Case No 8001785/2024Venue EdinburghHearing 12-16 May 2025
Between
Ms H TaqafiClaimantShakti Women’s AidRespondent
Before
Employment Judge SangsterDate 4 June 2025
JUDGMENT
The judgment of the Tribunal is that the claimant’s complaints do not succeed and are dismissed.
REASONS
[1]The claimant presented complaints of unlawful detriment and automatically unfair dismissal, as a result of making protected disclosures, as well as constructive unfair dismissal.[2]The respondent resisted the complaints.[3]The parties agreed a joint bundle of documents, extending to 437 pages.[4]The claimant gave evidence on her own behalf at the final hearing.[5]The respondent led evidence from: 5.1. Noha Rezk (NR), Team Leader/Child Protection Officer; 5.2. Tumay Forster (TF), Operations Manager; and 5.3. Girijamba Polubothu (GP), Chief Executive Officer. Issues to be Determined[6]Parties lodged an agreed list of issues, which was discussed at the start of the hearing. It was agreed that this reflected the issues to be determined. The issues to be determined were accordingly as follows:[7]Did the claimant make a qualifying disclosure in terms of section 43B Employment Rights Act 1996: 7.1. Has there been a disclosure of information? The claimant relies on the following as disclosures: 7.1.1. Following the Edinburgh Castle outing, in or around early April 2024, the claimant informed NR that two of her colleagues (C1 & C2) had left the outing early; 7.1.2. On 26 April 2024, the claimant emailed NR, following the Botanic Garden outing, to inform her that C1 & C2 had left the outing early. 7.2. Did the claimant reasonably believe that each disclosure was made in the public interest? 7.3. Did the claimant reasonably believe that each disclosure tended to show a relevant failing? The claimant contends the disclosures showed that a person has failed, is failing or is likely to fail to comply with any legal obligation and/or that the health or safety of any individual has been, is being or is likely to be endangered.[8]Was the disclosure made to an appropriate person? The claimant contends that NR was an appropriate person in terms of s43C(1)(a) ERA. Whistleblowing Detriments[9]Did the respondent to the following things: 9.1. On 30 April 2024, NR’s attempt to distort and change the claimant’s report on the 26 April 2024 incident. 9.2. On 8 May 2024, NR’s attempt to distort and change the claimant’s report on the 26 April 2024 incident. 9.3. NR’s micromanagement of the claimant’s work following 8 May 2024. 9.4. The disrespectful and belittling manner of speaking to the claimant adopted by NR following 8 May 2024. 9.5. On 9 May 2024, NR told the claimant that any concerns were “all in [the Claimant’s] head” or words to that effect. 9.6. On 28 May 2024, NR’s comment that she had spoken with the claimant about her mental health previously. 9.7. On 8 July 2024, the investigation outcome was dismissive and sought to downplay and minimise the claimant’s concerns. 9.8. On 30 August 2024, the claimant was subjected to an investigation due an alleged complaint. 9.9. On 30 August 2024, TF sought to prevent the claimant making clear the true reason for her resignation during the exit interview. 9.10. On 10 October 2024, GP failed to uphold the Claimant’s appeal.[10]If so, did they amount to detriments?[11]If so, were these acts done on the ground that the claimant had made a protected disclosure? Automatic Unfair Dismissal[12]Was the sole/principal reason for the claimant’s dismissal that she had made one or more protected disclosures? Constructive Unfair Dismissal[13]Did the claimant resign in circumstances in which she was entitled to treat herself as having been constructively dismissed? 13.1. Was there a repudiatory breach of the claimant’s contract of employment by the respondent? The claimant relies on the detriments listed in 10.1-10.7, which the claimant says individually and cumulatively breached the respondent's duty of trust and confidence. 13.2. Did the claimant resign in response to that breach?
Remedy
[14]If the claimant’s claim succeeds: 14.1. What basic award should be made to the claimant? 14.2. What compensatory award should be made to the claimant? 14.3. What award should be made to the claimant for injury to feelings? 14.4. What interest should be awarded? Findings in Fact[15]It should be noted that this Judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to decide if the claim succeeds or fails. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.[16]The respondent assists black minority ethnic women, children and young people who experience abuse.[17]The claimant commenced employment with the respondent, as a Children and Young People Support Worker, on 1 August 2022. She worked as a part of a team of 4 Support Workers, including C1 & C2. The team were latterly managed by NR. NR reported to TF, who in turn reported to GP.[18]The respondent organises regular onsite and offsite activities for the respondent’s service users, generally on a Friday afternoon from 2-4pm. The respondent will provide the tickets for the activity (where required), as well as refreshments. If children attend the activities, they do so with their mothers. The respondent’s internal policy for conducting group activities, as well as the individual risk assessments for each activity, confirms that the mothers retain responsibility for their children during the activities, albeit they are supported by the respondent’s staff.[19]On 1 March 2024, the respondent organised a trip to Edinburgh Castle, as a group activity for service users. The claimant, C1 & C2 were scheduled to attend from the respondent and were dropped off at the Castle by NR. They waited at the entrance for the families, who all required to make their own way to/from the activity. The claimant went into the Castle with the families who had attended on time. C1 & C2 did not go into the Castle.[20]NR had arranged to pick the claimant and her colleagues up after the activity. The claimant arrived at the pickup point before C1 & C2. NR asked her where C1 & C2 were. The claimant said she did not know and that neither had come into the Castle with the families. They both then saw C1 & C2 walking towards the car.