another organisation, it had been referred to that organisation. However, he continued to have oversight and to provide support until completion of the entire process. Ms Ballantyne disagreed and referred to a live legal case brought by the claimant against the respondent, of which Mr Beswick was unaware.[64]After the November 2024 Telephone Conversation, Ms Ballantyne telephoned the claimant and conveyed her interpretation of the conversation with Mr Beswick. The claimant was upset.[65]On 20 November 2024, Ms Ballantyne wrote to Mr Beswick setting out her recollection of the November 2024 Telephone Conversation, to which he replied by email on 21 November 2024. Mr Beswick’s email confirmed that the claimant would be copied into the Stage 1 Succoth Grievance acknowledgement letter rather than Ms Ballantyne. This was not intended to be discourteous; the policy provided for inclusion of the staff representative but did not allow for involvement of the representative’s support. It would therefore be for the claimant to decide whether to share the letter with Ms Ballantyne as appropriate. Observations on witnesses and conflict of evidence[66]I had no doubt that the claimant acted in her members’ best interests and represented them with commitment and passion. My impression was that, in doing so, she felt unconstrained in advancing their case and wished to demonstrate to them that she was doing so. However, she showed limited insight into how her approach and conduct were perceived by the managers present.[67]I accepted that there had been no significant issues before 2023. However, the Sturrock report was issued in 2019 formed part of the backdrop, and from 2020 the claimant became a full‑time representative and was more involved in work within Argyll and Bute.[68]I was also mindful that the managers who gave evidence were experienced and had and continued to work positively with other trade union representatives. They were accustomed to, and expected, robust discussion. Although not members of Unison, they were themselves members of other trade unions and, in my view, understood the role played by trade union representatives when advocating on behalf of members. Neither Ms Watt or Ms Williams had a connection to the Succoth ward or the Succoth Grievance.[69]In relation to the August 2023 Letter, the claimant’s evidence was that it should not have been on the agenda for the JPF meeting and that she was not invited to the subsequent meeting to discuss it. She said she had a feeling that the letter was about her. The claimant accepted, however, that the letter did not name her, that she was not a Joint Chair of the JPF, and that the stated purpose of the letter was to improve joint working. I considered the claimant’s evidence that she believed the letter was directed at her to be inconsistent with her contemporaneous emails and with her own evidence about her conduct when representing members at that time. Ms Cherry’s evidence, which I found convincing, was that the content of the letter reflected its intention, which was to initiate a discussion about improving working relationships.[70]There was disputed evidence about the meeting on 21 November 2023. The claimant’s position was that the meeting was contentious, she was firm but denied the behaviour and comments attributed to her in the collective grievance. Mr Smith stated that he attended in a supportive capacity and took detailed notes. He confirmed that the claimant did most of the talking. In relation to several allegations, he stated that he did not recognise, remember, or could not quite recall them. He did, however, confirm that in terms of process stage 3 was a possible option; the Sturrock report was referred to; and that a phrase similar to the “buck stops” was used. Ms Gillespie’s evidence was that the collective grievance was an accurate account of the meeting.[71]The claimant said that she became aware of the Collective Grievance in late July 2024. Her position was that she was representing the members. She asked Mr Smith to attend for support. On their account the meeting was contentious but nothing untoward occurred. No concerns were raised with the claimant about her behaviour during the meeting. Although Mr Smith took contemporaneous notes at the meeting he did not produce them at the time or at the hearing, and given his recollection of the meeting I did not form the impression that he had revisited them before giving evidence. The Unison Letter stated that they were both representing the members.[72]By contrast, Ms Gillespie described the meeting as memorable. None of the managers had experienced a meeting in which they felt personally attacked or humiliated in front of staff. They were, in her words, “aghast”. Their perceptions of the claimant’s behaviour were aligned. They did not respond impulsively but sought to move forward, involving their RCN representative. The Collective Grievance was drafted by Ms Gillespie and approved by Ms Torrens and Mr Balluck, who resigned. While the document was emotive, it was prepared shortly after the meeting and, in my view, reflected the managers’ recollection of what had occurred, how they perceived the claimant’s conduct, and how it made them feel.