Mr M Paton v The Chief Constable of the Police Service of Scotland: 8000794/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000794/2024
Between
Mr M PatonClaimantThe Chief Constable of the Police Service of ScotlandRespondent
Before
Employment Judge R McPhersonDr A Gibson (instructed by Solicitor) for respondentDate 22 April 2025
JUDGMENT
The judgment of the Employment Tribunal is that the Tribunal does not have jurisdiction in relation to the claimant’s claim of whistleblowing within sections 43A- L and 47B of the Employment Rights Act 1996, and all the claimant’s claims are dismissed.
REASONS
[1]On 7 June 2024, the claimant’s ET1 was presented, asserting complaints of whistleblowing and race discrimination.[2]On 11 June 2024, the Tribunal wrote to the claimant, intimating that it had accepted his claim, advising that a one-hour remote Preliminary Hearing was appointed for 6 September 2024 and enclosing an Agenda document. The claimant was directed to complete and return the Agenda by 16 August 2024.[3]On 26 June 2024, the claimant clarified that he had intended to bring a complaint of whistleblowing and sex discrimination.[4]On 8 August 2024, the Tribunal confirmed that the claim had been amended to reflect the protected characteristic of sex relied upon, as there was no opposition. The Tribunal further set out that it was clear that further specification of the claim would be required, and this would be discussed at the upcoming Preliminary Hearing. Parties were asked to prepare their case management Agenda in good time to ensure that sufficient progress can be made.[5]On 19 August 2024, the Tribunal wrote to the claimant, noting that the Agenda had not been returned and asked the claimant to return the completed Agenda by return.[6]On 20 August 2024, the claimant returned the Agenda. In relation to 2.6 What is the disadvantage you say you have suffered as a result of making each disclosure (including the date (s) of such treatment and the person (s) responsible (that is what was the detriment), the claimant set out: As a result of making such a disclosure I have been attacked and vilified from the off, for even daring to suggest such discrimination is taking place. I was told there was no intention to remove my firearms authority prior to my meeting (whereby I made the disclosures), which to me shows a clear pattern of behaviour from Police Scotland to penalise me for my opinions, which I was directly asked to share. The months that followed, as I detail in my grievance document, show how poorly and indeed differently I had been treated to other firearms officers who had their authorisation removed on a temporary basis. This continued for months at which the conclusion of I had a report submitted against me which, any person looking at this whole situation objectively, I would hope and expect to come to the conclusion that it was nothing more than a smear, full of gross exaggerations and provable lies, with the intention and effect of having my firearms authority removed on a permanent basis. Indeed the final report against me barely even mentions the original social media comment I made and focuses on events that happened post meeting in Perth, which I feel rather strongly that I was deliberately and purposely treated poorly, knowing and expecting that I should complain or raise concerns, providing them with some form of ‘evidence’ to justify their actions of removing my firearms authority.[7]On 6 September 2024, a case management Preliminary Hearing was held from which a Note issued to the parties 11 September (the September 2025 PH Note), it being explained that the Agenda is not part of the written case setting out Orders that the claimant provide Further and Better Particulars of his claims in relation to Whistleblowing and Discrimination, including in relation to Whistleblowing at: (vi) which of the types of information set out in paragraph 43B(1) of the Employment Rights Act 1996, the disclosure is said to tend to show; and (vii) the detriment to which the claimant claims he was subjected on the grounds of having made that disclosure). The Tribunal set out that the respondent may provide a response to the claimant’s Further & Better Particulars and directed the respondent's solicitor to advise the Tribunal if, in light of Further & Better Particulars, there were any preliminary points that might require a preliminary hearing. The Tribunal noted that, should the claimant remain unrepresented, it might be helpful to arrange a further case management Preliminary Hearing.[8]On 25 September 2024, the claimant provided Further and Better Particulars (the claimant’s September 2023 Further and Better Particulars) extending to 6 pages.[9]Within the claimant’s September 2023 Further and Better Particulars: 1 The claimant refers to two first instance Tribunal Judgments, both of which have been available online since before the claimant’s ET1 (and indeed before the claimant attended the meeting on 27 April 2022): 2 At page 5, paragraph 1, the claimant refers to Furlong v Chief Constable of Cheshire Police [2018] 2405577/2018 [Furlong], the substantive judgment being published online since February 2019. 3 In Furlong, the claimant had applied for a position as a Police Constable in the 2017/2018 recruitment intake with the Cheshire Constabulary. The third stage of the recruitment process comprised an interview. During the interview, each candidate was asked structured questions and assessed against a criterion. Having gathered all the information through the interview process, the Cheshire Constabulary chose to apply a pass or fail at the end of the interview, and it was at this point that they applied “tie-break” positive action in terms of s. 159 EA 2010. The Cheshire Constabulary had taken the view that all candidates who achieved a pass following the Force interview were of “equal merit”. However, evidence was lodged that demonstrated the candidates were not of equal merit in terms of the scoring matrix. The Tribunal concluded, while accepting the need for diversity, that this blanket approach of positive discrimination was not a proportionate means of achieving a legitimate aim, and Cheshire Constabulary had not adequately considered the impact of the measures in place. 4 At page 4, paragraph 1, the claimant sets out a full reference to the online ET panel decision in Malone v The Chief Constable of Police Scotland [2021] 4112618/2018 [Malone], published online since October 2021. 5 In Malone, the claim followed upon several events, Ms Malone asserted direct sex discrimination in terms of s13 Equality Act 2010 [EA 2010]; and victimisation in relation to the protected characteristic of sex in terms of s27 EA 2010, the detriments relied upon included a number of matters including a threat to withdraw firearms authorisation, handling of ill health retirement application and misleading advice to Ms Malone’s solicitors 6 In Malone, the s13 EA 2010 claim did not proceed, as, on the facts, there was no less favourable treatment. The discretionary just and equitable extension (for discrimination) beyond the primary 3-month less one day time limit was considered (s123 EA 2010 is set out at page 43), and the s27 victimisation claim succeeded on the facts. 7 The claimant in this case refers to two asserted disclosures, the first being said to have been made at the April 2022 meeting and the second within the claimant’s 2023 Grievance. 8 There is no agreed-upon list of what detriments the claimant asserts (and when those occurred). The claimant asserts a number of what he describes as detriments, which, from the claimant’s September 2023 Further and Better Particulars, are identified as follows: 1 Permanent Withdrawal of the Firearms Authorisation: 1 On page 1, at 1 (iii), the claimant having described meeting in Perth on 27 April 2022 earlier sets out that “At this stage the disclosure was made verbally. I made this claim in writing in the submission of my written grievance submitted on April 11 2023.”, and at page 2 (vii) the claimant describes that he considers that he was treated differently “to other firearms officers who had their authorisation removed on a temporary basis… As a result I have lost my career in Armed Policing… (viii) I have an email from Inspector Jim Roger advising me that their had been no intention to remove my firearms authority prior to the meeting… The purpose of the meeting, …according to the instruction from the Professional Standards Department, was to have me given some managerial advice…I am allowed to raise concerns with regards to what I perceive as discrimination and concerns relating to equality of opportunity. ...(and at the top page 3) The detriment I suffered as a result of this is not limited to the ultimate loss of my firearms career. During the months that followed this (at first) temporary removal of my authorisation to carry out firearms, I was treated very differently to others in my position.” 2 This is in the context that at 8.2 of the ET1 in the second paragraph, the claimant describes “As a result of raising these concerns... I was subject to a process whereby Police Scotland removed my right to carry firearms (my main role at the time was a full time armed response officer), subjected me to months of speculation with the promise of further training to assist me in getting my authorisation back and generally making my working life difficult and any and in any event that I raised concerns relating to the working conditions and I found myself in that was then used to someone justify and ‘prove’ that I was no longer suitable to continue as a firearms officer”. 3 The claimant does not insist on a detriment related to the temporary withdrawal of Firearms Authorisation. 4 The Tribunal concludes that this is notice of the Detriment relied upon, which can be summarised as Permanent Withdrawal of the Firearms Authorisation: 2 Change in Work Location. On page 3, paragraph 1 of the claimant’s Further and Better Particulars, the claimant sets out that he was treated differently from others in his position “I was told I would be working out-with my current building on a different shift pattern - this caused me a financial penalty as I was no longer able to lift share with my team members, and it further inconvenienced me as it increased my journey time, not forget, also isolated me from my teammates and colleagues … the location of the new office … was within the city centre of Inverness, adding more time and distance onto a commute I was doing that already well beyond the upper limit of the suggested maximum commuting distance detailed in Police Scotland’s Standard Operating Procedure on postings and transfers”. The Tribunal concludes that this is notice of the Detriment relied upon, which can be summarised as Change in Work Location. 3 Change in Job Role. In the claimant’s September 2023 Further and Better Particulars, at page 3 in paragraph 2 “The months that followed had me working in another role, in Firearms Policy and Compliance> I again had the apparent temerity to complain about the lack of meaningful work I was being provided, at times having large periods time sat at a computer with nothing to do, or asked to peruse the internet in search of some new binoculars suitable for the armed response vehicles. This culminated in my being provided with typing to do …I mention these as detriments suffered…” The Tribunal concludes that this is notice of the Detriment relied upon, which can be summarised as Change in Job Role. 4 Delays in the Grievance Process. At 8.2 of the ET1 in the second paragraph, the claimant describes “As a result of raising these concerns... subjected me to months of speculation with the promise of further training to assist me in getting my authorisation back and generally making my working life difficult and any and in any event that I raised concerns relating to the working conditions and I found myself in that was then used to someone justify and ‘prove’ that I was no longer suitable to continue as a firearms officer”. The Tribunal concludes that this is notice of the Detriment relied upon, which can be summarised as Delays in the Grievance Process. 5 Failing to fully investigate matters in the Grievance Procedure. At page 5 of the claimant’s September 2023 Further and Better Particulars, in the first paragraph, the claimant criticises the respondent for “dragging matters out, failing to listen to my complaints, failing to fully investigate matters in the grievance process and then attacking my characters, in such a way as to demoralise and blacken my reputation…”. The Tribunal concludes that this is notice of the Detriment relied upon, which can be summarised as Failing to fully investigate matters in the Grievance Procedure. 6 Attacking the claimant’s character. At page 3 in paragraph 3 the claimant sets out “Amongst the worst of the determents I have suffered and one of the reasons why I have pursed this matter to the extent that I have, are some of the comments of the comments within the grievance report, which include remarks such as “Constable Paton demonstrated concerns in relation to working co-operatively with diverse teams…” The claimant sets out that he objected to what he regarded as an unfounded characterisation. “I struggle to put into words just how angry that this baseless allegation makes me” describing that he regarded it as an accusation that he was narrowminded or trying to suggest that he is racist, which he expressly denies and describes that “Not only were remarks like this deeply hurtful, but I cannot help feel they are incredibly damaging to my name within the organisation and will be deeply impactful should I attempt to pursue a promotion- given this in now against my record.”