[21]In early April 2024, the Care Inspectorate conducted an unannounced inspection of the respondent. The inspection report subsequently issued rated leadership as ‘adequate’ and made a number of recommendations. These included that the respondent take steps to improve internal audit and oversight, as well as updating policies and procedures, including in relation to staff training. As a result, the respondent made changes to the following: 21.1. Lone Working Arrangements - to ensure there was sufficient information regarding where staff were at all times. Staff were informed that they required to insert all appointments on the shared calendar, including the address and reason for the visit; 21.2. Working from Home/TOIL/Changes to Breaks and Working Hours - staff were informed that existing practices would become the exception rather than the default, and any requests for this going forward required to be in writing (for audit purposes), setting out the reasons for the request, and then approved by two separate managers; and 21.3. Staff Training - a training matrix would be collated and used going forward.[22]On 26 April 2024, the respondent organised another activity for service users, this time at the Botanic Gardens in Edinburgh. Again, the claimant, C1 & C2 were scheduled to attend. The claimant remained with the group of families during the activity. C1 & C2 did not. During the course of the activity, one of the children, who was attending with his mother, wandered away from the group. After less than 10 minutes, he was found safe and well.[23]The claimant called NR when the child was missing. NR advised her to remain calm and to assist the mother to find her child. Which the claimant did. The claimant told NR that C1 & C2 were not with the group. NR called C1, asked her to find the claimant and assist with the search for the child, which her and C2 did. When the child had been found, the claimant called NR to advise her of this. NR and the claimant had a further conversation on the telephone, at around 16:20, when the claimant was on her way home in which they discussed that the claimant was upset/annoyed that C1 & C2 had not stayed with the families during the activity. NR asked the claimant to put her concerns in writing, so that she could investigate.[24]At 17:31 that day, the claimant sent an email to NR as follows: ‘I wanted to report an incident that happened today during our activity. [C1] told us that we didn't need to stay with their families after we did the checkin, as only two families had attended in the first half hour and the other families would start to come. I thought that was wrong because we are inviting families to an activity, which is an opportunity to meet and interact with other families and children. Therefore, I decided to stay while she took [C2] with her. This has happened before, during the castle trip, as they did the same thing and only attended the check-in and left. [C1] said that the moms could do the tour by themselves, but I stayed and supported the moms who don't speak good English. My attendance gave them comfort. I need to know if it's okay for them to do this. I will write to you in more detail when I have access to the keyboard.’[25]On 30 April 2024, the claimant sent a further email to NR entitled ‘Friday incident’. In her email the claimant stated ‘While enjoying the picnic and the girls were looking for leaves, the mother notice that [child] was not present just after 1542. At the same time, the family began their search, and I immediately went to the Botanic desk to seek assistance, as well as calling you to inform you. I emotionally supported the mother and assured her that we would find him, and we divided the search direction ourselves. I discovered the boy with a woman, so I was delighted to call his mother and inform you that the boy had been found. The Botanic Garden asked the mother to fill out the incident form; however, the mother refused to share her information with them. I told them this, and they understood and said there was no need to fill out the form.’[26]NR responded to the claimant’s first email (paragraph 24 above), thanking her for bringing the matter to her attention. She stated that she would initiate an investigation and would schedule a meeting with the claimant on 8 May 2024. The claimant responded, on the evening of 2 May 2024, as follows: ‘Thank you for taking this seriously; I appreciate your support and understanding. I brought this up with you so that we can avoid future conflicts and produce high-quality practice. I am delighted to meet you on May 8, at 10am. I'd like to say again that my intention in reporting what happened last Friday to you was not to cause any problems for my colleagues but rather to improve teamwork, particularly during activities.’[27]In relation to the claimant's second e-mail (paragraph 25 above), NR thanked the claimant for her email, but stated that she needed an incident report from the claimant, following the format of an incident report template, which she provided. She stated that she needed to be able to upload the completed incident report to the incident folder on the management drive to ensure consistent records are maintained and all information is properly filed and accessible (by the Care Inspectorate and local authority), as needed. The template incident report had a number of sections, with headings, namely: Background, Incident, Response, Outcome, Conclusion and Recommendations. The suggested text in the template made reference to ‘key workers’ in attendance.[28]The claimant did not provide an incident report to NR in the format requested. NR sent a reminder to her on 3 May 2024 in relation to this. The claimant responded later that day stating ‘I was very busy today because I had just returned to work; I had already sent you an e-mail about the incident and explained what happened on the phone. I am waiting to meet with you and see what steps you take to solve the problem I brought to you so that I have a clear idea of how to fill out the incident form because the template you sent me does not fit this incident at all.’[29]At 10:58 on 8 May 2024, the claimant sent an incident report to NR, stating ‘Please look at the attachment and let me know if you have any suggestions.’ NR responded with suggestions, for review by the claimant, around 3 hours later. She stated that she looked forward to the claimant’s thoughts on the revisions. 2 days later, the claimant sent an email to NR stating ‘I haven't sent you the incident report yet because there is some confusion that I need to clarify with you. I made some of the changes you suggested, but I didn't want to make others because I still believe the outcome I wrote fit this incident, but if you want we could discuss it and agree on something.’ NR responded, approximately 1 hour later, stating ‘Regarding the suggestions I made, feel free to implement only those which you find appropriate. Ultimately the most important thing is that the report accurately reflects the incident and provides a clear understanding of the events that occurred...Please do let me know if there’s anything else I can do to support you in this process.’ The claimant responded the following day indicating that she wished to stick with the report which she had had provided to NR on 8 May 2024 (i.e. without NR’s suggested changes). NR accepted this.[30]NR held a meeting with the claimant on 9 May 2024 (rearranged from 8 May 2024), regarding the concerns the claimant had raised in relation to the conduct of her colleagues. TF also attended the meeting as a witness, at the request of the claimant. During the meeting the claimant repeatedly suggested that NR had a conflict of interest and could it not be impartial in her investigation. The claimant understood that NR was friendly with C1 & C2, as she was aware that they travelled to work together. Towards the end of the meeting, when the claimant repeated her assertion that NR would be biased and take C1 & C2’s side, NR said that it was all in the claimant’s head. English is not NR’s first language, and she translated this from Arabic. The claimant asked her what she meant. NR explained that she felt the claimant was assuming that she would be biased, or that she would take sides, without evidence. In doing so, NR was trying to reassure the claimant that she would act fairly. The claimant accepted this explanation at the time of the meeting.[31]Following the meeting the claimant send an e-mail to TF stating ‘I am so grateful to you for attending the meeting. To be honest, your presence in the meeting made me feel comfortable discussing my concerns and answering all of the questions. A huge thank you to you.’[32]On 14 May 2024, NR received a number of complaints from the claimant’s colleagues, who shared an office with her, stating that she was loudly discussing her SVQ course work on the telephone during working hours, which was disturbing her colleagues. NR sent an e-mail to the claimant stating that ‘To ensure a smooth workflow for everyone, I kindly request that you complete your qualification work during your own time both stop if there are any phone calls related to this work, it would be greatly appreciated if you could handle them during your lunch break. Additionally, in the event that you need to take any emergency private calls, please feel free to step outside the office to address them. This will help maintain a focused and productive work environment for all of us.’ The claimant recognised that the complaint was well founded, as demonstrated in her initial response, 7 minutes later, stating ‘Thank you for letting me know. I realise now that I should have gone out. I apologise.’[33]The claimant consulted her GP on 27 May 2024. She was certified as unfit to work, as a result of work-related stress, from that date to 3 June 2024. She informed NR of this and asked that NR find someone to cover duty on Wednesday afternoon and Thursday morning. NR responded, at 11:01 on 27 May 2024 stating ‘Thank you for informing us about your leave. I hope you are taking this time to rest and recover. Don't think about work, I wanted to let you know that I will take care of finding someone to cover your duties on Wednesday afternoon and Thursday morning. The team will make sure everything runs smoothly in your absence. Remember, your mental health is a priority. As I discussed it before with you, Shakti offer a great support service that you can utilise during this time. I attached the e-mail which I sent on 24/04/2024 to the entire team to explain about this service. Take care of yourself, and we look forward to having you back on 03/06.’[34]At 21:34 that evening, the claimant responded to NR’s email stating ‘I am off work due to stress, following our communications. I am fully aware of the importance of maintaining my well-being and please forgive me if I don't remember having a discussion with you about my mental health, can you please remind me when this took place? I only remember asking you about the contact number of the EAP at your office in the presence of [a colleague], and this was for my SVQ course before the incident, and I asked you to send it to me via email.’[35]NR responded the following morning, stating that ‘discussion about this matter did not happen just once, but multiple times. We have had private conversations in the office, as well as over the phone on different occasions. I can provide you with specific details regarding the dates and times at a later point if needed. Additionally, you also discussed this issue with your colleagues in the office, which me to seek advice from management at the time as part of my duty of care. The last time I recall us discussing this matter was in my office on April 24, 2024, which led me to send the e-mail on the same day. In that e-mail, I made sure to mention the availability of the Employee Assistance Programme (EAP) to everyone, including the support services offered by Shakti. I hope this clarifies any misunderstandings.’ The ‘matter’ and ‘issue’ which NR was referring to in her email was the availability of an Employee Assistance Programme. NR mentioned this to her team regularly, as she was very conscious that the team were supporting women and children who had experienced and/or witnessed domestic abuse, which can be stressful and traumatic. The email which she sent to the team on 24 April 2024 again stressed the availability of that service.[36]While the claimant was absent from work, she decided that she would look for another job, with another organisation, and would likely leave the respondent’s employment, even if she was not able to secure that.[37]While the claimant was absent from work, NR concluded her investigation into the concerns the claimant had raised about her colleagues leaving activities. She concluded that: 37.1. Whilst C1 felt it was empowering for the women and children to conduct activities themselves, this was not good practice. C1’s professional assessment was not the right decision in the circumstances, and it impacted the team’s effectiveness; and 37.2. While different working styles are acceptable, it is essential to maintain consistency within the team during group activities.[38]NR met with C1 & C2 on 28 May 2024, to inform them of her conclusions, and how she proposed that these matters be addressed going forward. Neither were happy with the conclusions reached by NR.