Ms S Lindores-Williams v Fertility Network UK: 8000734/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000734/2024

Venue Glasgow

Hearing 3, 4 and 6 February 2025

Between

Ms S Lindores-WilliamsClaimant

Fertility Network UKRespondent

Before

Employment Judge M Whitcombe

Mr S Hoyle for respondent

(Consultant) for respondent

Date 31 March 2025

JUDGMENT

The judgment of the Tribunal is as follows.(1) The complaint that the respondent subjected the claimant to numerous detriments in contravention of section 47B(1) of the Employment Rights Act 1996 fails and is dismissed.

(2) The claimant was not constructively dismissed, so the complaint of unfair dismissal fails and is dismissed.

(3) The claimant had no express or implied contractual right to paid overtime, so the claim for 18 hours’ unpaid overtime as a deduction from wages or breach of contract fails and is dismissed.

REASONS

[1]This is my reserved judgment and reasons following a hearing in which the evidence and submissions were completed within the 3 days listed above. A personal issue meant that I was unexpectedly unavailable to sit on 5 February 2025 and I apologise once again to the parties for that. With the agreement of the parties, that lost time was largely made up by continuing with the hearing until about 1745 on some days. I apologise for the time it has taken to produce this reserved judgment. It has been delayed by the pressure of other work and also by some other matters outside my control.

[2]The claimant was formerly employed by the respondent from 27 May 2019 until 4 April 2024, latterly as its Scotland Branch Coordinator. The respondent is a private company limited by guarantee and a registered charity which provides advice and support to those affected by fertility challenges.

Issues

[3]The issues were discussed, clarified and recorded by EJ McManus at a preliminary hearing for case management on 27 January 2025. Her list must be read with the case management order of the same date for full details. The issues also evolved during this hearing.

[4]The following summary should be sufficient to guide the structure of these reasons. I have added my own numbering in bold to the disclosures that remained part of the claimant’s case by the end of the hearing. Jurisdictional time limit issues

[5]The respondent argued that the claim for unlawful deductions from wages had been presented outside the statutory time limit. However, the same claim could alternatively be presented as one for breach of contract, and no jurisdictional time limit problem arose if it were put in that way. I understood Mr Hoyle to accept that, and this argument was not a prominent feature of the case. Deductions from wages / breach of contract

[6]A claim for deductions from wages, or alternatively for breach of contract. The claimant alleges that she was entitled to be paid for 18 hours of overtime worked and claimed on 13 January 2023 but unpaid on 23 February 2024, calculated as 18 x £14.66 totalling £263.88. Public interest disclosure issues

[7]Whether the following were protected disclosures:a. Three emails from the claimant to the respondent’s board of trustees on 20 February 2024 to the following alleged effect. i. Disclosure 1. Grant funding was being mismanaged to the extent that financial fraud was being committed by senior managers as spending was not in accordance with the terms and conditions of the grant. However, by the end of the hearing, the claimant had reformulated this allegation such that the relevant legal obligation for the purposes of section 43B(1)(b) of the Employment Rights Act 1996 was simply a breach of the terms of the grant rather than fraud. The respondent was not prejudiced by that change in the argument. ii. Disclosure 2. There had been a breach of a legal obligation by the respondent making significant changes to another employee’s contractual terms without consulting the employee or highlighting the significant changes to the proposed new employment contract. iii. Disclosure 3. There had been a breach of the respondent’s legal obligations regarding the storage of employee data, in that information about employees’ travel expenses was not stored privately on the respondent’s shared drive.

b. Separate emails from the claimant to the respondent’s Board of Trustees on 23 February 2024 to the following alleged effect. i. Disclosure 4. Giving further financial information in respect of an alleged underspend of the 2022-2023 grant budget. ii. Initially, the claimant also relied on an alleged disclosure that there had been a breach of the respondent’s legal obligations in respect of GDPR (Staff and Charity Confidentiality) regarding financial and HR matters. However, the claimant abandoned reliance on that alleged disclosure on 4 February 2025, the second day of the hearing. Detrimental treatment

[8]Whether the respondent subjected the claimant to one or more of the 13 alleged detriments listed at pages 15-16 of EJ McManus’ case management order dated 27 January 2025 on the ground the claimant had made a protected disclosure, in breach of section 47B of the Employment Rights Act 1996. Automatically unfair reason for constructive dismissal

[9]If the claimant was constructively dismissed (see below) whether the reason or principal reason for that constructive dismissal was that the claimant had made a protected disclosure, in which case it would be contrary to section 103A of the Employment Rights Act 1996 and automatically unfair. Constructive dismissal

[10]The claimant alleges a breach of the implied and fundamental term of trust and confidence in the following respects.a. The actions of senior managers because the claimant had made protected disclosures (in other words, the detriment and dismissal points listed above).

b. The threat of disciplinary action commenced on 19 January 2024 in relation to the claimant’s second job (the reference in some other documents to 19 January 2023 is an error).

c. The management of grants from the Scottish Government from December 2023 onwards.

d. A “final straw” in the week commencing 19 February 2024 of: i. the announcement on 20 February 2024 that the new CEO, Becky Kearns, had resigned from her role after 2 weeks. ii. The failure to uphold the claimant’s grievance. I interpret that as meaning “failure to uphold in full”, because the grievance was upheld in part. iii. Not receiving the requested overtime payment in full on 23 February 2024. iv. The claimant’s worsening mental health due to work related stress. v. The respondent’s failure to respond to the claimant’s disclosures.

e. The respondent contends that the reason for the claimant’s resignation was simply the fact that she had found well paid alternative employment, rather than the matters alleged to be a breach of contract.

Evidence

[11]Unfortunately, the parties failed to agree a joint file of documentary evidence for the hearing. Instead, we worked from a 315 page file prepared by the claimant and a 386 page file prepared by the respondent. Surprisingly, there seemed to be relatively little overlap between them.

[12]I heard from the following witnesses in the following order:a. Sharon Martin, the respondent’s acting CEO, formerly the claimant’s line manager from about November 2023 and the respondent’s sole witness;

b. Sarah Lindores-Williams, the claimant;

c. Gwenda Burns, former CEO of the respondent from 2009 to May 2023, called by the claimant;

d. Kate Brian (by video), former Operations Manager and line manager of the claimant from April 2021 until March or April 2023, called by the claimant.

[13]Witness statements were not used and so evidence in chief was entirely oral. The witnesses gave their evidence on oath or affirmation and were crossexamined. At times it appeared that each side was using the hearing as a means of ventilating wider criticisms of the other. The parties were sometimes required to explain the relevance of evidence or lines of questioning by reference to the agreed issues.

[14]The hearing was timetabled in accordance with rule 45. Allocations of time were notified well in advance and the parties were periodically updated on the time remaining. Relative credibility of witnesses

[15]I thought that all the witnesses were generally doing their best to help the Tribunal and there was no reason to think that any of them were deliberately trying to mislead me. In general, the witnesses gave evidence which was at least broadly consistent with the contemporaneous documents. I was satisfied that they were telling the truth as they saw it.

[16]However, I did not always share the claimant’s honest perception of events or documents. The claimant struck me as a sensitive and emotional person with a strong sense that she had been unfairly treated. While I do not doubt her honesty, I do not think that her subjective perception of events was always accurate. She sometimes regarded written communications as hostile or aggressive when, in my assessment, they were entirely appropriate in their content and tone. The claimant clearly had, and still has, a deep distrust of the respondent’s management and trustees, but it was not always justified and it sometimes coloured her perception of events.

[17]On a couple of occasions during cross-examination I found the claimant’s answers slightly evasive, for example, saying “I don’t know” when it was suggested (uncontroversially) that no disciplinary hearing ever took place. She also deflected questions about increased earnings from a new job. It seemed that she sometimes sought to avoid straightforward answers if she perceived that the answers might harm her case. However, these were relatively minor matters overall and they did not cause me to doubt the claimant’s general credibility.

