Ms C Goble and Dr N Clark v Fife Employment Access Trust (FEAT): 8001317/2024 and 8001090/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001317/2024, 8001090/2024

Between

Ms C GobleClaimant

Fife Employment Access Trust (FEAT)Respondent

Before

Employment Judge A Jones

Mr Harrington, solicitor for claimant

Mr Grant-Hutchison for respondent

counsel, instructed by for respondent

Young and Partners for respondent

Business Lawyers Ltd for respondent

Date 16 December 2025

JUDGMENT

It is the unanimous judgment of the Tribunal that: In relation to the claims of Ms Goble: She was unfairly dismissed by the respondent;

[2]She made a protected disclosure for the purposes of section 43B Employment Rights Act 1996 (‘ERA’);

[3]She was subjected to detriments for having made a protected disclosure, in that she was suspended from work, and subjected to disciplinary proceedings alleging fraud on her part;

[4]She was not automatically unfairly dismissed for having made a protected disclosure;

[5]She was not dismissed by reason of redundancy and therefore is not entitled to a redundancy payment;

[6]She was wrongfully dismissed;

[7]She was not paid the holiday pay to which she was entitled;

[8]She was a disabled person at the material time, and

[9]The respondent had a duty to make reasonable adjustments to reduce the disadvantage suffered by her because of her disability during her suspension and the disciplinary proceedings against her and the respondent failed in that duty. And the respondent is ordered to pay to Ms Goble the sum of Thirty Seven Thousand, Seven Hundred and Twenty Seven Pounds and Sixty Eight Pence (£37,727.68) in compensation. In relation to the claims of Dr Clark: She was unfairly dismissed by the respondent;

[2]The respondent made unlawful deduction from her wages;

[3]The respondent failed in its duty to make reasonable adjustments;

[4]The respondent subjected Dr Clark to a course of conduct of harassment related to disability, and

[5]She did not do a protected act for the purposes of section 27 Equality Act 2010 (‘EqA’) and the respondent did not victimise Dr Clark. And the respondent is ordered to pay to Dr Clark the sum of Fifty Eight Thousand, Four Hundred and One Pounds and Seventy Three Pence (£58,401.73) in compensation.

REASONS

Remedy

[1]The claimants were employed by the respondent which is a charity supporting people with long term mental health issues in obtaining and remaining in employment. The claimants worked on a project called NIDMAR which was a five-year program to support a Ministerial commitment of the Scottish Government to train 300 supported case managers to achieve Certified Disability Management Professional Registration. NIDMAR is an acronym for the National Institute of Disability Management and Research.

[2]Dr Clark (‘NC’) was the program manager of NIDMAR and Ms Goble (‘CG’) provided administrative assistance to the project and in person disability assistance to NC.

[3]The respondent accepted that NC is a disabled person by reason of the condition phonologic dyslexia. The respondent does not accept that CG was a disabled person during her employment with them.

[4]The employment of both claimants terminated on 31 March 2024. While they bring different claims their claims arise out of the same factual matrix, and all parties agreed the claims should be heard together.

[5]Four bundles of documents were lodged. Each claimant lodged a bundle, and the respondent lodged separate bundles in respect of each claimant.

[6]The Tribunal heard first from CG. NC was not in attendance during the evidence of CG other than for the evidence she led from CG relating to her own case and the cross examination of that evidence. The Tribunal then heard from Ms Berrick (‘EB’) who was providing in person disability support to NC throughout the hearing, in order to allow her to provide that support during the course of NC’s own evidence. Parties had no objection to this. NC then gave evidence. The next witness was Mr Hackett (‘JH’) who was the trade union representative of both claimants in relation to grievance and disciplinary proceedings concerning each of them. Parties had been informed prior to the evidence of JH that he was known to the Tribunal Member Mr McKay as they were in the same trade union, but that they did not have a relationship outwith the trade union. Parties had no objection to Mr McKay continuing as a Tribunal Member in these circumstances. A witness order had been granted in respect of Mr Asif Ishaq who had latterly been the responsible officer for the Scottish Government for the NIDMAR project. His evidence was interposed after the examination in chief of JH and prior to cross examination of JH with the agreement of all parties.

Relevant law

[7]The Tribunal then heard from Mr Roddy Duncan who had previously been the responsible officer at the Scottish Government for the NIDMAR project. Elaine Richards who had previously been the compliance officer for the respondent also gave evidence on behalf of the claimants. Finally on behalf of the claimants the Tribunal heard from Mr Graham Halsey (‘GH’) who delivered training on the NIDMAR program and had worked with the claimants in that regard.

[8]GH gave evidence on meetings which he said had taken place with the now chair of the respondent prior to the disciplinary and grievance proceedings which form the basis of the claimants’ claims. That evidence was not anticipated by the claimants. In the circumstances, the Tribunal gave the respondent the opportunity to take instructions on the evidence which had been given and recall GH if they wished to challenge his evidence and lead the evidence of Ms Guthrie, the chair of the respondent or lead evidence from anyone else involved in relation to those meetings. As the Tribunal did not wish GH to be unsure about the position, and the Tribunal had been informed that it was Ms Guthrie who was providing instructions on the conduct of the case to agents, a period of 48 hours was provided to take instructions on the matter. The respondent’s position however was that on expiry of that deadline that Ms Guthrie was still considering her position and wished a further 7 days in which to determine whether there would be any application to recall GH and suggested that the respondent’s position would be confirmed in writing at that time. That application was refused. The respondent had prior notice that the claimants were going to call GH and while the claimants were unaware of the evidence he gave regarding meetings with the respondent, unless that evidence was entirely fabricated, the respondent would have been aware of such meetings. In addition, that would have meant that any further evidence of GH could not have been taken until the continuation of the hearing after 22 October if indeed GH was available at that time. The Tribunal was of the view that such a scenario was not in keeping with the overriding objective.

[9]The respondent led evidence from Mr Grant Bowie (‘GB’) who is their Chief Operating Officer and Mr Duncan Mitchell (‘DM’), the Chief Executive. The respondent had indicated that it intended to call Ms Robyn Probart (‘RP’), who is the Compliance Manager for the respondent, although is employed by Motivational Solutions Ltd, a company owned by Ms Guthrie; Ms Lynn Paul (‘LP’) who is an HR consultant with HR Booth to whom the respondent contracted various responsibilities and Mr James Greig with whose company the respondent contracts for IT services. The Tribunal was due to hear evidence from these witnesses on 21 and 22 October. However, on the morning of the 21 October, the Tribunal were informed that the respondent no longer intended to call these witnesses and that agents had been instructed to close their case. An email had been sent to the Tribunal and the other parties at 16.50 the previous day but had not yet been brought to the attention of the Tribunal. The respondent gave no reason for the change in position, and the hearing was adjourned after sitting very briefly on 21 October.

[10]Parties then exchanged written submissions and made further oral submissions in response to the other parties’ submissions on 6 November. Issues to determine

[11]Each claimant provided detailed a list of issues. Neither list was agreed by the respondent. At the commencement of the proceedings, it was suggested that the respondent would agree the list of issues with each claimant. Dr Clark’s proposed list of issues included matters which the Tribunal did not have jurisdiction to determine as there was reference to claims not before the Tribunal. Dr Clark subsequently lodged another, shorter list of issues, but the respondent did not agree or disagree with that revised list. The list of issues itself was not in some respects consistent with the pleadings. A list of issues was lodged on behalf of Ms Goble, and it was suggested that this might be adjusted following comment by the respondent. However, in submissions, the Tribunal was informed that no comment in fact had been received from the respondent.

[12]The Tribunal is mindful that agreed lists of issues ought to be provided in advance of a final hearing or at the commencement of that hearing. It was satisfied that it had a proposed list of issues in respect of Ms Goble and the respondent did not at any stage take issue with that list.

[13]However, in respect of Dr Clark, matters were more complicated. Dr Clark, though clearly intelligent and able, is not a legal professional and has not had experience of the Tribunal system. A revised claim form was lodged on her behalf which was drafted by solicitors and was accepted by the Tribunal. Dr Clark was not however in a position to continue to instruct agents and therefore the list of issues produced by her was quite wide ranging and in some respects unfocussed. The Tribunal intends no criticism of Dr Clark in this respect as her claims are complex and the legal aspects of the claim difficult. It did not appear to the Tribunal that the respondent had worked with Dr Clark to attempt to focus issues, which was regrettable. The Tribunal took into account Dr Clark’s status as a party litigant and the nature of her disability in attempting to clarify the issues to be determined. In addition, it considered whether the respondent had addressed these issues in their pleadings and/or submissions.

[14]The position was not ideal, but the Tribunal took the view that it had to be pragmatic and make the best use of time and had agreed lists of issues been insisted upon, a postponement would have been required of a hearing which was already taking place some considerable time after the relevant events. Ms Goble

[15]In summary the issues for determination by the Tribunal in relation to the claims advanced by Ms Goble were as follows. i. Did CG make a protected disclosure? ii. Did the respondent subject the claimant to a detriment? iii. If so, was she subjected to a detriment because she made a protected disclosure? iv. Was the claimant unfairly dismissed? v. Was the claimant wrongfully dismissed? vi. Was the claimant entitled to a redundancy payment? vii. Did the respondent fail to pay CG in respect of accrued but untaken holidays? viii. Was the claimant a disabled person for the purposes of section 6 Equality Act 2010 (‘EqA’) at the material time (being between January 2023 and 31 March 2024) and if so, was the respondent aware or ought it reasonably to have been aware of that fact? ix. Did the respondent fail in a duty to make reasonable adjustments in respect of CG? x. Did the Tribunal have jurisdiction to determine the claimant’s claims given the relevance of time limits. xi. What remedy if any should be awarded in respect of CG? Dr Clark

[16]In terms of the claims advanced by NC, taking into account the comments above, the Tribunal was required to determine: i. Was the claimant unfairly dismissed? ii. Was the claimant wrongfully dismissed? iii. Did the respondent fail in a duty to make reasonable adjustments in respect of NC? iv. Did the respondent subject NC to harassment related to disability? v. Did the respondent indirectly discriminate against NC in relation to disability, if so, was such conduct justified? vi. Did the respondent treat NC unfavourably because of something arising in consequence of NC’s disability and if so, was such conduct justified? vii. Did the claimant do a protected act in terms of section 27 EqA and if so, did the respondent subject the claimant to a detriment because she did that protected act? viii. Were the claimant’s claims in time? ix. What remedy if any should be awarded in respect of NC? Relevant law Wrongful dismissal

[17]Section 86 of ERA provides for minimum periods of notice. In addition, it will be relevant to have regard to the terms of any written contract of

[18]Section 94 of the Employment Rights Act 1996 (ERA) provides that an employee has the right not to be unfairly dismissed. For a dismissal to be fair:(a) it must be for one of the potentially fair reasons contained in the ERA; and

(b) the employer must have acted reasonably in treating the potentially fair reason as a sufficient reason for dismissing the employee in accordance with equity and substantial merits of the case in terms of section 98(4) of the ERA. It is for the respondent to show the reason (or principal reason if more than one) for the dismissal (section 98(1)(a) of the ERA).

[19]The ACAS Code of Practice on Disciplinary and Grievance Procedures should be considered when determining the matter of fairness or otherwise of a dismissal in certain cases. In addition, a Tribunal should be mindful of not substituting its own view as to the whether the claimant ought to have been dismissed but focus on whether a respondent’s conduct was within a band of reasonable responses. Protected disclosures

[20]Section 43B ERA sets out the definition of what will amount to a protected disclosure:(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) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2) For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

[21]Section 43C goes on to set out to whom a protected disclosure may be made:(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure — (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.

[22]Section 43G provides that(1) A qualifying disclosure is made in accordance with this section if— (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the disclosure.

(2) The conditions referred to in subsection (1)(d) are— (a) that, at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the worker has previously made a disclosure of substantially the same information— (i) to his employer, or (ii) in accordance with section 43F.

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to— (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection (2)(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

[23]In determining whether the claimant made the alleged protected disclosures, the Tribunal was referred to the following authorities: Williams v Michelle Brown AM

UKEAT/0044/19

; Goode v Marks & Spencer plc

UKEAT/0442/09

(14 April 2010 unreported) Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

; Kilraine v London Borough of Wandsworth

[2016] IRLR 422

; Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

2018 ICR 731

; Dobbie v Felton (t/a Feltons Solicitors)

[2021] IRLR 679

; Ibrahim v HCA International Ltd

[2019] IRLR 690

; Kraus v Penna plc and another

[2004] IRLR 260

; Babula v Waltham Forest College

[2007] IRLR 346

; Darnton v University Of Surrey

[2003] IRLR 133

Detriments

[24]Section 47B of ERA provides as follows:(1) 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. (1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a) by another worker of W's employer in the course of that other worker's employment, or (b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D) In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a) from doing that thing, or (b) from doing anything of that description. (1E) A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a) the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b) it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B).

(2) This section does not apply where— (a) the worker is an employee, and (b) the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker’s contract”, “employment” and “employer” have the extended meaning given by section 43K.

[25]Section 48(2) ERA addresses the burden of proof in relation to detriment claims. It provides that once a claimant has demonstrated that they have made a protected disclosure and that they have been subjected to a detriment by a respondent, the respondent is required to demonstrate a reason for the detriment and which was not that he made the protected disclosure.

[26]In relation to whether the claimant had been subjected to a detriment for making a protected disclosure, reference was made to Aspinall v MSI Mech Forge Ltd EAT 891/01 and the claimant made reference to Jesudason v Alder Hey Children's NHS Foundation Trust

[2020] IRLR 374

; Fecitt v NHS Manchester [2012] I.C.R 372; Malik v Cenkos Securities Plc

UKEAT/0100/17/RN

and Kong v Gulf International Bank (UK) Ltd

[2022] IRLR 854

. Automatically unfair dismissal

[27]Section 103A of ERA states that: An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[28]In that regard, reference was made to Nicol v World Travel and Tourism Council

[2024] EAT 42

; Beatt v Croydon Health Services NHS Trust

[2017] IRLR 748

and Royal Mail Group Ltd v Jhuti

[2020] IRLR 129

. Disability status

[29]Section 6 EqA defines a disabled person as a person who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. Schedule 1 of the EqA provides further detail on the matters to be considered to determine whether a person has the protected characteristic of disability. The burden is on a claimant to demonstrate that they have the protected characteristic. There are four questions which require to be addressed: i. did the claimant have a mental and/or physical impairment? (the ‘impairment condition’) ii. did the impairment affect the claimant’s ability to carry out normal day-to-day activities? (the ‘adverse effect condition’) iii. was the adverse condition substantial? (the ‘substantial condition’), and iv. was the adverse condition long term? (the ‘long-term condition’).

[30]These questions should be addressed sequentially. While medical evidence will be relevant to the determination of this issue, it is not necessarily determinative of the issue. The extent to which a claimant has discharged the burden of proof is a matter of evidence, which will depend upon the facts of a particular case. While a diagnosis by a medical professional will be relevant, again that is neither necessary nor sufficient for a Tribunal to determine that a person is disabled as it will be necessary to consider why a diagnosis was or was not provided. (Stedman v Haven Leisure Ltd

2025 EAT 82

). Reference was also made to Aderemi v London and South Eastern Railway Ltd

UKEAT/0316/12

; Goodwin v Patent Office

[1999] IRLR 4

, Elliott v Dorset County Council

[2021] IRLR 880

; J (appellant) v. DLA PIPER UK LLP (respondent)

[2010] IRLR 936

. Reasonable adjustments

[31]Section 20 EqA sets out the duty on an employer to make reasonable adjustments. In terms of section 21, the duty will arise when: i. A provision criterion or practice has been applied by an employer that puts a disabled person at a substantial disadvantage in relation to a relevant matter, ii. A physical feature puts a disabled person at a similar substantial disadvantage in relation to a relevant matter, iii. Where the lack of provision of an auxiliary aid puts a disabled person at a substantial disadvantage in relation to a relevant matter.

[32]The definition of what is a substantial disadvantage is whether it is “more than minor or trivial” (section 212(1) EqA).

[33]It is for a claimant to prove that the duty arises and that there are facts from which it could reasonably be inferred (in the absence of an adequate explanation) that the duty has been breached.

[34]Whether an adjustment is reasonable will depend upon whether it might be effective in removing or reducing the disadvantage to the claimant. Guidance is provided in the EHRC Code of Practice on Employment in this regard. A holistic approach should be taken when considering the issue of reasonableness in this regard (Burke v The College of Law and anor

2012 EWCA Civ 37

). It is also important to bear in mind the nature and size of the employer and the resources available to them. The duty is on an employer and not the employee although it will generally be good practice to consult with an employee regarding what adjustments might be reasonable.

[35]The duty to make reasonable adjustments will not be engaged if the employer does not and could not reasonably know that a claimant was a disabled person. An employer is however required to make reasonable enquiries into the matter where there is evidence to suggest that an employee might be disabled.

[36]Reference was also made to Environment Agency v Humphreys

EAT/24/1999

; Newcastle City Council v Spires

UKEAT/0034/10

; The Home Office (UK Visas and Immigration) v Kuranchie

UKEAT/0202/16

; Weaver v Chief Constable of Lincolnshire Police

[2008] All ER (D) 291

; Griffiths v Secretary of State for Work and Pensions,

[2016] IRLR 216

; Tarbuck v Sainsbury Supermarkets Ltd

[2006] IRLR 644

; Watkins v HSBC Bank Ltd

[2018] IRLR 1015

; South Staffordshire and Shropshire Healthcare NHS Foundation 15 Trust v Billingsley

UKEAT/0341/15

; Romec Ltd v Rudham

UKEAT/0069/07

; Royal Bank of Scotland v Ashton

[2011] ICR 632

, Leeds Teaching Hospital NHS Trust v Foster [2011] EqLR 1075, London Underground v O'Sullivan

UKEAT/0355/13

; Noor v Foreign & Commonwealth Office

UKEAT/0470/10

; Shaw & Co Solicitors v Atkins

UKEAT/0224/08

; Archibald v Fife Council

2004 ICR 954

, HL; Smith v Churchill Stairlifts plc

2006 ICR 524

; Hindmarch v North East Ambulance NHS Foundation Trust

[2025] EAT 87

and G4S Cash Solutions (UK) Ltd v Powell

UKEAT/0243/15

and Project Management Institute v Latif

[2007] IRLR 579

. Indirect discrimination

[37]Section 19 EqA states that indirect discrimination occurs when a person(a) (A) applies to another

(b) (B) a provision, criterion or practice (PCP) that is discriminatory in relation to a relevant protected characteristic of B’s. A PCP has this effect if the following four criteria are met: i. A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic ii. the PCP puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic iii. the PCP puts, or would put, B at that disadvantage, and iv. A cannot show that the PCP is a proportionate means of achieving a legitimate aim. Discrimination arising from disability

[38]Section 15(1) EqA provides that a person(a) (A) discriminates against a disabled person

(b) (B) if: A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[39]Section 15 (2) goes on to state that s15(1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[40]Four elements must be made out in order to establish a claim in terms of section 15 (Secretary of State for Justice and anor v Dunn EAT 0234/16): i. there must be unfavourable treatment, ii. there must be something that arises in consequence of the claimant’s disability, iii. the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability, and iv. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[41]There is therefore no requirement for a claimant to establish that their treatment was less favourable than a person without their protected characteristic.