[73]I therefore considered that, on the balance of probabilities, Ms Gillespie’s account was the more likely version of events. The issues under discussion were long standing, and there was understandable frustration. The confusion about the purpose of the meeting, the seating arrangements, the departure from the prepared agenda, the administrator not taking notes, and Mr Smith’s unexpected attendance and focus on note‑taking all, in my view, made it more likely that proper introductions did not take place. Both the claimant and Mr Smith accepted that the claimant took the lead and was firm in her approach. Had the exchanges been confined to healthy challenge, I do not consider that the managers and the administrator would have left the meeting feeling as they did.[74]The Collective Grievance was sent to Unison following advice and sought a supportive conversation aimed at rebuilding the working relationship between Ms Gillespie and the claimant, Ms Torrens and Mr Balluck having left. I considered the evidence of Ms Gillespie and Mr Beswick to be persuasive on this point. The focus was not on escalating matters to Mr Matthews but to secure his assistance in restoring working relationships. It was Mr Matthews who communicated the complaints to the claimant and determined how and when matters would proceed.[75]In relation to the July 2024 Letter, there was an email exchange leading up to that complaint. From that exchange it was apparent that the claimant was actively pursuing her member’s grievances and genuinely questioned Ms Watt’s approach. However, my impression from the emails was that the claimant’s focus was process driven and pointing out in widely circulated emails what she considered to be Ms Watt’s failure to work in partnership; communicate with staff members rather than the line manager doing so; and misunderstanding procedures.[76]While I appreciated the claimant’s view about the scheme of delegation, she appeared unable or unwilling to acknowledge the rational for Ms Watt conducting early resolution or that there may be occasions when it is not appropriate for a line manager to deal with early resolution. The claimant’s responses often appeared to be a quick reaction to an email rather than considering the contents. Ms Watt acknowledged that she was not the staff member’s line manager; she was the budget holder and had communicated her decision to the staff member who notified her of the grievance. There was no suggestion that having done so Ms Watt was in any way seeking to restrict the number of grievance stages or decide who should conduct them. She sought guidance from HR on who should hear the next stage of the grievance; it was not her decision.[77]I could understand why Ms Watt felt that she was in a no‑win situation, particularly as the claimant’s comments were not confined to the grievance itself and coincided with other email exchanges critical of Ms Watt’s handling of matters. I accepted Ms Watt’s evidence that she felt anxious when approaching meetings with the claimant and would lose sleep the night before. She perceived that she was being personally attacked by the claimant and noted that no other trade union representative made her feel this way. The July 2024 Letter was sent to Unison after the claimant had copied earlier correspondence to Mr Matthews and asked Ms Watt to raise matters with him directly. It was he who decided the stage at which the complaint should be addressed.[78]In relation to Ms Williams’ evidence, she accepted that there had been previous difficulties with the claimant’s style of communication, which was perceived as aggressive and confrontational, and that a meeting had taken place in November 2023 to address these concerns. My impression was that the June 2024 meeting was the catalyst for the August 2024 Letter, because Ms Williams was approached by new team leaders who told her how they had felt during that meeting. This caused Ms Williams to reflect on what more she might have done at the meeting to prevent them feeling that way and on how working relationships could be repaired. I accepted evidence of Ms Williams about how she and others perceived the claimant’s behaviour at the meeting and how this made her feel. She reached out to Mr Matthews for help to repair the relationships, and it was he who asked Ms Williams to raise the matter formally.[79]In relation to the November 2024 Letter, Ms Gillespie’s position was that, until she received the Unison Letter, she was unaware that any investigation had been conducted. Mr Matthews had not spoken to her, nor had she seen his report. The Unison Letter made no reference to the other managers mentioned in the Collective Grievance, and those individuals were no longer working for the respondent.[80]From Mr Beswick’s evidence and the contemporaneous emails, the Collective Grievance ought to have been made under the Once for Scotland Bullying and Harassment Policy. That policy was not produced, but my understanding was that it did not provide for collective grievances. In any event, in June 2024 the Collective Grievance was sent to Mr Matthews to secure his assistance in restoring the ongoing working relationship between the claimant and Ms Gillespie. Mr Matthews did not give evidence, and the Unison policy was not produced.[81]Although Mr Matthews received the Collective Grievance on 4 June 2024 he did not sent it to the claimant until late July 2024. As some point he took the unilateral decision to deal with the Collective Grievance under Stage 2 of the Unison policy. There was no evidence about whether he treated the Collective Grievance as a complaint by Ms Gillespie only.