[39]NR met with the claimant on 14 June 2024, following the claimant’s return to work, to inform her of the conclusions of her investigation. The claimant requested that NR provide a written outcome. This was sent to her by email on 8 July 2024. The written outcome addressed the above findings in the first three paragraphs, under the heading ‘Investigation outcome’. The final paragraph under ‘Investigation outcome’ (a paragraph extending to 2.5 lines of text) highlighted an action on the part of the claimant that ‘could have’ had significant consequences, namely that the claimant had failed to convince the mother to complete an incident report provided by a Botanic Gardens worker. The written outcome also addressed NR’s recommendations and action steps.[40]On Tuesday 4 June 2024, following the claimant’s return to work following her sickness absence, NR sent an email to her inviting her to a routine supervision session on Monday 10 June 2024. The claimant declined the appointment, indicating that she had a school visit at that time. The claimant objected to NR scheduling a meeting without consulting her and raised this with NR in person. NR explained to the claimant that she had sent the invite after checking the shared calendar to see if the claimant had anything scheduled for that time, but it appeared that she did not. The claimant sent an email of complaint to NR that evening, indicated that she had found NR’s tone disrespectful. NR disputed that she had been disrespectful, stating that she could speak a lot or loudly, as she had a dental infection. She concluded her email by stating ‘Let’s work together to find a solution that accommodates everyone’s schedules as best as possible.’[41]The claimant applied for a role with another organisation on 25 June 2024. She attended an interview in early July 2024 and was offered the role, subject to references, in mid-July 2024.[42]On 27 June 2024, NR circulated information about an external training session, which was due to take place on 27 September 2024, to all team members. She highlighted that it was a requirement that participants have completed Level 1 Child Protection Awareness Raising and Response Training. She indicated that anyone who was interested in attending should let her know. The claimant expressed an interest, as did others. The claimant confirmed that she had completed her Level 1 training. NR then discovered that there was an update required for the Level 1 training, which none of the team had undertaken, including herself. This required to be done before anyone could attend the external training. She made arrangements for this training to be undertaken and sent an email to the team stating that she was doing so. None of the team were able to attend the external training as a result.[43]On 3 July 2024, the claimant asked NR if she could take her lunch break later. NR asked her to put her request in writing, so it could be approved. The claimant did so, but did not explain in the email why she needed to change her lunchbreak, which NR required for audit purposes, under the respondent’s new procedures. NR accordingly asked the claimant to provide the additional information she required.[44]On 9 July 2024, the claimant spoke with NR to ask if she could take 16 minutes off her lunch break and finish earlier, so she could attend a yoga session. NR asked her to put the request in writing, in accordance with the new procedure. The claimant did so, and NR responded confirming that the request was approved by her and GP. NR confirmed that GP had requested that, if she wished to attend again, she should start earlier, so that she could take her full lunch break (of 30 minutes).[45]In mid-July 2024, the claimant asked TF if she would provide a reference for her, as she had applied for a role with another organisation. TF agreed to do so. She asked the claimant why she was thinking about leaving. The claimant stated to her that she felt that she could not remain in her team and the situation was irreparable. TF asked if there was anything that she could do to persuade the claimant to remain with the respondent. She indicated that there were vacancies in two other teams and the option of her moving to those teams could be explored. The claimant indicated however that she had already been offered the other role, subject to references, and intended to accept that.[46]The claimant resigned on 5 August 2024. She provided a letter of resignation to TF indicating that she would work her 4 week notice period. Her employment was accordingly due to terminate on 30 August 2024.[47]On 14 August 2024, the claimant intimated an appeal against NR’s investigation outcome. She stated that she believed the investigation was not conducted according to the correct policies, and that she felt she was victimised for raising serious issues in the public interest. She was informed, later that day, that GP would address her appeal. On 22 August 2024, GP requested confirmation of the claimant’s grounds of appeal. The claimant provided confirmation of these the following day. In summary, these were as follows: 47.1. The primary concern was that NR interpreted the claimant’s report as a personal grievance, not a report of concern; 47.2. NR had a conflict of interest in that she had a close relationship with the claimant’s colleagues. This resulted in an investigation that favoured them, rather than ensuring impartiality; 47.3. NR stated to the claimant everything was in her brain at a meeting on 27 April 2024; 47.4. The investigation focused on the claimant’s behaviour, not the actions of her colleagues; and 47.5. The investigation’s implications caused the claimant considerable distress.[48]On 27 August 2024, the claimant attended an exit interview with TF. During the meeting, the claimant was asked to provide her reasons for leaving and asked 6 questions. TF typed the answers she provided into the form, reading each answer back to the claimant to ensure that she was happy with it. Changes were made where the claimant was not. At the end of the meeting, the claimant read the document which had been prepared on the screen and was given the opportunity to make any further changes she felt were appropriate. When she was happy with it, TF printed it off and provided a hard copy to the claimant, which she signed. TF’s only input into the document was a section entitled ‘General comments by the interviewer’ in which she stated ‘It was a pleasure and privilege to work with Hakima. She has an outgoing personality that made her a natural facilitator during the CYP events. Her work ethic is professional and she assumes her roles and responsibilities most competently. On behalf of Shakti, I would like to say thank you and express our gratitude for supporting BME community, women and children.’ A copy of the document was emailed to the claimant following the meeting. She was invited to make any changes she felt were appropriate, but did not do so.[49]On 28 August 2024, the claimant asked NR if she could leave early that day and take toys to a family she had supported, and say goodbye to the children. NR, in accordance with respondent’s procedures, asked the claimant to put her request, and the reasons for this, in writing, which the claimant did. NR responded stating that DL could deliver the toys instead, to save the claimant working after 5pm. She stated however that, if the claimant preferred to go and say goodbye to the family personally, that was fine. The choice was hers.[50]GP held an appeal meeting with the claimant on 30 August 2024. The claimant was also called into a meeting with TF at the end of that day. During the meeting a number of concerns regarding the claimant’s conduct, which had been reported by the claimant’s colleagues, were put to her by TF. The respondent’s HR/employment law advisers had recommended that she do so.[51]The claimant’s employment ended on 30 August 2024. NR organised a collection and leaving party for her.[52]The claimant commenced alternative employment on 7 September 2024. She now works 30 hours per week/4 days per week (previously 37.5 hours/5 days per week) and earns £20,500 per annum (previously £25,480).[53]The claimant was informed of the outcome of her appeal by letter dated 10 October 2024. Her appeal was upheld in one respect only, namely NR stating that it was all in the claimant’s brain. GP acknowledged that this was said, and that the choice of words was inappropriate. While GP highlighted that NR meant ‘this is your assumption’, and her intention was not to dismiss or minimise the claimant’s concerns, GP expressed her sincere apologies for any distress or anxiety the situation may have caused the claimant. Observations on Evidence[54]There was a dispute between the parties as to what the claimant said to NR following the Edinburgh Castle activity. On balance, the Tribunal concluded that no particular concerns had been raised: there was no mention of the claimant having done so in any of the subsequent concerns raised by the claimant in writing – merely a reference that they had left the activity. The Tribunal concluded that, had the claimant raised these concerns with NR on 1 March 2024, and had NR failed to take any action regarding this, that fact would have been mentioned by the claimant when she raised her written concerns following the incident in the Botanic Gardens on 26 April 2024.[55]There was a further dispute between the parties as to what the claimant stated to NR during a phone call on the afternoon of 26 April 2024, following the incident in the Botanic Gardens. The claimant’s stated that she told NR on the phone that C1 & C2 not being present during the activity had created a risk to the health and safety of the children who were present, and that the child became lost as a result of them not being present. On balance, the Tribunal concluded that, whilst the claimant clearly articulated her upset/anger at C1 & C2 not staying with the families during the activity, she did not articulate to NR during the call that she felt that them not doing so created a health and safety risk to the children. Had she done so, she would have also then mentioned this in her subsequent emails and her incident report. She did not do so.[56]The claimant stated that NR was ‘hard and unsupportive’ during the meeting on 9 May 2024, that she was shouting at the claimant during the meeting, was disrespectful towards her and attacking the claimant with questions. The Tribunal did not accept this evidence. TF was NR’s line manager and was at the meeting principally as a result of the claimant’s request that she attend. The Tribunal concluded that NR would not have acted in that manner in front of her line manager at a formal meeting. In addition, and more fundamentally, had she done so, the claimant would not have sent the email she did to TF immediately following the meeting (see paragraph 31 above). In that email, she expressed that she was comfortable raising concerns and answering questions at the meeting, and thanked TF for attending. Had the meeting proceeded in the manner which the claimant now asserts, the Tribunal concluded that she would not have sent an email in these terms immediately following the meeting, and would have instead raised a complaint in relation to the manner in which the meeting had been conducted.[57]The Tribunal was also referred to a number of emails from NR, to TF and GP, in which she requested support from them in relation to how she should best manage her team. While these were relied upon by the claimant to suggest that NR had an underlying and nefarious motivation in doing so (‘to control the narrative’), the Tribunal concluded that these were nothing more than a manager seeking help guidance from her line managers, to enable her to appropriately address challenging issues arising in the team she managed. Submissions[58]The parties each gave an oral submission.[59]In summary, Mr McKinlay, for the claimant, submitted that: 59.1. The claimant’s evidence should be preferred to that of the respondent’s witnesses; 59.2. The claimant made the protected disclosures asserted. The relevant tests are established in relation to each; 59.3. The evidence supports that the claimant was subjected to the detriments asserted (each was discussed in turn); 59.4. The claimant was subjected to each of asserted detriments as a result making protected disclosures. The claimant resigned as a result of those detriments. Her dismissal was automatically unfair under s103 ERA; and 59.5. Even if the detriments were not caused by the protected disclosures, they breached the implied duty of trust and confidence. There was a repudiatory breach of contract. The claimant was constructively dismissed.[60]In summary, Mr Katz, for the respondent, submitted that: 60.1. The claimant did not make any protected disclosures. The claimant could not have reasonably believed that the limited information she disclosed tended to show a relevant failure. Her concerns were related to teamwork. She did not raise health and safety concerns; 60.2. The claimant has not established that she was subjected to detriments, as asserted; 60.3. She has not established any link between the asserted detriments and the asserted disclosures; and 60.4. The claimant was not constructively dismissed. There was no breach of the implied term, whether considering the acts relied upon individually or cumulatively.