[18]I did not accept Gwenda Burns’ evidence that employees were entitled to insist on overtime, that there was an implied term to that effect, and that overtime was always paid. Her evidence was inconsistent with the documents expressing the respondent’s policy and she had been absent from work due to sickness from December 2022 onwards, so she had no first-hand knowledge of the operation of the policy after that. Further, she had herself approved the inconsistently worded TOIL policy. Given that the written TOIL policy made no mention of an exception for Scotland, I did not accept her evidence that exceptions were routinely made for Scotland. If that were true, then I would expect it to have been reflected in the written policy which she approved, or else in other contemporaneous documentation. I was not provided with any documentary evidence to corroborate the evidence that overtime was always paid when requested. In any event, Gwenda Burns accepted in cross-examination that there was no pattern of regular overtime payments. While her central propositions certainly supported the claimant’s case, the evidential basis for them was thin. I did not find her evidence persuasive in those circumstances. Factual findings

[19]Where facts were in dispute I made my findings on the balance of probabilities, in other words the “more likely than not” basis applicable to almost all civil litigation. When I decided that a fact was more likely to be true than untrue, then it was treated as being true for the purposes of this judgment. The converse also applied. Nothing had to be proved by either party “beyond reasonable doubt” and I do not have to be sure of a fact to rely on it. Overtime and time off in lieu

[20]The respondent’s general approach, with limited exceptions, was that staff who worked additional hours would not be paid overtime but would instead get equivalent time back as “time off in lieu” (“TOIL”).

[21]The respondent recognised that significant extra work and sometimes travel time were part of attendance of the annual “Fertility Show” in London, and during Fresher’s events in September and October each year. Additional hours worked by staff in connection with those events would normally be eligible for paid overtime, but otherwise TOIL was how the respondent normally compensated staff for additional hours worked.

[22]The “Time off in Lieu (TOIL) Policy” applied to all the respondent’s employees. It is neither possible nor necessary to set it out in full but it included the following passages. Introduction The nature of the support we as a charity provide means that our team members need to be flexible with their working hours; and occasionally, for specific events or meetings may need to work over their contracted hours. As a charitable organisation we have no budget to routinely pay employees overtime, so time off in lieu (TOIL) is given instead of overtime payments. If the situation arises where there is a regular need to work over contracted hours, the relevant Line Manager will assess the post and work with the employee to review workloads, priorities and also provide support, such as time management coaching. The objective of this will be to limit the occasions that the employee is required to work over their contracted hours or may necessitate either a temporary or permanent increase in hours; a decision on which will be reached in conjunction with the employee affected. Time off in Lieu Scheme All overtime must be approved in advance and signed off with your line manager. Any requests to accrue TOIL must be agreed by the line manager. It will normally be expected that when you request permission to accrue TOIL you will have a plan for when this time will be taken back. If TOIL is agreed in advance for additional hours worked this should not exceed more than 10 hours per calendar month. This limit can only be exceeded in exceptional circumstances e.g. Fertility Show, Staff away weekend etc. and by prior agreement of your Line Manager If you work agreed additional hours, then TOIL needs to be taken within three months of the day on which it was accrued. TOIL not taken within these timescales will be lost and you will not be entitled to any payment in lieu. In order to take any Time Off In Lieu that you have accrued you should obtain authorisation from your line manager in advance by completing and submitting a toil record. Requests to take TOIL will normally be granted unless there are specific reasons for refusing. These might include lack of cover, approaching deadlines, requirements to attend meetings etc.

Introduction

[23]It was therefore a workplace rule that all work in excess of contracted hours must be approved in advance, and that any requests to accrue TOIL must be agreed by the line manager. The authorisation of the line manager should be obtained in advance by completing and submitting a “toil record”. Save for exceptional circumstances, TOIL accrued should not exceed 10 hours per month and when permission was requested there should be a plan for when compensatory TOIL should be taken. TOIL had to be taken within 3 months of accrual or it would be lost without any payment in lieu. I accept Sharon Martin’s evidence that this was also how the policy was operated in practice. Her evidence on that point was clear, cogent, and consistent with the documents.

[24]In her evidence in chief, the claimant said that she accepted that she had no contractual right to paid overtime. Leadership conflicts July 2022 to May 2023

[25]From July 2022 until the end of May 2023 when the Chair of Trustees left the organisation, there was a very poor relationship between the CEO and the Chair. Sharon Martin described that period as “horrendous” and “chaos”, and I accept the accuracy of her description. There was little effective leadership because of arguments between the CEO and the Chair, and there was little cooperation between the CEO, the Chair and the senior management team. At one point staff signed a vote of no confidence in the hope that it would make the Chair step down, but she did not. Some members of staff made complaints to external agencies, such as the Charity Commission, the Serious Fraud Office and the Human Fertilisation and Embryology Authority. Contracted hours

[26]From 1 November 2021 the claimant was contracted to work 28 hours a week spread over 5 days. She worked those hours Monday to Friday, working around 5 hours and 30 minutes each day starting at around 0845. Request to increase contracted hours

[27]On 26 June 2023 the claimant emailed Catherine Hill and Sharon Martin expressing an interest in full-time working if funding permitted. The claimant received no response to that email and her contracted hours were unchanged. Request for payment for additional hours

[28]On 6 October 2023 the claimant emailed Sharon Martin requesting payment for 35 additional hours worked when preparing and writing two annual reports and attending four Fresher events. Further request to increase contracted hours

[29]The claimant reiterated the request to increase her contracted hours in an email to Sarah Fowler, then interim CEO, on 31 January 2024. She linked the request to what she perceived to be an underspent budget for the Scotland Branch Coordinator role. The claimant also asserted that she had been routinely working over her contracted hours, that the Scotland Branch Coordinator position was clearly a full-time role and that the Scottish Government had provided the funding for it to be a full-time role. The claimant expressed her worries about what she believed to be an unspent grant and ongoing funding concerns for Scotland in general.

[30]The Scottish Government grant was not simply for the claimant’s salary costs. The £35,888.27 identified as “Scottish Coordinator Salary” in the grant was used, and intended to be used, not only to fund the claimant’s part-time salary of £20,584.56, but also expenses and elements of other salaries. For example, the aim was to fund 30% of the CEO’s salary from Scottish grants such as this one. Three roles were wholly funded by the grant (the claimant’s role of Scotland Branch Coordinator and two Education and Development Officers), in addition to 30% of the CEO’s salary, 10% of the media role, 30% of the volunteer coordinator’s salary, 10% of the social media role salary and 10% of the operations manager salary. The logic was that the delivery of services in Scotland required multiple people. The Scottish Government was informed of the breakdown of posts funded from the grant and it had no objection. Discussions between the Scottish Government DHSC and the respondent

[31]On 15 June 2023 Sharon Martin wrote to Anya Sizer, who oversaw the DHSC grant. The DHSC had contacted the respondent to ask for a meeting after the respondent had supplied some financial information. The DHSC felt that the vast majority of the evidence in the report was not relevant to the grant and queried whether the respondent was entitled to the full grant for that period. Sharon Martin analysed the position and concluded that about £15,000 of the £113,000 total should not have been claimed, essentially because the terms of the grant were for work with small employers, but the respondent had been working to some extent with large employers. The DHSC was content with that and invited the respondent to underclaim by £15,000 on the grant for the next quarter. It did not require a repayment. Sharon Martin was concerned about reputational damage and that the respondent’s staff responsible for the grant had not really understood or interrogated its terms, but she was not concerned about fraud or dishonesty. Regulatory compliance

[32]On 21 July 2023 a solicitor instructed by the respondent’s trustees received correspondence from the Charity Commission for England and Wales indicating that it was closing its regulatory compliance case. The Commission was satisfied that the trustees had provided adequate assurances and had appropriately investigated concerns raised by staff.

[33]Shortly after that the respondent’s Chair of Trustees Jo Binding wrote to all staff to inform them that the complaints made by some staff to the Charity Commission had been unfounded and that it was time to move on. Meeting with representatives of the Scottish Government

[34]On 18 August 2023 representatives of the Scottish Government met with representatives of the respondent, including Sharon Martin and the claimant. It was a difficult meeting. The Scottish Government representatives were concerned about a vote of no confidence in the respondent’s Chair, the loss of a significant amount of the respondent’s senior leadership team, governance issues and the potential impact on the running of the charity. It was made clear to the respondent that budgets would shrink and that there were concerns about the sustainability of the charity, its governance and its leadership. Request for paid overtime – 6 October 2023

[35]On 6 October 2023 the claimant sought payment for an additional 35 hours worked while preparing and writing two annual reports and attending four Fresher events. The claimant asked that it should be added to the October payroll.