. The Tribunal concludes that this is notice of the Detriment relied upon, which can be summarised as Attacking the claimant’s character. 7 Further Pled Detriments. At page 5 of the claimant’s September 2023 Further and Better Particulars, in the third and fourth paragraphs, the claimant describes his application for a position on a ‘Police Leadership Development Plan’ and makes criticism on why with “vast experience” he had not got through, noting that a female colleague had. However, that is pled as having occurred “several years ago”. The claimant’s submission does not reference same, as the alleged instance occurred before both the alleged disclosure at the meeting on 27 April 2022 and the April 2023 Grievance. 8 Additional matters re pled Detriment. The claimant’s September 2023 Further and Better Particulars do not comment on the terms or circumstances of the claimant’s Appeal against the Grievance outcome notified to the claimant by letter dated 6 December 2023, which culminated in the claimant meeting with the Chief Superintendent on 20 March 2024. There is no notice that the claimant takes issue with the terms of that meeting, or the notified outcome of that appeal issued on 22 March 2024. The claimant’s appeal and its contents were not provided to the Tribunal, nor was the outcome. Had the claimant wished to place that material, including the outcome of the appeal, before the Tribunal for the Open Preliminary Hearing, it would have been open to him to do so. Those matters are not addressed in the claimant’s written submission. There is no detriment for which notice is given in relation to the appeal and its outcome.[10]On 28 October 2024, parties were notified that a further case management Preliminary Hearing was listed for 13 January 2025[11]On 9 November 2024, the respondent provided Amended Grounds of Resistance.[12]On 30 December 2024, the respondent provided a suggested List of Issues: Preliminary issues 1 Does the Claimant’s claim of indirect discrimination… have no reasonable prospect of success…. 2 Does the Tribunal have jurisdiction to hear the Claimant’s claim of indirect discrimination… 3 Did the claimant make a protected disclosure as defined by section 43B at a meeting on 27 April and/or his written grievance submitted on 11 April 2023 Indirect Sex Discrimination 1.. 2… 3… 4… 5… 6… 7… 8… 9… 10 … Detriment on the Grounds of Protected Disclosure[14]If yes to 3, did the Respondent subject the claimant to a detriment, namely the removal of his authorised Firearms status, on the ground that he made a protected disclosure? 13. On 16 January 2025, accompanying the Jan 2025 PH note, the Tribunal wrote to parties intimating (remote) Preliminary Hearing on 22 April 2025 to determine Strikeout/Timebar. 14. At the second case management Preliminary Hearing on 13 January 2025, (the January 2025 PH), and set out in the January 2025 PH Note (The Jan 2025 Note) at page 2, paragraph 4, the claimant described a detailed history of difficulties he said he had experienced following the meeting on 27 April 2022 and restated that the basis of his claim was that Police Scotland were engaging in indirect sex discrimination.[15]As set out in paragraph 5 of the Jan 2025 PH Note it was indicated that various sources of website advice were available, and the issue of the time bar was broadly explored.[16]Further (and as set out in the Jan 2025 PH Note at paragraph 7), in the context of legal standing for sex discrimination claims, it was identified that the sex discrimination claim could not be brought on behalf of others, the fact that there was in the claimant’s view continuing discrimination occurring at Police Scotland was not of assistance. Further, at paragraph 7 it was set out that the focus, in relation to the whistleblowing allegation, was not the truth or otherwise of the allegation (although there had to be some reasonable basis for the allegation).[17]As set out in the Feb 2025 PH Note at page 2, paragraph 4, the claimant had described a detailed history of difficulties he said he had experienced following the meeting on 27 April and restated that the basis of his claim was that Police Scotland were engaging in indirect sex discrimination.[18]The Tribunal agreed that a Preliminary should be appointed for Strike Out/Time Bar and suggested that the respondent provide a skeleton argument to the claimant 14 days before the hearing.[19]On 16 January 2025, accompanying the Jan 2025 PH note, the Tribunal wrote to parties intimating (remote) Preliminary Hearing on 22 April 2025 to determine Strikeout/Timebar.[20]On 21 January 2025, the claimant advised that he wished to set aside the discrimination element of his claim.[21]On 12 February 2025, the claimant emailed the Tribunal confirming that he wished to withdraw his claim of sex discrimination and wished to proceed only with the Whistleblowing claim.[22]On 13 February 2025, the Tribunal issued a judgment confirming that the complaint of sex discrimination was dismissed[23]On 19 March 2025, the respondent by email noted that the preliminary hearing had been appointed on strike out/time bar while the respondent’s no reasonable prospect of success position was directed at the indirect sex discrimination, which had by this point been withdrawn. The respondent further commented that the time bar argument was solely directed at the alleged detriment of the suspension of the claimant’s firearm. The respondent proposed that the two issues which should be considered at the forthcoming Preliminary Hearing were: 1 The claimant having approached ACAS regarding Early Conciliation on 6 June 2024 and any alleged act of detriment prior to 6 March 2024 being out of time, should the time for bringing a claim that the claimant was subject to detriment by the suspension of his firearm authorisation in April 2022 be extended because it was not reasonably practicable for the claim to be brought any earlier? 2 Did the claimant make a protected disclosure as defined by section 43B at a meeting on 27 April 2022 and/or in his written grievance submitted on 11 April 2023?[24]On 25 March 2025, the Tribunal confirmed that the two issues to be addressed at the forthcoming Preliminary Hearing would be time-bar and whether whistleblowing disclosures (emphasis added) had been made.[25]On 17 April 2025, the respondent provided a PH Bundle, which included additional to Tribunal procedural documentation (ET1 to Tribunal letter of 25 March), copy of what is below set out as the claimant’s April 2023 Grievance, extending to 14 pages together with extracts of what is described as Connect Portal Entries - Suspended 27 April 2022 to 11 May 2022 and Connect Portal Entries - Permanent Withdrawal 26 August 2022 to 17 November 2022[26]At the outset of the Preliminary Hearing on 22 April 2025, it was noted that the respondent had overlooked the suggestion made within the Jan 2025 PH note that the claimant be provided with a Skeleton Note of the respondent's arguments quoting the case and rules that the respondent relied upon.[27]On discussion of the issues for the Tribunal, it was apparent that while the respondent considered the only detriment for which notice was given and insisted upon was Permanent Withdrawal of Firearms, the claimant considered that the detriments were more extensive.[28]Following discussion, the respondent representative confirmed that they would provide a copy of draft Written Submission, and the claimant was provided with the opportunity to read the respondent's representative’s Written Submission before proceeding further with the hearing.[29]The respondent also confirmed they would provide a Chronology and did so around midday, which covered events within the period 13 October 2008 to 25 March 2025.[30]In the course of the claimant’s evidence around (what is broadly referred to as time bar), the claimant, who was attending remotely, referred to emails from what he described as the Federation (that is, the Scottish Police Federation – or SPF). Those emails were not before the Tribunal (in the Bundle); however, they were addressed without challenge in oral evidence.[31]Upon the claimant raising involvement of the Federation (aka the Scottish Police Federation or SPF), and while technically SPF is not a trade union for historic reasons, the Tribunal Judge set out to parties that prior to his appointment as an Employment Judge he had acted for several trade unions although not SPF. Neither party raised any objection to the Tribunal Judge continuing with this Preliminary Hearing.[32]Following upon conclusion of the evidential element of the Final Hearing, parties were permitted to exchange their respective written submissions with each other, it being a matter of agreement and, in accordance with the overriding objective, that the respondent would set their position out to the claimant in the first instance, addressing the issues before the Tribunal and the claimant would respond to the respondent representative.[33]Thereafter, both parties provided final written submissions to the Tribunal. The claimant’s submissions included extract emails (including 3 from SPF) which had been broadly referred to in his evidence. No objection is made in the respondent representative’s final written submission to those documents being referred to, and indeed, the respondent representative refers to those documents in their submission.[34]As noted below, no objection was raised during the hearing to the claimant's reference to those documents, and the claimant was unrepresented. The Tribunal considers that those documents are appropriately referred to in accordance with Rule 41 of the 2024 Employment Rules of Procedure (the 2024 ET Rules). Issues: Time Limits[35]The relevant issues were identified as considering whether the claimant’s complaints were presented within the time limits set out in Sections 48(3)(a) & (b) of the Employment Rights Act 1996 (ERA 1996)?a. Dealing with this issue involves consideration of subsidiary issues, including whether it was not reasonably practicable for a complaint to be presented within the primary time limit, whether there was an act and/or conduct extending over a period, and/or a series of similar acts or failures and when the treatment (detriment) complained about occurred.b. Further, in all claims, the provisions of section 207B of ERA 1996, since 2014, provide for an extension to that period where the claimant undergoes early conciliation with ACAS. In effect, initiating early conciliation “stops the clock” until the ACAS certificate is issued. If a claimant has contacted ACAS within time, they will have at least a month from the date of the certificate to present their claim. Findings in fact Preliminary comments 1 These findings of fact are limited to the issues of time-bar arising from the sole remaining claim of whistleblowing. They address whether the Tribunal is satisfied that the claimant asserted two disclosures (in the current instance) to the respondent that they had failed to comply with a legal obligation, that being understood to the Equality Act 2010, in circumstances where it is asserted by the claimant although disputed by the respondent, that the claimant had a genuine belief, and that the disclosure was in the public interest AND that was a reasonable belief (s43B (1) ERA 1996. 2 Alleged Protected Disclosures; The alleged two occurrences of Protected Disclosure events are not agreed upon, and both parties set out their position in submissions. The Tribunal’s consideration is limited to considering whether notice is given that qualifying protected disclosures were made at the relevant times, including whether the claimant had a genuine belief in same and whether that was a reasonable belief, no determination is made as to the factual accuracy of what are said to be alleged disclosures, which remain disputed in fact by the respondent. 3 Alleged Detriments(s); There is no agreement on what the detriments are, beyond (in effect) Permanent Withdrawal of Firearms Authorisation. It falls to the Tribunal to consider what detriment notice has been given of. However, no determination is made as to whether, as the claimant asserts and the respondent denies, he in fact suffered what he characterises as detriment (s) in consequence of the alleged disclosures as he asserts, including but, he says, not restricted to the permanent withdrawal of his firearms authorisation. The claimant does not give notice that the temporary withdrawal of the firearms authorisation, at the conclusion of the meeting on 27 April 2022, is a detriment relied upon.[36]The respondent maintains a computer database or Portal from which employees, such as the claimant, can identify the Firearm Authorisation Status (para 1 of the claimant's Submission).[37]The respondent has a computer system (known as Connect Portal), within which personnel or HR entries relating to police officers may be made.[38]On 13 October 2018, the claimant commenced his role as a Police Constable. The claimant was, and indeed remains, a Police Constable at all material times.[39]In February 2019, the substantive judgment in Furlong v Chief Constable of Cheshire Police [2018] 2405577/2018 [Furlong] was published online.