[42]As is set out at paragraph 70 in the explanatory notes to the EqA, a claim in terms of section 15 is ‘aimed at [establishing] an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability and providing an opportunity for an employer or other person to defend the treatment’. Harassment

[43]The respondent made reference in submissions to Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

; Hartley v Foreign and Commonwealth Office

UKEAT/0033/15

; Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and another EAT 0039/19; Lindsay v London School of Economics

[2014] IRLR 218

; Reed and Information Systems Ltd v Steadman

[1991] IRLR 299

[44]Section 26 EqA states that(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).

(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. Victimisation

[45]Section 27 EqA provides that(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.

(4) This section applies only where the person subjected to a detriment is an individual.

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule. Findings in fact

[46]Having considered the evidence, the documents to which reference was made and the submissions of the parties, the Tribunal made the following findings in fact: Relationship between claimants and respondent

[47]The respondent is a charity which provides services to people with mental health issues in relation to the challenges they face in an employment context. It was set up initially by NC and others around 1994. NC remained involved in the organisation until 2018 when she established the NIDMAR project and resigned from the Board in order to avoid any conflict of interest arising.

[48]The respondent is governed by a Board of Trustees. It employs around 14 staff and operates a related Community Interest Company which employs around 7 staff.

[49]NIDMAR is a training program which is offered on an international basis and trains professionals to be able to support people with mental health issues in employment. The project originates from Canada and licences are granted to conduct the training in respect of which accreditation is provided after successful completion of the training and exam. Working Well Matters, a company owned by GH has the license for UK and Ireland.

[50]NC submitted a proposal to the Scottish Government in 2018 to set up a NIDMAR program in Scotland which was accepted. A Ministerial commitment was given to ensure the training of 300 individuals on the program over a 5-year period. The consequence of this being a ministerial commitment was that the funding would be guaranteed for the project.

[51]At the time of submitting these proposals NC was an employee of NHS Fife. Through the Teckal exemption no procurement or appointment process took place in relation to the staff requirement to manage the project. NC was appointed as program manager, and it was agreed that she would be seconded from her employment with NHS Fife to that role on a full-time basis. A service level agreement was agreed between NHS Fife and the Scottish Government. A separate agreement was entered into between the Scottish Government and GH’s company Working Well Matters for the delivery of the training.

[52]From 2019, NC started working from St Andrew’s House, a Scottish Government building, in carrying out her role. There was a transition process between her role at NHS Fife and her new role. A six-month pilot program commenced.

[53]NC has phonologic developmental dyslexia. This causes a visual distortion of text, fatigue, anxiety, sensory overload and visual spatial distortion. NC requires specific software which allows her to read emails and documents and dictation software to create documents. She also requires a facility for documents to be converted from written into audio. Over a process of trial and error, NC has identified the software which best suited her needs.

[54]NC was provided with a Scottish Government laptop and access to Scottish Government computer systems from June 2019. This included the software she required.

[55]During her employment with NHS Fife, NC was provided with necessary software and in person disability support to reduce the physical and mental challenges of reading, writing and communication more generally which were associated with her condition. The in-person support assisted with these administrative tasks and provided more general practical support to NC in carrying out her role.

[56]While employed at NHS Fife, the in-person support was provided to NC by a Ms Smart. CG, who is also employed at NHS Fife, stood in for Ms Smart during Ms Smart’s maternity leave in around 2019.

[57]After the success of the initial pilot of the project, NC decided she would retire from her role at NHS Fife. She spoke to Mr Roddy Duncan who was responsible for the project at the Scottish Government. NC wished to continue carrying out her role as program manager of NIDMAR but on a part time basis of 21 hours a week. It was agreed with him that the financial envelope which had been allocated to the project could be used to pay NC for 21 hours a week and to pay for 7 hours administrative support and 7 hours in person disability support for NC. It was also agreed that NC could work flexibly in delivering the project.

[58]In advance of NC retiring from her role with NHS Fife, Ms Smart had indicated she would not be able to carry out any additional hours. After discussion with Mr Duncan, NC approached CG to carry out the role. CG agreed to carry out this role in addition to her main job at NHS Fife. CG was also undertaking studies at University and NC and CG agreed between them the hours which would be worked which would be suitable for them both and take into account their other responsibilities. On the basis of the Teckal exemption, CG was appointed to the role without any recruitment process.

[59]NC had been aware during the previous occasion that CG worked with her that CG had traits which would suggest that she might have ADHD but did not question her about that at the time. NC was aware during the period of CG’s employment on the NIDMAR project that CG was undergoing assessment for ADHD and ASD and provided her support in that regard. NC was also aware that this process was laborious and would take many years. In addition, NC was aware that CG was suffering from stress and anxiety and low mood. NC and CG worked together to ensure that CG could carry out her duties in a way in which her conditions were not exacerbated and could be accommodated. While NC did not formally put in place reasonable adjustment to accommodate CG’s conditions, they worked together to ensure that on a practical level they could both work to their strengths and in ways in which negative aspects of the conditions they both suffered from could be reduced. NC was aware from 2019 at the latest that CG was likely to be a disabled person for the purposes of the Equality Act 2010.

[60]NC and Mr Duncan had discussions regarding how she and CG could be employed if NC was no longer employed by NHS Fife. After consulting his colleagues, Mr Duncan indicated that a grant would be the most appropriate way forward.

[61]NC had discussions with DM with whom she had a positive working relationship, about the respondent hosting the NIDMAR project. It was agreed between them that the respondent would receive the grant from the Scottish Government for the project and that NC and CG would become employees of the respondent. The grant which was being provided did not include any management fee for the respondent and only covered the salary and likely expenses of NC and CG. The understanding was that the respondent would act as a host in order to allow the NIDMAR project to be delivered but that neither NC nor CG would have any other involvement in the respondent’s operations. CG was to report to NC and DM was to act as the link between the NIDMAR project and the respondent. NC was to continue to report to the Scottish Government in relation to the delivery of the project. While no formal secondment agreement was produced, the understanding between the parties was that NC and CG would to all intents and purposes be seconded to the Scottish Government to carry out the NIDMAR project and have no day-to-day dealings with the respondent.

[62]A meeting took place between DM, NC and CG in relation to their onboarding as employees of the respondent on 11 November 2020. It was agreed at that meeting that NC and CG would continue to work on the same basis as they had done prior to becoming employees of the respondent. NC and CG arranged their hours between themselves on a weekly basis depending on their other commitments. DM provided them with contracts of employment. DM, NC and CG recognised that the contracts were standard ones used for staff of the respondent and had not been amended to reflect the unusual circumstances of the employment of NC and CG. In particular, it was recognised that the provisions relating to secondary employment were not appropriate (CG remained employed at NHS Fife) and the provisions relating to intellectual property were not appropriate given that the intellectual property rights for the NIDMAR training were with the Scottish Government and the body who granted licenses for carrying out the training. NC also made clear that it was not appropriate to have a contractual provision requiring CG to carry out work directly for the respondent as it would be in breach of the agreement with the Scottish Government. No amendments were made to the contracts to reflect the reality of the terms and conditions under which NC and CG worked with the respondent.

[63]CG was required to complete a form for payroll purposes. The form asked staff to indicate what days they worked. CG did not delete any of the days listed (from Monday to Sunday) before sending the form to DM.

[64]DM told CG that she should record her hours as working Tuesday and Wednesday although he knew that CG did not work on a Tuesday for NIDMAR as she worked in her principal employment on that day. DM stated that this was for ‘administrative ease’ as the respondent’s systems were not sufficiently flexible to record CG’s working arrangements. CG generally carried out 7 hours of in person disability support with NC on a Wednesday and carried out the other 7 hours of work in evenings or at weekends. DM did not record these agreed arrangements in writing or take any steps to amend the contracts of employment so that they accurately reflected the terms and conditions of the claimants’

[65]A fixed term contract was issued to CG for the period 2 November 2020 to 31 March 2022. No further contracts were issued to her after that date and there was no discussion between anyone at the respondent and CG regarding the period of her employment until her employment was terminated without notice by letter dated 27 March 2024.

[66]A similar contract was issued to NC. A letter was sent to NC by the respondent on 3 April 2022 advising her that her employment would be extended to 31 March 2023. There was no further discussion with anyone at the respondent regarding the length of the employment of NC after the period of that contract had expired until NC’s employment was terminated without notice by letter dated 27 March 2024.

[67]Computer equipment and an email address was provided to CG by the respondent. NC indicated that she did not require any computer equipment or an email address for the respondent as she used equipment issued by the Scottish Government and DM agreed to this. DM set up a SharePoint folder on the respondent’s system which was intended to be accessed only by CG (and if necessary, NC) and on which CG could store any documents.

[68]DM did not meet CG again after the meeting in November 2020 during her employment with the respondent. DM met NC around twice a year until July 2023. During those meetings, which were informal in nature, NC updated DM on the NIDMAR project and DM updated NC on what was happening in the respondent’s business. NC continued to maintain an interest in the respondent’s operations given her long involvement in the charity.

[69]NC was responsible for discussing and negotiating the renewal of the grant with the Scottish Government for the NIDMAR project each year. The grant was renewed on the basis of the financial year, that is from April to April.

[70]NC met with the reporting officer responsible for the delivery of the NIDMAR project at the Scottish Government on a regular basis at least every month. She provided updates and reports on the progress of the project.

[71]NC emailed her then reporting officer at the Scottish Government on 21 March 2023 regarding the last year of funding. She explained that she had made changes to the grant letter on the basis that it covered 2 financial years from April 2023 to September 2024. There was further related correspondence where Mr Ishaq (the reporting officer) and NC agreed that two payments to cover the funding for the last year of the project would be fine and that there would be a final “FEAT grant £36,000 to cover period of April 2024 to September 2024”. Mr Ishaq, the reporting officer responded the following day on 22 March 2023 stating “…that all sounds fine.”

[72]Margaret Guthrie initiated contact with GH around September 2023, whom she had never previously met, to explore the prospect of the respondent taking over the running of the NIDMAR project from NC and ultimately GH. She did not inform the claimants of these discussions at any time. GB and Wendy Barbour were also involved in discussions after an initial meeting between GH and Ms Guthrie. The view that the claimant’s pay was too high had been expressed at a board meeting of the respondent and this was reiterated to GH. Some members of the board were of the view that the respondent could take over the running of the project by using the funds from the Scottish Government, with a view to taking over the license held by GH who could continue to act in some capacity. GH did not believe that the respondent had the experience or expertise to take over the duties performed by NC and CG and would not be appropriate to take over the license. Ms Guthrie had no real knowledge of what duties the claimants performed and simply assumed that these could be performed by others. Ms Guthrie was critical of NC at her meetings with GH and suggested to him that there had been some financial impropriety on NC’s part. GH declined to have any further involvement with the respondent’s proposals. Compliance review in 2023

[73]The respondent commissioned a review of its digital information and records management at the beginning of 2023. This was carried out by a company called Motivational Solutions, whose sole shareholder is Ms Guthrie who is now the chair of the respondent. A Robyn Probart who is the niece of Ms Guthrie carried out some of the work on behalf of Motivational Solutions and was subsequently appointed to carry out the role of Compliance Officer for the respondent although she remained an employee of Motivational Solutions.

[74]The review made recommendations regarding administrative matters such as the completion of timesheets, the recording of leave and the use of IT equipment. No contact was made with either of the claimants regarding the review to understand how they worked or what arrangements had been put in place at the beginning of their employment with the respondent.

[75]The review did not identify that CG’s fixed term contract had expired and that NC’s contract would expire in April 2023.

[76]Training events took place for the respondent’s staff to explain to them the recommendations which were being made following the review and the reasons for these recommendations. No direct contact was made with CG or NC to ensure that they were aware that a review was being carried out, what the specific recommendations were or to ensure that they were aware of the training sessions which took place.

[77]Neither claimant had been provided with a staff handbook at the commencement of their employment or referred to any specific policies in that handbook. No updated handbook was provided to them following the review.

[78]No one from the respondent contacted either claimant to consult with them regarding the review or its recommendations or the extent to which the recommendations ought to apply to them. While the claimants requested sight of the review when they became aware of it, it was never provided to them, nor was it produced in these proceedings.

[79]On 12 January 2023 during NC’s absence on leave, DM emailed CG stating “I did mention to Norma as well that up till now we’ve really just left you both alone to manage the NIDMAR contract without much input from me or other FEAT staff. We have been doing a business review with a consultant though and it has become clear that we need to be a bit more hands-on with NIDMAR – record keeping in particular – I don’t for example have any holiday requests of detail of when you and Norma are on annual leave or off sick and this does leave us in a difficult position if we are to be audited…..once she’s back we may have to start using timesheets and there will be a process for recording annual leave, sickness etc etc that I can go through with you both – just trying to get our stuff in order at this end!”

[80]On 23 January 2023 Wendy Barbour, the respondent’s People and Operations Lead, sent an email to CG asking her to provide an update on all sickness absences for 2022/2023 for herself and NC including return to work forms, and fit notes. DM was aware that NC was still on leave during this period. However, RP then sent a further email while NC remained on leave on 1 February 2023 stating that she was reaching out in relation to the email from Ms Barbour “which has been escalated from HR, can the information be provided to HR as a priority.”

[81]CG replied to RP and copied DM explaining that she had discussed this with DM on 12 January.

[82]On 1 February 2023 CG sent an email to NC stating “Today, this Robin compliance officer called, being quite pushy for info despite me advising I had spoken with Duncan and advised that until you were back from holiday, we couldn’t give all the details and signed forms requested and that I had advised Duncan when you were back we would get the info together she then got pushy again, saying if she sent an email today, could I respond to it, and give any info, forms don’t need to be signed. Seems strange and is something going on?”

[83]Ms Barbour continued to chase CG for this information and CG responded on 9 February immediately upon meeting with NC on her return from leave to discuss matters and provided what information was available. In that email CG stated that her core working days were Tuesday and Wednesday as that was what she had been directed by DM to state at the outset of her employment for administrative ease.

[84]On 3 February 2023 DM emailed NC with the various forms he was requesting that she complete. DM asked NC and CG to complete backdated application forms for their roles, even though they had not made any application for their roles. He also asked them to provide references, which NC refused to do because she felt that this would misrepresent the position and involve the fabrication of documentation. DM also indicated that NC should submit an expenses claim for anything from August 2022 and “we will pay when we can” and that someone would be in touch with her regarding IT equipment.

[85]In February 2023 NC’s security access to Scottish Government systems had lapsed and there was a period when she could not access her email or other systems, until the access was renewed and new equipment was supplied. NC therefore agreed with DM that she would have a laptop from the respondent as a backup in case this should happen again.

[86]NC corresponded with the respondent’s IT consultant regarding the provision of a laptop and the software she required. The IT consultant, JG emailed her on 22 February 2023 and stated “I have been speaking with FEAT’s compliance officer regarding your software requirements. She said that you would need to contact Access to Work directly if you wanted to see if they can supply software or equipment.” NC contacted Access to Work but was informed that there was a delay of 6 months before any application could be assessed. DM was also aware around this time that Access to Work were experiencing significant delays as an application had been made to them for reimbursement of costs of CG accompanying NC to a conference in Brussels which was ultimately unsuccessful.

[87]The respondent’s financial administrator emailed NC on 6 March 2023 to inform her that the respondent’s policy was now that expenses should be claimed within a month of incurring them. That did not reflect the agreement which had been made between NC and DM or the practice which was that expenses would be submitted every 6 months.

[88]On 11 April 2023, RP sent an email to all staff at the respondent’s email address with new time sheets which were to be used. NC did not have access to that email address and so did not receive the email.

[89]On 24 April 2023, Ms Barbour sent an email to CG stating that her base was the respondent’s offices and that “You may work remotely of course at times if agreed but its important to confirm that you aren’t contractually a remote or home worker.” This was entirely inaccurate as CG had never worked from the respondent’s offices and had always worked from home or NC’s home office.

[90]DM emailed CG and copied NC on 5 May 2023 to inform them that there were new laptops for them to collect and that they “really need you both to be using your FEAT email address in correspondence and using the new kit as soon as possible, as well as recording all correspondence re your work on the FEAT teams/SharePoint system.”

[91]There were ongoing issues with the ability of NC to access the laptop which was provided by the respondent in early May 2023 and NC was never able to access the laptop. The software required by NC to allow her to carry out her role was never uploaded to the laptop. NC had suggested to the respondent that the expenses provided in the grant from the Scottish Government for the NIDMAR project staff could be used to purchase the software, but no efforts were made by the respondent to purchase the software, and no explanation was ever provided as to why those funds could not be used for that purpose. In addition, NC could not log on to the laptop and while she brought this issue to the attention of JG, it was never resolved. NC was not to blame for her inability to access the respondent’s laptop or systems which was wholly caused by the respondent’s failure to provide her with the appropriate equipment.

[92]On 21 June 2023, CG informed RP by email that they would not be able to attend rearranged data protection training as neither of them worked on a Tuesday which was the day for which the training was arranged. No efforts were made by the respondent to provide any alternative training for either NC or CG and RP did not question the position of CG that she did not work a Tuesday.

[93]DM and NC had a meeting on 5 July 2023 at NC’s home office. It was agreed at that meeting that NC would ask for permission from her reporting officer at the Scottish Government to provide the respondent with the RAG (red, amber and green) report which was a live document providing updates on the extent to which actions required for completion of the NIDMAR project had been achieved. This report or indeed any written report had never been provided to the respondent previously regarding the project. It was also agreed that NC would complete a quarterly review document in respect of CG’s role and send it to the respondent. There was a discussion regarding the use of the respondent’s email. It was agreed that CG would continue to use the respondent’s email address and that as NC’s access to Scottish Government systems had now been reestablished, and new equipment had been provided to her by them, NC would continue to use those systems and would not use the respondent’s email address or laptop. DM also asked NC if the respondent could make use of the services of CG for work unrelated to NIDMAR. NC indicated that this would be in breach of the grant agreement and that in any event CG was fully occupied in her NIDMAR duties. DM indicated to NC that as a result of increasing demands being made of him, the newly appointed GB would become her link officer with the respondent. NC said she was content with that approach.

[94]Both NC and DM took handwritten notes at this meeting. DM typed up his notes thereafter but did not provide them to NC.

[95]In the quarterly review document, which was sent by NC regarding CG, reference was made to CG suffering from work-related stress in relation to her role at the NHS. This had also been discussed at the meeting on 5 July 2023 with DM.

[96]GB did not make any effort to meet with NC or CG in relation to his new role as link officer for the respondent.

[97]On 19 July 2023, an issue arose in relation to CG’s ability to provide student work from the project to NC to allow her to organise and curate it in time for an awards ceremony. When CG sought to download the material to a USB as was her normal practice, an error message appeared. RP became involved in the matter. NC was copied in or sent emails to her Scottish Government email address. However, when JG, RP and GB became involved in the exchange on occasion they would not copy emails to that address. Instead they would delete NC’s email address and add a FEAT email address to which NC did not have access. CG did not always notice that this had happened.

[98]Although GB was not involved in the initial emails regarding this matter, he became involved seeking further information about where information for the project was stored and what consents had been obtained for sharing information. A USB drive was eventually purchased by JG who encrypted it and DM delivered it to NC. Passwords were provided for the USBs which NC was unable to enter because of her disability. As a result of the delay, NC was not able to curate the material so that it could be presented in a professional and thematic manner and complaints were made to her in that regard by those attending the ceremony.

[99]CG requested a meeting with DM by email on 9 August 2023 to discuss the concerns she had regarding her interactions with the respondent and their apparent lack of understanding of her agreed working arrangements. DM responded on 11 August indicating that he was going on leave between 24 August and 20 September, he would not be able to meet CG prior to his return. DM did not give any explanation as to why he could not meet before going on leave. DM suggested that CG meet with GB. CG responded indicating she did not want to meet with GB as he did not have the knowledge of her working arrangements. DM did not respond to CG’s request or make any arrangements for anyone else to respond to her. He did not make any arrangements for GB to meet with CG or explain CG’s concerns to him.