[36]The respondent paid those hours. The logic was that it was custom and practice that attendance at Freshers events resulted in paid overtime, and the claimant had rolled up the time spent writing reports into the same claim. Secondary employment

[37]In early January 2024 Sharon Martin had recently joined TikTok. She was using the application with her daughter when she noticed that a lot of posts about “Go and Glow Makeup” were appearing. She did not know why. Sharon Martin’s daughter did not recognise those posts, investigated and said to her mother “is that not the lady you work beside?” The lady in question was the claimant. Sharon Martin observed that lots of customers had posted thanking the claimant for an excellent service, and that the December 2023 open times had included Thursdays and Fridays, which were two of the days on which the claimant worked for the respondent. The times of business shown were 1000 to 2030 on Thursdays and 0800 to 2030 on Fridays, a substantial overlap with the respondent’s business hours. Sharon Martin was concerned because she had already noticed that the claimant had taken a lot of calls about makeup during an event in Edinburgh which the claimant had attended on behalf of the respondent.

[38]The claimant arranged to work for the respondent on all the Fridays in December 2023. However, on 8 December 2023 Sharon Martin had had trouble contacting the claimant, who subsequently explained that she had not heard the phone ringing.

[39]In an email dated 16 January 2024 the claimant explained that she had received permission to have a second job from a former CEO on 30 September 2020. She copied the relevant email and re-submitted a request for permission in accordance with Sharon Martin’s request, given that the claimant’s position and hours had changed with effect from 1 November 2021. When permission was originally granted on 30 September 2020 the claimant was proposing to work in her makeup and lashes business on two evenings a week and all day on Saturdays, so there was no potential clash with her working hours with the respondent, which were then 17.5 hours per week.

[40]In her new application for permission the claimant asserted that there was no conflict of interest with the respondent’s business and that although she advertised 31 hours of availability for her makeup business that was just to give potential customers a choice of availability. She asserted that makeup appointments would always be fitted around her diary of commitments for the respondent. Request for paid overtime – 13 January 2024

[41]On 13 January 2024 the claimant emailed Sharon Martin to request 25 extra paid hours in the January payroll reflecting extra hours worked in December 2023 preparing for the Scottish Government Meeting, a last minute presentation request from an external organisation and arranging a Fertility Options event in Scotland for March 2024. The claimant asked for it to be paid from Grant 2 (Scotland Branch Coordinator). Sharon Martin was concerned that so many extra hours had been accrued in December which was traditionally a quiet time for the organisation.

[42]In her evidence in chief the claimant said that she had reached an oral agreement with Sharon Martin in December 2023 that those hours would be paid as overtime. However, the suggestion had not been put to Sharon Martin in cross-examination. Sharon Martin gave instructions that she firmly denied it. The claimant accepted that there was no written evidence corroborating the existence of the alleged oral agreement. I also note that she did not refer to any prior oral agreement for payment in her email of 13 January 2024. If there had been any such agreement then I think it is likely that she would have done so. For all those reasons, on the balance of probabilities I reject the claimant’s evidence that there was an oral agreement for payment. Response

[43]On 15 January 2024 Sharon Martin approved 7 hours for work at a conference on a Saturday which she regarded as an exceptional event but felt that the other work done by the claimant in December was part of her role and could not understand why the claimant had “accrued TOIL” for that. Sharon Martin said that the claimant should have informed her prior to doing the work that she did not have the capacity to do it so that priorities could have been reviewed. The claimant was asked to provide a note of her working hours from 8 to 12 January 2024, because Sharon Martin’s perception was that a late start on 8 January 2024 had offset some of the additional hours claimed.

[44]Additionally, Sharon Martin raised the issue of the claimant’s second job and a concern that social media adverts had suggested that the claimant was available for beauty treatments all day during Thursdays and Fridays in December 2023. The claimant was asked for a breakdown of the hours worked for the respondent during December 2023 and a copy of the documents seeking and granting permission for a second job.

[45]In a reply dated 15 January 2024 the claimant agreed to provide a breakdown of hours worked for the respondent in December 2023. However, none was ever provided. She did provide a copy of permission to work in a second job, although it dated from a time when the claimant was contracted to work 17.5 hours a week for the respondent and the second job was in a salon. Since then, then claimant had begun to work from home. Sharon Martin’s response was that extra hours like TOIL “is not something that is authorised retrospectively” and that she had “no record or recollection of you stating you were struggling in December to manage your workload within your 28 hours.” She asked for a “full breakdown diary” of emails sent and received, calls made and received and meetings attended on each day of the weeks for which the claimant wanted to be paid extra hours.

[46]By 22 January 2024 Sharon Martin’s position was that she would consider a one-off retrospective approval of TOIL time if the claimant could provide evidence that her workload during the weeks for which extra hours had been claimed required the claimant to work beyond her contracted 28 hours. Sharon Martin did not receive the requested evidence of that sort from the claimant. The claimant accepted in cross-examination that her manager’s position was essentially, “you prove it and I’ll authorise it”, but that the claimant failed to provide any supporting evidence. Disciplinary process

[47]In a letter dated 18 January 2024 Sharon Martin invited the claimant to a disciplinary hearing on 24 January 2024. The purpose was to consider the allegation that the claimant had, “advertised your make-up business stating that you provide this service during your contractual working hours with Fertility Network UK.” The letter informed the claimant that the potential outcome of the hearing was a final written warning. There was no reference to any possibility of dismissal and it was not suggested that there was any possibility of a finding of gross misconduct. A copy of the claimant’s advertisement and the respondent’s additional employment clause were enclosed as appendices.

[48]Before sending the above letter Sharon Martin had taken advice from external HR consultants. She had asked them what she should do about the evidence in her possession of possible interference between secondary work and the time committed to working for the respondent. The advice was that the best way to deal with the issue would be to hold a disciplinary hearing at which the allegation would be put to the claimant and there would be an opportunity to talk through the relevant matters.

[49]Having received that advice, Sharon Martin decided that the issue was of sufficient seriousness that it should be dealt with in a formal manner. She was not concerned that the nature of the claimant’s makeup business conflicted with her role with the respondent, rather her concern was that the claimant was advertising availability for secondary activities during her working hours for the respondent. She felt obliged to follow a process, hated doing so, but felt that she must.

[50]The respondent’s disciplinary and dismissal procedure had a section dealing with disciplinary investigations. It said, “Depending on the circumstances of the case, you may be invited to attend an investigatory inter-view” [sic]. An investigatory interview was therefore permissible, but not compulsory. Consistently, the procedure concluded, “We reserve the right to dispense with an investigatory interview and to proceed directly to a formal disciplinary hearing.”

[51]Clause 11 of the claimant’s terms and conditions dealt with “additional employment”. To save space, I will not set it out in full, but the key points were as follows.a. The claimant was not permitted to undertake any other employment without the respondent’s express written permission.

b. Permission would not be granted for any interest in a business or undertaking or engagement in activities that might interfere with the performance of the claimant’s duties for the respondent or create a conflict of interest with the respondent.

c. If the claimant wished to be engaged in any other employment or to have any outside business interest she must first seek the written permission of the Chief Executive. Grievance

[52]On 21 January 2024 the claimant raised a grievance with the Chair of Trustees. It concerned the disciplinary hearing and alleged that Sharon Martin’s decision to commence formal disciplinary proceedings was wrong and unfair. Shortly before the scheduled disciplinary hearing on 24 January 2024 Sharon Martin received a call from Sarah Fowler asking her to postpone the disciplinary hearing because the claimant had lodged a grievance. On the balance of probabilities, Sharon Martin learned of the claimant’s grievance on 22 January 2024. That is the date of the claimant’s email to Sharon Martin saying that she would not be attending the disciplinary hearing on 24 January 2024 due to insufficient time to prepare, lack of representation and the fact that she had raised a formal grievance about the disciplinary action, requesting that the disciplinary action should be suspended.