[40]In May 2021, the claimant commenced as an Authorised Firearms Officer within Police Scotland’s Operations Support Division. This is not automatic, and not all Police Officers are so appointed. While it is not in dispute that Firearms Authorisation may be withdrawn by the respondent on the basis of contraindications, the claimant does not accept the respondent’s position on the presence of any contraindications.[41]In October 2021, the ET panel decision in Malone v The Chief Constable of Police Scotland [2021] 4112618/2018 [Malone] was published online. The claimant was initially aware of that case through BBC reports.[42]The respondent asserts that on 23 March 2022, their Professional Standards Department (PSD) unit received a report from a member of the public that described a social media posting as broadly offensive. The Tribunal does not consider it necessary to set out here the posting or indeed what is said to have been the specific characterisation of the same.[43]On 27 April 2022, and upon a request by the respondent, the claimant attended a meeting at Perth Police Station with Superintendent Alan Wright (the then head of Armed Policing (now retired) and Inspector Jim Roger of Armed Policing Operations North (now the Chief Inspector) accompanied by a representative of the Scottish Police Federation (SPF). The request was in response to concerns the respondent considered related to the online comment. As set out in the April 2023 Grievance (page 1, paragraph 5), “Despite being told in advance that this meeting was not a misconduct meeting, merely a meeting in which the Superintendent wished to discuss the ‘logic’ behind my comments. Regardless of this, I attended the meeting with a representative from the Federation.”[44]The claimant agreed that he made the post, describing it (in the September 2023 Further and Better Particulars) as a tongue-in-cheek comment on a Police Humour social media page. The claimant at the meeting apologised (as set out in his April 2023 Grievance) for having expressed, what he describes as, his concerns publicly on social media rather than internally. The claimant was at this time based at the respondent’s Armed Response Vehicle (ARV) facility in Inverness, situated on the east side of Inverness.[45]As set out in his April 2023 Grievance (at page 1, paragraphs 8 to 9), it is the claimant’s position that he was asked to provide his thoughts and feelings on his comments (that he had posted): “I explained the rationale behind my comments with the main points I voiced being the following, all of which were my personal opinion from experiences within my career to date - That women were favoured in terms of recruitment - That women were favoured in terms of internal job promotion - That I disagree with Police Scotland playing the identity politics game by breaking down personnel into ‘groups’ - That because of this insistence on group identity, that there were no internal structures or groups that looked out for and developed the ‘group’ that I fell into, that being a white heterosexual Scottish male. As a result of this I made the case that I felt I (or as Police Scotland would place me,) my group was being discriminated against Superintendent Wright’s response to this was to recoil and act out of faux outrage, claiming that I cannot have those opinions. He went on to say that I needed to provide evidence before making such claims. (emphasis added).[46]At the conclusion of this meeting, the claimant was advised that his firearms authorisation was being temporarily suspended with immediate effect, pending consideration of a formal application, because Superintendent Wright and Inspector Roger felt that the claimant had become overly emotional during the meeting. The claimant denies this characterisation and in his April 2023 Grievance (page 2 paragraph 5), criticises Superintendent Wright’s conduct, including for acting in what the claimant describes as “an almost Orwellian fashion… rather than delving deeper into my concerns”. The claimant does not assert that this temporary withdrawal of firearms authorisation amounted to an actionable detriment.[47]As set out the April 2023 Grievance (page 2 paragraph 2), as the claimant had some downtime following the meeting and in the initial stages of this temporary withdrawal of firearms authorisation “I found myself looking into the matter” (and page 2 paragraph 7) “Moving on from the meeting … I felt I was left with no option other than to seek to prove my case myself , starting with me submitting an FOI request to Police Scotland”.[48]On 29 April 2022, (the respondent’s 29 April 2022 email), an email was issued by a P O’Brien. Police Sergeant … Operational Support Unit (ARV), Police Headquarters, Inverness, to the claimant.[49]The respondent’s 29 April 2022 email (which the claimant describes in his submission as “email regarding working location…”), is headed NAMED RECIPIENTS ONLY and reads “Can you start at 8 am on Monday (2 May) at ARV Office and make contact with Sgt Richard Morris based at Kirkwall. He will allocate tasks to you and you can discuss getting a desk at Elgin for ease of travel if this can be facilitated. I would imagine the hours would be largely 8-4 Monday to Friday but again you can have this discussion with Sgt Morris. Any issues get back to me. Richard copied in for your info. Andy give me a bell on mobile… if any questions. Thank you”[50]In the period May to June, [as set out in the claimant’s April 2023 Grievance at page 7 paragraphs 1 to 3, “in the month or so period post the meeting”] the claimant, having not been advised by the respondent’s PSD on the outcome of the meeting regarding the social media post, contacted PSD and was advised that the concern relating to the online comment had been “written off as management advice” and they had not changed their position since they had initially assessed the matter in February 2022. The claimant argues that he later received an apology from Police Inspector Roger for not being advised on the PSD assessment.[51]On 10 May 2022 (rather than 2 May as proposed in the respondent’s 29 April 2022 email), and despite what the claimant regarded as genuine welfare concerns raised by the claimant regarding the move to a new office and job role, the claimant was allocated (adopting the language from the provided Chronology) to new role within the Police Scotland Criminal Justice Support Division (CJSD) at the Inverness Justice Centre (the Court), situated in the city centre.[52]On 11 May 2022, the suspension of the Firearms Authorisation was formally approved.[53]As set out in the claimant’s April 2023 Grievance at page 6: 1 At paragraphs 6, 7 and 9, the claimant objected to the transfer due to concerns, including regarding it as a punishment move. 2 At paragraph 6, the claimant advised his line management that he would be taking his “28 days’ notice prior to carrying out my move, as was my right. This was not well received and led to me having to consult the federation” the Scottish Police Federation (SPF) “to confirm I was correct in my stance- which was confirmed to be so.” 3 At paragraph 7, he did not refuse to carry out the role itself, as he considered he was able to perform it via a computer at the ARV facility (that is, without the move). 4 At paragraphs 9 and 10, the claimant who lives around 39 miles from Inverness calculated that the transfer from the east side of Inverness, within the ARV facility where he worked, within what he regarded as his team, to the city centre increased the claimant’s commuting costs by around £250 to £300 per month in consequence of the loss of lift sharing opportunities over the five working days with two other team members based at the ARV facility.[54]On or around 7 June 2022 (that is, 28 days after the allocation), the claimant transferred to the new role within the Police Scotland Criminal Justice Support Division (CJSD) at the Inverness Justice Centre (the Court), situated in the city centre.[55]On 8 June 2022, as set out in the claimant’s April 2023 Grievance at page 7 paragraph 5, the claimant emailed Chief Inspector Ferris, describing that the situation was making him ill, expressing his disappointment at what the claimant regarded as the poor treatment he had been receiving and left work and booked a GP appointment.[56]Later in June 2022 (from the Chronology, the dates are unconfirmed), following the transfer to CJSD, the respondent asserts (and which are disputed by the claimant) that, following upon other matters, CJSD requested that the claimant be redeployed to the Line Management of Armed Policing.[57]Subsequently (and as set out in the claimant’s April 2023 Grievance at page 7, paragraph 11), having “seen the writing on the wall in relation to the unlikely return” of his firearms authorisation, the claimant requested a move back to uniformed duties in A Division[58]Thereafter and during a period of leave, the claimant, and following upon contact with the respondent, had anticipated that he would be moved from the seconded role within the Criminal Justice Support Division to an Administrative Role within Armed Policing working at Keith Police Station, around 18 miles from the claimant’s home.[59]On 18 July 2022, however, the claimant was transferred to a Policing Administrative role based within Police Scotland’s Operational Support Division Compliance Team at their HQ at Old Perth Road, Inverness.[60]On 26 August 2022, Inspector Pat Nicol made a request for the consideration of the permanent withdrawal of firearms authorisation due to what Inspector Nicol considered were ongoing concerns and contraindicators.[61]On 30 August 2022, Inspector Pat Nicol repeated the request for the permanent withdrawal of firearms authorisation due to what Inspector Nicol considered to be the identification of contraindicators.[62]On 2 September 2022, Inspector Nicol’s request was supported by Chief Inspector Vincent Ferris.[63]On 8 September 2022, a request was made by Superintendent Kennedy for more details on contraindicators.[64]From 7 October 2022 to 27 October 2022, further details were provided by Chief Inspector Vincent Ferris.[65]On 26 October 2022, Chief Inspector Ferris made an entry within the respondent Connect Portal, which described that he had received email correspondence from the claimant and described criticism of the same. No evidence has been provided of the email or its contents beyond the view of CI Ferris as set out in the extract from the Connect Portal as of that date, and the Tribunal declines to make any further findings on fact on same.[66]On 17 November 2022, the claimant’s firearm’s authorisation was permanently withdrawn with an explanatory narrative extending to over 2 pages on the respondent’s Connect Portal. That withdrawal was recorded on the respondent database accessible to the claimant.[67]The claimant who was on a period of annual leave was not advised directly.[68]On 21 November 2022, the claimant was transferred out of armed policing to Response Policing, Buckie.[69]In December 2022, the claimant, who had been keeping an eye on his Firearms Authorisation Status since the meeting on 27 April 2022, at the conclusion of which he was advised temporary withdrawal via the respondent database, accepts that he became aware that Firearms Authorisation had been Permanently Withdrawn. Although “the exact date in December I wouldn’t be able to provide with certainty” (para 1 of claimant submission).[70]On 15 January 2023, the Scottish Police Federation (SPF) issued an email to the claimant (the 15 January 2023 SPF email),[71]The non-redacted part of the 15 January 2023 SPF email, headed “Final Review” reads: “As I suggested I forwarded the supplied documents to the Secretary of the North Area Committee for a review of my findings and advised them of your consideration without any discussion with them for absolute transparency …Redacted… If you can clearly set out a case to show what you are looking at – “Victimisation or Discrimination” then the secretary will reconsider whether to forward the form on to legal when they have reviewed it. No legal case will be submitted to the SPF lawyers unless it is clear and obvious and vexatious submissions will never be supported as you’d understand. Again we can come back to the Grievance route again which would be best practice to use before a legal submission as any Employment Tribunal would ask for the result of this first. The secretary also agrees on my thoughts on the grievance having been involved in several over the years but may provide some answers or organisational learning but to gain what for you.” …Redacted… Thanks[72]The 15 January 2023 email is significantly redacted.[73]On 11 April 2023, the claimant submitted a detailed written grievance, which extends to 14 pages, to the respondent (the April 2023 Grievance). The April 2023 Grievance is generally framed to establish the basis of an opinion that the claimant, both as an individual and as someone within a group, was subject to what the claimant considered to be discrimination in a broad sense.[74]While it is not considered necessary to set out its full terms, the April 2023 Grievance can be summarised into 6 separate elements: 1 Pages 1 to 2 (Background to 27 April 2022 Meeting Section) essentially set out the claimant’s description of matters slightly under a year earlier, at and around the 27 April 2022 meeting, to the claimant making an FOI request to the respondent. As summaries of the descriptions are set out above, it is not considered necessary to repeat those aspects here. 2 Page 2 to 4 embeds Police Scotland responses to FOI Questions and the claimant’s extrapolation from that data (FOI Data Section): 1 Recruitment: How many people applied to join Police Scotland during this time? Of those applicants how many were men and how many were women: Response: While the period is not set out, it can be deduced from the response which sets out that information is provided for 1 April 2019 to 1 April 2022 but that 2018/19 records are not available as the retention period for this data is 2 years +1. 