[100]Having obtained consent from Mr Ishaq at the Scottish Government, NC shared the RAG report for the project with DM on 6 September. She sent that report from her personal email address initially.

[101]If NC had not been suspended from October 2023 to the end of her employment in March 2024, it is likely that the Scottish Government would have met their previous commitments to fund the NIDMAR project, including the grant relating to the employment of NC and CG to the end of the project in September 2024. NHS Counter Fraud Services Investigation regarding CG

[102]On 13 January 2023, around the time the review was being carried out by Motivational Solutions, an anonymous phone call was made to Crimestoppers alleging that CG was defrauding the NHS by carrying out work for the respondent when she was also being paid by the NHS. This complaint was referred to the NHS Counter Fraud Unit.

[103]Ms Guthrie had asked CG’s then line manager at NHS Fife whether CG was still working for NHS Fife in October 2022. Ms Guthrie also worked at NHS Fife at that time in compliance and had dealt with a DSAR requested by CG.

[104]An email was sent to the info@feat email box on 7 February 2023 by the Counter Fraud Services of NHS asking for “a suitable contact who can assist with an information request under DPA.” DM opened this email and passed it to RP to deal with. DM did not ask RP to keep him updated on this matter or ask her to revert to him to ensure that any information provided by the respondent was accurate. DM is the Data Controller for the respondent. He had never received a request like this before. A letter was sent by email attachment to the respondent on 9 February 2023 requesting personal data for CG. The letter asked that the request was kept confidential and not disclosed to CG.

[105]RP discussed the matter with Ms Guthrie. No effort was made to discuss the matter with DM or NC as CG’s line manager. RP then provided inaccurate information to the Counter Fraud Services regarding the working hours of CG. RP sent an email to the Counter Fraud Services on 21 February 2023 which stated “Tuesday and Wednesdays are the days that are worked every week [by CG], however here at FEAT employees are able to work between the hours of 8 and 5 and pick the shift they do but she [CG] should be finished by 5 every day.” No effort was made by RP to check that this information was accurate before providing it to Counter Fraud Services (‘CFS’). The information provided was entirely inaccurate in that CG did not work a Tuesday every week and did not work between 8 and 5.

[106]When NC and CG arranged to pick up laptops on 9 May 2023 from the respondent’s offices, they had a conversation with RP regarding timesheets. CG explained to RP what hours she worked and that the timesheets would not accommodate the flexibility of those hours as she worked in evenings and weekends. RP would have been aware by this date that she had supplied inaccurate information to the Counter Fraud Services. However, she did not take any steps to rectify the inaccurate information she had provided to them or speak to DM about the matter.

[107]CG became aware in early August 2023 that she was being investigated by the Counter Fraud Services. She was not at any time suspended by NHS Fife in relation to this matter. That investigation is ongoing, and no disciplinary proceedings have been taken against CG by NHS Fife in that regard. CG’s disability status

[108]CG was diagnosed with depression by her GP on 1 January 2005. She has been taking Sertraline for depression and anxiety since November 2022.

[109]CG has been under investigations for ADHD and ASD since 2022. In 2022 she completed ADHD rating scales and was required to complete ASD scales. She described lifelong symptoms of ADHD in a mental health assessment on 21 November 2022. A report by a psychiatrist dated 7 April 2023 indicated that “it would appear that she has a mixture of symptoms suggestive of both ASD and ADHD. CG had an assessment with a consultant psychiatrist on 19 July 2023, who produced a report indicating that CG may have mild to moderate Autism. There was a further appointment on 30 October 2023. The psychiatrist’s view at that time was that CG did not have ADHD but ASD.

[110]CG was referred for occupational health assessments on a number of occasions by NHS Fife. A report dated 18 May 2023 stated that “Although Christina has no formal diagnosis of ADHD at this stage, it is recommended that she is treated as if she did have a diagnosis, as her reported symptoms are likely to be considered as a disability under the Equality Act 2010.” An occupational health report dated 8 January 2024 recorded that CG was on the pathway to being diagnosed with a neurodivergent condition. The occupational health nurse stated, “Through my assessment I believe that Miss Goble does have traits associated with a neurodivergent condition and is likely to be covered through the Equality Act 2010.” Various reasonable adjustments were set out including “giving clear guidance and explanations for everything; explicitly requesting any necessary action. This is particularly important when implementing change and to allow Miss Goble clarity with her job description and job role.”

[111]CG experiences symptoms including impaired cognitive and executive functioning. She experiences cognitive deficits impacting her ability to effectively communicate. She has difficulty with attention and focus which is exacerbated when she is overwhelmed. She experiences heightened emotional distress and can be unpredictable in how she responds to stressful situations more than might be ordinarily expected. Some of these traits were apparent during CG’s evidence before the Tribunal.

[112]CG stims constantly (which was also apparent during her evidence). She suffers from insomnia and has increased fatigue. She finds it difficult to engage in social events or general conversation. She finds it difficult to regulate her emotional responses. She has ongoing difficulties with concentration.

[113]NC was aware from before CG’s employment by the respondent that CG suffered from traits associated with a neurodivergent condition. NC was also aware that CG was suffering from anxiety and depression which were being exacerbated by issues at her employment at the NHS. NC was aware that during the employment of CG with the respondent that CG was under assessment for ADHD and ASD.

[114]CG raised the fact that she considered herself to be disabled on numerous occasions with HR Booth, a company the respondent had engaged to provide assistance throughout the disciplinary and grievance process. CG’s grievance and DSAR

[115]CG made a Data Subject Access Request of the respondent on 11 August 2023 by letter to DM. RP dealt with this request. CG complained that RP was not an appropriate person to deal with that request as she was part of a grievance to which the request related.

[116]At the same time CG sought the contact details of the then Chair of the Board of Trustees of the respondent as DM’s line manager. RP indicated she did not have the Chair’s contact details as the Chair did not have a FEAT email address. CG then sought the Chair’s contact information from GB who indicated that it would not be normal to provide such details and in “many situations would be inappropriate to do so.” Both RP and GB were unnecessarily obstructive in this regard.

[117]CG then submitted a grievance by letter dated 18 August 2023 regarding DM, RP and MG. The grievance, which was lengthy, made various allegations in relation to maladministration on the part of DM, RP and MG, in particular in relation to DM attempting to misappropriate Scottish Government funds by asking for CG to carry out work for the respondent directly, his failures to ensure that CG’s records were up to date in relation to her working arrangements and the sharing of incorrect information regarding CG and her working arrangements by RP and/or Ms Guthrie and the failure to update that information once it was known that incorrect information had been provided.

[118]GB wrote to CG on 8 September 2023 indicating that an extension of 30 days had been applied to her DSAR and that a further extension may be applied. CG complained regarding this and sought an explanation. GB indicated that this was because the request related to 4 years’ worth of data, despite the fact that CG had very little interaction with anyone from the respondent during her employment with them.

[119]An HR consultancy firm called the HR Booth (‘HRB’) were appointed by the respondent to deal with the claimant’s grievance. HRB have a longstanding relationship with the respondent as their founder was appointed by DM following a presentation by him around 15 years previously.

[120]A Senior HR Consultant from HRB, Claire Brook (‘CB’) contacted CG by letter dated 28 August to inform her that she had been appointed to hear the grievance and to provide CG with her (CB’s) outcome to that grievance. A meeting was proposed for 4 September 2023. CG was unable to attend that meeting, as it had been arranged for a time when she was contracted to work for NHS Fife. CG was keen to have a response to her DSAR request prior to a grievance meeting and explained her position in a letter of 3 September 2023 to CB. CG had also requested that any meeting take place by way of Teams as a reasonable adjustment for her. CG also stated, “Due to disability I would request that any meetings are recorded so that I can replay for context, and to ensure that I am fully absorbing the information being discussed.”

[121]Neither the respondent nor HRB ever referred CG to occupational health for an assessment of any reasonable adjustments which CG may require or any assessment of her health or whether she was a disabled person for the purposes of the Equality Act.

[122]A grievance investigation meeting took place via Teams on 19 September 2023 between CB and RP. Notes were taken of that meeting.

[123]A meeting then took place between CB, CG, JH and another HRB consultant, Lynn Paul (‘LP’) on 20 September 2023. The meeting was via Teams but was not recorded and CG was not given a transcript of the meeting. Towards the end of the meeting JH sought clarity as to who was the decision maker in relation to the grievance. CB appeared to suggest that she would decide but also said that she would send a report to the Board and that she was liaising with Wendy Barbour. She did not provide clarity as to the process.

[124]CB conducted an investigation meeting with DM on 25 September 2023. He confirmed that the arrangements with CG were that she worked on a Wednesday and then worked her other hours flexibly. During the meeting, which was by Teams call, DM amended the payroll form which was originally sent to him by CG and sent it to CB. The form was amended to read that CG worked on a Monday and Wednesday. This was different from the original form which had been submitted to DM by CG which had stated she worked every day.

[125]A meeting then took place between CB and NC on 5 October 2023 by Teams call. NC explained that CG worked a Wednesday and her other hours in the evenings and weekends. She also stated that CG would sometimes deal with emails for her during CG’s lunch or other breaks while working at her primary role in NHS Fife.

[126]None of the statements which were taken were provided to CG. A report was prepared by CB which was not provided to CG. CG was not informed to whom the report was provided. The report indicated that CB had decided not to uphold the grievance and she made recommendations.

[127]CB sent a letter dated 13 October 2023 to CG setting out the basis on which her grievance had not been upheld and her right to appeal to another Senior HR Consultant at HRB.

[128]CG sent a letter to Helen Lawrenson (who at that time was the chair of the respondent) on 20 February 2024 via LP to appeal the decision of CB in relation to her grievance.

[129]LP responded on 28 February indicating that she had spoken to Ms Lawrenson and that they would like to invite her to a grievance appeal meeting and asked for suitable dates. LP indicated it would be her colleague Callum Anderson who would attend that meeting for HRB.

[130]Various dates were provided by CG and JH. However, no meeting took place.

[131]CG then raised a further grievance regarding an underpayment of wages on 18 March 2024. She addressed this to DM and sent it via HRB. DM was not passed this grievance nor was he consulted on the terms of the grievance. It was dealt with by GB who responded on 28 March 2024 stating there had been no underpayment and that “I trust this concludes the misunderstanding.” He did not follow the respondent’s grievance procedure or the ACAS code of practice in that regard. Disciplinary proceedings against CG

[132]GB met with representatives from HRB and Wendy Barbour on 19 October 2023. Following discussion regarding CG’s grievance and the position of NC a decision was taken to suspend both CG and NC. CG was not informed that she was being suspended until 2 November 2023. GB could not explain this delay and the Tribunal found that there was a deliberate decision to stage the suspensions on different days. CG’s line manager was not consulted regarding the allegation against CG or the decision to suspend.

[133]There was no analysis or consideration of what impact if any the suspension of NC’s in-person disability support would have on NC.

[134]The suspension letter indicated that CG should only contact GB at the respondent and only for pastoral care. GB did not contact CG at any stage during her suspension to determine whether she required pastoral care and CG did not directly request any pastoral care from GB, whom she had never met.

[135]The allegation against CG was that she had “committed an act of fraud”. GB was already aware of the investigations by the Counter Fraud Services which had taken place previously. He was aware that CG was aggrieved that this investigation had arisen because inaccurate information was provided to the Counter Fraud Services by the respondent. The Tribunal did not accept that the reason for the suspension of CG was that put forward by the respondent, which was that GB was not aware until he had sight of the grievance and report of the grievance of the seriousness of the allegations of fraud.

[136]The Tribunal found that CG was suspended at least in part because she had made serious complaints regarding the respondent’s conduct.

[137]The suspension of CG was never reviewed by the respondent or HRB. She remained suspended from 2 November 2023 until the termination of her employment on 31 March 2024. CG received notification of the suspension by email on 3 November 2023. The respondent took a decision on or before that suspension that CG would not return to work.

[138]In response to the letter of suspension CG sent an email to CB stating that she considered the suspension to be punitive and that CB “should be reminded that due to my current health, I am covered by the Equality Act 2010.” No steps were taken by the respondent or HRB to determine whether CG was a disabled person or whether any reasonable adjustments were required to allow her to fully participate in the disciplinary proceedings.

[139]CB invited CG to an investigation meeting on 22 November by letter dated 16 November 2023. CG responded raising concerns about the reasons for suspension, the failure to consult with her line manager in advance and suggested that “she would be willing to engage in a mutually beneficial, and professional meeting to outline concerns and appropriately, and meaningfully, look to try and resolve issues as a way to positive momentum forward in the last year of the NIDMAR project”. CG also raised concerns about the failure of the respondent to comply with her DSAR request.

[140]RP then wrote to CG on 29 November 2023, indicating that she had “collated your Subject Access Request however due to your ongoing investigation this will not be released until the investigation is concluded.” This was a deliberate attempt by the respondent to be obstructive in allowing CG to pursue her grievance and provide evidence in relation to the allegation against her.

[141]An investigation meeting took place on 29 November 2023, which was chaired by LP. CG had not received a letter inviting her to that meeting and only found out about it after being contacted by JH on the day before the meeting was due to take place. Notes of this meeting were not provided to CG until 17 January 2024 after numerous requests were made by her. CG was not provided with a recording of the meeting.

[142]CG provided further information to LP in an email of 4 December 2023.

[143]LP informed CG by letter dated 21 December that her investigations were taking longer than anticipated and that an outcome would not be provided until early January 2024.

[144]Having heard nothing from LP, CG sent an email to her on 12 January 2024. She informed LP that the ICO had upheld her complaint against the respondent, asked when she would receive the notes of the meeting of 29 November, explained that there had been no contact from GB for pastoral care and raised concerns regarding her ongoing suspension.

[145]LP then sent a letter to CG dated 18 January 2024 requiring her to attend a disciplinary hearing on 23 January 2024. The allegation was that CG had “committed an act of fraud during your employment with NHS Fife”. No further detail of the allegation was provided, and no information was provided in relation to what investigations had been carried out. The letter stated that if established the allegation could amount to gross misconduct and result in summary dismissal.

[146]CG responded indicating she had not seen any investigations, had not agreed with the notes of the meeting with her and could not attend a meeting on a Tuesday as she had previously advised that she works for the NHS on a Tuesday.

[147]LP then sent an email to CG on 19 January 2024 stating “following the evidence you provided me, I continued the investigation to ensure I had as much information available to me when making my decision regarding the outcome. Just to reiterate, at this point the decision was made, that there was a case to be heard at a disciplinary hearing…..The decision was made with the information we had been provided, however we received further evidence today and upon review, we would like to hold a further investigation meeting.” CG was never informed as to what that further evidence was.

[148]On the same day, JH emailed LP to express his concern at the conduct of the investigation and instigation of a disciplinary hearing by FEAT/HR Booth. He raised various concerns and asked for a copy of an investigation report.

[149]LP replied on 29 January 2024 and did not explain why no investigation report had been provided or offer to provide one. She also stated, “I can confirm that the process is, I carry out my investigations and give my recommendations/findings to FEAT and then FEAT make the final decision how to proceed as the employer.”

[150]CG then wrote to LP on 25 January expressing her concern that an investigation report or evidence had not been provided. She also indicated that it was her understanding that LP had not spoken to NC by this stage and that she had received no support from FEAT during the process. CG also asked for a recording of the meeting in November because the transcript which had been provided was unintelligible. In addition, she complained that she had no response to her request for LP to raise her concerns regarding compliance with her DSAR request to GB and RP.

[151]LP responded and did not provide the recording as requested. She also stated, “FEAT is an external organisation while I have been happy to act as a conduit in relation to your information request, I have no control as to how they respond to you.”

[152]On 31 January 2024, CG sent a letter dated 29 January 2024 via HRB for DM requesting a right to rectification in relation to the information the respondent held on CG regarding her actual working hours.

[153]CG again requested to see what information LP had regarding her investigations before a further meeting, but this was not provided. A meeting took place on 1 February 2024 by Teams.

[154]During the course of that meeting, JH stated “so from where we’re sitting, its hard not to be left with the impression that the employer is deliberately trying to withhold information that would prove the allegations to be false.”

[155]During the course of the meeting, LP presented a printout of times when was said that CG was carrying out work for the NIDMAR project. Some of these entries included times before CG was employed by the respondent. At the end of the meeting LP indicated “A lot of the delays have been outwith my control and as you’ve just said, there’s various reasons for the delays. I can’t give definite timelines, because now I do need to go and speak to Norma and Duncan.” LP did not explain why she had not spoken to either NC or DM before reaching a decision that the matter should proceed to a disciplinary hearing.

[156]On 20 February 2024 LP sent CG copies of statements which had been taken from NC and DM in the context of CG’s grievance in September and October 2023. LP asked CG whether she required further questions to be asked of either of them. Questions were drafted by CG and sent to LP on 24 March.

[157]CG was provided with a response to her request regarding rectification of information concerning her. CG received a response with comments on the issues CG had raised which included “FEAT will not consider the above and are satisfied with the information they hold.” CG was not told who had made the comments. DM did not deal with the request and did not have sight of the request. The request was dealt with by RP who was the person CG had alleged had provided the incorrect information. CG raised concerns regarding this and who had instructed HRB to provide the information. LP responded by stated “I have raised your concerns below and will hope to respond by the end of the week. As previously confirmed, I am the conduit between yourself and FEAT and have passed over all documentation you have requested.” CG was not informed who had provided the comments in relation to her request.

[158]CG was then dismissed by letter dated 27 March 2024 from GB. There was no meeting with CG in advance of that letter and no consultation with her took place. The letter stated that CG was being dismissed because her fixed term contract had come to an end. There was no fixed term contract in place in relation to CG’s employment. No redundancy pay was paid to CG at the time, and she was not paid any notice pay. There was no right for CG to appeal against her dismissal set out in the letter. The letter stated under a heading “Disciplinary Proceedings” “As you will be aware, you are currently undergoing an investigation into allegations that you have committed an act of fraud during your employment with NHS Fife, however, due your contract of employment coming to an end, we have been unable to bring this process to a conclusion. I must make you aware that it has always been intended to hold a full and fair transparent process, the outcome of which has not been predetermined.” The letter stated that outstanding payments would be paid “on receipt of all Project property and equipment”. The letter did not set out the basis on which any outstanding holiday pay would be calculated.CG was not paid the holiday pay to which she was entitled.

[159]CG continued to send emails seeking clarification regarding the right to rectification she had made. She received no response or acknowledgement.

[160]CG sent an email to GB on 16 June 2024 raising various ongoing concerns regarding her pay, her P45, her DSAR, right to rectification, the uplifting of the respondent’s equipment and the grievance she had raised regarding her pay. GB did not acknowledge or reply to that email or address any of the concerns raised by CG.

[161]The respondent has not paid CG a redundancy payment or notice pay and has not provided any explanation as to why such payments have not been made when the respondent concedes that they are due.

[162]The process of dealing with CG’s grievance and the disciplinary allegation against her was made deliberately opaque in relation to process and decision making. The respondent continued to attempt to block CG’s ability to provide material to pursue her grievance or defend herself against the disciplinary allegations. This approach was a deliberate tactic of the respondent to draw out matters until they could determine how to terminate CG’s employment. The whole approach was unreasonable, chaotic and deliberately opaque. NC grievance

[163]Around the beginning of September 2023, NC lost her mobile phone. At that time, she communicated through her Scottish Government email address and used her personal email address for work purposes.