[53]Sharon Martin had not been aware of the claimant’s grievance until the claimant told her that she had lodged one. The claimant’s grievance was never shown or sent to the Sharon Martin and she did not become aware of the content. Request for paid overtime, or TOIL, for Endo (UK) event

[54]On 29 and 30 January 2024 the claimant asked if she could be paid for attendance at an Endo (UK) event on 10 February 2024 or, if not, to accrue TOIL. The claimant indicated that her firm preference would be to be paid, because she had a very full workload. The claimant acknowledged that overtime was not routinely paid by the respondent and accepted in crossexamination that she had no contractual right to be paid but pointed to the fact that the Scottish Government funding for the Scotland Branch Coordinator role had an additional budget of £1,000 for overtime, of which only £593.73 had been spent.

[55]Sharon Martin replied the same day saying that attendance would have to be reflected in TOIL rather than paid as overtime. She also asked the claimant to review her workload to see if there was anything that she could delegate in the coming weeks to allow her to take the time back during those weeks. Sarah Fowler (CEO) agreed. Scottish government request for information

[56]On 6 February 2024 Sharon Martin contacted Anthea Taylor of the Scottish Government Children and Families Directorate to ask whether it was the right time to apply for continuation of grant funding for the Scotland Coordinator post. Anthea Taylor replied the same day referring to information originally requested nearly 2 months earlier at a meeting on 12 December 2023. She requested a full breakdown of how the grant funding for the previous year had been spent in relation to the Scotland Branch Coordinator post, the Education Project and the Volunteer Project by 14 February 2024. The same communication indicated that bids for future funding would not be considered without the above information, and that funding to the respondent would be reduced in the future regardless.

[57]The claimant was copied into some but not all of the email traffic around this time. She was worried about funding and the future of her post. She was also worried for beneficiaries and other staff.

[58]On 15 February 2024 Sarah Fowler (interim CEO) contacted Anthea Taylor to say that she was responsible for collating the information with the respondent’s finance department but could not do it while the accountant was absent. She acknowledged the delay and undertook to compile and send a report as soon as she received the relevant information. The claimant was copied into that email. She could not understand why the respondent did not have the relevant information to hand. Expense claim data and data security

[59]In mid-February 2024 the respondent’s system for expense claims by staff required them to access a shared folder. The claimant deliberately clicked on the details of a colleague. She was able to see the expenses claimed, and her view was that those expenses were part of confidential HR data which should be protected and not shared. The claimant described this as a “breach of GDPR”. Sarah Baird’s contract

[60]Sarah Baird held the post of Education Development Officer and reported to the claimant. The file of documentary evidence contained two written statements of terms and conditions.a. The first applied to a contract which started on 6 December 2021 and was expected to terminate on 30 June 2023. It was signed by Sarah Baird on 21 November 2021.

b. The second was unsigned by Sarah Baird and reflected an offer of a new fixed term contract. It recorded a start date of 3 July 2023 but also acknowledged that continuous employment began on 6 December 2021. Some of the terms different from those in the previous contract. It was signed by an interim HR Consultant on behalf of the respondent on 26 January 2024. Disclosure 1 to Trustees by email on 20 February 2024, 4:01pm

[61]The claimant emailed the respondent’s trustees attaching a 3 page letter of the same date setting out “serious concerns regarding our grant funding in Scotland”, adding “we are now in imminent danger of no funding being in place in Scotland from 1 April 2024.” The claimant also attached the terms of the grant. The claimant relied on the following parts of the letter for the purposes of this claim: The terms of the grant are clear. I am now concerned that:• Fertility Network will have to pay back any unspent SBC grant funds for the 2023/24 period (around £18,000?);

• The unspent funds are not a true reflection of the work undertaken by the SBC in Scotland;

• Not spending the grant in full, a grant that FNUK requested, will have a detrimental impact on any future or current applications for funding from TSG;

• In Scotland we currently have no other funding applications in place for the new financial year. This puts our work in Scotland at risk, as well as a risk to current employees and of course our beneficiaries. [and further on] Our position for the funding of our work in Scotland is now seriously at risk. I am unsure if The Trustees are aware of any irregularities or that the current senior management team have been unable to submit the required financial information of our restricted grant spend in Scotland.

[62]The grant was clearly contractual and the terms were set out in a document headed “Offer of grant for Fertility Network Scotland”. They were described as “terms and conditions” and provided that the Grant was made to enable the Grantee to carry out the Project/Programme (2.1), that the Grant shall be used only for the purposes of the Project/Programme and for no other purpose whatsoever (2.2), that the Grantee’s CEO must provide a statement of compliance (3.2) and that if the amount of the grant exceeded the expenses reasonably and properly incurred by the Grantee in connection with the Project/Programme the Grantee could be required to repay the excess within 14 days of a written demand.

[63]The claimant’s position is that the respondent was in breach of the contractual terms governing the grant of funds, which included an obligation to provide receipts on request. In support of that, she relied on the following terms of the grant, set out in a letter dated 6 February 2023: 4.1 The Grantee shall keep the Scottish Ministers fully informed of the progress of the Project/Programme in the form of annual reports. Details shall include actual expenditure to date compared with profiled expenditure and any change to estimated expenditure for the financial year and/or the Project as a whole, the reasons for any such changes and progress in achieving objectives/outcomes. 4.4 The Grantee shall also provide any other information that the Scottish Ministers may reasonably require to satisfy themselves that the Project/Programme is consistent with the Agreement. The Grantee shall provide Scottish Ministers with prompt access to any information they reasonably require to ensure compliance with these Conditions. Disclosure 2 to Trustees by email on 20 February 2024, 5:54pm

[64]In a later email on the same day the claimant contacted Trustees again saying, “I am contacting you all due to serious concerns regarding changes to employee contracts without following the required processes and a breach of legal obligation has occurred.” She asserted that Sarah Baird had not been consulted about changes to her contract of employment, including an altered working pattern and an obligation to carry out unpaid extra work to meet the needs of the business. The claimant attached Sarah Baird’s two contracts, with changes highlighted. Disclosure 3 to Trustees by email on 20 February 2024, 6:20pm

[65]In this email the claimant drew the attention of trustees to “serious concerns regarding a breach of GDPR by my employer in relation to Employee Data”, describing the arrangements for submitting expense claims via a shared drive and attaching some screenshots. The claimant’s essential point was that, “all staff can view each other’s expenses.” Grievance outcome

[66]The outcome of the claimant’s grievance was expressed in a letter dated 22 February 2024. I will limit my summary to the outcome of the first two points of the grievance because that is what the claimant relied on as a detriment. The decision maker was Sarah Fowler, then described as “Interim Executive Director”.a. The complaint that Sharon Martin had raised the disciplinary procedure wrongly and unfairly was rejected. The finding was that the process was duly followed.

b. Procedural criticisms based on the respondent’s disciplinary procedure and the ACAS Code of Practice were also rejected on the basis that there was no requirement to make employees aware of concerns about conduct before inviting them to a meeting. In any event, there had been informal contact expressing concerns about the second job on 13 January 2024, whereas the invitation to the disciplinary hearing was dated 18 January 2024. Disclosure 4 to Trustees by email on 23 February 2024; 9:57am

[67]This email was intended to be “further evidence in respect of mismanagement of The Scottish Government Grants.” The claimant attached various emails and a spreadsheet showing grant balances. Essentially, it supplemented “Disclosure 1”, considered above. Resignation

[68]The claimant gave one month’s notice of her resignation in an email of 4 March 2024. That notice expired on 4 April 2024 and her employment came to an end on that date. The claimant was absent through sickness during the notice period.

[69]The claimant gave the following reason for her resignation, “…the unacceptable way I am being treated as an employee of Fertility Network UK and the impact that this is having on my health…”. The claimant also asked the respondent to “arrange a courier to uplift the substantial number of items that I have been required to store, belonging to Fertility Network UK”. The claimant required removal “as soon as possible” and specifically referred to her laptop. The claimant reserved the right to pursue her grievance appeal.