2 What is the success rate for a man vs a woman applying to Police Scotland? i.e. 100 men applied and only 20 (20% success) were successful, 90 women applied and 30 (33%) were successful: Response We have provided details in relation to ‘Appointed Officers’. It should be noted that candidates who apply and go on to be appointed may traverse more than one financial year so direct correlation cannot be made for each financial year between numbers applied and numbers appointed. 3 The claimant sets out that unfortunately the percentages of success were not provided to him but sets out his analysis indicating that 2019/20 male applicants had a 21% success rate of joining the police compared to a 29.7% success rate for women, and for the 2020/21 the success rate is 6.7% to 9.9% and for 2021/22 its was 16.2% to 26.7% 4 The claimant further provides FOI information, which the claimant describes as an overall data capture of the success rates (in 5 terms without identifying the numbers in each cohort or any variables beyond sex) of male and female officers during the promotion process over 5 ranks for the same 3-year period: 1 Constable to Sergeant: 54% overall, with female success at 54%, male at 54%, 2 Sergeant to Inspector: 31% overall, female success at 29%, male at 31%, 3 Inspector to Chief Inspector: 30% overall, female success at 36%, male at 28%. 4 Chief Inspector to Superintendent: 31% overall, female success at 44%, male at 27%. 5 Superintendent: 32% overall, female at 42%, male at 29%. 5 This is summarised as the Success Rate Profile Data. 6 The claimant describes that “with the exception of Sergeant to Inspector, all the rank tier data provided evidence in support of my comments (That being what was said in the April 2022 Meeting, it is not understood that the claimant considered that the data supported his social media post). The claimant continues, “I could go into details about how this seems to suggest a pattern of equality of outcome (an entirely deplorable doctrine) over equality of opportunity, which is only to be encouraged, but it would be going off-piste in relation to the question of my suitability to be a firearms officer 7 Whether or not you think these figures to be in line which what you expect alarming or concerning, it remains that what I said (and was roundly condemned for) turns out to be almost entirely accurate. 8 The claimant further references the Chief Constable’s comments in his opening statement for the Inquiry of the death of Sheku Bayoh and the respondent’s SOP on Equality, Diversity and Dignity 9 The claimant further describes that “one only need to pay half attention to any police Scotland media interaction in relation to recruitment to see that it promotes the idea of attempting o recruit from this group, or that group. I have seen adverts aimed at LGBTQ, women only and Thai Officer Recruitment nights and recruitment events in very recent memory without delving into the matter” and describes “I understand there are those who bang the drum for we need representation and to a certain degree I would agree, but not at the expense of other candidate, prioritising a person’s group identity over the individual is at least discriminatory and at worse an incredibly dangerous path to go down”. 3 Page 5 sets out matters including the claimant’s criticism of groups within the police (Group Forum Criticism section), which he considers “promotes tribalism and creates contempt for those who feel they are being left behind. Let me assure you I am not alone in this viewpoint”. Further the claimant provides what he describes as an example, whereby a male officer asked a female officer if she was apprehensive about upcoming panel interviews they were both due to attend and was told that she felt she was suitable prepared as being a member of “the Woman’s Development Forum she had provided with some good inputs and advice on how to get through her panel from other senior officers who had gone through the process”. The claimant describes that he finds this “an entirely unfair method of developing officers… The very suggestion of creating a men’s development would be met with condemnation and suspicion”. 4 Pages 6 and 7 broadly set out the claimant’s criticism of matters post the April 2022 meeting (Post April 2022 Criticism Section). 5 Pages 8 to 13 set out the claimant’s embedded comments responding to PI Nicol’s Report on a paragraph-by-paragraph basis (Claimant response to PI Nicol Report Section); in short, the claimant does not accept the analysis by PI Nicol. 6 Page 14 (The Conclusion Section) sets out a summary of the claimant’s position, setting out that wishes to raise a grievance against Chief Inspect Wright and retired Superintendent Wright and concludes “The combined actions of these individuals and my treatment by this organisation over the last year amounts to my worst period in Policing, resulting in my having considered legal action, whistleblowing and finding other employment.”[75]On 11 May 2024, the claimant met with Superintendent Smith to discuss the claimant’s April 2023 Grievance Appeal. That is the meeting which arose from the claimant’s appeal (the date of submission is not identified, and the appeal itself was not provided) against the outcome of the April 2023 Grievance notified to him on 6 December 2023.[76]At the appeal meeting on 11 May 2024, Superintendent Smith summarised the April 2023 Grievance into 4 main headings: 1 Superintendent Wright’s conduct within the meeting on 27 April 2022; and 2 The claimant’s move of office to a building that exceed a fair travel time/distance; and 3 The administrative tasks the claimant was allocated whilst working in Keith that the claimant believed were meaningless; and 4 The outcome of the completed report results in the permanent withdrawal the claimant’s firearms authority[77]The claimant had a period of around 4 months' leave from around July 2023 due to knee surgery. After the claimant returned from that leave, Superintendent Smith indicated that he was working on the outcome, although it appeared to the claimant that it had been put on the shelf.[78]On 6 December 2023, Superintendent Smith issued his Grievance Outcome letter, stating that the claimant's April 2023 Grievance was not upheld.[79]Subsequently, the claimant submitted an appeal against the outcome of the Grievance. No determination is made as to the content or date of issue, as the appeal document was not provided to the Tribunal.[80]On 5 February 2024, (the 5 February 2024 SPF email), an email headed: Final Review, was issued by SPF to the claimant: “Thanks for coming back to me again. When did you submit the appeal and what timeframe have they put on this? HR should be giving you the guidance on this? Your appeal will be given to a higher ranking IO from the first grievance and will address only those points you have raised in the appeal. Just to ensure you a full understanding of the legal process within SPF structure, we deal with many members with regards to discrimination. victimisation etc and the large majority of these are dealt with through mediation or a grievance. Only a small amount ever go to a legal case and some of those are private legal cases and not through SPF. No legal case will ever be considered until the Grievance process is exhausted, in your case it is not complete as yet. The first thing a solicitor will ask, have you had mediation or a grievance and is it complete?” …Redacted… I have not rejected your legal case as you are yet to submit it you'd need to conclude your grievance then come back to us with a view to considering a legal case and what exactly you are looking to achieve from it. This would involve a submission of a legal form, a bullet point summary of the events that led you to believe you have a case along with a list of appendices, as below: Your original Grievance Outcome Letter Grievance Appeal Supporting Document Outcome Letter Thanks[81]The 5 February 2024 email is significantly redacted.[82]On 20 March 2024, Chief Superintendent Paterson met with the claimant to discuss an appeal submitted by the claimant against the outcome set out in the respondent’s 6 December 2023 letter.[83]On 22 March 2024, Chief Superintendent Paterson issued his decision, which was not to uphold the claimant’s appeal.[84]On 1 April 2024, an email, headed Final Review, was issued by SPF to the claimant (the 1 April 2024 SPF email), which email is provided in unredacted form and set out: “I will forward you an e-mail separately with all the documents you will need it may be worth going contacting ACAS too“” web link provided for ACAS. “There are time limits for employment disputes which yours will be well past but for your argument, you are still ongoing as you've been going through the grievance process. It gey in touch with them today as they cause pause legal proceedings, so the time limitations don't have an effect. They are generally a good bunch to speak to anyway. I'll get the legal paper work to you today”.[85]On 6 June 2024, the claimant started early conciliations via ACAS.[86]On 7 June 2024: 1 The ACAS Early Conciliation certification was issued, marking the conclusion of Early Conciliation; and 2 The claimant presented his ET1. Conclusions on witness evidence[87]The Tribunal accepts the evidence of the claimant as straightforward on matters of fact. While the Tribunal concludes that the claimant’s recollection is mistaken insofar as it is suggested he was relying upon advice that simply reflects the passage of time and the complexity of matters before the Tribunal, and should not be read as an indication that the Tribunal was seeking to be unreliable in any way. Submissions[88]Both the claimant and respondent provided written submissions.[89]The claimant's submission extended to 7 pages, over 32 paragraphs and incorporated copy emails and screenshots.[90]The respondent’s submissions extended to 9 pages with Headings of Time Bar, Continuing Act, Not Reasonably Practicable, Protected Disclousre, Disclosure of Information and Claimants Actions.[91]The Tribunal does not consider it necessary to set out the full term of each party’s submissions but refers to those submissions below, where considered relevant. Notice of claim and general matters[92]Rule 41 of 2024 ET Rules, which is not substantively changed from its predecessor Rule 41 in the 2013 Rules, provides:(1) The Tribunal may regulate its own procedure and must conduct any hearing in the manner it considers fair, having regard to the overriding objective.(2) The Tribunal must seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence.(3) The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts(4) This rule is not restricted by any other rule contained in this Part.[93]In Chandhok v Tirkey [2015] ICR 527 [Chandok] the EAT at paragraph 16 sets out “The claim, as set out in ET 1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement nor a document, but the claims made…”.,[94]In Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27, [Essop; Naeem], the Supreme Court in a discrimination case considering comparative groups in the context of comparative group disadvantage, Baroness Hale at paragraphs 27 and 28 observes: 27 … Obviously, some women are taller or stronger than some men and can meet a height or strength requirement that many women could not. Some women can work full time without difficulty whereas others cannot. Yet these are paradigm examples of a PCP which may be indirectly discriminatory. … 28 A fifth salient feature is that it is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence. …. Statistical evidence is designed to show correlations between particular variables and particular outcomes and to assess the significance of those correlations. But a correlation is not the same as a causal link. Protected Disclosures Generally[95]Section 47B ERA 1996, so far as relevant, provides: “47B Protected disclosures A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[96]Section 43 A ERA 1996 defines a protected disclosure as a “qualifying disclosure” (as defined in s.43B ERA 1996) which is made by a worker in accordance with any of ss.43C to 43H ERA 1996.[97]Section 43 B ERA 1996, provides: “43B Disclosures qualifying for protection (1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) … , (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject …”[98]Section 43 KA ERA 1996 provides: Application of this Part and related provisions to police(1) For the purposes of— (a) this Part, (b) section 47B and sections 48 and 49 so far as relating to that section, and (c) section 103A and the other provisions of Part 10 so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 103A, a person who holds, otherwise than under a contract of employment, the office of constable or an appointment as a police cadet shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being “ employed ” and to his “ employer ” shall be construed accordingly.(2) In this section “ the relevant officer ” means— (a) in relation to a member of a police force or a special constable appointed for a police area, the chief officer of police; … (d) in relation to any other person holding the office of constable or an appointment as police cadet, the person who has the direction and control of the body of constables or cadets in question.