[82]Ms Gillespie had hoped the focus would be on supporting and assisting her and the claimant to rebuild their working relationship. After three months of no communication, the Unison Letter referred to ongoing hostility towards the claimant and Unison’s intention to escalate the matter. Against that background, I considered Ms Gillespie’s explanation for contacting Mr Balluck and Ms Torrens in October 2024 to be understandable. They advised that they had not been informed of the outcome and had also not been spoken to. Ms Gillespie’s evidence about drafting the November 2024 Letter and discussing it on a Teams call with them was in my view entirely plausible. Her account was consistent with her concerns about the lack of transparency, the delay, lack of understanding of the process and the basis upon which the outcome had been reached.[83]Turning to the November 2024 Telephone Conversation, both Ms Ballantyne and Mr Beswick gave evidence of their recollection of what was said.[84]In cross‑examination, Ms Ballantyne accepted that, although she told the claimant that Mr Beswick did not want the claimant involved in the Stage 1 Succoth Grievance, this represented her own interpretation rather than anything he had expressly said. Ms Ballantyne subsequently sent an email setting out her position, but this was not sent to Mr Beswick until 20 November 2024. She explained that she delayed sending it because she had reflected for several days owing to the contentious nature of the matter. I found this surprising, given that she had already contacted the claimant and conveyed her interpretation of the discussion.[85]Ms Ballantyne was not involved in the Unison investigation. From her evidence, I understood that she was aware the investigation had concluded and that there was no case to answer in relation to the claimant’s trade union representation. I was less clear as to the extent of her awareness of the request for a review. However, Ms Ballantyne did know of the claimant’s “live legal case” against the respondent, of which Mr Beswick had no knowledge.[86]Ms Ballantyne was concerned about the respondent’s knowledge of the Unison Letter. The Collective Grievance was initially raised under the Grievance Policy, and it was Mr Beswick who, following discussion, referred it under the Bullying and Harassment Policy to Mr Matthews for investigation and later sought an update. It was in my view entirely reasonable that by November 2024 he was aware of the Unison Letter and that the process had not be exhausted. Indeed, Ms Ballantyne herself was aware that there had been an investigation, its outcome, and the claimant’s “live legal case.”[87]There was no evidence that Mr Beswick said that the respondent did not want the claimant to become involved in the Stage 1 Succoth Grievance. The evidence showed that Mr Beswick sought clarification of the named Unison representative and expressed concern about the relationship between the claimant and Ms Gillespie. He did not ask for the claimant to be removed from the Stage 1 Succoth Grievance. On the contrary, he knew he had no remit to do so and was mindful of that limitation. In my view, it was entirely plausible that, given the Collective Grievance arose from the “early resolution” stage of the Succoth Grievance, Mr Beswick wished to ensure that Stage 1 focused properly on the Succoth Grievance and was not compromised by the relationship between the claimant and Ms Gillespie which was unresolved. It was also plausible that he considered it appropriate to mention his concerns to Ms Ballantyne, just as he had in the past listened to any concerns raised by unions about management representatives. In my view, this mirrored what the claimant herself had done when she raised concerns about Ms Watt’s line manager conducting the Stage 1 on‑call grievance on the basis of a potential conflict of interest. It was not in dispute that, once told that the claimant was the appropriate union contact, Mr Beswick accepted this. The claimant’s email address, rather than that of Ms Ballantyne, was the Unison point of contact for the Stage 1 Succoth Grievance.
Deliberations
[88]I was grateful to the representatives for their helpful submissions and for the appropriate concessions made in light of the evidence at the hearing.[89]This is a complaint under section 146(1)(b) TULRCA. It must therefore be presented before the end of the period of three months beginning with the date of the last act, or failure to act, to which the complaint relates, or, where there is a series of similar acts or failures, the date of the last of them. The time limit may be extended where it was not reasonably practicable to present the complaint in time and may also be extended to allow for early conciliation.[90]The representatives helpfully agreed that any alleged acts arising before 31 October 2024 are out of time. It was accepted that, given the claimant’s role as a trade union representative, she was well aware of the applicable time limits and could have presented a claim from August 2023 or at any time thereafter. She does not therefore rely on the “not reasonably practicable” exception. Instead, the claimant relies on the alleged detriments constituting a series of similar acts, such that time runs from November 2024.