[70]In further particulars of her claim, amplified in oral evidence, the claimant had described the “last straw” causing her to resign in the following terms.a. The announcement on 20 February 2024 that the new CEO, Becky Kearns, had resigned from the role after two weeks. The claimant regarded that as a breach of trust.

b. The grievance outcome on 22 February 2024, which caused the claimant to think that there was no hope or future for her with the respondent.

c. Receiving only a part-payment of the requested overtime on 23 February 2024.

d. Worsening mental health leading to sickness absence from 26 February 2024. That is not an allegation of inappropriate treatment by the respondent, but I treat it as evidence of the alleged consequences of the respondent’s actions. Communication of the claimant’s resignation

[71]On 5 March 2024 Dr Catherine Hill, Head of Policy and Public Affairs and Interim CEO of the respondent, emailed all staff to advise them that the claimant had given notice of her resignation. The email was headed “staffing update”. It was phrased in entirely polite and appropriate terms and wished the claimant well in her next endeavour. The claimant was not included in the email distribution list. The claimant argued that this was a detriment to which she was subjected because she had made protected disclosures. I find that the likely reason for the claimant’s omission from the email circulation list was a combination of not wanting to upset her, that she was off sick, and also that the claimant was well aware of her own resignation and did not require to be notified of it. Access to the IT systems

[72]On 6 March 2024 the claimant’s access her work laptop and the respondent’s shared drive was suspended. The reason for that action was that the claimant had referred in her resignation letter to the impact of work on her health. She was signed off sick, so should not have been doing any work for the respondent. The respondent sought to protect the claimant’s health from any additional harm. The claimant had also requested that the respondent collect the laptop from her, which gave the impression that she no longer intended to use it. To some extent, this is reflected in parts of a subsequent email of 20 March 2024 in which Sharon Martin said, “Given the circumstances of your notice period, there are legitimate concerns about you accessing Fertility Network’s systems, and it is commonplace to restrict employee access in order to protect our confidential information.”

[73]As for the latter point, the claimant explained in her evidence in chief that she had been gathering evidence to support her concerns about funding and the handling of grants. She accepted that it was potentially gross misconduct for her to do so, because it involved work emails and a work laptop. When explored further in cross-examination, the claimant accepted that she had deliberately and wrongly taken confidential information in breach of paragraph 19 of her terms and conditions of employment and that if her employment had continued she might have faced disciplinary proceedings for gross misconduct.

[74]The claimant believes that her access was taken away because she had made a protected disclosure.

[75]On 20 March 2024 Sharon Martin asked the claimant to provide admin rights, passwords and usernames for the respondent’s social media profile. The claimant subsequently described the email as having “an aggressive and hostile tone”, but I do not read it that way. Grievance appeal

[76]The claimant appealed the grievance outcome by a letter dated 8 March 2024. The appeal was heard by Jo Binding, Chair of Trustees. It confirmed the grievance outcome. Confidential information

[77]On 5 April 2024 Sharon Martin wrote to the claimant about confidential information. It had come to the respondent’s attention that multiple confidential documents had been sent by the claimant to her personal email account. The claimant was asked to confirm in writing that she had returned all documents belonging to the respondent and deleted all the emails that were in her possession. The claimant described the email as “quite threatening” but, having read it, I do not agree that it is. The control of confidential information is a serious issue of legitimate concern to the respondent, and while the email was formal and businesslike in its tone, that was appropriate. Data Subject Access Request

[78]On 15 July 2024 the claimant wrote to Peter Holmes, an Employment Law Consultant, to make a very broad request for documents. Although the request was directed to Peter Holmes, it eventually came to Sharon Martin’s attention. She found it to be a “massive” task, involving a lot of different people. The respondent is a small charity and Sharon Martin has had little time to read through a very significant volume of documentation. In crossexamination she said to the claimant, “at some time in the future you will get all this, but it is massive, the scope of what you are after.” Sharon Martin explained, and I accept, that compliance with the claimant’s request entails reading “thousands and thousands of emails” amounting to a “massive amount of data”. Submissions

[79]The parties made their submissions orally. The claimant was given additional time both to prepare and to complete her submissions. I will deal with the essential points made by each side, so far as relevant, below. The claimant’s submissions sometimes strayed into wide-ranging and emotional criticisms of the respondent which had no real connection to the agreed issues. When that happened I encouraged her to return to the issues I had to decide. Reasoning and conclusions (1) Whether the disclosures were protected

[80]The claimant relied on section 43B(1)(b) of the Employment Rights Act 1996. 43B Disclosures qualifying for protection. (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— … (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

[81]It is uncontroversial that:a. the claimant made the disclosure to her employer, in accordance with section 43C of the same Act;

b. section 47B(1) of the same Act gives a worker the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker made a protected disclosure;

c. section 103A of the same Act provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[82]For the purposes of section 43B, the worker must disclose information. That means that she must disclose facts, although the search for a rigid distinction between “information” and “mere allegations” is probably unhelpful because many statements could be characterised in either way. A statement which is general and devoid of specific factual detail cannot be said to be a disclosure of information tending to show a relevant failure (Kilraine v London Borough of Wandsworth

[2018] ICR 1850

, CA, explaining Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] ICR 325

, EAT). The communication of an expression of opinion might also satisfy the statutory definition (McDermott v Sellafield Ltd

[2023] EAT 60

[83]The worker must reasonably believe that the information “tends to show” that one of the relevant failures has occurred, is occurring or is likely to occur. It must therefore have sufficient factual content to do that. There is both a subjective and an objective element. If the worker subjectively believes that the information disclosed tends to show one of the matters listed in section 43B(1), and the statement has sufficient factual content and specificity to be capable of tending to show that matter, it is likely that the worker’s belief will be reasonable (Chesterton Global Ltd v Nurmohamed

[2018] ICR 731

, CA). The context in which the disclosure is made is also potentially important.

[84]Two or more communications taken together can amount to a protected disclosure even if they failed to do so individually (Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

, EAT).

[85]I find that Disclosure 1 qualified for protection in the way suggested by the claimant’s reformulated submission (breach of the terms of the grant) but not the way in which the point was originally argued (fraud).

[86]The second page of the letter referred to the terms of the grant, and expressed concerns that the allocation of 30% of it to the CEO’s salary was a breach of those terms, that the respondent would have to repay about £18,000 of unspent funds, that the underspend was not a true reflection of the work undertaken in Scotland, and that the underspend would have a detrimental effect on future applications for funding. Additionally, on the third page, the claimant informed trustees that the senior management team had been unable to submit the required financial information relating to the grant.

[87]When all of that is read together with terms 4.1 and 4.4 of the grant it amounts to information tending to show a reasonable belief in the breach of a legal obligation. The relevant legal obligations were the contractual obligations derived from the terms of the grant and there was sufficient factual information in the disclosure for a reasonable belief that it tended to show that (the objective aspect). I also find that the claimant’s evidence was honest and true when she said that (subjectively) she did have a belief in breach of a legal obligation.

[88]In contrast, I find that there was no basis for the claimant to have a reasonable belief in “fraud” as she originally put it, which entails a deliberate and dishonest attempt to gain an advantage through deception. If the claimant held that belief then it was not reasonable. There was insufficient evidence to amount in a reasonable belief in fraud.

[89]I also find that the claimant had a reasonable belief that Disclosure 1 was in the public interest. It concerned a grant of public funds, for which the respondent was accountable to the Scottish Government, a public body. There is a clear public interest in adherence to the terms of the grant in those circumstances. Further, the respondent is and was a registered charity, enjoying a special legal status in recognition of its charitable objects and the delivery of public goods. That also demonstrates the public interest in its funding, and adherence to the terms of any grant. That establishes the objective aspect of a reasonable belief that the disclosure was in the public interest, and I also find that the claimant honestly held that belief (the subjective aspect).

[90]On that basis “disclosure 1” qualified for protection and since it was made to the employer in accordance with section 43C it was a protected disclosure.