[99]Section 43 L ERA 1996 provides other interpretive provisions Time limits / Reasonable Practicable & Just and Equitable extensions[100]Section 48 (whistleblowing) of the Employment Rights Act 1996 sets out: 48 Complaints to employment tribunals. (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. (3) An employment tribunal shall not consider a complaint under this section unless it is presented—(a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on; and, in the absence of evidence establishing the contrary, an employer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. (4A) section 207B (extension of time limits to facilitate conciliation before institution of proceedings) apply for the purposes of subsection (3)(a).[101]Tribunals have a broader discretion under discrimination law than in unfair dismissal cases; the Employment Rights Act 1996 provides that the time limit for presenting an unfair dismissal claim or whistleblowing claims may be extended where the claimant shows that it was “not reasonably practicable” to present the claim in time.[102]In the context of the history of the case it is considered relevant to note that in relation to claims of the formerly pled discrimination claims, had there been standing for same and had they not been withdrawn issues (from the separate Equality Act 2010 and particular s123 EA 2010) would have included a different question of whether it was just and equitable to extend time, in relation to which, as set out by the Court of Appeal in Jones v Secretary of State for Health & Social Care [2024] EWCA Civ 1568 [Jones] factors that would almost always be relevant to consider would include:(a) the length of, and reasons for, the delay, and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh). Qualifying Disclosures[103]The first requirement of a “qualifying disclosure” is that the worker must disclose information and not merely state an opinion or make an allegation. It is generally accepted that the provision of information and the making of an allegation are often intertwined.[104]The word “information” (or, for that matter “disclosure”) is not defined in ERA 1996. In Geduld v Cavendish Munro Professional Risks Management Ltd v Geduld [2010] IRLR 38 [Cavendish], the EAT held, considering whether a solicitors letter which set out that health and safety requirements were not being complied with was an unprotected allegation (The EAT indicating in contrast that to say “wards of the hospitals have not been cleaned for two weeks and sharps were left lying around” would be conveying information) that for the legislation to have effect a disclosure must involve information, and not simply voice a concern or raise an allegation.[105]Subsequently, the Court of Appeal in Kilraine v London Borough of Wandsworth [2018] IRLR 1850 [Kilraine] approved the earlier EAT decision in Kilraine v London Borough of Wandsworth [2016] IRLR 422, in which it was noted that the statute did not draw a distinction between information and allegation. The question of what constitutes disclosure of “information” was considered, and at paragraphs 35 & 36, the Court of Appeal explained: 35.… In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). The statements in the solicitors' letter in Cavendish did not meet that standard. 36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1) , namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill LJ in Chesterton .. at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.[106]An alleged disclosure must first be a ‘qualifying disclosure’ in its nature. This requires five things as set out by HHJ Auerbach in the EAT judgment in Williams v Brown [2019] UKEAT/0044/19 [Williams]: 1 there was a disclosure of information by the worker in question; and 2 the worker believed that that disclosure was made in the public interest; and 3 any such belief was reasonably held; 4 the worker also believed that the disclosure tended to show one or more of the matters listed in S.43B(1)(a) to (f) ERA 1996; and 5 any such belief was reasonably held. What is a detriment?[107]Section 47B of ERA 1996 sets out the fundamental principle which affords protection to a whistle-blower: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[108]“Detriment” under section 47B is to be viewed subjectively, from the viewpoint of the worker. The correct test is whether a reasonable worker would or might take the view that the employer's action was, in all the circumstances, to their disadvantage. The statute states that the right is not one to be subjected to any “detriment, by any act or any deliberate failure to act”. Any such failure must therefore be deliberate, such that the employer has made a conscious choice to act or not to act. That can be inferred if the employer has done something inconsistent with such an act or from prolonged indecision.[109]The statute requires the imposition of the detriment to be “on the ground that” the worker has made a protected disclosure. When does limitation in whistleblowing claims start to run? Relevant case law[110]In McKinney v Newham LBC [2015] ICR 495 [McKinney], the EAT considered whether the 3-month less one day time limit for bringing a whistleblowing complaint began to run from the time of the employer's act to which the complaint related, rather than from when the employee became aware of the act.[111]Mr McKinney appealed against a decision to strike out his whistleblowing claim as time-barred. On 8 October 2010, Newham LBC decided to reject Mr McKinney’s grievance. On 14 October 2010, Mr McKinney received the authority’s letter informing him of the rejection decision. On 11 January 2011, McKinney lodged a claim with the Tribunal alleging detrimental treatment short of dismissal on the ground that he had made protected disclosures.[112]The Tribunal, however, held that the three-month primary limitation period began to run for the purposes of the whistleblowing complaint on 8 October rather than 14 October, and therefore McKinney's claim was out of time.[113]The EAT dismissed the appeal, noting that ERA 1996 s.48(3) provided that where a worker had complained of detrimental treatment on the ground that he had made a protected disclosure, the three-month primary limitation period began with the date of the act or failure to act to which the complaint related.[114]Thus, time began to run against a claimant relying on a detriment, whether or not he was aware that a detriment had been suffered. Those provisions were different from the effective date of termination provision for the purposes of an unfair dismissal claim. Accordingly, the Tribunal was right to treat the time as running from the date of the local authority's grievance decision on 8 October.[115]As HHJ Clark set out at para 6 of McKinney; “a clear thread is now emerging (see Mensah; Virdi ; Garry; Warrior Square) which points towards the counterintuitive position that time begins to run against the Claimant relying on a detriment, both under the Employment Rights Act … whether or not he is aware that a detriment has been suffered. I agree that the wording of section 48(3) Employment Rights Act is focussed on the employer's action (or omission) and that a detriment may be suffered without the Claimant being aware of it. …. Indeed section 48(4)(b) provides that a deliberate failure to act shall be treated as done when it was decided on, not, I would add, when the Claimant learned of the omission. That is consistent with the … line of authorities in relation to the employer's act. Whilst the need for knowledge is reinforced by the Supreme Court … when considering the effective date of termination … section 97(1)(b) Employment Rights Act raises a different question…” and while an employee “is entitled to know that he is dismissed before the dismissal takes place. He may suffer a detriment without that knowledge.” Were there continuing acts from the date of detriments relied upon?[116]As set out in EAT decision Ikejiaku v British Institute of Technology Ltd [2020] UKEAT/0243/19/VP [Ikejiaku], it is important not to confuse a continuing detriment with a continuing act, Royal Mail Group Ltd v Jhuti [2016] I.C.R. 1043 [Jhuti] considered. Time ran from the date of the act, regardless of whether a claimant had knowledge of the detriment that the act produced. A Tribunal should identify the protected act that the claimant believed had caused the detriment. This principle was applied in Flynn v Warrior Square Recoveries Ltd [2012] 10 WLUK 82 [Flynn]. The Tribunal, in Ikejiaku, had accepted that Mr Ikejiaku had made Protected Disclosures; however, the only matter which it found to have resulted from the October 2015 disclosure related to a purported new contract. The Tribunal found that none of the matters in a schedule concerning his employment status, such as the non-payment of tax, were related to the 2015 disclosure. The remedy judgment approached the time issue on the basis that the starting point was the respondent's act of introducing the new contract. The EAT held that Mr Ikejiaku could not rely on the allegations about the respondent's conduct in the dispute about his employment status. The question was whether the imposition of the new contract fell to be categorised as a “once and for all” act with continuing consequences, or as a continuing act extending over the whole period ending with the dismissal. A typical example in the latter category was where the employer's relevant act constituted a policy by reference to which decisions were made from time to time. The act of introducing the contract did not constitute a policy or rule, and there was no basis for concluding that the imposition of the contract was an act extending over a period. It was a one-off act with continuing consequences. The time issue appeal was dismissed (see paras 24-33 of the judgment). Burden of proof of whistleblowing claims[117]So far as it may be relevant, it is considered appropriate to note that in the EAT judgment International Petroleum Ltd v Osipov [2017] UKEAT/0058/17 [Osipov] at para 115, Simler P (as she was then) summarised the law as follows:(a) the burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure he or she made.(b) By virtue of s.48(2) ERA 1996, the employer (or other respondent) must be prepared to show why the detrimental treatment was done. If they do not do so inferences may be drawn against them: see London Borough of Harrow v. Knight at paragraph 20(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.”[118]There is no reverse burden of proof in whistleblowing detriment cases; Chief Constable of Greater Manchester Police v Aston [2021] UKEAT/0304/19/RN [Aston] at [54]. 54. It has been held that these provisions do not create a reverse burden of proof, but if an employer fails to show an innocent ground or reason the tribunal may, and no doubt frequently will, draw an adverse inference, but is not bound to do so …” and expressly approved the summary at p.115 in Osipov. Equality Act 2010[119]Section 39 of the Equality Act 2010 provides (so far as relevant) 39 Employees and applicants(1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.(2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.[120]Section 42 of the Equality Act 2010 provides: Identity of employer(1) For the purposes of this Part, holding the office of constable is to be treated as employment— (a) by the chief officer, in respect of any act done by the chief officer in relation to a constable or appointment to the office of constable; (b) by the responsible authority, in respect of any act done by the authority in relation to a constable or appointment to the office of constable.(2) For the purposes of this Part, holding an appointment as a police cadet is to be treated as employment— (a) by the chief officer, in respect of any act done by the chief officer in relation to a police cadet or appointment as one; (b) by the responsible authority, in respect of any act done by the authority in relation to a police cadet or appointment as one.[121]Section 158 of the Equality Act 2010 provides: 158 Positive action: general(1) This section applies if a person (P) reasonably thinks that— (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, (b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or (c) participation in an activity by persons who share a protected characteristic is disproportionately low.(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of— (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity.(3) Regulations may specify action, or descriptions of action, to which subsection (2) does not apply.(4) This section does not apply to— (a) action within section 159(3), or (b) anything that is permitted by virtue of section 104.(5) If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.(6) This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.[122]Section 159 of the Equality Act 2010 provides: 159 Positive action: recruitment and promotion(1) This section applies if a person (P) reasonably thinks that— (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or (b) participation in an activity by persons who share a protected characteristic is disproportionately low.(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to— (a) overcome or minimise that disadvantage, or (b) participate in that activity.(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.(4) But subsection (2) applies only if— (a) A is as qualified as B to be recruited or promoted, (b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and (c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).(5) “Recruitment” means a process for deciding whether to— (a) offer employment to a person, ….(6) This section does not enable P to do anything that is prohibited by or under an enactment other than this Act. Reliance on advice[123]The respondent’s written submission refers to Royal Bank of Scotland plc v Theobald [2007] UKEAT/00444/06 [Theobald] and Remploy v Brain [2011] UKEAT/0465/10 [Brain], on the concept of skilled adviser.[124]In addition to the cases referred to by the respondent is Chohan v Derby Law Centre [2004] IRLR 685 [Chohan], in which the EAT held that the Tribunal when considering a discrimination claim, in refusing to extend time (on just and equitable basis) had failed to consider Chohan’s explanation for the delay, which could have been a special factor in the instant case, and described at paragraph 20 “inextricably linked to the taking of advice is the concept that the party is not relying on his or her own actual or imputed knowledge”. In that case, dealing with extension for a discrimination (just and equitable) the Tribunal had not utilised a checklist under the (English) Limitation Act 1980 and by reference to the EAT decision in British Coal Corporation v Keeble (1997) IRLR 336 [Keeble] factors which include the steps taken by the party to obtain appropriate professional advice once they knew of the possibility of taking action, which could have been of assistance in reaching a decision. In refusing the extension, Chohan had been wrongly penalised for the fault of her legal adviser, as stated in paragraph 16. “The failure by a legal adviser to enter proceedings in time should not be visited upon the claimant for otherwise the defendant would be in receipt of windfall” (ref to Court of Appeal decision Steeds v Peverel Management Services Ltd [2001] 3 WLUK 859 [Steeds])