Relevant Law
[61]Section 43A of the Employment Rights Act 1996 (ERA) provides: “In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[62]A qualifying disclosure is defined in section 43B ERA as “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; orf. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”[63]In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, at paragraphs 35 and 36, the Court of Appeal set out guidance on whether a particular statement should be regarded as a qualifying disclosure: “35. The question in each case in relation to section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a ‘disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the matters set out in subparagraphs (a) to (f).’ Grammatically, the word ‘information’ has to be read with the qualifying phrase ‘which tends to show [etc]’ (as, for example, in the present case, information which tends to show ‘that a person has failed or is likely to fail to comply with any legal obligation to which he is subject’). In order for a statement or disclosure to be a qualifying disclosure according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1).” “36. Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in light of all the facts of the case. It is a question which is likely to be closely aligned with the other requirement set out in section 43B(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters. As explained by Underhill J in Chesterton Global at [8], this has both a subjective and an objective element. If the worker subjectively believes that the information he discloses does tend to show one of the listed matters, and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief.”[64]In Simpson v Cantor Fitzgerald Europe [2020] ICR 236, the EAT confirmed these principles, stating: ’43...As the Court of Appeal in Kilraine v Wandsworth London Borough Council [2018] ICR 1850 made abundantly clear, in order for a statement or disclosure to be a qualifying disclosure, it has to have sufficient factual content and specificity such as is capable of tending to show breach of a legal obligation.[69]The tribunal is thus bound to consider the content of the disclosure to see if it meets the threshold level of sufficiency in terms of factual content and specificity before it could conclude that the belief was a reasonable one. That is another way of stating that the belief must be based on reasonable grounds. As already stated above, it is not enough merely for the employee to rely upon an assertion of his subjective belief that the information tends to show a breach.’ Detriments - Protected Disclosure65. Section 47B ERA states that ‘A worker has the right not to be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.’66. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 confirms that a worker suffers a detriment if a reasonable worker would or might take the view that they have been disadvantaged in the circumstances in which they had to work. An ‘unjustified sense of grievance’ is not enough.67. Whether a detriment is ‘on the ground’ that a worker has made a protected disclosure involves consideration of the mental processes (conscious or unconscious) of the employer acting as it did. It is not sufficient for the Tribunal to simply find that ‘but for’ the disclosure, the employer’s act or omission would not have taken place, or that the detriment is related to the disclosure. Rather, the protected disclosure must materially influence (in the sense of it being more than a trivial influence) the employer’s treatment of the whistleblower (Fecitt and others v NHS Manchester [2012] IRLR 64).68. Helpful guidance on the approach to be taken by a Tribunal when considering claims of this nature is provided in the decision of Blackbay Ventures Ltd (t/a Chemistree) v Gahir [2014] IRLR 416 at paragraph 98. Automatically Unfair Dismissal – Protected Disclosures 69. Section 103A 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.’[70]In Fecitt and others v NHS Manchester, the Court of Appeal held that the causation test for unfair dismissal is stricter than that for unlawful detriment under s47B ERA: the latter claim may be established where the protected disclosure is one of many reasons for the detriment, so long as the disclosure materially influences the decision-maker, whereas s103A ERA requires the disclosure to be the primary motivation for a dismissal. (Constructive) Unfair Dismissal[71]Employees with more than two years' continuous employment have the right not to be unfairly dismissed, by virtue of s94 ERA. 'Dismissal' is defined in s95(1) ERA to include what is generally referred to as constructive dismissal. Constructive dismissal occurs where the employee terminates the contract under which he/she is employed (with or without notice) in circumstances in which he/she is entitled to terminate it by reason of the employer's conduct (s95(1)(c) ERA).[72]The test for whether an employee is entitled to terminate his contract of employment is a contractual one. The Tribunal requires to determine whether the employer has acted in a way amounting to a repudiatory breach of the contract, or shown an intention not to be bound by an essential term of the contract (Western Excavating (ECC) Ltd v Sharp [1978] ICR 221). For this purpose, the essential terms of any contract of employment include the implied term that the employer will not, without reasonable and proper cause, act in such a way as is calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties (Malik v Bank of Credit and Commerce International Ltd [1998] AC 20).[73]Conduct calculated or likely to destroy mutual trust and confidence may be a single act. Alternatively, there may be a series of acts or omissions culminating in a 'last straw' (Lewis v Motorworld Garages Ltd [1986] ICR 157).[74]As to what can constitute the last straw, the Court of Appeal in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 confirmed that the act or omission relied on need not be unreasonable or blameworthy (although it will usually be so), but it must in some way contribute to the breach of the implied obligation of trust and confidence. Necessarily, for there to be a last straw, there must have been earlier acts or omissions of sufficient significance that the addition of a last straw takes the employer's overall conduct across the threshold. An entirely innocuous act on the part of the employer cannot however be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer.[75]In order for there to be a constructive dismissal, there must be a breach by the employer of an essential term, such as the trust and confidence obligation, and the employee must resign in response to that breach (although that need not be the sole reason - see Nottinghamshire County Council v Meikle [2004] IRLR 703). The right to treat the contract as repudiated must also not have been lost by the employee affirming the contract prior to resigning.[76]The Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust [2018] IRLR 833 set out guidance on the questions it will normally be sufficient for Tribunals to ask in order to decide whether an employee has been constructively dismissed, namely: 76.1. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? 76.2. Has he or she affirmed the contract since that act? 76.3. If not, was that act (or omission) by itself a repudiatory breach of contract? 76.4. If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the implied term of trust and confidence? 76.5. Did the employee resign in response (or partly in response) to that breach?