[91]It was agreed that the appropriate approach is to consider the alleged detriments in reverse chronological order. If the alleged acts said to have occurred after 31 October 2024 fail on their merits, they cannot serve to extend time and cannot properly be characterised as forming part of a series of similar acts.[92]Before turning to the alleged detriments, I referred to section 146 of TULRCA. That section provides that a worker has the right not to be subjected to any detriment where the act or deliberate failure to act takes place for the sole or main purpose of preventing or deterring the worker from taking part in the activities of an independent trade union, or penalising the worker for doing so.[93]The term “detriment” is not defined in TULRCA. Although this is a trade union detriment claim, I note that the Equality and Human Rights Commission Employment Code describes a detriment as something which a reasonable person would consider to have changed their position for the worse or placed them at a disadvantage. The authorities to which the representatives referred confirm that detriment should be construed broadly. The assessment is neither wholly subjective nor wholly objective: if a reasonable worker might, in all the circumstances, regard the treatment as detrimental, the test is met. A unjustified sense of grievance, without more, is insufficient to establish a detriment.[94]The question of purpose under section 146 is to be determined by examining the state of mind of the person or persons within the employing organisation who committed the act or deliberate failure to act complained of (University College London v Brown [2021] IRLR 200 (EAT)). The purpose underlying an employer’s detrimental act or omission must be distinguished from its effect. The burden of establishing the relevant purpose rests with the employer. In Yewdall v Secretary of State for Work and Pensions (EAT/0071/15), the EAT set out the following approach:a. Were there acts or omissions on the part of the employer?b. Did those acts or omissions cause a detriment to the claimant?c. In respect of those acts or omissions which are in time and which caused detriment, has the claimant established a prima facie case that they were committed for a proscribed purpose?[95]Only if the final question is answered in the affirmative does the burden shift to the employer to show the purpose behind its act or omission.[96]Both representatives addressed me on the issue of inseparable conduct. There was no dispute that the claimant’s behaviour, about which managers complained, arose while she was acting in her capacity as a trade union representative. The claimant’s position was that her robust representation of members fell squarely within the scope of trade union activity. I was referred to the decision of the Court of Appeal in Morris v Metrolink Bus Rapid Transit Ltd [2018] EWCA Civ 1358. The respondent’s position was that this was a claim under section 146 of TULRCA and that, as in the whistleblowing context, a distinction must be drawn between the protected activity itself and the conduct associated with, or consequent upon, that activity. Reliance was placed on Kong v Gulf International Bank (UK) Ltd [2022] ICR 1513.[97]I then turned to consider the most recent allegations which were accepted as being presented within the statutory time limits. The November 2024 Telephone Conversation[98]I first considered whether there were any acts or omissions on the part of the employer in relation to this allegation. I did not accept the claimant’s assertion in the claim form that Mr Beswick informed Ms Ballantyne that the respondent did not want the claimant involved in dealing with the Succoth Grievance. That was also the act identified in the agreed joint list of issues provided at the start of the hearing. As the act did not happen, it could not cause the claimant detriment.[99]In her submissions the claimant now relies on the act of Mr Beswick having expressed some concerns during the telephone call. That was not disputed but it was not the claimant’s pleaded case.[100]Nonetheless I considered whether that conduct caused a detriment to the claimant. I did not find that Mr Beswick stated that the claimant could not or would not be involved, nor that he asked for her removal from the Succoth Grievance process. I did not accept the claimant’s submission that Mr Beswick already knew the claimant was the Unison representative. in July 2024, the claimant advised that she was passing the Stage 1 Succoth Grievance to Ms Ballantyne to take forward. Ms Ballantyne’s details were provided in the notification and she and Mr Beswick had met and exchanged emails during September and October 2024. On 23 October 2024, Ms Ballantyne advised Mr Beswick that she and the claimant would jointly representing the members and they should both be copied in to all correspondence. It was unclear to Mr Beswick who was the main contact. Mr Beswick did not know to what extent, if any, Ms Ballantyne was aware Collective Grievance. By mid-November 2024, as far as he was aware the process had not been exhausted. During the November 2024 Telephone Conversation it was clarified that the claimant was the point of contact, with support from Ms Ballantyne. Ms Ballantyne indicated an awareness of the Collective Grievance. She accepted that the relationship between the claimant and Ms Gillespie was