Discussion
[125]Parties agree that the claimant gives notice that he relies upon both the 27 April 2022 meeting and the April 2023 Grievance as, what may be considered to be, whistleblowing events.[126]The respondent argues (respondent's written submission, page 8; paragraphs 2 to 6, and page 9; paragraphs 1 and 2) that what was communicated in each, however, was insufficient to meet the relevant legal tests.[127]Were protected disclosures made at the meeting on 27 April 2022. That is does, what is given notice of being set out meet the 5 stage test; was there a disclosure of information of sufficient specificity and content by the worker in question, did the worker believe that that disclosure was made in the public interest, was any such belief was reasonably held, did the worker also believed that the disclosure tended to show one or more of the matters listed in S.43B(1)(a) to (f) ERA 1996; and, was any such belief was reasonably held.)[128]The Tribunal notes that within the claimant’s April 2023 Grievance: 1 At page 1, from paragraph 8 the claimant sets out that… “I was explicitly asked to provide my thoughts and feelings on the matter – in other words ‘my opinion’ on the matter. I explained the rationale behind my comments with the main points I voiced being the following, all of which where my personal opinion from experiences within my career to date. - That women were favoured in terms of recruitment - That women we favoured in terms of internal job promotion - That I disagree with Police Scotland playing the identity politics game breaking down personnel into ‘groups’ - That because of this instance on group identity, that ether were no structures or groups that looked out for and developed the ‘group’ that I fell into, that being a white heterosexual Scottish male. As a result of this I made the case that I felt I (or as Police Scotland would place me, my group) was being discriminated against Superintendent Wrights response to this was to recoil and act out of faux outrage, claiming that I cannot have those opinions. He went on to say I needed to provide evidence before making such claims. Well, as I had some downtime in the initial stages of my being SA’d I found myself looking into the matter…” 2 At page 2 at end of paragraph 5 the claimant set out that “Ultimately I was left with no option other than to submit an FOI request in order to provide some basis to my apparent controversial opinions.” 3 At page 2 paragraph 7 the claimant sets out “Moving on from the meeting in Perth I felt I was left with no option other than to seek to provide my case myself, starting with me submitting an FOI request to Police Scotland. Below are some extracts from this FOI.”[129]The claimant in the April 2023 Grievance, in short, sets out that having expressed voiced concerns or made allegations (Cavendish) at the 27 April 2022 Meeting, he recognised at that there required to be, as described in Kilraine, “sufficient factual content which is capable of intending to show one of the matters listed in subsection (1)”. To achieve this aim, the claimant decided upon an exercise of FOI requests to the respondent.[130]The results of the FOI requests are set out in the April 2023 Grievance.[131]As seen on page 4 of the claimant’s September 2024 Further and Better Particulars from paragraph 2, the claimant relies on the statistics as “The basis for my claims of Police Scotland engaging in indirect sex based discrimination…”[132]Further in the April 2023 Grievance, the claimant, in his criticism of Superintendent Wright’s response, at page 2, paragraph 1, describes that Inspector Wright “went on to say I needed to provide evidence before making such claims”.[133]It is further noted that while in the April 2023 Grievance at page 5 from paragraph 4 to 8 the claimant set out that “I know of two Officers who recently had gone through the Diploma and were nearing the end …” there is no specification as to when that occurred beyond “recently”. In any event, and if it had occurred the preceding year, the claimant does not suggest that he gave any notice of that alleged instance in the 27 April 2022 meeting.[134]The Tribunal concludes that while the claimant expressed opinions at the 27 April 2022 meeting, there was no information provided of “sufficient factual content which was capable of intending to show one of the matters listed in” 43B (1) (a-f) ERA 1996.[135]The claimant was invited to provide such information by Superintendent Wright at the 27 April 2027 meeting. In order to be able to do so, the claimant decided upon an exercise of FOI requests to the respondent.[136]In summary, the Tribunal concludes that the claimant did not make protected disclosures at the 27 April 2023 meeting.[137]Arising from this, all claims in respect of the alleged detriments that predate the April 2023 Grievance, and which are reliant upon their being protected disclosures made at the April 2022 meeting, are dismissed. Those are: 1 Permanent Withdrawal of the Firearms Authorisation Detriment; and 2 Change in Work Location Detriment; and 3 Change in Job Role Detriment.[138]Were Protected Disclosures made in the April 2023 Grievance? That is, does, what is given notice of being set out meet the 5 stage test was there a disclosure of information sufficient specificity and content by the worker in question, did the worker believed that that disclosure was made in the public interest, was any such belief was reasonably held, did the worker also believe that the disclosure tended to show one or more of the matters listed in s.43B (1)(a) to (f) ERA 1996; and, was any such belief was reasonably held.[139]Background to 27 April 2022 Meeting Section. The Tribunal, in short, concludes that this section does not contain sufficient factual content and specificity which is capable of or tending to show one of the matters listed in subsection 43B (1) (a-f) ERA 1996.[140]FOI Data Section of the April 2023 Grievance: The respondent broadly disagrees with and indeed criticises the motivation of the claimant’s approach (page 8, paragraph 6 and page 9, paragraphs 1 and 2 of the respondent's written submission), and while not proposing that the claimant has been selective in choosing, for instance, from a greater number of FOI responses the respondent may have issued to claimant, in order to fit a narrative, they offer alternate explanations.[141]However on whether there was a disclosure of information by the worker, taking an evaluative judgment of all the facts including having regard to the circumstances of the April 2023 Grievance and the full content, the Tribunal concludes that the FOI Data Section provides Cavendish and Kilraine information, in that it has sufficient factual content and specificity which is capable of or tending to show one of the matters listed in s 43B (1) (a-f), ERA 1996; specifically (b) – a person (in this instance Police Scotland) a possible misapplication of a legal obligation to which they are subject, a possible misapplication of aspects of the Equality Act 2010, including s39 EA 2010 recruitment and promotion.[142]It is observed that, given the relevant issues, it is unnecessary to conclude on whether, in fact, the Success Rate Profile Data, on a statistical basis, in fact demonstrates a misapplication of s158 EA 2010. Consideration of this issue may include examining a potentially large number of variables that exist beyond the sex of those applying, such as career length, application to any relevant test, and indeed, other random variables, including motivation throughout the process due to external non-work factors. It is possible that where a greater cohort of available officers is available to apply for initial ranks (Constable to Sergeant or Sergeant to Inspector), the statistical outcome, where there are no other material relevant variables, may be anticipated to be broadly comparable. However, subsequent promotion levels in consequence of (what may be a reduced actual cohort of Superintendents which may apply for a further reduced number of Chief Superintendents are significantly smaller), any variation in outcome (again where there are no other material variables) may be based on such low numbers that no substantive conclusion can be drawn on any specific metric (in statistics, the term T-test and Z-test is sometimes used to compare different percentage scores). As Baroness Hall described in Essop; Naeem correlation is not the same as causal link.[143]However so far as relevant to the issue for this Tribunal, the Tribunal considers that the claimant believed the disclosure made to Police Scotland was, in part, in the public interest, and given the FOI data, this belief was reasonably held, and while noting the respondent's submission, although the worker must have a genuine (and reasonable) belief that the disclosure is in the public interest, that does not require to be the predominant motive in making it.[144]Further, the Tribunal concludes that the claimant also believed that the disclosure tended to show one or more of the matters listed in s.43B(1)(a) to (f) ERA 1996, specifically that it tended to show a possible misapplication of recruitment provisions. That the claimant may not have considered factors which may impact on interpretation of the raw data and indeed that the interaction of provisions of the Equality Act 2010, would have included, in light of Furlong, s158 Equality Act 2010 Positive Action; General provisions of the Equality Act 2010, does not detract from that this belief, based upon respondent provided data, was reasonably held.[145]Group Forum Criticism Section: While the Tribunal concludes that this contains some sufficient factual content and specificity, the existence of group forums or networking within a working environment is not, in itself, a breach of the Equality Act 2010. The claimant’s view that the existence of such groups is unfair is set out in the context that the claimant considers that establishing an equivalent mentoring or networking group would be met with condemnation and suspicion. There may be several reasons for the absence of such a group, including no attempt to establish one by male police officers, which in turn may be due to an existing cohort of officers having sufficient geographical and other spread to afford informal and other mentoring opportunities, making it, in the view of male officers, unnecessary to propose. In any event, the claimant does not offer to suggest anything beyond his opinion that it would be met with condemnation and suspicion. That does not amount to a reasonable belief of possible misapplication of aspects of the Equality Act 2010, including s39 EA 2010, recruitment and promotion.[146]Post April 2022 criticism section. The Tribunal, in short, concludes that this does not contain sufficient factual content and specificity which is capable of or tending to show one of the matters listed in 43B (1) (a-f) ERA 1996.[147]Claimant response to PI Nicol report section. The Tribunal, in short, concludes that this does not contain sufficient factual content and specificity which is capable of or tending to show one of the matters listed in 43B (1) (a- f) ERA 1996.[148]Conclusion section. The Tribunal, in short, concludes that this does not contain sufficient factual content and specificity, which is capable of or tending to show one of the matters listed in 43B (1) (a-f) ERA 1996.[149]Parties do not agree on the detriments for which notice is given within the pled case.[150]It is for the Tribunal to consider (Chandhok refers) whether written notice of an alleged detriment is given in the written case. From the Tribunal’s conclusion on there being such written notice on alleged detriment, it is for the Tribunal to consider what the date of the detriment is from which the primary time limit is calculated.