[164]She had been communicating with DM regarding the 2023 NIDMAR awards ceremony by email until 19 August 2023.

[165]GB sent a letter recorded delivery to NC dated 15 September 2023 alleging that she had been absent without authorisation from 17 August 2023. GB did not contact anyone at the Scottish Government, CG or DM prior to sending this letter. All those people could have informed GB that NC was in fact at work during this time. GB had not attempted to contact NC on her Scottish Government or personal email address. He had sent an email to a FEAT address for NC, which she could not access. He had phoned her Scottish Government phone which NC had lost. He did not attend her house or try to find any other phone number for her. The letter stated that NC should only use her FEAT email to respond despite NC not having access to that email address. The letter stated that NC should cease using her Scottish Government email immediately. No steps had been taken to determine what impact this instruction would have on NC’s ability to carry out her duties or in relation to her disability. The letter stated that unless NC contacted GB by 19 September further action would be taken. The tone of the letter hostile and threatening.

[166]NC contacted GB by telephone on 18 September. While GB accepted during that call that NC had been working during that period he did not apologise for his misunderstanding or the tone of the letter which had been sent. During the call GB stated to NC she had committed a data breach. He did not state what this allegation related to.

[167]NC then followed up the telephone call with an email with details of her intended annual leave, her normal working days and stated that there was no longer any need for a FEAT laptop as the issues with Scottish Government equipment had been resolved. NC also asked GB to let her know when he wanted to meet to discuss his apparent concerns over the management of the NIDMAR program and the data breach he had mentioned. NC also stated that she would “appreciate an official letter correcting the error containing an apology for the professional slur I feel I have received from you.”

[168]On 20 September 2023, NC sent an email to GB updating him on CG’s working hours which NC had approved as CG’s line manager. GB’s response was to send an email on 28 September with a copy of the respondent’s flexible working policy, state that senior management would have to consider a written request from CG to change her hours and that this could take up to 2 months to complete. GB had never dealt with a flexible working request before.

[169]NC responded on 2 October stating that both she and CG had worked flexibly since they started their employment and that they would continue to work flexibly to ensure the delivery of the project. NC stated that the information had been provided as GB had requested clarity about CG’s working pattern and support and that the information had been sent to him in that context. However, NC also set out answers to the various questions GB had asked about the change to CG’s arrangements. NC reiterated that she would like to meet up with GB to discuss various matters and to be provided with more detail regarding the alleged breach of data security. NC suggested some times to have this meeting.

[170]GB responded by indicating that he was unavailable to meet until the week commencing 23 October. He gave no reason why he was not willing to meet before then. There was no good reason why he could not meet NC before then and it was a deliberate decision on the part of GB not to meet NC. GB reiterated that CG’s “requested changes to hours of work remain unapproved at this point”. His approach was high handed and not consistent with the respondent’s policy. He was being deliberately obtuse and difficult.

[171]NC then emailed GB and copied DM and Mr Ishaq raising concerns regarding GB’s attempts to interfere with the management of the NIDMAR program delivery and reminding him of the agreement which had been made with DM in 2020 that the respondent “Host” the program. NC stated she was waiting for proposed dates for the meeting in the week of 23 October.

[172]GB did not have any genuine intention to meet with NC in order to resolve issues in an informal manner. He was aware at this time that a disciplinary investigation had been commenced in relation to NC and wished to avoid meeting with her until that had been advanced.

[173]NC sent a grievance letter to DM on 17 November regarding the allegations he had made of her being absent without authorisation, his failure to provide NC with details of his allegation that she had breached data protection; failure to pay her expenses and failed to abide by the agreement that the respondent would host the NIDMAR program.

[174]A meeting took place on 9 January 2024 between LP, NC, JH and EB regarding NC’s grievance. LP indicated to NC that she understood the grievance NC had lodged on 17 November 2023 had not been acknowledge or heard. The purpose of the meeting was said to be to discuss that grievance. During that meeting NC stated that she was concerned that her inability to contact Mr Ishaq would mean that the Scottish Government would not honour the last 5 months of the contract and that it was important to her to get the program, and the end of program conference completed. LP asked if NC would be interested in mediation, which she said she was. LP informed NC that she would have a meeting with DM and GB on 11 January to discuss the possibility of mediation between the parties. She also stated that she would discuss with John Mullen (another HR consultant at HRB) who was making the decision about the grievance.

[175]DM was not asked if he would be willing to engage in mediation to resolve the matter. LP asked GB who refused to engage in mediation. That decision was never communicated to NC. LP discussed the allegations made by NC with GB but not DM.

[176]LP then sent a letter to NC dated 24 January 2024 with the grievance outcome, which was partially upheld. The allegations that GB had not abided by the agreement with DM that the respondent host the NIDMAR project was not upheld without LP having spoken to DM regarding the issue.

[177]NC sought to appeal against this outcome in a letter of 2 February to John Mullen from HRB. NC also highlighted that the letter of 24 January was not posted until 30 January and received by her on 31 January. NC explained that she would be out of the country on her prebooked leave until 3 March. No one responded to this letter.

[178]On her return from annual leave, NC sent a letter to LP asking for information to allow her to pursue a grievance appeal including the notes of the meeting with GB and the details of the alleged data breach. That information was not provided and NC only had sight of the notes of the meeting with GB in response to a DSAR request from HRB. While LP had responded by letter to NC indicating she was enclosing that statement and other documents, the documents were not in fact enclosed. Disciplinary proceedings regarding NC

[179]A decision was taken to engage HRB to carry out investigations into NC in early October 2023. NC was not informed at that time of any such investigations. The Tribunal inferred from the limited evidence it heard on this matter that the investigation was commenced by members of the Board of the respondent.

[180]On 19 October GB sent an email to NC stating that HRB were looking to hold a brief meeting with her and a separate brief meeting with CG. By this stage a decision to suspend NC and CG had been taken, and GB knew that this was what HRB was going to communicate to NC.

[181]No notes were taken at the meeting at which it was decided to suspend the claimants. Representatives from HRB, GB, Ms Barbour and the Chair of the Board were involved in the decision-making process. The meeting took place around 19 October 2023.

[182]A letter was sent to NC by HRB dated 23 October 2023 which was addressed to a “Dr Graham” indicating that she was to be suspended.

[183]The suspension of NC was never reviewed, and the respondent had no intention of allowing NC to return to work in any circumstances.

[184]When NC read the letter on 25 October, she sought to contact John Mullen who was the signatory of the letter. She could not contact him by phone. She sent a letter to him asking for clarification as to whether the suspension related to herself given that the letter was addressed to a Dr Graham.

[185]On 26 October 2023, NC sent various emails to GB seeking clarification on matters relation to her suspension. She asked what the process was for leave and toil as she had been informed she was not allowed to contact her reporting officer at the Scottish Government. She asked what was to happen in relation to the 7 hours of disability support provided for her in the grant from the Scottish Government to the respondent and stated “I will require an experienced disability support person with an understanding of my disability needs, eg; skills to convert written paper information into Audio forma, sourcing accessible copies of required materials. I have no desire to train and upskill a new disability support person when I have a perfectly capable one already in place.” NC stated that she had never seen the respondent’s employee handbook and had no email or equipment from the respondent. She gave information about Teams calls she had arranged and asked what would happen to them.

[186]On 27 October 2023, GB sent a brief response to the various emails NC had sent the previous day stating that the meetings NC had arranged had been cancelled and that he could provide a copy of the company handbook and asked what formatting would be appropriate for NC’s disability software.

[187]NC responded indicating that it was unacceptable for GB to provide pastoral care to her as was set out in the letter of suspension. She explained that despite her attempts at meeting GB previously, no meeting had taken place and that she was being isolated from the excellent pastoral care she had received from her reporting officer at the Scottish Government and set out various examples of such care. She stated that it was not unreasonable to request that existing pastoral care structure should be allowed to continue. GB did not reply to that email nor instruct anyone else to reply.

[188]GB contacted the Scottish Government on 2 November 2023, informed them that NC had been suspended and asked them to suspend NC’s access to their systems and to ensure that access was not renewed even after the conclusion of an investigation. It was also requested by GB that NC should be required to return Scottish Government equipment. GB was aware that NC did not have any other IT equipment as she did not have a laptop from the respondent.

[189]GB then wrote to NC on 3 November 2023 informing her of these arrangements and indicating he would communicate with her on her personal email address. NC responded indicating that she did not give consent for the use of her personal email address. NC shared a personal laptop with her husband and did not want him to see emails regarding this matter as he had recently had a coronary event, and she did not want to cause him additional stress. NC also raised her concerns regarding the lack of response to her previous emails about disability support and the impact the removal of access to the Scottish Government systems and email would have on her. NC complained that the actions of the respondent amounted to disability discrimination.

[190]GB provided NC with a word version of the respondent’s handbook to her personal email address on 6 November 2023. He did not address the other matters NC had raised in her various emails to him.

[191]NC responded on 10 November indicating that without the software which was on the Scottish Government laptop or her in-person disability support, she was restricted in her ability to read and process the document with ease. She also raised the issue of the meeting which had previously been discussed regarding the alleged data breach and GB’s allegation that NC had been absent without authorisation. The letter noted at the bottom that it had been produced with the support of a friend and that “This is not an acceptable process going forward given the private and sensitive nature of the content of this letter and any future correspondence.” GB did not respond to this correspondence.

[192]There was some correspondence between HRB and GB regarding contact made with GH regarding NC. An internal email was sent within HRB regarding the investigation meeting being arranged with NC which stated “I would suggest that during the investigation, the question is posed of NC has she breached the terms of the suspension. At that stage we do not need the evidence, just note down her response. If she agrees, job done, if she denies, and we have the evidence at a later date, trust and confidence issues, which are the fundamentals of any reemployment relationship – job done.”

[193]CB sent an email to NC on 16 November 2023 with a letter attached requiring her to attend an investigatory meeting on 20 November. The letter stated that it was to discuss “the following concerns highlight by FEAT regarding your conduct and behaviour at work”. The letter did not however go on to set out any concerns.

[194]NC responded expressing her surprise at receiving this letter on her personal email address when she had informed GB not to communicate with her on that. She highlighted that the meeting was being proposed for one of her non-working days and that the letter had not given her sufficient time to prepare including organising disability support. NC also highlighted that she had informed GB that any meeting should take place in person and not via Teams and that this was related to her disability. NC proposed an alternative time and that CG be permitted to assist her.

[195]JH sent an email to HRB raising similar concerns.

[196]HRB responded by indicating that they were not aware that NC had withdrawn consent for her email to be used and that were not aware that Monday was a non-working day for NC. It was also stated that it had been the Scottish Government’s decision to withdraw access to their systems and that the respondent could not reinstate that which was not accurate as the access had been withdrawn at the respondent’s request. The email went on to state that “We are happy to support any reasonable adjustments NC may require. The investigation meeting, as you will be aware will be a conversation between both parties around the allegations, minutes will be taken at this meeting and a copy will be provided to NC in the format she advised is most appropriate.” A request was also made for JH to be a conduit for the communication between NC and the respondent which JH refused.

[197]CB then sent an email to JH on 24 November 2023 indicating that they had no issue with CG being present to provide support for NC. She also confirmed that the completed investigation report had been provided to GB.

[198]JH asked CB to provide information about any assessment carried out by the respondent prior to removing NC’s supports. CB replied that HRB did not have this information and would ask the respondent for it and confirm the position at the forthcoming investigatory meeting. No such confirmation was ever provided. JH also queried the issue of in person support to NC and expressed concern at CG attending given that she was also suspended from work. At no time did the respondent or HRB confirm in writing that CG attending the meeting would not be in breach of either claimants’ suspension. JH requested that EB attend as support. HRB informed him that “friends” are not normally allowed to attend meetings. JH set out the requirements of NC in relation to her disability in detail to HRB. JH was asked to explain the activities EB would be required to perform during the meeting. On the morning of the meeting HRB confirmed that EB could attend the meeting.

[199]The meeting took place on 29 November 2023. NC did not receive a copy of the invite letter in advance of the meeting and only saw the copy JH had shortly before the meeting was due to commence. The letter had for the first time set out some specification of the allegations against NC which were: “Failure to follow management instructions and requests; Failure to use equipment provided by FEAT; Attempting to solicitate the NIDMAR project to another host and sending internal data to personal devices.” No further specifics were provided.

[200]The meeting was held in a building on the respondent’s grounds. HRB had been informed in advance that EB was a wheelchair user. When NC, JH and EB arrived at the building the main door where there was a ramp was locked and LP who was the HRB representative did not have a key. It was then necessary to enter the building from an access which had steps and a narrow hallway round which it was difficult to manoeuvre a wheelchair. There were no light bulbs in the building which was dark and no heating on. Both NC and EB became increasingly stressed, frustrated and angry about the situation and both felt embarrassed and humiliated by the difficulties in entering the building. They had to keep their coats on throughout the meeting.

[201]During the meeting LP asked a series of questions of NC. She did not provide any paperwork to NC. After NC had explained that there had been a hosting arrangement agreed with DM, LP stated “If you’re under FEAT contract then FEAT policies should apply”.

[202]NC did not receive the minutes which HRB took of this meeting until 15 March 2024.

[203]Following the meeting and once NC had been able to obtain assistance from EB, NC set out her position in writing and provided evidence to LP by email of 5 December.

[204]LP contacted Mr Ishaq by email on 8 December and asked to meet him to discuss the investigations into NC being carried out by the respondent.

[205]LP then wrote to NC requiring her to attend a further investigatory meeting on 9 December 2023. JH was unable to attend that meeting and he wrote to LP asking that the questions were put in writing to NC. This did not happen and no further investigatory meeting took place.

[206]LP, having largely dismissed NC’s grievance in a letter of 24 January 2024, then completed a disciplinary investigation report on 29 January 2024 which she sent to GB. She recommended that the matter proceed to a disciplinary hearing.

[207]LP emailed JH on 29 January to inform him that she had sent the grievance outcome letter (although this was not in fact accurate) and that a letter had also been sent requiring NC to attend a disciplinary hearing on 2 February. Despite a previous agreement with JH that efforts would be made to check his availability before setting hearings, this had not happened and JH was unavailable. In addition, the letter of 29 January requiring NC to attend a disciplinary hearing did not have sufficient postage on it and therefore NC was required to pay the additional postage at the post office sorting office in order to obtain the letter, which caused a delay.

[208]A disciplinary hearing was arranged for 15 March 2024. The letter to NC stated that if the allegations were found to be true it may be considered gross misconduct and could result in summary dismissal. Callum Anderson another HR consultant from HRB was to be chair of the hearing.

[209]An information pack was sent by Callum Anderson to JH on 13 March. A further request was made for JH to ask as a conduit for information to NC. It was suggested that it had become increasingly difficult to correspond with NC. This was because HRB either didn’t post letters when drafted or did not ensure that sufficient postage was provided for the letters to arrive. Any delays were not the fault of NC.

[210]JH emailed Callum Anderson on 15 March 2024 to confirm that EB would be attending the meeting as NC’s disability support. He also pointed out that the respondent had failed to provide a paid professional to carry out this role after the suspension of CG. Mr Anderson replied by stating that any invoices raised by NC’s disability support should be sent to the respondent for payment. The invoices were sent but they were not paid until the third week of these Tribunal proceedings.

[211]A hearing took place on 15 March. NC was not provided with any notes of that meeting and only received them in response to a DSAR request of HRB. NC explained she had not received the notes of the investigation meeting in November 2023, and these were provided during the course of the hearing.

[212]Following that meeting Mr Anderson sent an email to JH stating that HRB had been appointed as an independent third party to present findings and recommendation to an appropriate member of the Board of FEAT.

[213]A report was provided to the Board dated 21 March making various recommendations. NC was not provided with the report.

[214]GB then sent a letter dated 27 March 2024 dismissing NC and indicating that they had been unable to bring the disciplinary proceedings to a conclusion. While NC was paid a redundancy payment, she was not paid the expenses which were outstanding until the third week of these Tribunal proceedings. She was not paid notice pay.

[215]NC sent a letter to John Mullen dated 4 April 2024 enquiring about various matters she said were outstanding. A response was provided which concluded indicating that NC should direct future correspondence directly to the respondent.

[216]GB sent a letter dated 4 April to EB regarding her invoice for the provision of disability assistance stating that they would not be providing payment for that invoice. NC had to pay EB directly for her services. NC’s DSAR request

[217]NC sent a DSAR request to DM via HRB dated 6 February 2024. It was signed for by LP on 7 February 2024. LP contacted DM and informed him that she had received a letter for him. DM confirmed that he was happy for it to be forwarded to his office. However, he then sent a further email stating that he “had been contacted by our SIRO (who is Margaret Guthrie) and advised not to accept receipt of this letter as the employee is under suspension and as such was instructed not to contact anyone at FEAT.” The letter which had been sent to DM was handed back to NC in a car park by Callum Anderson following the disciplinary hearing on 15 March 2024. EB then sent the letter as an attachment in an email to DM on 15 March 2024. GB wrote to NC on 10 April 2024 indicating that, following a meeting with the SIRO (that is Ms Guthrie), the respondent would not release any data as they viewed the request as “manifestly unfounded”. The letter went on to say that the reasons for this included that NC had used a third-party company and threatened to inform the ICO if the request was not dealt with, she had contacted staff while under suspension “causing distress and confusion” and “made false accusations of the organisation tampering with the SAR request.”

[218]The respondent’s approach to this matter was Orwellian and unreasonable in that it refused to accept the DSAR request as it was sent to HRB to whom NC was required to direct correspondence but at the same time accused her of trying to contact staff when she was suspended when the request was returned to her and she tried to have it dealt with. The Tribunal did not accept the evidence of GB that he had suffered “distress and confusion” as the request was not sent to him and NC was not making false accusations but stating the facts of what had happened. That allegation was wholly fabricated to avoid providing the relevant information to NC. The approach of the respondent in this regard typified its high handed, obstructive and unreasonable approach to NC making it impossible for her to advance matters.

[219]The ICO initially upheld NC’s complaint in this regard but then reconsidered it having been provided with “evidence from FEAT” which was not shared with NC at any time.

[220]NC continued to attempt to obtain her personal information from the respondent. The respondent sent a letter to NC on 27 August 2024 stating that they were applying the manifestly unfounded exemption due to “Systematically and frequently sending requests to our organisation and our business partners as part of a campaign to cause disruption and targeting particular employees.” This allegation against NC was wholly without foundation. The letter then went on to state that NC should send all SAR requests to GB as Plugnit (the respondent’s IT consultants), the Scottish Government (all departments) and Well Working Matters would be unable to provide her with data as FEAT are the data controllers. The respondent did not ask for consent of Well Working Matters or the Scottish Government prior to sending this letter. There was no explanation as to how the respondent could be the data controller of NC’s information which was held by other bodies. The respondent was again being deliberately obstructive to the efforts of NC to obtain information which would assist her in advancing her concerns. Observations on the evidence

[221]The Tribunal found CG to be a credible and reliable witness. She had described her condition as often making her appear brittle and she did come across to the Tribunal as somewhat brittle. It was clear that CG found the whole experience of giving evidence extremely difficult and the impact of her conditions was evident to the Tribunal throughout her evidence. She sometimes did not appear to follow questions although or be able to absorb information. Her answers therefore were sometimes given in what otherwise could have appeared to be an argumentative or awkward manner. However, the Tribunal came to the view that CG was doing her best to answer questions given the conditions she suffered from. CG looked drained towards the end of her evidence and for the remainder of the proceedings and the Tribunal came to the view that it was likely to have taken a monumental effort for CG to give her evidence.