strained and that issues had arisen from their involvement at meeting on 21 November 2023. In these circumstances it appeared entirely appropriate to consider how best to progress the Stage 1 Succoth Grievance, which concerned legitimate issues raised by members and did not relate to the interpersonal difficulties between the claimant and Ms Gillespie. The outcome of such a discussion could have been that neither, one, or both would continue to be involved. A reasonable worker in all the circumstances would in my view appreciate that management cannot dictate who acts as a union representative, nor can the union dictate management’s choices. A reasonable worker would also understand that discussions between management and the union may properly take place from time to time regarding the suitability of individuals representing management and members, in order to ensure that matters proceed productively, timeously and appropriately.[101]In any event, I was satisfied that when Mr Beswick spoke with Ms Ballantyne he did not act with any prohibited purpose. He was not attempting to remove the claimant from the Stage 1 Succoth Grievance. He was seeking, against the background of being unsure how far Ms Ballantyne was aware of the potential challenges, to clarify and work with her to identify a constructive way forward. On being told that the claimant was the staff representative that was the end of the matter.[102]Accordingly, I rejected the claimant’s case on this alleged detriment. The November 2024 Letter[103]The alleged detriment was said to arise from the November 2024 Letter sent to Unison by Ms Gillespie, Ms Torrens and Mr Balluck. The claimant contended that the letter was openly critical of her performance, disparaging in tone, and suggested that she was unsuitable to be involved in the Succoth Grievance.[104]I did not accept the claimant’s characterisation of the November 2024 Letter. In my view, it required to be considered in its proper context. The November 2024 Letter was not written in isolation but in response to Unison’s Letter, which was addressed solely to Ms Gillespie, purported to provide the outcome of “your complaint”, and advised of a right of review. Despite the complaint being described in the Unison Letter as a collective grievance, Unison did not respond to Ms Torrens or Mr Balluck, and no explanation was given for that omission or clarification about what, if any, consideration had been given to their complaints.[105]Further, Unison had not contacted any of them to acknowledge receipt of the Collective Grievance, to advise that an investigation was being conducted, to seek clarification of the matters raised, or to explain the investigation process and the stage of the policy at which it was being considered. It appeared that Mr Matthews had unilaterally determined that the Collective Grievance would be dealt with at Stage 2 of Unison’s procedure and despite their ongoing working relationship had declined Mr Beswick’s approach of having a supportive discussion between the claimant and Ms Gillespie.[106]The Unison’s Letter provided a right of review. As it was addressed only to Ms Gillespie, it was understandable that she consulted with Ms Torrens and Mr Balluck. She exercised the right of review with their approval and sent the November 2024 Letter to the contact and address notified in the Unison Letter.[107]The November 2024 Letter raised concerns about the process adopted and, in particular, how the conclusions had been reached about the meeting in November 2023. It clarified that the complaint was about respect and dignity at work and was not concerned with clinical governance, partnership working, trade union working, or any managerial failure in those respects. It did not suggest that the claimant was unsuitable to be involved in the Succoth Grievance. Given the lack of transparency and the issues said not to have been addressed, those concerns were reasonable. It was understandable that Ms Gillespie sought a review.[108]I then considered whether the sending of the November 2024 Letter amounted to a detriment to the claimant. Ms Gillespie was exercising a right expressly available under Unison’s procedure. In the circumstances I did not consider that a reasonable worker would regard the exercise of such a right as causing a detriment.[109]A reasonable worker would appreciate that complaints and grievance procedures provide rights, including the right of appeal or review, and those involved are entitled to exercise rights available to them under, in accordance with the worker’s trade union processes. Viewed in that way, the sending of the November 2024 Letter did not constitute a detriment.[110]Accordingly, I rejected the claimant’s case on this alleged detriment. Time bar[111]Having concluded that the respondent’s acts on 5 November 2024 and 15 November 2024 did not amount to detriments, those allegations had no merit and could not operate to extend time. Nor could they be said to form part of a continuing series of similar acts.[112]The remaining alleged detriments were all presented out of time. The claimant accepted that it would have been reasonably practicable for her to present the claim within the relevant time limit and that there was no reason why she did not do so.[113]I therefore concluded that the remaining alleged detriments were time‑barred and they were accordingly dismissed.