[91]I find that the other disclosures relied on either failed to qualify for protection or else add nothing of significance for the following reasons:a. Disclosure 2 did not disclose information which in the reasonable belief of the claimant tended to show breach of a legal obligation. i. The claimant had not realised that she was looking at two different fixed term contracts rather than the amendment or proposed amendment of a single contract. The earlier contract had expired and in some respects the offer of new terms was different, but that is not a breach of an existing contractual obligation. The claimant’s belief that there was a legal obligation to consult before offering those terms was not correct or reasonable. The respondent was offering Sarah Baird new terms which she was free to accept, reject, or seek to negotiate. There was no additional obligation on the respondent to consult as the disclosure suggested. ii. It was not reasonable for the claimant to view the situation as a breach of a legal obligation and so Disclosure 2 did not qualify for protection. iii. Further, there was no basis for a reasonable belief that the disclosure was in the public interest. It concerned the contractual terms of a single employee and there was no wider interest at stake.

b. As for Disclosure 3, the claimant was not able to explain the basis of her belief that it tended to show breach of a legal obligation, beyond a very unspecific reference to “GDPR”. In submissions she referred to article 88 of the General Data Protection Regulation (EU) 2016/679 but although the GDPR had direct effect in a general sense that particular provision is addressed to Member States rather than employers. Even if article 88 had horizontal direct effect as between an employee and their employer, the claimant did not identify any breach of its provisions. When pressed on that point, the claimant identified instead sections 8 and 43 of the Data Protection Act 2018. I was not able to understand how the claimant argued that either provision applied to the facts contained within her disclosure. Further, none of that legislation was referred to in Disclosure 3 itself. The legal obligation was simply described as “a breach of GDPR”, which I will treat as shorthand for data protection legislation in general. i. In those circumstances I find that the claimant’s belief in a breach of data protection legislation was not reasonable. It might have been a belief that the claimant honestly held, but there was no objectively reasonable basis for it. ii. Further, I find that the claimant did not have a reasonable belief that this disclosure was in the public interest. It was of interest only to a fairly small group of employees. There was no wider public interest.

c. Disclosure 4 was essentially supplementary to Disclosure 1. Therefore, when they are read together Disclosure 4 also attracts protection. It also adds little of significance because the claimant did not draw any distinction between those two disclosures for the purposes of detriment or dismissal.

[92]I therefore move to the next stage of my reasoning on the basis that Disclosures 1 and 4 were protected, but no others. (2) Detriment and causation of detriment

[93]The basic approach was summarised in London Borough of Harrow v Knight

[2003] IRLR 140

, EAT (with some changes for amendments to the legislation):a. did the claimant make a protected disclosure? (dealt with above)

b. did the claimant suffer some identifiable detriment?

c. did the employer subject the claimant to that detriment by some act or deliberate failure to act?

d. If so, was that act or deliberate failure to act done on the ground that the claimant made a protected disclosure?

[94]As for the fourth point, section 48(2) of the Employment Rights Act 1996 places the burden of proof of that ground on the respondent, so if the claimant proves the other elements of the test the employer must prove that the detrimental treatment was “in no sense whatsoever” on the ground of the protected disclosure. Put another way, liability will arise if the protected disclosure was a “material factor” in the subjection of the claimant to a detriment (Fecitt v NHS Manchester

[2012] ICR 372

, CA).

[95]Section 47B(2) of the Employment Rights Act 1996 excludes the dismissal of an employee from the definition of detriment for these purposes. Otherwise, I adopt the definition of detriment in MOD v Jeremiah

[1980] ICR 13

, CA and Shamoon v Chief Constable of the RUC

[2003] ICR 337

, HL. Detriment means “putting at a disadvantage” and it exists where a reasonable person in the claimant’s position would or might take the view that it was to their detriment.

[96]In relation to each of the alleged detriments set out in the list of issues I will address(a) whether I find that they happened,

(b) whether that amounted to a detriment and

(c) causation, with the burden of proof on the respondent if the first two elements are satisfied. I take the list of alleged detriments from pages 15 and 16 of EJ McManus’ case management order of 27 January 2025.

[97]“The respondent’s lack of response to the claimant’s emails of 20 and 23 February 2024 (other than acknowledgement of responses on 21 and 24 February 2024).” a. I find the factual allegation proved on the balance of probabilities. The respondent did not dispute it. There was a lack of response. b. I find that the lack of response amounted to a detriment in accordance with the legal tests outlined above. A reasonable person in the claimant’s position would feel disadvantaged by the lack of response. She made the disclosures hoping that Trustees would look into them and respond. c. However, I am satisfied that the detriment was in no sense whatsoever caused by the fact that the claimant had made a protected disclosure. The lack of a substantive response was caused by the fact that the respondent’s trustees were extremely busy with the demands of running a charity in crisis. About 15 people responsible for the direction of the organisation had resigned over a fairly short period. There was insufficient capacity to address the claimant’s disclosures in a timely fashion. There was neither direct evidence nor any basis for an inference that the claimant’s protected disclosures played any part in the failure to provide a substantive response. Therefore, this allegation fails.

[98]“The outcome of the claimant’s grievance, communicated to the claimant on 22 February 2024, in respect of disciplinary action and penalty re the claimant’s ‘second job’.”a. There is no dispute about the nature of the grievance outcome, issued by Sarah Fowler, Interim Executive Director, on 22 February 2024. Allegations 1 and 2 were rejected on the basis that the respondent thought it had followed the correct disciplinary process as well as the ACAS Code of Practice, and on the basis that it was not mandatory to hold a separate investigatory meeting under either procedure. Allegation 3 failed because the respondent concluded that the disciplinary process was not unreasonable, unfair or biased and that the claimant had not been denied sufficient time to prepare for it. Allegation 4 failed because the respondent concluded that it was permissible to propose that the outcome of the disciplinary hearing (had it happened) could have been a final written warning, and that it was not “unlawful” as the claimant suggested. Allegation 5 was partially upheld on the basis that Sharon Martin could have informed the claimant in advance about the invitation to the disciplinary hearing, reducing the potential impact of the letter. Allegation 6 was not upheld, because the respondent did not agree that the disciplinary action had resulted from the claimant’s request for paid overtime or TOIL in relation to work done in December 2023.

b. I find that a reasonable person in the claimant’s position would have been disappointed by that outcome and would have regarded it as disadvantageous. However, that is not because the respondent did anything which was procedurally or substantively wrong in its handling of the grievance, it is simply because a reasonable person in the claimant’s position would hope that every point in their grievance would upheld. The grievance outcome therefore met the test of detriment.

c. However, I am satisfied that the claimant’s protected disclosures had nothing whatsoever to do with the grievance outcome. On the face of it, the grievance was handled appropriately, and its conclusions were unsurprising and adequately reasoned. There was neither direct evidence nor any basis for an inference that Sarah Fowler had been influenced by the protected disclosures made to trustees. The claimant did not put forward any persuasive argument to that effect in her submissions. While she suggested that Sarah Fowler had a “personal relationship” with Sharon Martin, that simply meant that they had once been observed to socialise together. That is not a sufficient basis for an inference that the claimant’s protected disclosures were known to Sarah Fowler or that they had influenced the grievance decision to the claimant’s detriment. The allegation therefore fails.

[99]“Increased stress and anxiety, causing exacerbation of an underlying mental health issue and causing the claimant to be unfit for work with the respondent from 26 February 2024.” It is uncontroversial that the claimant was certified unfit to work by the end of her employment and I accept that she was unwell. However, the gist of this alleged detriment is that the respondent’s (unspecified) actions caused the claimant to be unwell. I heard no medical evidence, and causation is not established on the balance of probabilities. Further, it is not possible to assess the causative impact of protected disclosures if the acts or omissions allegedly leading to ill health are unclear. Put another way, the third element of London Borough of Harrow v Knight (above) is not established on the balance of probabilities. For those reasons, this allegation fails.

[100]“Being included in an email with the Senior Management Team on 1 March 2024 in relation to options to deal with the situation re the claimant.” a. An email chain was sent to the claimant erroneously by Andrea Pigden, who immediately apologised and asked the claimant to delete it because she was not the intended recipient. The respondent did not suggest otherwise. The facts are established on the balance of probabilities. b. I find that the error failed to satisfy the legal test of detriment. It was very obviously a mistake. Mistakes happen and a reasonable person would not regard it as something which put them at a disadvantage, especially when a prompt apology and clarification was given. The allegation fails for that reason. c. In any event, there is neither any direct evidence nor any basis for an inference that the claimant’s protected disclosure played any part whatsoever in the accidental disclosure to the claimant of that email chain. The allegation fails on that basis too.