[77]If an employee establishes that they have been constructively dismissed, the Tribunal must determine whether the dismissal was fair or unfair, applying the provisions of s98 ERA. It is for the employer to show the reason or principal reason for the dismissal, and that the reason shown is a potentially fair one within s98 ERA. If that is shown, it is then for the Tribunal to determine, the burden of proof at this point being neutral, whether in all the circumstances, having regard to the size and administrative resources of the employer, and in accordance with equity and the substantial merits of the case, the employer acted reasonably or unreasonably in treating the reason as a sufficient reason to dismiss the employee (s98(4) ERA). In applying s98(4) ERA the Tribunal must not substitute its own view for the matter for that of the employer, but must apply an objective test of whether dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer. Discussion & Decision[78]The Tribunal firstly considered each of the matters relied upon by the claimant as protected disclosures, to determine whether they were qualifying disclosures and, if so, whether they were also protected disclosures.[79]The Tribunal was mindful that five elements require to be considered in determining whether each asserted disclosure amounted to a qualifying disclosure: Was there a disclosure of information? Did the claimant believe the information disclosed tended to show a relevant failure? If so, was that belief reasonable? Did the claimant believe the disclosure of information was made in the public interest? If so, was that belief reasonable?[80]The Tribunal noted that, unless all five conditions are satisfied, there will not be a qualifying disclosure.[81]The Tribunal’s conclusions in relation to each asserted disclosure, and whether it was a qualifying and protected disclosure, are set out below. 81.1. Following the Edinburgh Castle outing, the claimant informed NR that C1 & C2 had left the outing early. The Tribunal’s findings in relation to what was stated orally, by the claimant to NR, on 1 March 2024 are set out at paragraph 20 above. While the Tribunal concluded that the claimant did disclose information, namely that she did not know where C1 & C2 were, and that they had not participated in the activity, the information disclosed by the claimant did not have sufficient factual content and specificity capable of tending to show that the health and safety of any individual had been, was being, or was likely to be, endangered, or that a person had failed, was failing or was likely to fail to comply with a legal obligation. There was no indication that there was any risk to health and safety or that legal obligations were being breached. In these circumstances, the Tribunal concluded that the claimant did not believe that the information disclosed tended to show a relevant failure (as set out in s43B ERA). If she did, that belief was not reasonable. Further, the Tribunal did not accept that the claimant believed that the limited information disclosed was made in the public interest, or that any such belief which she did have was reasonably held. The Tribunal accordingly concluded that the claimant did not make a qualifying disclosure on 1 March 2024. 81.2. On 26 April 2024, the claimant emailed NR following the Botantic Garden outing to inform her that C1 & C2 had left the outing early. The terms of the email sent by the claimant on 26 April 2024 is replicated in full at paragraph 24 above. The Tribunal concluded that the claimant did disclose information, namely that C1 & C2 did not participate in the activity, that this had happened before, and that the claimant thought this was wrong. The information disclosed by the claimant did not however have sufficient factual content and specificity capable of tending to show that the health and safety of any individual had been, was being, or was likely to be, endangered, or that a person had failed, was failing or was likely to fail to comply with a legal obligation. There was no indication that there was any risk to health and safety, or that legal obligations were being breached. She stated that her attendance gave the mums comfort. She asked whether it was OK for C1 & C2 to leave the event. She did not mention the child becoming lost at all, let alone link this to the absence of her colleagues. In her email of 2 May 2024, she made it clear that her intention, when raising concerns was ‘to improve teamwork’. In these circumstances, the Tribunal concluded that the claimant did not believe that the information disclosed tended to show a relevant failure (as set out in s43B ERA). If she did, that belief was not reasonable. Further, the Tribunal did not accept that the claimant believed that the limited information disclosed was made in the public interest, or that any such belief which she did have was reasonably held. The Tribunal accordingly concluded that the claimant did not make a qualifying disclosure on 26 April 2024. Protected Disclosure Detriments & Dismissal – s47B & s103A ERA[82]As the Tribunal concluded that the claimant did not make qualifying disclosures, as asserted, her complaints that she was subjected to detriments and/or dismissed, as a result of making protected disclosures, cannot succeed and are dismissed. Constructive Unfair Dismissal Claim – s94 ERA[83]In considering the claimant’s claim of constructive dismissal, the Tribunal considered the tests set out in Kaur v Leeds Teaching Hospital NHS Trust. The Tribunal’s conclusions in relation to each element are set out below.[84]What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation? The Tribunal noted that the claimant resigned on 5 August 2024. She can accordingly only rely on events occurring prior to that point in relation to her complaint of constructive unfair dismissal. The most recent act on the part of the respondent, which the claimant relied upon as causing or triggering her resignation, was receipt of the written investigation outcome on 8 July 2024.[85]Has he or she affirmed the contract since that act? The Tribunal noted that the claimant resigned on 5 August 2024. The Tribunal found that the claimant had not affirmed the contract before doing so.[86]If not, was that act (or omission) by itself a repudiatory breach of contract? The Tribunal found that the written investigation outcome was not, by itself, a repudiatory breach of contract. The claimant asserted that the investigation outcome was dismissive and sought to downplay and minimise the claimant’s concerns. The concerns which NR was investigating were those set out in the claimant’s email dated 26 April 2024, replicated at paragraph 24 above, namely that colleagues had left activities on two occasions and the claimant thought it was wrong for them to do so. The written investigation outcome, as stated in paragraph 37 above, stated that this had happened, it was not good practice, it was not the right decision in the circumstances, it impacted the team’s effectiveness and it was essential to maintain consistency within the team during group activities going forward. Those conclusions did not seek to downplay or minimise the concerns which the claimant had raised, nor were they dismissive of the claimant’s concerns. The outcome fully recognised the concerns which the claimant had raised, and concluded that they were well founded. While the report also highlighted that the claimant’s actions, in one respect, ‘could have’ had significant consequences, that observation was subsidiary to the complaints raised by the claimant. The Tribunal did not accept, as asserted by the claimant, that this was an attempt to shift focus away from the complaint raised by the claimant. The outcome had clearly addressed those concerns in the first three paragraphs under ‘Investigation outcome’. The final paragraph under ‘Investigation outcome’ simply highlighted an action on the part of the claimant that ‘could have’ had significant consequences. The respondent had reasonable and proper cause for highlighting that concern to the claimant. The Tribunal accordingly concluded that the asserted conduct was not established and did not amount to a repudiatory breach of contract.