[151]The respondent, in paragraph 1 of their written submissions, identifies that given the date the claim was lodged and ACAS early conciliation, any act to which the complaint relates that occurred prior to 6 March 2024 is potentially out of time. The respondent calculation is understood to reflect counting backward from the start of the date of referral to ACAS for the start of Early Conciliation, applying the 3-month less one day time, to assist in identifying the earliest date upon which an act complained of could be in time and before which date any event is out with the primary time limit. In doing so, the respondent has applied the 3-month less one day time limit, allowing for the stop the clock mechanism during ACAS Early Conciliation.[152]The Tribunal has concluded that the first alleged Disclosure Event (the meeting of 27 April 2022) does not amount to a Protected Disclosure event. Thus, only those detriments which postdate the second alleged Disclosure Event may possibly amount to detriments arising.[153]However, the Tribunal considers, in all the circumstances, that it is helpful to consider all alleged detriment for which notice is given. From this, the question is whether (Chandhok compliant) Notice of Detriments set out in the ET1 and the Further and Better Particulars.[154]Tribunal concludes that the detriments for which notice is given in the claimant’s pleadings can be summarised as follows, reference below are to the claimant’s September 2023 Further and Better Particulars, unless otherwise set out: 1 Permanent Withdrawal of the Firearms Authorisation Detriment; Notice is given at page 2 (vii) and (viii) in the context of what is earlier set out at 8.2 of the ET1 in the second paragraph, notice of the first Detriment relied upon is set out. The claimant does not insist on a detriment related to the temporary withdrawal of Firearms Authorisation; the detriment insisted upon can be summarised as Permanent Withdrawal of the Firearms Authorisation. That is said, by the respondent, to be the only Detriment for which Notice is given. The respondent’s decision in relation to same, was made on 17 November 2022. It is from that date that the primary time limit is calculated. What the claimant argues for as the permanent withdrawal of firearms authorisation detriment was a "once and for all" act. It was not a continuing act that extended over the entire period, from the permanent withdrawal to the presentation of the claim, or beyond. It was a one-off act with continuing consequences. The claimant argues that he found the information within the respondent database during the month of December 2022, although he cannot recall when. It is accepted that the claimant was actively looking into the matter (page 2 of the claimant's written Further and Better Particulars at para 2), and in his evidence, he was (understandably) keeping an eye on the database (which he described as the Portal). The Tribunal concludes that the information was available on the respondent’s database from shortly after the decision, although, as the claimant was already subject to a temporary withdrawal of authorisation, it would not necessarily be a matter of immediate operational utility. Furthermore, the claimant was on leave at the time and was not directly advised. The Tribunal concludes that it was not reasonably practicable for the claimant to have presented the claim until the decision was uploaded and could have been viewed by someone, such as the claimant, who was keeping an active eye on such matters. The Tribunal considers that the claimant was seeking to be accurate as he could in his evidence and accepts that he became aware in December 2022. The Tribunal concludes that he became aware on 1 December 2022. As such, the Tribunal concludes that the primary time 3 months less one day time limit commences on Thursday 1 December 2022, a short time after the claimant was transferred out of active policing to Response Policing A Division. It is from that date that the 3 months less one day time limit for the bringing of proceedings applies, which expired 1 March 2023. 2 Change in Work Location Detriment; Notice is given at page 3 at paragraph 1. The Tribunal concludes that this is notice of a Detriment relied upon, which can be summarised as Change in Work Location. The Respondent argues that there is no such Detriment beyond 1 above for which notice is given. While recognising the importance of the approach in Chandhok, the Tribunal disagrees. The claimant set out in his pleadings criticism of what he describes as a change in location. The claimant set out that he was advised of the change of location “almost immediately” and “within a month”. That is consistent with the claimant being allocated a support role in the Criminal Justice Division on 10 May 2022, subsequently moving and thereafter being moved to the respondent Operation Support Division Compliance Team at Old Perth Road, Inverness on 18 July 2022. What the claimant argues as a change in work location detriment was a "once and for all" act. It was not a continuing act that extended over the entire period, from the final job move to the presentation of the claim, or beyond. It was a one-off act with, it may be argued, continuing consequences. The primary time limit, in relation to the Change of Work location starts as at the respondent’s decision and not when the change takes place. So far as it may be relevant however, the Tribunal concludes, on the information available, that it was not reasonably practicable in all the circumstances, including having regard to the claimant’s position that he argued successfully that he would be taking what he described as his 28 Days’ notice prior to carrying out the move, for the claimant to issue proceedings until 18 July 2022. Applying the 3 months less one day time limit for the bringing of proceedings from (that is, forward), the date the relevant time limits expired is 18 October 2022. 3 Change in Job Role Detriment; Notice of which is given at page 3 at paragraph 2. The Tribunal concludes that this is notice of a Detriment relied upon, which can be summarised as Change in Job Role. Again, it is noted that the respondent argues that there is no such Detriment beyond 1 above for which notice is given. While recognising the importance of the approach in Chandhok, the Tribunal disagrees. The claimant set out in his pleadings criticism of what he describes as a change in location. The claimant set out that he was advised of the change of location “almost immediately” and “within a month”. That is consistent with the claimant being allocated a support role in Criminal Justice Division on 10 May 2022 and being moved the respondent Operation Support Division Compliance Team at Old Perth Road, Inverness on 18 July 2022. What the claimant argues as a change in job role detriment was a "once and for all" act. It was not a continuing act that extended over the entire period, from the final job move to the presentation of the claim, or beyond. It was a one-off act with, it may be argued, continuing consequences. The primary time limit, in relation to the Change of Job Role starts as at the respondent’s decision and not when the change takes place. However, the Tribunal concludes, on the information available, that it was not reasonably practicable in all the circumstances, including having regard to the claimant’s position that he argued successfully that he would be taking what he described as his 28 Days’ notice prior to carrying out the move, for the claimant to issue proceedings until 18 July 2022. Applying the 3 months less one day time limit for the bringing of proceedings from (that is, forward), the date the relevant time limits expired is 18 October 2022. 4 Delays in the Grievance Process Detriment; Notice of which is initially given at 8.2 of the ET1 in the second paragraph the claimant describes “As a result of raising these concerns... subjected me to months of speculation with the promise of further training to assist me in getting my authorisation back and generally making my working life difficult and any and in any event that I raised concerns relating to the working conditions and I found myself in that was then used to someone justify and ‘prove’ that I was no longer suitable to continue as a firearms officer” and at page 4 paragraph 1 (which commences at foot of page 3) of the claimant’s Further & Better Particulars. The Tribunal concludes that this is notice of a Detriment relied upon, which can be summarised as Delays in the Grievance Process. While the respondent argues that there is no Detriment beyond 1 above for which notice is given. While recognising the importance of the approach in Chandhok, the Tribunal disagrees. The claimant set out in his pleadings criticism of what he considers to be delays in the Grievance Process, which he describes as “not just punishing me with the removal of my Firearms Authority but dragging the process out…”. The respondent set out its outcome to the Grievance process on 6 December 2023. What the claimant considered to be delays in the grievance process detriment, was a "once and for all" act. It was not a continuing act that extended over the entire period, from the issue of the grievance decision to the presentation of the claim, or beyond. It was a one-off act with, it may be argued, continuing consequences. It is from the outcome of the respondent’s decision that the primary time limit starts. The decision was issued to the claimant on that date. In all the circumstances, the Tribunal concludes that it was not reasonably practicable for the claimant to present a claim for a few days thereafter to allow for receipt of the outcome. On this basis, the Tribunal considers that it was not reasonably practicable to issue proceedings until 11 December 2023. Applying the 3 months less one day time limit for the bringing of proceedings from (that is, forward), the date the relevant time limits expired is 11 March 2024. 5 Failing to fully investigate matters in the Grievance Procedure Detriment; Notice of which is given at page 4, in the first paragraph. The Tribunal concludes that this is notice of a Detriment relied upon, which can be summarised as Failing to fully investigate matters in the Grievance Procedure. The Respondent argues that there is no such Detriment beyond 1 above for which notice is given. While recognising the importance of the approach in Chandhok, the Tribunal disagrees. The claimant set out in his pleadings criticism of what he considers to be a failure to fully investigate matters in the Grievance Process (Abertawe and Jesudason refer). The respondent set out its outcome to the Grievance process on 6 December 2023. What the claimant considered to be a detriment of a failure to fully investigate matters in the grievance procedure was a "once and for all" act, with it may be argued continuing consequences; however, it was not a continuing act extending over the entire period from the grievance procedure to the presentation of the claim or beyond. It was a one-off act with, it may be argued, continuing consequences. It is from the outcome of the respondent’s decision that the primary time limit starts. The decision was issued to the claimant on that date. In all the circumstances, the Tribunal concludes that it was not reasonably practicable for the claimant to present a claim for a few days thereafter to allow for receipt of the outcome. On this basis, the Tribunal considers that it was not reasonably practicable to issue proceedings until 11 December 2023. Applying the 3 months less one day time limit for the bringing of proceedings from (that is, forward), the date the relevant time limits expired is 11 March 2024. 6 Attacking the claimant’s character detriment. Notice of which is given at page 3 third paragraph and at page 4, in the first paragraph. The Tribunal concludes that this is notice of a Detriment relied upon, which can be summarised as attacking the claimant’s character. While noting that the respondent argues that there is no such Detriment beyond 1 above for which notice is given. While recognising the importance of the approach in Chandhok, the Tribunal disagrees. The claimant set out in his pleadings criticism of what he considers to be attacks on his character in the Grievance Process as above. The respondent set out its outcome to the Grievance process on 6 December 2023. What the claimant considered to be a detriment of attacking the claimant’s character was a "once and for all" act, with it may be argued, continuing consequences; however, it was not a continuing act extending over the entire period from the grievance procedure to the presentation of the claim or beyond. It was a time limited act within respondent communications on what the respondent regard as contraindications which led to the permanent withdrawal of firearms authorisation and, it may with, it may be argued, continuing consequences. While the primary time limit is based on the expression of views, the grievance outcome decision was issued to the claimant on 6 December 2023. In all the circumstances, the Tribunal concludes that it was not reasonably practicable for the claimant to present a claim for a few days thereafter to allow for receipt of the outcome. On this basis, the Tribunal considers that it was not reasonably practicable to issue proceedings until 11 December 2023. Applying the 3 months less one day time limit for the bringing of proceedings from (that is, forward), the date the relevant time limits expired is 11 March 2024. 