[101]“Announcement made to staff on 5 March 2024 about the claimant’s departure from the respondent’s organisation.”a. An email to staff from Dr Catherine Hill (Head of Policy and Public Affairs) headed “Staffing update” said simply, “Hi everyone, I wanted to let you know that Sarah Lindores-Williams, Scotland coordinator, has handed her notice in and will be leaving us at the end of the month. We wish Sarah well in her next endeavour.” The gist of the claimant’s argument is that she should also have been included in the circulation list but was not.

b. Assessed in the manner required by the authorities, I find that this is a very minor matter which fails to satisfy the test of detriment. A reasonable person in the claimant’s position would not regard it as disadvantageous to be left out of the circulation list. This allegation fails for that reason.

c. In any event, there is neither direct evidence nor any basis for an inference that the claimant’s protected disclosures played any part in the decision not to include the claimant in the circulation list. The claimant was obviously well aware of her own resignation and imminent departure, and she was also signed off sick. I am satisfied that those were the reasons why the respondent decided that it was not necessary to include her. The allegation therefore fails on that basis too.

[102]“Being ostracised”. a. The claimant gave no evidence to support this allegation and did not refer to it in her submissions, though it was not explicitly abandoned. None of the evidence I heard supported a finding on the balance of probabilities that the claimant was ostracised. The allegation fails for that reason. b. Ostracism, if established, would certainly be a detriment. c. However, there was no evidence, no basis for an inference and not even any submission that the claimant’s protected disclosures played any part whatsoever in the alleged ostracism, whatever form it might have taken. The allegation fails for that reason too.

[103]“Access to work laptop being removed, without notice, on 4 March 2024.” a. There is no dispute that this happened. b. In my assessment, having applied the legal tests outlined above, it did not amount to a detriment. The claimant had resigned and was also signed off sick, so she was not expected to be working. She had also referred to the impact of work on her health in her resignation letter. The claimant had also asked the respondent to collect her laptop, giving the impression that she no longer wished to use it. In those circumstances there was no disadvantage in the removal of access and a reasonable person in the claimant’s position would not think that there was any disadvantage. The allegation fails for that reason. c. In any event, I am satisfied that the reasons for the removal of the claimant’s access were that she was signed off sick, she should not have been working, she had complained about the effect of work on her health and she had no legitimate reason to require access during her notice period. The claimant had asked the respondent to collect her laptop. The reason for the removal of access had nothing whatsoever to do with the protected disclosures. The allegation fails for that reason too.

[104]“Email from claimant to Board of 6 March 2024 being returned, with possible system blocking.” a. The facts were undisputed and are established on the balance of probabilities. b. There were many other ways of contacting the respondent’s employees and trustees. A reasonable person would not regard the situation as a disadvantage, especially since the claimant was unfit to work and was on sick leave during her notice period. The allegation fails because the situation did not amount to a detriment. c. In any event, my findings on causation mirror those in the preceding allegation, because the cause was the same. The allegation fails for that reason too.

[105]“Email sent to the claimant on 20 March 2024 from Sharon Martin stating that the claimant should ‘provide the passwords and usernames for Facebook or clear instructions on where to access the passwords from your laptop as a mater of urgency, and by no later than 5pm on Thursday 21 March’, in circumstances where it was known by Sharon Martin that the claimant was unfit for work and did not have access to her work laptop where the passwords were stored and so could not meet that deadline.” a. I did not understand there to be any dispute about the essential facts. They are established on the balance of probabilities. b. I find that the respondent made a perfectly reasonable request in all the circumstances. While it might be said that the claimant was off sick, she was nevertheless trying to initiate communicate with the respondent for other reasons so she was not too unwell to engage in email traffic. Further, the respondent’s request was important and justified. In all those circumstances a reasonable person in the claimant’s position would not regard the request as putting them at a disadvantage. The allegation therefore fails because the facts did not amount to a detriment. c. Further, I am entirely satisfied that the protected disclosures had nothing at all to do with the request. The respondent had an obvious interest in being able to access and maintain its own social media accounts. That was the reason for the communication, and not the claimant’s protected disclosures. The allegation fails for this reason too.

[106]“The respondent’s final decision on the claimant’s grievance, communicated to the claimant on 28 March 2024.” a. This concerns the grievance appeal outcome communicated by Jo Binding, Chair of Trustees, which was essentially the same as the outcome of the first stage grievance. b. A reasonable person in the claimant’s position would feel disappointed by the outcome and would feel that it placed them at a disadvantage. It meets the test of detriment. c. On causation, my finding is the same as that in relation to the first stage grievance, for the equivalent reasons. The claimant was unhappy with the outcome and thought it was wrong, but her protected disclosures played no part at all. The allegation therefore fails.

[107]“The claimant’s grievance being ‘not processed fairly and was extremely biased and that my grievance was not taken seriously’.” This adds little to the allegations considered above in relation to the grievance and grievance appeal, so it fails for the same reasons. a. I see no basis on which to find that the grievance process was either biased or not taken seriously by the respondent. I find that the grievance was conscientiously considered at both stages and that the outcomes were reasonably open to the respondent. b. There was no detriment in the form of bias or a lack of serious consideration. c. Not only does the allegation fail for that reason, but I am also satisfied that the protected disclosures did not influence the grievance process to the claimant’s detriment in any way. The allegation fails for that reason too.

[108]“Email from Sharon Martin to the claimant of 5 April 2024 in relation to allegations of the claimant having ‘sent multiple confidential FNUK/FNS documents to her personal email account’, seeking the return of those documents, and enclosing an extract from the Employee Handbook, ‘threatening legal action against’ the claimant.” a. The facts were not disputed and are established. b. A reasonable person in the claimant’s position would know that the allegation was well founded and that they had done what was alleged. The claimant knew it. The making of factual allegations which are true is not a detriment. However, the threat of legal action would make a reasonable person in the claimant’s position feel at risk, and therefore that they had been placed at a disadvantage. That is the detriment. c. I am satisfied that the claimant’s protected disclosures had nothing whatsoever to do with Sharon Martin’s email. She was justifiably concerned by the apparent misuse of confidential information. It was not a wild and unfounded allegation. In fact, the claimant was guilty. It was a serious matter, and the claimant accepted that it might amount to gross misconduct. In those circumstances I find that the reason for the detrimental treatment was the claimant’s misuse of confidential information and the respondent’s justifiable action in response. The allegation fails, because the detrimental treatment had nothing to do with the protected disclosures.

[109]“Failure to reply to GDPR requests from the claimant in relation to personal data held by the respondent, sent by the claimant on 4, 15 and 22 July 2024, with follow up requests on 13 August and 8 September 2024, causing the claimant further anxiety.” a. The facts are established on the balance of probabilities. The respondent did not contend that it had replied substantively to those requests. b. Detriment is also established because a reasonable person would consider that the situation placed them at a disadvantage. c. However, I am satisfied that the reason for the detrimental treatment had nothing whatsoever to do with the fact that the claimant had made protected disclosures. The reason for the failure to reply was the sheer size of the task and the fact that the respondent’s management and trustees were fully occupied by the need to steer the charity through a crisis.

[110]In summary, all of the allegations that the respondent subjected the claimant to various detriments because she had made protected disclosures fails, and the complaint under section 48 of the Employment Rights Act 1996 is dismissed. (3) Constructive dismissal

[111]I will only summarise the legal principles governing the way in which I have resolved the complaint of constructive dismissal. For reasons which will become clear, it was not necessary to consider the respondent’s affirmation argument or the argument that the claimant resigned for reasons other than the alleged breach of contract.

[112]It is for the claimant to satisfy the Tribunal that she was constructively dismissed for the purposes of s.95(1)(c) of the Employment Rights Act 1996. Otherwise, the legal effect is that her employment terminated by a resignation which is not to be treated as a dismissal.

[113]The claimant must prove that the respondent was in repudiatory breach of her contract of employment. That entails proving a “significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract” (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

, CA). The Court of Appeal expressly rejected the argument that the predecessor provisions of s.95(1)(c) ERA 1996 introduced a concept of reasonable behaviour into the contract of employment. An employee is not able to resign and claim constructive dismissal merely because their employer has behaved unreasonably. The implied term of trust and confidence

[114]The claimant relies partly on a breach of the implied term of trust and confidence. It is uncontroversial that the following fundamental term is implied into every contract of employment.