[222]Mrs Berrick came across as direct, credible and reliable. She was careful to ensure that her evidence was accurate and gave her evidence in a balanced manner.

[223]NC’s evidence was also accepted as credible and reliable. Where the respondent’s evidence conflicted with that of the claimants, the Tribunal preferred that of the claimants. NC was methodical in her evidence and her description of her condition and the impact of it was apparent to the Tribunal when giving that evidence. She could become quite brusque, but the Tribunal accepted that this was a consequence of her condition.

[224]Mr Ishaq was in general terms a credible and reliable witness. However, it was apparent to the Tribunal that he took little involvement in the dayto-day work of the claimants or the project. The Tribunal did not accept his evidence in relation to the continued funding of the project between March and September 2024. He could not remember what the sums which had apparently been approved for this period related to and the Tribunal preferred the evidence of NC that there had been an agreement that funding would be provided to the respondent (or potentially another organisation) in relation to the last 5 months of the project between April and September 2024 for the work of both claimants as distinct from that of Working Well Matters.

[225]Elaine Richards was a straightforward witness whose evidence was limited in relation to the matters to be determined by the Tribunal. Her evidence did make clear that the respondent’s approach to compliance issues dramatically altered in relation to the claimants after the involvement of MG and RP in these matters. To be clear, the Tribunal does not suggest that there was anything inappropriate in the way in which Ms Richards carried out her duties. There was no evidence to suggest that Ms Richards did not take her duties seriously and behave in a professional manner in exercising those duties.

[226]Mr Duncan was a straightforward witness who answered questions openly and directly and was clear when he could not remember certain matters.

[227]John Hackett was an extremely impressive witness who gave evidence in a balanced and considered manner. He always appeared to be at pains to try to see the respondent’s position on matters and made concessions where it was reasonable to do so. He came across as a thoughtful and conscientious witness who had significant experience of representing members, took his obligations to the claimants seriously and who became increasingly frustrated at the conduct of the respondent to the extent that his evidence was that he had never seen an employer behave in such an unreasonable manner to employees.

[228]The Tribunal found GH to be an impressive witness, who gave his evidence in a straightforward manner. He gave evidence regarding meetings at the respondent’s instigation seeking to convince him to allow the respondent to take over the training rights for the delivery of the project without the knowledge or involvement of either claimant. GH was not entirely clear about when he was first contacted by Ms Guthrie, but his clear evidence was that the contact was at her instigation, he had never had anything to do with her before, that she raised suggestions of financial impropriety on the part of NC with him and sought to question him about NC performance and conduct in her role. He also stated that a number of further meetings took place between himself, Ms Guthrie and GB to seek to establish a relationship with GH and to persuade him to facilitate the transfer of the training rights for the NIDMAR program to the respondent. The Tribunal accepted his evidence which was not challenged. No evidence was led from GB in relation to these matters and the Tribunal accepted that the evidence of GH was, subject to the timing of the first contact by Ms Guthrie, accurate. The Tribunal came to the view that the meetings took place around September 2023.

[229]GB was an unsatisfactory witness. He was evasive and while he could accurately remember specific details of certain correspondence or events which were supportive of the respondent’s case, he was unable to remember whether he had seen documentation relating to the grievance and disciplinary proceedings concerning the claimants. He suggested that he was not worried about the grievance against him, that he couldn’t remember when he’d had sight of the report into the grievance against him, couldn’t recollect why there was a gap in the suspensions of both claimants and was extremely vague about his interactions with HR Booth or the basis on which decisions were taken. He could not say when an investigation was commenced into NC or who initiated it although he said it was “potentially” Wendy Barbour. Given that he had only recently been appointed to the role of COO at that time the Tribunal found it incredible that he could not have remembered significant events such those outlined above, and his role in them. The Tribunal did not find his evidence either credible or reliable. Regrettably the Tribunal concluded that GB’s evidence was in large parts incredible and that he sought to avoid saying anything that he thought might damage the respondent or him personally.

[230]DM was similarly an unsatisfactory witness. It was notable that at the commencement of his evidence he appeared relaxed and even suggested that he might be able to work with NC again. However, as he began to be challenged on his involvement in matters, he could remember matters which might be in favour of the respondent but not where it might support the claimants’ cases. At one point he commented that he should “get himself checked” due to his inability to remember certain matters. The Tribunal also found it difficult to accept his evidence that he had no knowledge of what was going on with either claimant after he was told not to have any contact with either of them. The respondent is a small organisation, and it seemed to the Tribunal to be inconceivable that he might not have required a formal update given his responsibilities as CEO.

[231]The Tribunal did not hear from CB who took the decision not to uphold CG’s grievance. It therefore did not have the benefit of hearing the basis of her decision which appeared to the Tribunal not to have been based on a fair investigation or be supported by what evidence had been obtained. Having dismissed CG’s grievance, CB was then responsible for informing CG that she was being suspended and that CB had been appointed to investigate the allegations. It was only after CG objected to CB’s continued involvement that another HR Consultant from HRB was appointed to deal with the disciplinary investigation. The decision-making process remained unclear. JH’s unchallenged evidence was that it was not clear at any point as to who was making decisions and whether it was HRB, someone from the respondent or a combined effort. The Tribunal came to the view that it was appropriate to draw inferences from that lack of clarity. In particular, the Tribunal came to the view that the respondent and HRB had deliberately adopted an opaque approach to confuse the claimants and make it as difficult for them as possible to support their positions.

[232]As the respondent decided not to call RP or LP at a very late stage in the proceedings, despite having cross examined the claimants on their evidence of their interactions with them, the Tribunal accepted the evidence of the claimants in that regard. As already mentioned, the question of who had been making decisions regarding the claimants, that is whether it was the respondent or the representatives of HR Booth was opaque throughout the hearing. The decision of the respondent not to call LP only served to add to that lack of clarity. The processes and procedure followed throughout lacked transparency and when considered in the round and in the context of the email from HRB making reference to “job done”, the Tribunal concluded that there was no intention on the part of the respondent to treat the claimants in a fair and reasonable manner and that they had enlisted the assistance of HRB to make it appear that a reasonable procedure was being followed. Discussion and decision Ms Goble claims What was the reason for CG’s dismissal?

[233]The respondent’s position was that CG was dismissed by reason of redundancy and that the dismissal was fair.

[234]The letter of dismissal to CG referred to “End of Fixed Term Contract”. It stated “As you are aware your fixed term contract is due to end on Sunday 31 March 2024.” CG did not have a fixed term contract ending on that date, whether written or otherwise. The respondent had not had any discussions with her regarding the duration of her employment. While CG had originally been employed on a fixed term contract, that had expired and there had been no communication from the respondent regarding the continuation of her employment since the expiry. The Tribunal therefore concluded that CG was employed on an open-ended contract.

[235]In any event, while the expiry of a fixed-term contract may result in a redundancy situation arising, that is not necessarily the case. In the present circumstances, the respondent did not suggest that the reason for CG’s dismissal was redundancy until the grounds of resistance were lodged. The respondent had not paid CG a redundancy payment by the conclusion of these proceedings, and while it seemed to be inferred that this was somehow the fault of CG that the respondent had not made this payment, no specific reason was given as to why the respondent should on the one hand seek to argue that CG had been dismissed by reason of redundancy, but on the other have failed to pay a redundancy payment to her.

[236]The respondent’s evidence in this regard was from GB who quite incredibly said he couldn’t remember exactly who had taken the decision to dismiss but he “assumed it must have been him”. He did say that he did so while taking advice from HRB. He also said the decision to dismiss was taken on the Thursday or Friday before the end of the contract and the letters of dismissal were provided for him to sign by HRB. GB’s evidence was that HRB met with the respondent and advised them that the contract was ending, and they would issue “an end of term contract” letter. He did not explain what information had been provided to them to allow them to come to this conclusion. Indeed, GB went on to state that HRB had taken legal advice to check that this was an appropriate course of action.

[237]The respondent’s evidence was confusing and contradictory. The Tribunal could not establish who had taken the decision that CG should be dismissed as the evidence from GB suggested it was him, but that it was HRB who advised him that this was should happen having taken legal advice on the issue. The Tribunal were of the view that given he was new to the role, GB would not have taken a decision to dismiss someone without the direction or approval of the Board.

[238]There was no evidence provided that steps were taken to determine whether the funding had in fact ended, or whether the funding which NC said was available until September 2024 could be drawn down. The respondent did not seem to be aware of the terms of any written contract which had existed between them and CG.

[239]If there had been a genuine redundancy situation, it was inconceivable to the Tribunal that this would not have been raised with the claimants at an earlier stage given the ongoing grievance and disciplinary proceedings against them. Instead simply out of the blue, the claimants were both told that they were being dismissed because they had come to the end of contracts which they did not in fact have.

[240]The onus is on the respondent to establish that there was a redundancy situation. It has failed to discharge that burden and has failed to establish a potentially fair reason for dismissal. The Tribunal concluded that the respondents had been looking for a reason to dismiss the claimants since around October 2023 and that the dismissals were because the respondent did not wish to employ the claimants any longer. There was no genuine redundancy situation. Was the dismissal fair?

[241]In any event, even if it could be said that the respondent had established that there was a redundancy situation, the dismissal was unfair. There was no procedure followed whatsoever. The respondent did not even seem to know what the terms of CG’s contract were. There was no discussion with her at all about the funding coming to an end. There was no meeting with her to discuss matters.

[242]It was suggested by the respondent that this was one of those unusual situations where consultation would have been pointless. The Tribunal did not agree with that proposition.

[243]It was suggested that CG would not have been interested in working with the respondent any further given the nature of the poor relationship between them. However, no one from the respondent’s organisation ever had any discussion with CG at all after DM had made requests for information from CG and NC. There was no discussion about the project and whether it could be continued, whether funding from another source could be obtained, whether the project had in fact come to an end or whether there were any other roles CG could carry out.

[244]It is notable that DM had suggested to NC that CG could carry out duties for the respondent. NC had indicated that this would be in breach of the agreement with the Scottish Government, but the suggestion, inappropriate though it may have been, would indicate that there were duties which CG could have carried out for the respondent.

[245]CG had never met GB or anyone from the respondent’s organisation other than DM on one occasion. She had met RP, but RP is not an employee of the respondent. It may be that consultation would not have extended the employment of CG, but the entire failure to even contact CG who had been working on this project for four years to discuss the project with her, clarify the nature of her contract of employment and discuss matters with her demonstrated an complete disregard of any procedural requirements necessary to render a dismissal fair. While the Tribunal recognises that the respondent is a small charity, it was taking advice from HRB, who had also apparently taken legal advice on the issue of termination of CG’s

[246]The respondent’s position was that even if CG’s dismissal was unfair, her employment would have been terminated fairly if a fair procedure had been followed. It was suggested that CG might be dismissed for conduct reasons. The Tribunal did not accept that submission. The investigation which had been carried out was wholly inadequate and unfair. CG was not provided with relevant information in good time. The allegation was vague in that all that was said was that CG had “committed an act of fraud”. The process took an inordinate amount of time during which there was no review of whether CG should remain suspended. There was no investigation report produced. There was no evidence to suggest that the claimant could have been fairly dismissed for conduct reasons.

[247]The Tribunal did however conclude that CG may have been fairly dismissed in September at the end of the program funding and that any compensation for the unfair dismissal should be limited to that period. Did CG make a protected disclosure?

[248]CG’s position was that she had made a protected disclosure in her letter of 18 August 2023 to the respondent’s Chair, Ms Lawrenson and that she had essentially repeated the same allegations in the grievance meeting of 20 September with HBR.

[249]It was said that the disclosures were that the Respondent failed, was failing or was likely to fail to comply with any legal obligation (43B(1)(b) ERA). CG effectively provided information about the Respondent’s breaches of the General Data Protection Regulation (“GDPR”), which were said to be: i. maladministration of employee information ii. that Duncan Mitchell failed to document/record agreed working hours by sharing incorrect employee information with the Counter Fraud Service iii. by RP, failing to correct information on the Respondent’s records or with CFS and iv. gross negligence of the Respondent’s employees

[250]It was also said that the disclosure was that the Respondent failed, was failing or was likely to fail to comply with any legal obligation (43B(1)(b) ERA) by knowingly misleading the Counter Fraud Service, and additionally by “supporting false criminal allegations” or in the alternative, that a criminal offence had been committed, was being committed, or was likely to be committed by the Respondent (as per s43B(1)(a) ERA) by knowingly making a false report about an alleged crime (Criminal Law (Consolidation) (Scotland) Act 1995, s44): i. maladministration of employee information ii. by sharing incorrect employee information with the CFS iii. by RP, failing to correct information on the Respondent’s records or with CFS, iv. disappointing maladministration and conduct (by the Respondent ), and v. supporting false criminal allegations vi. At the grievance hearing these issues were raised again but the issues were expanded upon and the fact that CG had raised a complaint with the ICO regarding Margaret Guthrie was raised.

[251]In order for a protected disclosure to have been made, there must be a disclosure of information, it must be made in the public interest, a claimant’s belief must be reasonably held and the claimant must believe that the disclosure tends to show one or more of the matters set out in s43B(1)(a)-(f) ERA.

[252]The grievance amounted to a disclosure of information. It was said that the respondent had provided incorrect employee information to the Counter Fraud Service. It was said that this amounted to a maladministration of employee information and potentially amount to a breach of the provisions of the GDPR and that RP had failed to correct that information when she knew the information to be incorrect. The incorrect information was that CG worked on a Tuesday and would finish work by 5pm on any day she worked.

[253]The Tribunal heard that the only people who were involved in the provision of this information were RP and Margaret Guthrie. There was no effort to check whether the information was accurate with CG’s line manager or DM.

[254]The Tribunal was satisfied that CG had disclosed information which showed or tended to show that the respondent was in breach of a legal obligation, that is in relation to the provisions of the Data Protection Act which requires personal data to be processed lawfully and fairly.

[255]The Tribunal was also satisfied that the belief of CG was reasonable in this regard. She had been informed of what information had been provided to CFS and the Tribunal accepted as genuine her concern that this was in breach of a legal obligation on the part of the respondent. CG refers to ‘maladministration’ in her grievance and ‘gross negligence’ on the part of the respondent.

[256]The respondent’s submissions were that there was no reasonable belief on the part of CG that the disclosure was made in the public interest. It was said that this was a private employment contract matter; that it was made in the context of a grievance procedure was indicative of it being a private matter only in the self-interest of CG.

[257]The Tribunal did not accept that submission. Whether a disclosure is made in the public interest or not will require an analysis of the particular circumstances in which the disclosure was made and the circumstances of the person making it. It seemed to the Tribunal that it was in fact entirely appropriate to raise the issue in the context of a grievance. CG had sought to raise the issue with DM who refused to meet her to discuss it. Had the respondent taken the time to sit down and have a meeting with CG or NC as they both requested to clarify the issues of working arrangements, then the matters could have been resolved. It was entirely the fault of the respondent that no such meeting occurred, and the Tribunal was left bemused as to their motivations for their refusal in this regard. In those circumstances, CG could not be blamed for feeling the need to raise a grievance as the only way in which matters could be addressed. The approach of the respondent in refusing to engage with her in these matters reasonably allowed CG to have formed the view that there may be more systemic issues in terms of how the respondent handled the personal information of her and others. The disclosure was therefore in the public interest.

[258]The Tribunal also noted that CG had stated in her grievance her concern that the conduct could “jeopardise the agreed and funded Scottish Government ministerial NIDMAR project for which FEAT hold the contract”. The Tribunal accepted that there was a wider public interest in the disclosure of CG in that it related to way in which a charity processed the information of its employees, made use of public funds and that the project on which CG worked might be jeopardised if she could not remain in employment there.

[259]The respondent’s position was that this was threatening behaviour on the part of CG in that she said she was going to refer the matter to OSCR and that she was required to evaluate whether she could continue to work in an organisation which behaved in this manner.

[260]It was not clear why this should be viewed as threats by CG. CG was highlighting concerns. She was indicating that the respondent was not addressing her concerns. She therefore indicated that she would refer the matter to OSCR, the regulatory body and might have to consider her own continued employment with the respondent. CG was criticised for not in fact referring the matter to OSCR if she felt strongly about the issue. The Tribunal concluded that whether she did or did not refer the matter to OSCR was not relevant to the issue of whether or not she made a protected disclosure.

[261]Simply because there was no evidence presented to the Tribunal that the respondent has failed to process the information of other employees in accordance with its duties, does not mean that CG’s disclosure did not have the potential to affect other employees or that she could reasonably believe that there were more systemic issues in how the respondent processed personal information of its employees.

[262]The Tribunal was therefore satisfied that the disclosure was made in the public interest and amounted to a protected disclosure. The Tribunal was also satisfied that the disclosures were made in good faith. They were not threats but arose as a result of the respondent’s refusal to meet with CG to discuss the matter informally. The additional disclosures made in the grievance meeting were largely an iteration of what had already been said and therefore considered in the round, the Tribunal was satisfied that CG had made a protected disclosure both in her grievance initially and again by raising the issues with HRB who were acting qua employer having been instructed to do so by the respondent. Was CG subjected to a detriment?

[263]The claimant’s position is that she was subjected to the following detriments: i. Suspension from work by letter 02 November 2023 (emailed on 03 November 2023) continuing until dismissal letter of 27 March 2024 (received on 30 March 2024) ii. Allegation of fraud by letter 02 November 2023 (emailed on 03 November 2023), maintained until dismissal letter (received 30 March 2024), and iii. Disciplinary proceedings from 02 November 2023 to dismissal

[264]The respondent’s position was that these matters did not amount to detriments. It was said that there was no disciplinary hearing and that suspension is not part of a disciplinary process and was related to the investigations by the CFS. It was said that no reasonable worker would take the view that suspension was a detriment when their primary employers were investigating the same matter for which a claimant was suspended.

[265]The Tribunal did not accept the respondent’s submissions in this regard. Generally, suspension from work pending an investigation is not a disciplinary sanction. However, there does not have to be a disciplinary sanction or indeed disciplinary hearing for there to be a detriment. As highlighted by the Court of Appeal in Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] IRLR 374

, the concept of detriment is broad. While being suspended may not always amount to a detriment, in the present circumstances, the Tribunal was satisfied that it did. CG was not permitted to contact her line manager who provided her with support. The suspension was never reviewed, and CG was suspended for almost five months. She was accused of fraud with no specific allegations ever made against her. She was subject to disciplinary investigation from her suspension until her dismissal. A reasonable employee would be of the view that all these matters amounted to detriments and CG was reasonable in so determining. Did the protected disclosure materially cause the detrimental treatment?

[266]Once it has been established that a claimant has made a protected disclosure and that they have been subjected to detriment, the burden shifts to the employer to demonstrate the reason for the treatment.

[267]In the present case, the respondent’s position was that CG was suspended as part of an investigatory procedure and that this was related to the investigations by CFS not because of any protected disclosure.

[268]However, the respondent has not at any stage explained why CG had to be suspended. Indeed, it was not clear who had taken the decision to suspend CG. The respondent had been aware of the investigation by CFS from February. CG has never been suspended from her role in the NHS. CG’s grievance letter, sent to the Chair of the Board of the respondent outlined what had happened and that as a result CG had been subject to a fraud investigation. The grievance outcome letter was dated 13 October. GB’s evidence was that it was only when he saw that grievance outcome letter that he realised how serious matters were. The Tribunal did not accept that evidence as either credible or reliable. It was also notable that a decision was said to have been taken on 19 October 2023 to suspend CG only days after the outcome of her grievance. The respondent could not explain why it took so long to communicate that decision to CG.