7 Further Pled detriments. At page 5 of the claimant’s September 2023 Further and Better Particulars, in the third and fourth paragraphs, the claimant describes his application for a position on a ‘Police Leadership Development Plan’ and makes criticism as to why with “vast experience” he had not got through, noting that a female colleague had. However, that is pled has having occurred “several years ago”. The claimant’s submission does not reference same, understandably as the alleged instance occurred before the alleged disclosures at the meeting on 27 April 2022 and the April 2023 Grievance. 8 Additional matters re pled detriment. The claimant’s September 2023 Further and Better Particulars do not comment on the terms or circumstances of the claimant’s Appeal against the Grievance outcome notified to the claimant by letter dated 6 December 2023, which culminated in the claimant meeting with the Chief Superintendent on 20 March 2024. There is no notice that the claimant takes issue with the terms of that meeting, or the notified outcome of that appeal issued on 22 March 2024. The claimant’s appeal and its contents were not provided to the Tribunal, nor was the outcome. Had the claimant wished to place that material, including the outcome of the appeal, before the Tribunal for the Open Preliminary Hearing, it would have been open to him to do so. Those matters are not addressed in the claimant’s written submission. There is no detriment for which notice is given in relation to the appeal and its outcome.[155]The claimant in his written submissions lists in bullet point form what he proposes as the detriment descriptions or otherwise the detriments themselves at paragraph 17 (on page 3). The Tribunal addresses those points as follows. 1 The first and fourth bullet point is essentially a reframed analysis of No 3 Change in Job Role. 2 The second bullet point essentially describe his position which culminated in what the claimant describes as his sixth bullet point No 1 Permanent Withdrawal of the Firearms Detriment. 3 The third bullet point is essentially a reframed analysis of No 2 Change in Work Location Detriment. 4 The fifth bullet and sixth bullet points are essentially a reframed analysis of No 5 Failing to fully investigate matters in the Grievance Procedure Detriment and No 6 Attacking the claimant’s character Detriment. 5 The seventh bullet point is essentially a reframing of No 1 Permanent Withdrawal of the Firearms Detriment, beyond which it is broadly an anticipation of a future event. Was the claimant relying upon advice in relation to his pled complaint of whistleblowing prior to the issue of this claim? Discussion[156]As both the claimant and respondent raise this matter in submissions, by reference to 3 SPF emails, 2 of which have been provided in redacted form, the Tribunal considers it appropriate to make some comments. In short, from the 3 SPF emails, so far as they are unredacted, it cannot be said what the subject matter of those emails was.[157]The claimant, having withdrawn his sex discrimination claim, the sole remaining claim before the Tribunal is that of whistleblowing. As above, the sole protected disclosure event is the claimant’s April 2023 Grievance. The subject of any complaint is critical to establish the start of the primary time limits. There are different statutory approaches beyond that, for whistleblowing, whether it is reasonably practicable to extend time, and in discrimination, whether it is just and equitable to do so.[158]The claimant pled in his September 2023 Further and Better Particulars, without identifying input from any others, two (first instance) judgments in support of his claim – Furlong, the substantive judgment of which was published online since February 2019, and Malone, published online since October 2021. Malone, which the claimant confirmed he was aware of initially from BBC reporting of the case, expressly deals with primary time limits.[159]Following the 29 April 2022 meeting, the claimant was transferred, something the claimant objected to. At the claimant set out in the March 2023 Grievance, in the context of the allocation in May 2022 to a new role, that he would be taking 28 days’ notice prior to carrying out my move, as was my right. This was not well received and led to me having to consult the federation” the Scottish Police Federation (SPF) “to confirm I was correct in my stance- which was confirmed to be so.”[160]That is to say, the claimant’s engagement with the SPF at that stage was limited, having already directly put what the claimant knew to be his entitlement to the respondent, which was not well received by the respondent, he then consulted SPF, simply to confirm that the claimant’s existing asserted position was well-founded. The claimant does not suggest there or anywhere else in the pleadings, despite expressly setting out the citation for Malone, that he was relying on advice from SPF.[161]In the claimants’ submissions (para 3 and 4), the claimant indicates that “in the weeks and months that followed that advice I set about compiling my grievance submitted it on 11 April 2023.”[162]The claimant describes sequentially that he set out compiling his grievance, which he submitted on 11 April 2023.[163]The 15 January SPF email was issued almost 3 months before the claimant submitted his April 2023 Grievance. Which, as above, the Tribunal concludes is framed as a statement to prove that the claimant, both as an individual and as a group, was being discriminated against.[164]What the claimant says in his April 2023 Grievance (at page 2 paragraph 7) is that “Moving on from the meeting in Perth I felt left with no option than to prove my case myself, starting with me submitted an FOI request to Police Scotland.”[165]There is no contemporaneous suggestion that the FOI exercise the claimant embarked on, and which the claimant describes as being deployed to prove his position, reflected any advice from anyone.[166]There is nothing in the 15 January 2023 SPF email, that indicates that the claimant was instructed or otherwise required to embark on the exercise he did, rather so far as it is unredacted it invites the claimant to “… clearly set out” to SPF “a case to show what you are looking at – Victimisation or Discrimination” and comments that no legal case would be provided to the SPF lawyers unless it is clear and obvious.[167]As above, the Tribunal observes that the 15 January 2023 SPF email, in the second unredacted paragraph, invites the claimant to clearly identify the case he is looking at. That is a criticism the respondent made of the pled case. There is no contextual documentation, such as a preceding communication, and the email itself is partially redacted. The only actionable term in the 15 January 2023 SPF email, beyond discrimination is victimisation. Victimisation is an actionable form of discrimination – s27 of the Equality Act 2010.[168]Nothing further is provided from 2023 to indicate that the claimant provided a response to set out any case.[169]It is noted that at the foot of page 1 of the April 2023 Grievance, the claimant describes he “made the case that as I felt (or as Police Scotland would place me, my group) was being discriminated against.” Further, in the first paragraph of page 2, the claimant has recounted his position that Superintendent Wright described that the claimant “needed to provide evidence before making claims”.[170]It is in the above context that the claimant makes a reference to whistleblowing at page 2 in the second paragraph describing a (Standing Operating Procedure) SOP/Moodle on Whistleblowing, in relation to which the claimant suggests that the “onus is very much on him to listen to my concerns and carry out an appropriate inquiry”.[171]Discrimination is the term which is identified as actionable within the April 2023 Grievance (including on page 1 and by implication at page 5 – “equality of opportunity”, and at page 13, he refers to “my original claim of discrimination”).[172]The claimant concludes his 14-page April 2023 Grievance with the statement that “The combined action of these individuals and my treatment by this organisation over the last years amount to my worst period in Policing, resulting in my having considered legal action, whistleblowing and finding other employment”. (emphasis added). The Tribunal concludes that the claimant described that he (not others) had considered 3 options, the first being legal action (for discrimination), the second being whistleblowing about matters, and the third being finding other employment.[173]The respondent has broadly proposed that the SPF email communication makes (or gives) a likely explanation for the timings of the claimant’s actions.[174]However, the 5 February 2024 SPF email is heavily redacted. The unredacted element, seeks information from the claimant including on when the claimant submitted an appeal, what time frame the respondent has placed on that appeal and sets out a description of the legal process within SPF structure; that only a small number become a legal case and some of those are private (not through SPF) cases.[175]There is nothing within the unredacted element of the 5 February 2024 SPF email to suggest that the claimant had notified SPF upon the issue of outcome of the Grievance on 6 December 2023, around 2 months earlier. There is nothing to suggest that he was seeking advice at that time on the basis that he considered that he had made a protected disclosure and that what he was considering at that time was a whistleblowing claim arising from his April 2023 Grievance and subsequent identified detriments, nor indeed any dates of subsequent detriments.[176]The claimant at paragraph 7 of his submissions sets out that, after concluding both the grievance and appeal process, which had ended on 22 March, the claimant once again sought legal advice via the Federation, referring to the 1 April 2024 SPF email.[177]The claimant does not identify the subject of the advice, whether he was seeking advice on discrimination or all matters subsequently set out in his ET1, or indeed September 2024 Further and Better Particulars; he does not provide the communication seeking advice.[178]The 1 April 2024 SPF email concludes that SPF will get the “legal paper work to you today” having described stopping the clock on any running time limit and describes if the claimant gets in touch ACAS “today, that would cause a pause “so the time limits don’t have an effect.” The claimant did not contact ACAS for Early Conciliation until 6 June 2024, more than 2 months after that email.[179]The 1 April 2024 SPF email, sets out “there are time limits ..” describing that they will be passed and suggests that these have been ongoing as he had been going through the grievance process, it is not clear when the claimant had notified either the grievance or appeal concluded. It does not set out what those time limits are. At paragraph 8 of the claimant's submission, the claimant describes notifying ACAS within what he describes as the 3-month, less one-day time limit, which is not something set out in the unredacted elements of the SPF emails.[180]It is not suggested that the claimant’s ET1 was in fact presented by anyone other than the claimant. The claimant’s original claim, after being corrected upon the claimant’s initial error, was for sex discrimination and whistleblowing. The sex discrimination claim was withdrawn by the claimant on 21 January 2025 after two Tribunal case management Preliminary Hearings, Further and Better Particulars having been Ordered after the first case management Preliminary Hearing, matters having been discussed in the second case management Preliminary Hearing and a Time Bar/Strike Out Preliminary Hearing having been Ordered.[181]In the circumstances, the Tribunal concludes that the claimant is mistaken in any recollection that he was relying upon advice in relation to the presentation of the ET1 relating to the claim which remained at this hearing and was not relying on advice from SPF at any material time, in relation to the only claim which remains before this Tribunal.
Conclusion
[182]The respondent offers, by applying the 3-month less one day primary time limit, in reverse, counting back from the date of presentation of the ET1 (allowing for ACAS stop the clock), that the earliest date an act could be in time was 6 March 2024.[183]The Tribunal, in order to assess when the period for presenting any claim, has taken the different approach to calculating the date, starting from the detriments applying the 3-month less one day time limit and considering any extension, which it concluded was appropriate on the basis that it was not reasonably practicable to have presented a claim. It is recognised that when applying the 3 months less one day rule both forward and in reverse, it may appear that the dates overlap; however, this is a coincidence.[184]In each of the separate calculations, the primary time limit can only be applied once. On this basis, these claims were not presented in time.[185]The April 2023 Grievance contains Protected Disclosure; however, this claim was not presented in time, having regard to the time limits applicable to the post-April 2023 Grievance alleged detriments.[186]The Tribunal does not have jurisdiction in this matter, having regard to the time limitations provided in ERA 1996 for whistleblowing, and all claims are therefore dismissed.