[115]It is a fundamental breach of contract for either party, without reasonable and proper cause, to conduct itself in a manner ‘calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’ (Courtaulds Northern Textiles Ltd v Andrew

[1979] IRLR 84

, EAT, Malik v BCCI

[1997] ICR 606

, HL). Seriousness of breach of contract

[116]A breach of the implied term of trust and confidence is necessarily fundamental (Morrow v Safeway Stores plc

[2002] IRLR 9

, EAT) – it is a “fundamental term”. Breaches of other contractual terms may or may not be of the required seriousness. It is essentially a question of fact and degree whether the breach reached the level described in Western Excavating (above). The test of whether there was a repudiatory breach of contract is objective, and it neither depends on the subjective intentions of the employer (Leeds Dental Team Ltd v Rose

[2014] ICR 94

, EAT) nor on the subjective perception of the employee.

[117]The alleged breach of contract, including some “last straws” in the week commencing 19 February 2024, are set out in EJ McManus’ case management order of 27 January 2025.a. Non-payment of wages for 18 hours of overtime;

b. Breach of the implied term of trust and confidence summarised as: i. The actions of senior managers because the claimant made the alleged protected disclosures. ii. The threat of disciplinary action in relation to the claimant’s second job. iii. The management of grants from the Scottish Government. iv. The announcement that the new CEO Becky Kearns had resigned after being in the role for two weeks. v. The failure to uphold the claimant’s grievance. vi. Failure to pay the overtime claim in full. vii. The claimant’s worsening mental health due to work related stress. viii. The failure to respond to the claimant’s disclosures.

[118]As for the 18 hours of overtime, there was no express contractual term giving the claimant any entitlement to payments on that basis. I did not understand the claimant to suggest otherwise, and the list of issues suggested that her argument was based on an implied contractual right to payment. Section 7 of the written terms “Pay” provided that if the claimant were required to work additional hours to meet the requirements of the charity “equivalent time off in lieu will be given providing this has been agreed in advance with your line manager.” There is conspicuously no reference to any right to payment in respect of those hours as an alternative, nor to any rights at all unless the additional hours had been agreed in advance.

[119]The implication of a term that the claimant was nevertheless entitled to be paid for additional hours worked is problematic.a. The claimant did not clearly identify the legal basis on which she argued that such a term should be implied and did not make any submissions on this important issue.

b. I do not think that the implication of such a term passes the “officious bystander” or “obviousness” test, because a right to paid overtime is certainly not so obvious that it goes without saying. Many contracts of employment have no such right.

c. I do not think that it is necessary to imply such a term to give the contract “business efficacy” or, in other words, a workable agreement. That is because there are many ways of operating an employment relationship without a right to paid overtime. The operation of a TOIL policy is just one example. It is equally workable with or without a contractual right to paid overtime.

d. I do not think that the evidence I heard supports the implication of a right to paid overtime from custom and practice. A custom or practice may eventually become the source of an implied term if applied with sufficient regularity for a tribunal to infer that it has crystallised into a contractual right. However, I find that the evidence goes no further than establishing that the respondent sometimes made discretionary, noncontractual, payments for excess hours worked, and that when such payments were made, they were usually related to additional hours worked at the Fertility Show or in Freshers’ weeks. Even then, I find that the evidence falls short of demonstrating a sufficiently “reasonable, notorious and certain” custom and practice. The historical pattern of payments was far from clear cut.

e. The TOIL policy is important for another reason, because a term giving employees a right to paid overtime would be incompatible with the clear wording of the TOIL policy. I take that as evidence of the way in which the contract was intended to work in practice, and it is a factor weighing against the implication of a contrary term.

f. A discretionary benefit granted in certain circumstances will not be converted to an implied term through custom and practice unless it is shown that the policy has been drawn to the attention of employees or had been followed without exception for a substantial period (see e.g. Duke v Reliance Systems Ltd

[1982] ICR 449

, EAT). In this case, the only clear policy of relevance was the TOIL policy. The wording of the TOIL policy was inconsistent with the claimant’s argument and payments of overtime were the exception, not the rule.

[120]For those reasons, I find that there was no implied contractual term giving the claimant a right to paid overtime. Therefore, there cannot have been any fundamental breach of such a term.

[121]As for the implied term of trust and confidence, I find no breach.a. I have rejected the many allegations that the respondent’s managers subjected the claimant to detriments because she had made protected disclosures. Not only that, I find that they had reasonable and proper cause for the acts and omissions which I found proved.

b. The commencement of disciplinary action in relation to the claimant’s second job was also something for which the respondent had reasonable and proper cause. On the face of it, the claimant was advertising availability for appointments in her secondary employment at times when she was contracted to work for the respondent. That called for an explanation. The respondent took advice from its HR contractor and the advice received was that it would be appropriate to explore matters at a disciplinary hearing. That amounts to reasonable and proper cause to start a disciplinary process.

c. The only respect in which I find it proved on the balance of probabilities that the respondent’s management of Scottish Government Grants was poor was the apparent inability to supply the information required by the Scottish Government when requested. There was no reasonable or proper cause for that failure. However, assessed objectively, I do not think that failure was calculated or likely to cause the necessary serious damage to the relationship of trust and confidence between the claimant and the respondent. The claimant’s post was funded by the grant and to some extent posts funded by annual grants will always precarious, but at the time of the claimant’s resignation there was no imminent prospect that the respondent would be unable to fund her post in the future. The failure to supply information to the Scottish Government when requested did not reflect on or impact the claimant personally, it was the responsibility of others.

d. The resignation of Becky Kearns was not something done or controlled by the respondent. However disconcerting it might have been for the claimant, it was not the respondent’s act.

e. There was reasonable and proper cause for the respondent to decline to pay the claimant’s overtime request in full. There was no express or implied contractual right to it, and the TOIL policy indicated that such payments would be the exception rather than the rule. The claimant did not provide the evidence requested to justify payment and I have rejected the claimant’s evidence and submission that payment was agreed in advance.

f. There was reasonable and proper cause for the respondent’s conclusion and reasoning in relation to the grievance and the grievance appeal. The claimant did not agree with it, but the respondent’s reasoning was logical and relevant.

g. It has not been proved on the balance of probabilities that any act of the respondent’s, still less one for which the respondent had no reasonable or proper cause, caused a deterioration in the claimant’s health.

h. The respondent had reasonable and proper cause for the failure to respond substantively to the claimant’s disclosures by the time of her resignation. The claimant gave notice of resignation on 4 March 2024, just 12 days after the earliest disclosure. During that period the respondent had been in crisis for some time and the efforts of trustees and the senior management team were focussed on the demands of running the charity.

Conclusion

[122]For those reasons I find that the respondent was not in fundamental breach of the claimant’s contract of employment, whether its express terms, an implied term regarding payment of overtime or the implied term of trust and confidence. On the latter aspect, I have considered the separate points cumulatively as well as individually. The respondent had reasonable and proper cause for most of the matters relied on, and to the extent that it did not the calculated or likely impact upon the relationship of trust and confidence fell short of the necessary level of “serious damage”. Having reached that conclusion, it is not necessary for me to go on to consider the respondent’s alternative arguments that the alleged breach formed no part of the reason for the claimant’s resignation, or that the claimant affirmed the contract by bringing a grievance appeal.

[123]It follows that the claimant’s resignation did not amount to a constructive dismissal for the purposes of section 95(1)(c) of the Employment Rights Act 1996, and the unfair dismissal claim therefore fails. (4) Overtime

[124]For the reasons already set out above in the context of constructive dismissal, I find that the claimant had no express or implied contractual right to paid overtime. Therefore, the claim for 18 hours’ pay fails, whether presented as a claim for breach of contract or as a claim for deductions from wages.

[125]In those circumstances it is not necessary to decide whether the claim was out of time as a claim for deductions from wages. It would make little practical difference if it was, because it could be claimed as a breach of contract without any time limit issue and it failed on its merits anyway. Conclusion

[126]Those are the reasons why I have not found any of the complaints to be wellfounded and they are all dismissed.