[269]An allegation of fraud is a serious allegation and was made without any specification as to what CG was alleged to have done. It appeared that the issue was the CG was alleged to have defrauded the NHS, not the respondent. Yet the NHS had not suspended CG, and the matter was still being investigated.

[270]The respondent suggested that as a charity making use of public funds it was obliged to take such matters seriously. The Tribunal found that to be a hollow ex post facto submission which had nothing at all to do with the decision to suspend CG.

[271]There was simply no evidence before the Tribunal that the respondent had turned its mind to whether it was necessary to suspend CG. It is often appropriate to suspend an employee pending an investigation, but that will generally depend upon the nature of the allegation and the extent to which an investigation can properly be carried out if the employee remains at work. Given that the respondent failed to establish in evidence who made the decision, never mind why the decision was made, the Tribunal concluded that CG was suspended for reasons relating to the protected disclosures she made in her grievance and to HRB during the investigation process. CG was making serious allegations against RP and Mrs Guthrie. For reasons the Tribunal could not fathom, rather than take any steps to correct the provision of incorrect information to CFS, the respondent, for want of a better expression “doubled down” on the matter refusing to acknowledge that they had done anything wrong, despite the very serious consequences of their actions for CG. The Tribunal is satisfied that the decision was inexorably linked to the disclosures made by CG.

[272]Having taken this course of action, by suspending CG, the respondent then sought to justify its conduct by continuing with an investigation over an inordinate length of time being 5 months and never concluding matters. It appeared to the Tribunal that the respondent was simply playing for time, in the hope that something would happen, whether that was CG resigning or otherwise, which would mean that the proceedings could be abandoned.

[273]The allegation of fraud against CG, without specification other than it involved NHS rather than the respondent could not be separated from the grievance made by CG.

[274]The Tribunal drew inferences from all of these facts and in particular: the failure of the respondent to explain why CG was suspended in the first place or who took the decision, why the respondent had refused CG’s requests to meet her to discuss the issue of her working arrangements, why the allegation of fraud was made against CG when the respondent had been aware of the issue since February 2023 and the inordinate length of time taken to conduct an investigation which was then abandoned, that CG was subjected to the detriments complained of because she had made the protected disclosures. Was the principal reason for dismissal the disclosures?

[275]The Tribunal did not accept that the respondent had established a potentially fair reason for CG’s dismissal and that even if it were wrong in that, the dismissal was unfair. However, the matter of whether the principal reason for the claimant’s dismissal was that she had made protected disclosures is a different question. Simply because the Tribunal did not accept that the reason for dismissal given by the respondent was the real reason, does not mean that it is bound to find that the reason was the protected disclosures.

[276]It was not clear who had taken the decision to dismiss CG. letter (received 30 March 2024). The Tribunal did give consideration to the submissions on behalf of CG that the case of Royal Mail Group Ltd v Jhuti

[2020] IRLR 129

in its deliberations in this matter.

[277]The Tribunal formed the view that the protected disclosures made by CG did form part of the factual matrix resulting in the dismissal of CG. However, it was not satisfied that it was the principal reason. The respondent clearly wanted CG and NC out of its organisation. This was no doubt in part because they were viewed as troublemakers. However, as set out above, the respondent was also of the view that they were an expensive resource. The respondent did not receive any additional funding in the grant from the Scottish Government beyond the salaries of the claimants and some expenses they might incur. There was no management fee paid to the respondent, and indeed DM indicated that the hosting of the NIDMAR project cost the respondent money, which perhaps had not been properly considered before taking on the project. The Tribunal formed the view that the respondent either wanted to take over the running of the project itself or cease its involvement in the project. There were therefore a number of reasons as to why CG was dismissed and the Tribunal could not be satisfied that the principal reason was that CG had made protected disclosures. Redundancy pay

[278]As the Tribunal concluded that redundancy was not the reason for the dismissal of CG, it follows that CG is not entitled to a redundancy payment. Wrongful dismissal

[279]The respondent appeared to concede during the cross examination of CG that CG was entitled to be paid notice pay. No defence to this claim was made in submissions. CG was not employed on a fixed term contract. She had been employed for three years. She received a letter dismissing her with effect from 31 March on 30 March. The initial contract on which CG was employed which expired in March 2022 indicated that she was entitled to one month’s notice. The schedule of loss provided calculated this as £1055 and no issue appeared to have been taken with this calculation by the respondent. This sum is therefore due to the claimant as the respondent failed to give CG notice to which she was either contractually entitled or might be reasonably inferred given her role. Holiday pay

[280]CG claimed that she was still due holiday pay from the respondent. The letter of dismissal stated that she would be paid in lieu of untaken holiday entitlement, but the respondent did not make that payment. CG sought to raise a grievance regarding this matter, but GB’s evidence was that he was advised (for reasons which were never explained) not to respond to CG’s correspondence. In evidence GB conceded that CG was due holiday pay. The Tribunal accepted the evidence of CG regarding the holiday pay to which she said she was entitled and the respondent should pay her the sum of £365.19 in that regard. Was CG a disabled person at the material time?

[281]The claimant had provided a disability impact statement on which she was cross examined. No direct medical evidence was led by CG but she gave detailed evidence on the conditions which affect her and the impact of these conditions on her. She also provided medical reports from her medical records and extracts from her records. She provided various occupational health reports which had been obtained in the context of her employment with NHS Fife.

[282]The Tribunal found it difficult to understand on what basis the respondent continued to deny that the claimant was a disabled person given the information it had been provided with prior to the commencement of the final hearing.

[283]In addition, the Tribunal heard evidence from NC regarding her knowledge of and discussions with CG regarding her health and adjustments.

[284]The Tribunal notes that other than the meeting with DM which both CG and NC had in March 2020, CG had very little contact with anyone from the respondent’s organisation until the period during which issues began to arise.

[285]CG had not formally been diagnosed with either ADHD or ASD although various opinions were provided that she was likely to be diagnosed with one of these conditions. The Tribunal was mindful however that the process for diagnosis of neurodivergent conditions is difficult and lengthy. The lack of diagnosis can be a factor in the determination of the issue of disability status, but while the Tribunal took this factor into account, the Tribunal was of the view that the focus should be on the evidence before it. An impairment may be cumulative and in the present case the Tribunal was satisfied that the claimant had symptoms consistent with a neurodivergent condition but also suffered from stress, anxiety and depression. She has been on anti-depressants for a number of years.

[286]The respondent’s position in submissions was that CG had no diagnosis and that she had continued to work for NHS Fife, performed demanding tasks in her role for NC and had completed a course of study all militated against a finding that the conditions amounted to a significant impairment.

[287]The Tribunal accepted CG’s evidence that she found working with NC, who understood her conditions and worked with her to develop an effective working relationship to be therapeutic.

[288]It is also important to bear in mind that the focus should be on what a claimant cannot do or can only do with difficulty. Although it is clear that CG can perform at a high level, the Tribunal was satisfied that this took a huge amount of effort and coping strategies for CG to perform at this level.

[289]CG suffered from an impairment, being a neurodiverse condition together with stress and depression and this amounted to an impairment.

[290]That impairment had a significant impact on CG’s cognitive function, her memory and ability to concentrate and absorb information. It caused her fatigue and limited her ability to socialise or participate in normal social interaction. The impact was neither minor nor trivial. CG’s evidence was that she had displayed neurodivergent behaviours since childhood. NC’s evidence was that she was aware that CG presented as someone who was neurodivergent. CG had been taking anti-depressants for a number of years and the impact of the impairment on CG’s ability to perform normal day to day activities was long term.

[291]The Tribunal was therefore satisfied that CG had demonstrated that she was a disabled person for the purposes of section 6 Equality Act 2010 throughout her employment with the respondent.

[292]In evidence it appeared that the respondent was suggesting that even if the claimant was disabled, it did not and could not reasonably have known that she was a disabled person. This point however was not raised in submissions.

[293]For completeness, the Tribunal concluded that NC knew that CG was likely to be a disabled person from before she was employed by the respondent. Both CG and NC gave evidence on this matter, and this evidence was accepted. In addition, NC raised with GB that CG was suffering from work-related stress (albeit in relation to her role with the NHS). CG raised the prospect of her being a disabled person with HRB on a number of occasions. HRB were acting on behalf of the respondent and any knowledge they have should be imputed to the respondent.

[294]The Tribunal concluded therefore that any argument that the respondent did not have knowledge that CG was disabled would be unsustainable. Did the respondent fail in a duty to make reasonable adjustments?

[295]CG’s position was that the failure to make reasonable adjustments related to way in which the respondent managed the suspension period and grievance and disciplinary proceedings. In particular, it was said that there were four adjustments which ought to have been and were not made, being: i. A failure to record meetings and thereafter either provide a copy of that recording or transcript; ii. A failure to give adequate notice of meetings to allow CG to prepare iii. A failure to provide evidence in advance of meetings iv. A failure to provide welfare support or contact during the suspension period.

[296]The respondent’s position in submissions on this aspect of the claim was that there was little evidence of what the relevant PCP was and that in any event the adjustments were in place. It was said at least two meetings were recorded “albeit not particularly well”, that there were no refusals of any requests for adjournments of meetings and there was no request for welfare support. It appeared to be suggested that support would have been provided by CG’s primary employers. While it was not entirely clear whether the respondent was suggesting that any duty on them would be met by the actions of another unrelated employer, if that were being suggested, the Tribunal did not accept such an argument. The duty to make reasonable adjustments is on the employer and cannot be discharged by speculation as to what may be provided in another

[297]The Tribunal did not agree with the suggestion that there was no evidence on the nature of any PCP. The PCPs were also set out in the list of issues provided by CG.

[298]In terms of the recordings of meetings, the PCP was a practice of holding meetings without a record. It was said that this put CG at a substantial disadvantage because her condition meant that she was less able to discern the context of what was said and absorb the information. In terms of the meetings, the respondent (or those acting for them) had a practice of holding meetings at short notice, which put CG at a substantial disadvantage because her condition meant that she found it difficult to prepare and to concentrate. It was also said that the respondent had a practice of not providing information about allegations prior to disciplinary meetings and that this put CG at a substantial disadvantage because her condition meant that she found it difficult to absorb and understand information or concentrate at meetings. Finally, it was said that the respondent had a PCP of only providing very limited contact and support to employees on suspension, that CG was substantially disadvantaged because she was isolated and more susceptible to stress and anxiety particularly after her line manager was suspended. Recording of meetings

[299]CG asked CB to record the grievance meeting which was due to take place on 20 September 2023 on 3 September. The Tribunal did not hear evidence from CB or indeed anyone from HRB as to what consideration was given to this request and why it was not done. The meeting took place via Teams and there was no apparent reason as to why it could not be recorded. While CG was provided with notes from this meeting, this was not until some time after the meeting and CG had issues with the accuracy of those notes.

[300]The meeting on 29 November 2023 was said to have been recorded. However, CG was not given a copy of the recording, and she was not sent notes of the meeting until 17 January 2024. While a transcript was sent to CG, that transcript was unintelligible. LP confirmed to CG that this was unintelligible in an email of 29 January 2024.

[301]CG accepts that she was provided with a recording of a disciplinary meeting of 1 February 2024.

[302]The Tribunal accepted that CG was substantially disadvantaged by the way in which notes of meetings were provided to her. It would have been reasonable for the respondent to record meetings and immediately or shortly thereafter provide CG with a copy of that recording. It would have reduced the disadvantage CG experienced by reason of her disability in participating in and preparing for these meetings. Short notice of meetings

[303]The specific complaints made by CG were that: i. She was invited to a meeting on 21/22 November 2023 on 16 November, ii. She did not receive any invite to a disciplinary investigation meeting on 29 November 2023 and only found out about the meeting 3 hours in advance from her union representative. iii. She was invited to a meeting on 23 January 2024 on 18 January, although this was later retracted, and iv. She was given short notice of documents to be discussed at the meeting on 1 February 2024.

[304]CG only worked 14 hours a week and Wednesday was the only fixed day she worked. She carried out 7 hours of her duties in evenings and weekends and worked 4 days a week at NHS Fife. Further alterations had been made to CG’s hours due to her university commitments and so by November 2023, the only fixed period she worked was a Wednesday afternoon.

[305]The respondents were on notice that CG required adequate advance notification of meetings, as she set this out in a letter to CB on 20 November.

[306]It was not at all clear to the Tribunal why such short notice of meetings was provided to CG, particularly given that proceedings were not progressed with any apparent degree of urgency on the part of the respondent. The failure to give adequate notice of meetings to CG had a substantial impact on her ability to prepare for meetings, understand what was happening at those meetings and caused CG considerable anxiety and stress. The Tribunal could not understand why CG’s reasonable requests in this regard were not met by the respondent and it appeared to the Tribunal that there was a deliberate decision by the respondent (or those acting on their behalf) to hold meetings at short notice and without adequate information in the knowledge that this may cause CG difficulties. Evidence in advance of meetings

[307]CG was called to a disciplinary investigation meeting to discuss an allegation that she had “committed an act of fraud”. There was no detail provided to CG about that allegation. The respondent’s position as set out by LP in an email to JH of 29 January 2024 was that there was “no legal requirement” to provide information in advance of the meetings.

[308]It also transpired that information which was provided to CG in a meeting in February 2024 had been available to LP in November 2023.

[309]It therefore appeared to the Tribunal that there was a deliberate decision taken by the respondent (or those acting on its behalf) to withhold information from CG in relation to both her grievance and disciplinary proceedings. There was no reason why information the respondent had in its possession, on which it was said to be basing the disciplinary investigation could not have been provided to CG in good time in advance of the meetings, to allow her to process that information and any response to the information. The failure to provide this information in advance of the meetings, was a failure to make a reasonable adjustment. Welfare support

[310]CG’s position was that there was a PCP of only having limited contact with staff on suspension. It was said that this substantially disadvantaged CG because she was isolated and more susceptible to stress and anxiety because of her disabilities and this was exacerbated by her not being permitted to contact NC.

[311]The respondent’s position is that no such support was ever requested. However, the issue is whether it was a reasonable adjustment for the respondent to provide suitable pastoral care to a member of staff who was disabled while they remained suspended for a period of 5 months. The respondent’s position was also that if such care had been offered it would have been refused.

[312]No such support was offered and CG who has the impairments outlined above was not contacted by anyone from the respondent to provide welfare checks or supports. Given that the respondent offers support to those with mental health issues to enter and remain in the workplace, the Tribunal found this to be astonishing. The respondent was aware that CG had a close working relationship with NC, but that she was not permitted to contact NC. CG was entirely isolated, other than her trade union representative and this caused her a substantial disadvantage in that she had no contact with her employer, was prohibited from contacting her line manager who had provided support to her for years and was not provided with any alternative contact with whom she could speak regarding concerns about her employment or how that was impacting on her health. The failure to provide such contact increased CG’s stress and anxiety levels and there was no one she could speak to about the process. The lack of clarity over the roles of HRB and the respondent during the process only served to make matters more complex. While it is acknowledged that CG did not attempt to contact GB that is not surprising given that she had never met him. Moreover, if GB had taken or at least been involved in the decision to suspend CG, it is difficult to understand on what basis he could provide pastoral support to her.

[313]The Tribunal therefore concluded that the respondent had failed to make reasonable adjustments to allow CG to participate fully in the grievance and disciplinary proceedings, or to provide welfare or pastoral support to her during those proceedings. Were the claims in time?

[314]The Tribunal came to the view that the failure to make reasonable adjustments in respect of CG was ongoing. This was not a one refusal or failure to make reasonable adjustments at a time which would have been reasonable. The failure continued to the end of the employment of CG and was therefore in time. If the Tribunal is wrong about that matter, it would have exercised its discretion to extend time on the basis that it would have been just and equitable to do so, given the opaque process which existed throughout that period, the delays of the respondent and those acting on their behalf to communicate with CG. Dr Clark’s claims

[315]The respondent’s position was that NC was dismissed by reason of redundancy and that the dismissal was fair. It was therefore necessary to determine the reason for dismissal in the first instance.

[316]Similarly to the position in relation to CG, the Tribunal concluded that the NC was not dismissed by reason of redundancy. The Tribunal formed the view that the respondent had been attempting to find a reason to dismiss NC from around September 2023.

[317]The Tribunal did not accept that there was a genuine redundancy situation. NC was not employed on a fixed term contract as while she had initially been employed on a fixed term contract, that had expired and not been renewed. NC was employed on a permanent basis. NC had been responsible for discussing funding arrangements with the Scottish Government throughout her period of employment. While the most recent grant funding document indicated that it covered the period to 31 March 2024, that was the normal course of events in relation to the funding given the Scottish Government arrangements that funding was on a financial year basis.

[318]The Tribunal was satisfied that funding was available for the continuation of the NIDMAR project to September 2024. While Mr Ishaq’s evidence was somewhat confused on this point, the Tribunal took the view that it was not a matter of priority for him, whereas it was a priority for NC. The Tribunal therefore preferred NC’s evidence on this point. It was logical that NC should take steps to ensure that a project she had invested in was brought to a proper conclusion. Her evidence was that there was still work to be done between April and September 2024 and that the intention was to have an event in September celebrating the conclusion of a successful project. NC had completed planning calendars with events included up until September 2024 which demonstrated to the Tribunal that her understanding and intention was to conclude the project tin September 2024. NC had also made arrangements to meet with GH to discuss the final contract for the project. She emailed her trade union representative on 26 March 2024 stating “I still have not heard from FEAT or HR Booth if the final Scot Gov grant has been secured to deliver the final 5 months of the Scot Gov ministerial commitment to train 300 supported employment case managers”. While NC did send subsequent emails indicating that the funding would come to an end in March, the Tribunal accepted the evidence of NC that this was in order to bring an end to the restrictions on her ability to contact GH or the Scottish Government and on the basis that she was not aware of any steps taken by the respondent to secure the remaining funding.

[319]The reason the funding was not drawn down was because the respondent would not allow NC to have any communications with the Scottish Government. The respondent made no effort to communicate with NC regarding outstanding duties. It refused to allow NC to contact the respondent at all other than for ‘pastoral’ reasons. There was no evidence to suggest that the respondent picked up the duties which would be carried out by NC and CG during their periods of suspension other than in the most basic of terms. The respondent deliberately allowed the project to wither.

[320]The Tribunal was satisfied that this did not amount to a redundancy situation. Was the dismissal fair?

[321]If the Tribunal is in error in that regard and a redundancy situation did exist, the dismissal was unfair. The respondent followed no procedure whatsoever. A letter was simply sent to NC, which was drafted by HRB and signed by GB terminating NC’s employment. The respondent did not give NC the courtesy of meeting with her to explain the position.

[322]Had any consultation taken place with NC, the Tribunal is of the view that there was a reasonable expectation that funding would have been extended with the Scottish Government. In addition, there may have been a possibility that further funding could be obtained from the Scottish Government or elsewhere for future projects. Consultation would not have been futile. NC had set up the respondent organisation. She had been a board member. She had worked on various projects that the respondent operated. She had excellent relationships with the Scottish Government. DM’s initial evidence was that he had hoped to be able to work with NC in the future.

[323]The dismissal of NC by simply sending a letter to her with no advance notice, no consultation and not even the giving the courtesy of a phone call or meeting was unfair. Unlawful deduction from wages

[324]NC’s position is that she was not paid the holiday pay to which she was entitled. She claims a gross sum of £2,611.27. The respondent indicated that it has no records of the leave taken by NC and requested documentation from the Scottish Government in September 2025 but has been informed that they do not have any records. The respondent therefore cannot produce any records. The Tribunal accepted the evidence of NC as to the leave taken by her. Her evidence was that she took leave at a similar period every year, in February, at a time to fit in with the workload of the project.

[325]The respondent did not make any effort to determine what holiday pay NC was entitled to prior to the termination of her employment. There was no attempt to agree with her what leave she had taken still had outstanding. She had sought to keep GB updated as to her leave.

[326]In the circumstances, the Tribunal was satisfied that the respondent had failed to pay NC the holiday pay to which she was entitled. Discrimination arising from disability

[327]The respondent accepts that NC was a disabled person at the material time.

[328]In terms of NC’s claim under section 15 EqA, the Tribunal had to determine whether NC was treated unfavourably, whether there was something that arose in consequence of NC’s disability, whether the unfavourable treatment was because of that something and whether any unfavourable treatment could be justified (Secretary of State for Justice and anor v Dunn EAT 0234/16). The claimant’s submissions in this regard appeared to depart from the list of issues somewhat. The respondent’s submissions were very brief on this aspect of NC’s claims and standing the list of issues, the Tribunal was of the view that the unfavourable treatment relied upon by NC was: i. Accusation of unauthorised absence ii. The restrictions placed on her requiring her to only use the respondent’s IT equipment which lacked assistive software. iii. Supply of inaccessible encrypted pen drives, and iv. The disciplinary action taken against her in relation to an allegation that NC had failed to use the respondent’s IT equipment.

[329]The Tribunal was satisfied that all these matters amounted to unfavourable treatment. Allegation of unauthorised absence

[330]An accusation of unauthorised absence is a serious matter which could potentially result in the dismissal of an employee. A letter making this allegation was sent by recorded delivery to NC’s address. It stated that unauthorised absence could result in dismissal. GB made this allegation following his alleged inability to contact NC. No emails were ever produced to the Tribunal to support GB’s evidence that he had sought to contact NC. His position was that he had contacted her on a FEAT email address, which was an email address to which she did not have access. He also alleged that he had phoned her on the Scottish Government mobile phone she had, but she had lost this phone at the time. Again, no phone records were provided to demonstrate when GB was said to have phoned NC, how many times or whether he left a message. What GB did not do, which appeared to the Tribunal to be the most obvious first step, was ask DM if he had had any contact with her. DM had in fact been in email correspondence with NC during the period GB was alleging that NC was absent without authorisation. In addition, GB did not send any emails to the email addresses actually used by NC. Further, GB did not contact CG who was the most obvious person to be able to confirm whether NC was working. The Tribunal was satisfied that in the circumstances this amounted to unfavourable treatment.

[331]The next question to consider is whether this was in consequence of the claimant’s disability. The ‘something’ relied upon in this regard was the missed communications, inability to access teaching materials and reduced job performance.

[332]The allegation was made against NC because she was not using an email address provided to her by the respondent. The reason she was not using that email address was because she could not access it for reasons which arose from her disability. The respondent did not make any effort to take into account NC’s disability when requiring her to use this email address. Although it was proposed to provide her with a laptop which would give access to this email address, NC was never able to access the laptop, partly because the software required for her to work was never provided to her by the respondent and also because passwords were installed on the laptop which NC could not access again because of her disability.

[333]The Tribunal was therefore satisfied that the allegation amounted to discrimination arising from disability. Use of respondent’s IT equipment

[334]The second allegation arose from the same set of circumstances, in that the respondent required NC to use equipment provided by them and to cease using her Scottish Government email address. The respondent’s position was that the failure to provide the appropriate software for NC to use the laptop arose from NC’s actions. The Tribunal did not accept that position. NC explained what software was required. She suggested obtaining it from Access to Work but then realised that this would take at least 6 months to obtain. The respondent could have used funds included in the grant from the Scottish Government for expenses to purchase the software, but for reasons which were never explained did not do so. The respondent indicated that it would lead evidence from its IT contractor to demonstrate that NC was at fault for her inability to access the equipment. However, again for reasons which were not explained, they did not lead any such evidence. The Tribunal accepted the evidence of NC that while it was not a priority for her, given that she had equipment from the Scottish Government which had been set up appropriately for her and which she had used effectively for years, she had not refused to use the respondent’s equipment.

[335]The respondent did not make any effort to meet with NC to explain why it was now requiring her to use different equipment when her existing equipment was set up to ensure that her disability was accommodated. Indeed, it appeared to give no thought to assessing NC’s requirements at all and it was NC who had to keep informing the respondent of what was required.

[336]NC could not use the respondent’s equipment because she would be unable to carry out her duties. This was unfavourable treatment, and it arose from her disability. Inaccessible pen drive

[337]The next matter was the supply of an inaccessible pen drive. The practice of NC and CG had been to bring together the work of students during the year which NC would then curate into themes which could be shown at the end of year graduation celebration. This required the use of a USB to transfer the data for the conference organisers. When CG tried to download the information for the 2023 event, she could not do so. This was because she was now using a laptop supplied by the respondent which did not allow the use of USB sticks. CG first raised the issue with the respondent’s IT consultant on 19 July 2023. The matter was passed to RP to deal with and then GB got involved in the matter. While NC sent emails regarding the matter from her Scottish Government email address, both RP and GB would delete that email address and replace it with the FEAT email address to which NC did not have access. In the event, DM eventually took an encrypted USB which had been purchased by the respondent round to NC’s house. This was not provided until shortly before the information had to be provided to the conference organisers. Passwords were provided which NC could not input due to her disability. She required CG to assist with these matters which could not be done in time and which meant that NC was not able to prepare the materials in the way in which she had done in the past. This resulted in comments being made to her at the ceremony that the materials were not effectively presented.

[338]This was unfavourable treatment and arose from NC’s disability. Disciplinary action

[339]The final matter was related to the IT issues outline above. NC was threatened with disciplinary action for failing to use the IT equipment provided by the respondent. The reasons for her not using this equipment are already set out above. The respondent was threatening to discipline NC because she wasn’t using the equipment they wished her to use. NC couldn’t use that equipment because the respondent had not set the equipment up to allow NC to use it. In the first instance, NC could not input passwords to log on to the laptop and secondly the respondent did not upload the software necessary for NC to use the equipment. It was surprising to the Tribunal that a charity set up to assist people with mental health issues and employment would not consider it appropriate to carry out a needs assessment of an employee they knew to have a disability before providing IT equipment to them. Indeed, the Tribunal heard that GB had undergone the NIDMAR training.

[340]NC was being threatened with disciplinary action. That is unfavourable treatment. The reason for this was that she was not using IT equipment which she could not use because it did not accommodate her disability.

[341]Therefore, all these matters, which were interlinked, amounted to unfavourable treatment arising from NC’s disability. Justification

[342]The respondent did not directly address the issue of justification in relation to this aspect of NC’s claims. It was said that everything done by the respondent was proportionate to achieve a legitimate aim. The Tribunal inferred that the respondent’s position was that it was a legitimate aim to ensure that all staff used computer equipment under their control and followed their IT policies. The Tribunal readily accepted that this was a legitimate aim.

[343]However, it was then necessary to consider whether the respondent’s actions were proportionate in seeking to achieve that legitimate aim. It concluded that they were not. No needs assessment was carried out and there were no communications with NC in advance of the direction that she should use the respondent’s equipment. There was no consultation as to how a transition would work from NC’s Scottish Government equipment to that of the respondent. No reason was given by the respondent as to the urgency of this change in the working practice of NC which she had followed without issue for three years.

[344]The respondent could have met with NC to discuss matters in order to allow an understanding of what adjustments NC might require, how these could be accommodated and timescales for implementation. None of this was done. The approach of the respondent was not proportionate in relation to any of the unfavourable treatment.

[345]In these circumstances, the Tribunal found that the respondent had subjected NC to discrimination arising from her disability and that this was not justified. Was the claim brought in time?

[346]The Tribunal then went on to consider whether the claims in this regard had been brought in time. The Tribunal had regard in particular to the cases of Commissioner of Police of the Metropolis v Hendricks

2003 ICR 530

and Hale v Brighton and Sussex University Hospitals NHS Trust EAT 0342/16. The Tribunal formed the view that the conduct complained of in this regard was all part of a course of conduct arising out of the same matters. The disciplinary process was not concluded by the time of the dismissal of NC and therefore it was ongoing until the date of her dismissal. In these circumstances, the claim is in time. Indirect discrimination

[347]The claim of indirect discrimination was said to be that the lack of reasonable adjustment and auxiliary aids caused the claimant to relive traumatic childhood experiences related to dyslexia and recently diagnosed ADHD. Alternative PCPs were set out in the submissions of NC but these were very different to that set out in the list of issues.

[348]This did not amount to a PCP and appeared to be more related to the consequences of the actions of the respondent rather than identifying any particular PCP which impacted upon people with disabilities.

[349]The Tribunal therefore found that the respondent had not indirectly discriminated against NC. Failure to make reasonable adjustments

[350]NC’s position in this regard was that the failure to make reasonable adjustments arose from: i. The removal of the long-standing in-person disability support and IT adjustments; ii. Failing to provide alternative IT systems with appropriate disability software, and iii. failure to pay for or provide alternative disability support during the period of the claimant’s suspension

[351]It should be noted that cases of this nature may not require a PCP but may relate to the applicability of auxiliary aids (Mallow v Aecom Ltd

2021 ICR 1151

). The Tribunal was of the view that the first and third adjustment referred to by NC related to the use of an auxiliary aid, which was in person disability support intended to assist NC in her use of IT equipment and organise her work in such a way as was efficient, taking into account the effects of her disability.

[352]The second matter did require the identification of a PCP. The respondent’s submissions suggested that no PCP had been made out by NC. The Tribunal did not agree. It was quite clear that PCP complained of was the requirement to use the respondent’s IT equipment. NC could not comply with the PCP because of her disability. Other employees who did not have the same disability as NC would not be so disadvantaged. Provision of IT equipment

[353]In relation to the provision of IT equipment, as stated above the Tribunal did not accept the respondent’s position that it was NC’s fault that the necessary adjustments in terms of software were not put in place. The respondent did not lead any evidence to suggest that was the case and simply cross-examined NC on the matter. NC indicated that she had had phone calls with IT to attempt to find a solution to the issues and there was no evidence to contradict that position.

[354]It would have been a reasonable adjustment for the respondent to have installed the software necessary for NC to use the respondent’s IT equipment. NC’s uncontradicted evidence was that the software was not very expensive (around £100) and the Scottish Government grant included expenses which could have been used for this purpose. The respondent ought to have carried out an assessment of NC’s existing IT equipment and ways of working prior to requiring her to use their equipment. That would have been a reasonable course of action which would not have cost anything other than in terms of time and would have been likely to have avoided the issues which arose. The Tribunal accepted that if NC had simply point blank refused to use the respondent’s equipment that may have been a different matter. However, that was not the Tribunal assessment of what happened. NC was with justification reluctant to use equipment which had not been assessed as suitable for her use when she had worked in the same way without incident for a number of years using other equipment. She did not refuse to use the equipment and the respondent’s failure to provide her with equipment which had the software necessary for her to carry out her duties, and to address the issue of passwords to allow her to log on to the computer in the first place amounted to a failure to make a reasonable adjustment.

[355]The software used by NC which was on her Scottish Government equipment was also a reasonable adjustment which was withdrawn when NC was informed that she could not use that equipment anymore and was not provided with alternative equipment. In-person disability support

[356]The other adjustment at issue related to the provision of in person disability support to NC. This had been provided to her throughout her employment with the respondent and mirrored the adjustments in her previous employment with the NHS. The funds to pay for this adjustment were provided within the grant from the Scottish Government. The provision of in-person disability support was a reasonable adjustment. This had been made until its summary withdrawal on the suspension of NC when she was told she could not contact anyone else in the respondent’s employment, which included CG, her current in person disability support.

[357]It seemed to be the respondent’s position that as NC was suspended from work, she did not need access to any IT equipment or in person support. The Tribunal did not accept this position. NC’s disability meant that she needed assistance in writing and reading materials whether online or in hard copy. In order to properly participate in the disciplinary and grievance processes she required this assistance. Participating in the disciplinary and grievance processes were part of NC’s employment. There was no basis for the respondent to withdraw existing reasonable adjustments and refuse to replace them with any alternatives.

[358]The Tribunal concluded that the respondent was failing to comply with its duty in this regard. NC explained why she needed the support and raised concerns about it which were ignored. The Tribunal considered whether this was an ongoing failure to make adjustments. It was necessary to establish the date by which the respondent could reasonably have been expected to have reinstated the adjustment. The Tribunal concluded that this was the point at which NC engaged the services of EB to assist, which appeared to have been around 10 November 2023.

[359]Early conciliation commenced in this case on 16 May 2024 and ended on 27 June 2024 and the claim form was lodged on 22 July 2024.

[360]However, the matter was further complicated by the respondent’s approach to NC obtaining her own in person disability support. NC made clear that it was not acceptable that she should have to engage someone herself. NC was provided with contradictory information in this regard. HRB informed NC that the respondent had agreed to pay for the in-person disability support provided by EB. However, when NC submitted the relevant invoice, GB wrote to EB on 9 April 2024 indicating that the respondent would not pay for the support because there was no contract in place. For reasons which were not clear, the letter referred EB to Trading Standards website and outlined a requirement for an offer and acceptance for the constitution of a contract.

[361]The respondent did pay the invoice during the course of these proceedings. However, NC had to make the arrangements to pay EB herself in the first instance as she did not feel she could rely on EB’s input as a friend and wanted to ensure that there was a professional relationship between the two.

[362]On this basis the Tribunal concluded that there was an ongoing failure to provide the auxiliary aid of in person support from NC’s suspension to the end of her employment. The claim is therefore in time. Harassment

[363]NC claims that she was subjected to a course of conduct which amounted to harassment and that was related to disability. In written submissions, NC raised various matters which had not been included in the list of issues. On the basis of the list of issues, the Tribunal was of the view that the conduct complained of was that: i. The respondent placed unreasonable demands for information from both claimants after the business audit, in relation to information which was requested including backdated information ii. False allegations of misconduct were made regarding the allegation that NC had been absent without authorisation and had committed a data breach. iii. That NC was excluded from emails by seeking to replace her Scottish Government email with an email from the respondent. In addition, the respondent continued to use NC’s personal email without authorisation, and iv. Undermining NC in her line management role by sending incorrect information to the NHS counter fraud services and minimising her position as program manager.

[364]The Tribunal was of the view that the requests for information from NC (and CG) after the business audit, while potentially requiring documents to be created which were then backdated, were not in any way related to disability. The demands may well have been unreasonable in terms of timing and nature of the demands, but there was nothing to suggest that this was in any way related to the issue of disability.

[365]The question of false allegations has been addressed above. The Tribunal does accept that this allegation of unauthorised absence was related to NC’s disability and did amount to harassment, on the basis that while it may not have been intended to create a hostile environment for NC, it had that effect. The terms of the letter appeared hostile and threatening, given the letter referred to the possibility of dismissal. In addition, the allegation of a data breach appeared to relate to NC having forwarded an email from her personal email address when there was an issue with her access to the Scottish Government systems. NC did not have access to the respondent’s systems at the time and there was no other way of forwarding on the document (to DM) which had been requested by him. This too therefore related to NC’s disability.

[366]The Tribunal also accepted that the IT issues outlined above created a hostile environment for NC and amounted to harassment.

[367]However, the Tribunal could not accept that in so far as it could be said that her line management role was undermined by sending incorrect information to CFS or that her role as manager was minimised, that this was anything to do with disability. Victimisation

[368]NC appeared to rely on her grievance letter to DM as constituting a protected act. However, there was no reference to the question of discrimination in that grievance. She also suggests in her written submissions that she had been “raising concerns of disability discrimination”. NC does in a letter of 10 November make reference to the lack of disability support and makes reference again to a lack of disability support in a letter of 17 November. In submissions, NC referred to emails with the Scottish Government in April 2024, but these all took place after NC’s employment has been terminated.

[369]NC also referred to her support of CG’s grievance and that she provided a statement in that regard. CG did not suggest that her grievance was a protected act and even if it could be said to be so, NC’s statement is related to the working hours of CG and not anything to do with any issue of disability discrimination.

[370]The Tribunal did not therefore accept that NC had done a protected act.

[371]In any event, the Tribunal noted that a number of the detriments referred to all occured before the correspondence of November and therefore could not have been caused by any protected act. Breach of contract

[372]NC made submissions on a claim of breach of contract. However, these submissions were made on the basis of a claim that the respondent had altered the custom and practice of the contractual relationship with her. That was not a claim before the Tribunal. NC had been paid her notice pay and there was no other claim of breach of contract before the Tribunal. The Tribunal had explained these issues to NC at the commencement of the proceedings.

Remedy

[373]The Tribunal was then required to consider the issue of remedy.

[374]Turning to the question of injury to feelings an award should not be inflated by feelings of indignation at the conduct of a respondent. The Tribunal was very mindful of its obligation in this regard. Guidance is set out in Prison Service and ors v Johnson

1997 ICR 275

in relation to the general principles to be considered when making an award. More recently guidance has been provided by the EAT in the case of Eddie Stobart Ltd v Graham

2025 EAT 14

. In particular, it should be borne in mind that the manner of discrimination is neither determinative of, nor a proxy for, the seriousness of a claimant’s injury. It was also noted that a tribunal might find it helpful to consider “the existence of ridicule or exposure. Discrimination played out in front of colleagues or others to see may well cause greater harm” (see paragraph 47). Consideration should be given to a claimant’s description of their injury, the duration of consequences, effect on past, current and future work, and effect on personal life or quality of life.

[375]The claimants sought an uplift in terms of the ACAS Code of Practice to compensation arising out of the claimants’ unfair dismissals. The respondent failed to follow any procedure at all in this respect and the Tribunal came to the view that it would be appropriate to make an award in respect of 20% by way of uplift of the compensation awarded to the claimants arising out of their unfair dismissal. The respondent failed to establish any potentially fair reason for dismissal. Disciplinary action was still envisaged against both claimants The Tribunal concluded taking into account the size of the respondent’s operations, that they entirely failed to follow any procedure in the dismissal of the claimants, that an uplift in this respect would be appropriate. CG remedy

[376]No counter schedule of loss was provided in response to the Schedule lodged on behalf of CG.

[377]As CG was unfairly dismissed, she is entitled to a basic award of £1,095.58 (4.5 weeks x £243.46 per week)

[378]She is entitled to loss of earnings to the period in which the Tribunal found that the NIDMAR project would have continued, that is September 2024. Her losses during that period were £4,419.91 net (23 weeks @£192.17 per week). CG did not obtain alternative employment during that period and the Tribunal accepted that it would have been very difficult for her to obtain employment on such a flexible basis which she was able to undertake, particularly given her health conditions. An award in respect of loss of statutory rights of £500 is also appropriate.

[379]CG was not paid notice pay and she was entitled to one month’s notice which is calculated as £1,055 gross. She is also entitled to be paid £365.19 holiday pay, which is 1.5 weeks pay at £243.46 per week.

[380]In terms of injury to feelings, the Tribunal took into account the guidance referred to above. The respondent submitted that CG had partially contributed to the provision of inaccurate information by completing a form stating that she worked days she did not work. However, she did that on the instructions of the respondent and cannot therefore be said to have contributed to the respondent’s actions. It was also said that the Tribunal should ensure that it distinguished any upset caused by the respondent’s actions from the upset caused by the fraud investigation initiated by CFS. The Tribunal took this factor into account.

[381]However, the Tribunal accepted that CG suffered significant injury to feelings both as a result of the respondent’s failure to make reasonable adjustments which would have allowed her to participate more fully in the grievance and disciplinary process and the detriments to which she was subjected for having made protected disclosures. CG gave evidence about the impact the actings of the respondent have had on her. She said that she was “devastated” and that she felt that the provision of incorrect information by the respondent and failing to correct it could put her employment with NHS Fife at risk. She said that she felt that the allegations made against her had impacted negatively on her professional standing and reputation. She described herself as a “shell of a person that she used to be”. She gave evidence about a seizure she had experienced while on holiday with her mother abroad in May 2024 which she thought had been contributed to by how she was treated by the respondent. She talked of feeling worthless and how important her contribution to the NIDMAR project had been for her and that she couldn’t continue with the University tutoring she had been doing. She also said that the impact has resulted in her being unable to make progress with the PhD she was writing. The Tribunal found CG’s evidence in these respects to be compelling and persuasive.

[382]It was difficult to separate the impact of the conduct which amounted to disability discrimination from that of detrimental treatment arising from the protected disclosures.

[383]However, the Tribunal came to the view that it ought to separate out awards in that respect. CG sought an award of £28,000 in respect of injury to feelings, which the Tribunal concluded was a reasonable estimate of the impact on the claimant. The Tribunal took the view that this award should be apportioned on the basis of £8,000 in respect of disability discrimination and £20,000 in respect of the detrimental treatment related to the protected disclosures. While the disability discrimination clearly significantly impacted on CG, the Tribunal concluded that it was the respondent’s conduct in subjecting CG to detriments for having made a protected disclosures which had the most severe and long lasting impact, both on CG’s health and her reputation.

[384]Interest is awarded on the injury to feelings arising out of the acts of disability discrimination in terms of section 124(2)(b) EqA 2010 from the date of the discriminatory act. The failure to make reasonable adjustments arose on 20 September 2023 at the first meeting with CG and continued until the end of her employment during which the adjustments regarding meetings and information were not made and no pastoral support was provided to her. To 15 December that is 813 days. 813 days x 0.08 x 1/365 x8,000 = £1408 interest.

[385]Therefore, the total compensation payable to CG is: Basic award £1,095.58 Holiday pay 365.19 Notice pay 1,055.00 Compensatory award 4,419.91 ACAS uplift at 20% 884.00 Loss of statutory rights 500.00 Injury to feelings (EqA) 8,000.00 Interest thereon 1,408.00 Injury to feelings (PiD) 20,000.00 Total payable 37,727.68 NC compensation

[386]NC has already been paid a redundancy payment and therefore she is not entitled to receive a basic award. Had NC’s employment continued to September 2024, she would have been entitled to a further 23 weeks’ pay, at a net pay of £935.09, which is a total sum of £21,507.07. An ACAS uplift of 20% on that sum would be £4,301.41. The Tribunal did not accept that it would be just and equitable to make any further compensatory award in that while NC may have been able to agree funding with the Scottish Government or other organisation for further projects, the proposition was too speculative. An award for loss of statutory rights is appropriate as NC may well seek to be involved in other projects in the future.

[387]The Tribunal then considered what sum in respect of injury to feelings should be awarded. The Tribunal was mindful that NC had invested a considerable amount of effort into the NIDMAR project and felt strongly about it. This was an area in which she had worked throughout her career. She was intending to retire and as a result of the respondent’s actions, the latter part of her working life has been traumatic for her. She gave evidence about the impact of the respondent’s conduct on her reputation particularly with the Scottish Government and that this would mean she would not be able to secure funding for any further projects. It was also apparent to the Tribunal throughout NC’s evidence how her treatment by the respondent had impacted upon her. She was often in tears and on a number of occasions required adjournments to compose herself.

[388]The Tribunal concluded that an award of £25,000 would be appropriate in the circumstances, taking into account particularly the impact on NC’s reputation, on her mental health, and that the respondent’s actions prevented NC from retiring from the sort of work she had carried out for many years with dignity. The Tribunal was mindful of the particular impact the conduct of the respondent had on NC’s reputation both with the Scottish Government but also more widely in her area of expertise.

[389]The discriminatory conduct commenced with the letter accusing NC of unauthorised absence which was on 15 September 2023. To 15 December 2025 is 818 days. 818 days x 0.08 x 1/365 x 25,000 = £3585.46 interest.

[390]NC is also entitled to be paid outstanding holiday pay of £2611.27. Although NC sought to recover expenses, it appeared that as the respondent had now paid the fees of EB, the expenses were legal expenses, which are not recoverable by way of compensation.

[391]Therefore, the total payable to NC is: Compensatory award £21,507.07 ACAS uplift 4,301.41 Loss of statutory rights 500.00 Holiday pay 2,611.27 injury to feelings 25,000.00 Interest 4,481.98 Total payable £58,401.73

Introduction

[1]The respondent’s application for costs against Mrs Clark is refused.

[2]Ms Goble’s application for costs against the respondent is granted, and the respondent is ordered to pay the sum of £4129.60 in that regard.

[3]Dr Clark’s application for costs against the respondent is granted only in so far as it relates to the necessity to vacate 22 and 23 October 2025 hearings dates as a result of the conduct of the respondent. The respondent is ordered to pay to the claimant the sum of £1395.

[1]The Tribunal issued a judgment in relation these claims on 16 December 2025. The respondent was at that time represented by solicitors and counsel but no longer has professional representation.

[2]Dr Clark (‘NC’) made an application for costs against the respondent on 3 January 2026. That application related to three matters, the cancellation of a preliminary hearing on 6 February 2025, the late withdrawal by the respondent of three witnesses resulting in the vacation of two days of the final hearing, and a failure to engage in reasonable discussions regarding a single joint evidence bundle.

[3]An application for costs was made on behalf of Ms Goble (‘CG’) by letter dated 13 January 2026. This application related to the days of the final hearing which were vacated as a result of the respondent not calling its final three witnesses.

[4]On 13 January 2026, the respondent’s then solicitors wrote to the Tribunal indicating that they were instructed to make a costs application against NC in respect of the preliminary hearing which took place on 24 April 2025. A request was made for an extension of time to 23 January 2026 in which to lodge full written reasons for the application and confirm the level of costs being sought. However, on 26 January the respondent wrote to the Tribunal indicating the solicitors were no longer instructed.

[5]The respondent thereafter provided a response to the applications for costs made by the claimants and parties provided various written submissions in that regard. The costs said to be incurred at the hearing on 24 April were set out.

[6]Initially an in-person hearing was listed to determine all applications. However, parties indicated that they wished for the applications to be dealt with on the papers. Parties were then informed by letter dated 6 March that a decision would be taken in relation to the applications on the basis of the submissions which had been received by that date.

Relevant law

[7]Rule 73 of the Employment Tribunal Procedure Rules 2024/1155 provides that(1) A costs order is an order that the paying party make a payment to— (a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or (b) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual's attendance as a witness at a hearing.

(2) A preparation time order is an order that the paying party make a payment to the receiving party in respect of the receiving party's preparation time while not represented by a legal representative.

(3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings.

(4) The Tribunal may decide in the course of the proceedings that a party is entitled to either a costs order or a preparation time order but may defer its decision on the kind of order to make until a later stage in the proceedings

[8]Rule 74, which sets out when a costs order or preparation time order must or may be made states that:(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned.

(4) Where in proceedings for unfair dismissal a final hearing is postponed or adjourned, the Tribunal must order the respondent to pay the costs incurred as a result of the postponement or adjournment if— (a) the claimant has expressed a wish to be reinstated or reengaged which has been communicated to the respondent not less than 7 days before the hearing, and (b) the postponement or adjournment of that hearing has been caused by the respondent's failure, without a special reason, to adduce reasonable evidence as to the availability of the job from which the claimant was dismissed or of comparable or suitable employment.

[9]An award of costs against a party will be an exception rather than a rule (Yerrakalva v Barnsley Metropolitan Borough Council and anor

2012 ICR 420

)

[10]The success or otherwise of a claim or defence to claim will not prevent a tribunal from making an order of costs against the successful or unsuccessful party (Kotecha v Insurety plc (t/a Capital Healthcare) and ors EAT 0461/07). A litigant in person should not be judged in the same manner as a professional representative (AQ Ltd v Holden

2012 IRLR 648

)

[11]A tribunal is required to consider whether to make a costs or preparation time order where a postponement or adjournment of a hearing is granted on the application of a party made less than seven days before the date on which the relevant hearing begins. This provision (in terms of rule 74(2)(c) is distinct from rule 74(2)(a) which requires a finding that a party has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably’ and Rule 74(3) which also relates to the postponement or adjournment of a hearing.

[12]Any award of costs or preparation time order is a three-stage process. In the first instance the Tribunal is required to determine whether a party’s conduct comes within the scope of rule 74. Even if a Tribunal is satisfied that the conduct comes within rule 74, whether in relation to an adjournment or that the conduct of a party was ‘vexatious, abusive, disruptive or otherwise unreasonable’ the Tribunal must then consider whether or not to exercise its discretion to make an award. If it is decided that an award should be made, the Tribunal then requires to consider the amount of any award.

[13]What amounts to unreasonable conduct should be determined on the facts of any particular situation. A Tribunal should be careful in exercising its discretion to take into account any relevant factors in the particular circumstances of the case. It should ensure that it exercises its discretion in a fair manner. Respondent’s application

[14]The respondent’s application for costs related to a preliminary hearing which took place on 24 April 2025. The application was only directed against NC. The hearing of 24 April determined an application made by NC for documents and information orders in respect of the respondent. There were nine requests made, only one of which was granted. The respondent’s then agent referred to an email of 27 February 2025 which set out the basis for objection to the requests made by NC.

[15]While the respondent made submissions in response to the applications for costs against it, it made no submissions in relation to its own application other than the request on 13 January for an extension of time in which to lodge full written reasons for the application and the level of costs. Reference in that email was also made to an application which had been submitted on 23 April for costs against NC in relation to the volume of documents provided by the claimant for the substantive hearing. It appeared from that email that the application which had previously been made on 23 April was being insisted upon although no further detail was provided. The Tribunal proceeded on the basis that the respondent was seeking an order for costs against NC in relation both to its email of 23 April 2025 and in relation to the hearing on 24 April.

[16]The respondent stated that the costs of hearing on 24 April were £7508 including preparation for that hearing. No fee notes or other vouching for the costs was provided. The Tribunal notes in passing that a cost of £7508 for a one-day preliminary hearing (although the Tribunal does not know how long the hearing actually lasted) appears surprising particularly where the respondent and its agents appeared remotely and it was only NC who appeared in person. The respondent also made reference to the cost of its Chief Executive attending the hearing which were said to amount to £193.44 for seven hours.

[17]The Tribunal dealt first with the application for costs which had been set out in the email of 23 April, which did not refer to the costs incurred in dealing with the documentation provided by the NC.

[18]The Tribunal was of the view that it was relevant to consider that NC was a litigant in person. She is also disabled and the respondent was aware of the conditions suffered by her. The case itself involved considerable documentation and it took some time for the issues between the parties to be clarified.

[19]The Tribunal took the view that in those circumstances, the conduct of NC did not amount to unreasonable conduct. NC had no experience of dealing with Tribunal proceedings in the past. It was also clear to the Tribunal that the specific type of dyslexia required her to adopt a thorough approach to the preparation for the hearing and reading of documents. While it was not clear what costs had been incurred by the respondent in relation to dealing with the documents provided by the claimant or whether these were subsequently part of any of the bundles, the Tribunal concluded that the conduct of NC was not unreasonable and that the respondent’s application for costs is refused.

[20]In terms of the hearing of 24 April, the Tribunal is mindful that it is often the case the preliminary hearings are required to determine applications for documents or information, particularly where parties are representing themselves. An order was made requiring the respondent to produce documentation to NC and while it was only in respect of one of the calls made by NC, it did not appear to the Tribunal that the request for other information was manifestly unreasonable. Indeed, in retrospect, given the evidence heard by the Tribunal, it may well have been relevant for the Tribunal to have had sight of some of the documents or information which were requested by the claimant.

[21]Therefore, the respondent’s request in this respect is also refused. The conduct of NC as a litigant in person, who was also disabled, was not unreasonable or vexatious. Application by CG

[22]This application related to the vacation of the majority of 22 October and all of the 23 October 2025 as hearing dates. The background to the situation was that a notice of continued hearing was sent out on 27 August (after 15 days of evidence having already been heard) providing for further hearing dates of 22 and 23 October 2025 and 6 November. It had been agreed that 6 November 2025 was allocated for the submissions of the parties. The respondent had indicated that it intended to call three witnesses on 22 and 23 October being Ms Paul, Ms Probert and Mr Grieg. The Tribunal recollects that it had raised with the respondent’s agent the issue of the relevance of Mr Grieg’s evidence, but had been informed that the respondent still wished to call Mr Grieg to speak to his dealings with NC regarding her IT equipment. The Tribunal also notes that it had instructed parties to provide a witness timetable at the commencement of the proceedings which was provided by CG’s representative after discussion with the other parties. That list made reference to the three witnesses who were to be called on 22 and 23 October.

[23]There was no correspondence from the parties to the Tribunal between the adjournment of the final hearing on 7 August 2025 and an email from the respondent’s agents at 4.51pm on 21 October which stated that the respondent no longer intended to call any further witnesses and that the dates of the continued hearing so far as it related to hearing evidence could be discharged.

[24]That email was not, unsurprisingly given it was sent shortly before close of business, processed by the administration prior to the hearing reconvening. It was only at the commencement of the hearing that Counsel for the respondent brought the email to the Tribunal’s attention. No reason was provided in the email or in the hearing itself for the change in the respondent’s position. No reason was provided at the time as to why it was only on the day before the evidence of the witnesses was to be heard, some two and a half months after the hearing had been adjourned, that the respondent indicated it no longer intended to call those witnesses.

[25]The respondent’s response to the application for costs characterises the decision not to call three witnesses as a “change in witness strategy”. It is suggested that the adjustment to the witness list was made following “internal review and legal advice” and that the decision was communicated as soon as practicably possible. It is suggested that “internal deliberation, health related availability, and organisational constrains are legitimate factors.”

[26]However, it has not been suggested that any of the three potential witnesses had health issues which meant that they were not able to give evidence. Rather it would appear that the respondent took a decision the day before the witnesses were to give evidence that they would no longer be called. No explanation has been provided at any stage as to why that decision could not have been taken earlier.

[27]The respondent’s position is also that costs claimed were not attributable to the decision not to call these witnesses and would have been required in any event, including the preparation of cross examination of those witnesses.

[28]The Tribunal had no hesitation in concluding that the respondent’s conduct was unreasonable within rule 74. The respondent was represented by a highly experienced counsel and solicitors. There was considerable discussion at the commencement of the final hearing about witnesses and timetabling of those witnesses given the length of the hearing. There was no suggestion made by the respondent until 21 October that these three witnesses were not going to be called. Moreover, the claimants were cross examined on their interactions with these witnesses and the position of those witnesses was put to the claimants in cross examination. There would have been no basis for that cross examination if in fact evidence to the contrary was not going to be led. The suggestion made by the respondent that a list of witnesses is somehow an iterative process once proceedings have commenced, witnesses have been intimidated and crucially the evidence it is anticipated those witnesses will give is put to the other side is unsustainable.

[29]That of itself would be likely to amount to unreasonable conduct. However, where the hearing has been adjourned for over 2 and half months, and there is no indication that the respondent’s position has changed until the hearing is to be reconvened is entirely unreasonable. No explanation has ever been offered for the failure of the respondent to either consider or communicate this change of plan. The respondent’s conduct resulted in a full Tribunal reconvening, and parties travelling to the Tribunal all of which could have been avoided had the respondent reached its conclusion at an earlier stage. Its conduct was wholly unreasonable.

[30]It appears to the Tribunal that it would have been appropriate to award costs in terms of rule 74(2)(a) or (c) or 74(3). In any event the Tribunal is satisfied that the conduct was unreasonable.

[31]The Tribunal then went on to consider whether it should exercise its discretion by making an award of costs. It decided that it would be appropriate to exercise its discretion in this manner. The respondent put the parties to expense which was unnecessary in addition to the inconvenience caused and no doubt the stress of the continued proceedings. The respondent has not ever explained the reason for the conduct or the timing of the decision. While it is recognised that there was an apology for any inconvenience caused offered on behalf of the respondent, that was an apology without any explanation.

[32]The respondent would have been aware that had it intimated its decision earlier the dates which had been listed could have been utilised for submissions and therefore proceedings concluded earlier.

[33]The respondent suggested that it would have difficulty in paying any award and made reference to possible redundancies in its organisation and its status as a charity. A Tribunal is not obliged to take into account the ability to pay any award however it did take account of the respondent’s submissions in this regard. The respondent did not provide any accounts or other vouching in relation to its financial position. It is recognised that the respondent is a charity, however, even taking into account that a charity might have limited financial means, the Tribunal was of the view that an award of costs was appropriate in the circumstances.

[34]In these circumstances, the Tribunal decided it would be appropriate to exercise its discretion to make an award.

[35]The award sought was for 17 hours at £200 plus vat per hour. 6 hours related to the travel time on 22 October and dealing with the email from the respondent intimating its application for the hearing on 22 and 23 October to be vacated. 11 hours related to the preparation for cross examination of the witnesses and other hearing preparations. The Tribunal recognises that where there is a significant gap in dates of a hearing, it will be reasonable for a representative to spend time reacquainting themselves with the evidence to date and the preparations as well as making specific preparations for the cross examination of witnesses, which would no doubt be on the basis of the cross examination of the claimants which had already taken place.

[36]In these circumstances 17 hours did not seem unreasonable to the Tribunal, together with the train ticket which had to be purchased for travel to the hearing on 22 October.

[37]Therefore, the Tribunal grants an award of costs against the respondent to the claimant of £4129.60. Application by NC

[38]Turning to the application by NC, in relation to the vacation of 22 and 23 October issue, the Tribunal formed the view that it would be appropriate to make an award in relation to preparation time for NC for the same reasons as an award was deemed to be appropriate for CG. Any award for preparation time is limited to the sum of £45 per hour. NC claimed for 31 hours and provided a detailed breakdown of the calculation. A total award of £1395 is therefore appropriate. NC also claimed for the costs of her in person disability support. It was not clear to the Tribunal that it was possible for an additional award to be made in this regard, as an award for preparation time is limited to a specific hourly rate. Therefore, no award is made in that regard.

[39]In terms of the application for preparation time for the cancellation of the hearing 6 February, the Tribunal noted that this hearing was cancelled on the basis that the respondent was satisfied that the claimant’s claims had been formalised and therefore the hearing was no longer necessary. The Tribunal also notes that the agents acting for the claimant at the time stated in an email of 5 February, that they had no objection to the hearing being vacated and that the respondent should have 14 days in which to lodge amended grounds of resistance.

[40]In these circumstances, there was nothing at all unreasonable in the conduct of the respondent and the application is refused.

[41]Finally turning to the claimant’s application for preparation time in relation to bundle which was produced, the Tribunal notes that the Order made on 29 April 2025 was that the claimants lodge their own bundles of documents. That is in fact what happened and there were four bundles of documents lodged in total. While that was not particularly helpful for the Tribunal, the respondent’s conduct did not come within the scope of rule 74. NC’s position was that the respondent communicated with CG’s representative but not her to discuss bundles, however, in the end no joint bundles were lodged. There was some amount of duplication in the bundles, which again was not helpful and indeed was not in keeping with the Orders which had been made. However, in the particular circumstances of this case, the Tribunal did not accept that the respondent’s conduct was unreasonable in that respect and therefore the application is refused.