[87]If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? As set out above, the Tribunal concluded that the circumstances relied upon as the final straw were not established. The respondent had reasonable and proper cause for reaching the conclusions they did in the investigation, and those conclusions were not dismissive of the claimant’s concerns. The conclusions did not seek to downplay or minimise the claimant’s concerns. An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence. The test of whether the employee’s trust and confidence has been undermined is objective. The investigation outcome cannot, viewed objectively, contribute in any way to a series of actions which cumulatively constitute a repudiatory breach of contract. Taking into account the tests set out in Kaur, that means that the claimant’s complaint of constructive dismissal cannot succeed.[88]Whilst there is no requirement to do so, given this finding, the Tribunal also wish to record its findings in relation to the other conduct relied upon by the claimant in relation to her complaint of constructive unfair dismissal. 88.1. On 30 April 2024, NR’s attempt to distort and change the claimant’s report on the 26 April 2024 incident. The Tribunal accepted that NR tried to change the format claimant’s report regarding the events of 26 April 2024, and asked her to provide more detail. As stated in paragraph 27 above, NR provided a template of the format the respondent required to the claimant. NR provided some suggested text in the template, but the Tribunal concluded that it was clear that the claimant was expected to complete the report using her own words. There was no attempt distort or change the content of the claimant’s report. It was for the claimant to complete the template in the way that she saw fit. The only requirement was that she required to use the format of the template provided. The Tribunal concluded that the respondent had reasonable and proper cause for asking the claimant to change the format: the report required to be in this format, and more detailed, as it could be inspected by the Care Inspectorate and/or the local authority. 88.2. On 8 May 2024, NR’s attempt to distort and change the claimant’s report on the 26 April 2024 incident. When the claimant provided the more detailed report to NR, in the template requested, she stated to NR ‘Please look at the attachment and let me know if you have any suggestions.’ NR did so and provided suggestions, marked as tracked changes, for the claimant to consider. NR had reasonable and proper cause for doing so: the claimant had requested that she review the report and provide suggestions. NR stated that she looked forward to the claimant's thoughts on the suggestions. It was clear from this exchange that NR was simply providing suggestions to the claimant, in accordance with the claimant’s request that she do so, and it was for the claimant to consider and decide whether to incorporate these suggestions into the report or not. There was no attempt to ‘distort and change’ the claimant’s report. This was further underlined by NR’s subsequent email stating ‘regarding the suggestions I made, feel free to only implement those which you find appropriate’, and the fact that when the claimant decided not to incorporate NR’s suggestions, this was simply accepted by NR. 88.3. NR’s micromanagement of the claimant’s work following 8 May 2024. In relation to this, the claimant relied upon the conduct set out in paragraphs 32, 40, 42, 43 & 44 above. (Whilst she also relied upon events after her resignation, as stated above, events after resignation are not relevant to whether the claimant resigned in response to a repudiatory breach of contract). The Tribunal did not accept that NR’s conduct, in the asserted paragraphs, amounted to micromanagement. The Tribunal concluded that, on each occasion, NR had reasonable and proper cause for her actions and was acting in a reasonable and appropriate manner. 88.4. The disrespectful and belittling manner of speaking to the claimant adopted by NR following 8 May 2024. In relation to this, the claimant relied, principally, on the meeting held on 9 May 2024. The Tribunal’s finding in relation to this meeting are set out in paragraph 30 above. For the reasons set out in paragraph 56 above, the Tribunal did not accept that NR spoke to the claimant in a disrespectful and belittling manner during that meeting. The only other occasion when the claimant asserted that NR adopted a disrespectful manner was in her email of 4 June 2024, as set out in paragraph 40. On balance, and taking into account the content and tone of the contemporaneous documentation, as set out in paragraph 40, the Tribunal concluded that NR did not adopt a disrespectful tone during her discussion with the claimant. She was trying to find a solution that accommodated everyone, at a time when her speech was limited due to a dental infection. 88.5. On 9 May 2024, NR told the claimant that any concerns were “all in [the Claimant’s] head” or words to that effect. The Tribunal’s findings in relation to this are set out in paragraph 30 above. While her choice of words could perhaps have been better, the claimant immediately asked what she meant and NR clarified that she was seeking to reassure the claimant that she would act fairly and that there was no evidence to support the claimant’s assumption that she would take sides or was biased in some way. She had reasonable and proper cause for doing so in circumstances when the claimant was asserting that NR was not impartial. 88.6. On 28 May 2024, NR’s comment that she had spoken with the claimant about her mental health previously. The Tribunal’s findings in relation to this are set out in paragraphs 33-35 above. From paragraph 33, in particular, it is clear that the only reference to previous discussions relates to the support service offered by the respondent - ‘As I discussed it before with you, Shakti offer a great support service that you can utilise during this time.’ In light of that, the claimant’s response, as referenced at paragraph 34 above, does not make sense. NR had not, in her email, asserted that she had had a discussion with the claimant about her mental health. She had clearly misunderstood the terms of NR’s email. In her response to the claimant, as detailed at paragraph 35 above, NR sought to clarify the misunderstanding by explaining that she had previously discussed the availability of the employee assistance programme with the claimant, detailing the occasions on which she had done so and that she had sent an email to all employees about the availability of that support.[89]The Tribunal concluded that none of the asserted acts constituted a fundamental breach of contract by themselves, or when viewed together. They do not constitute actions which are calculated or likely to destroy or seriously damage the mutual trust and confidence between the parties.[90]Accordingly, even if a last straw had been established, the Tribunal would have concluded that there were no individual acts which constituted a fundamental breach of contract, nor was there a course of conduct which, viewed objectively and cumulatively, amounted to a repudiatory breach of the implied duty of trust and confidence.[91]Did the employee resign in response (or partly in response) to that breach? Given the Tribunal’s conclusions above, this did not fall to be answered. The Tribunal concluded that there was no breach.[92]Given these findings the Tribunal concluded that the claimant was not constructively dismissed by the respondent. Her complaint of unfair dismissal is accordingly not successful and is dismissed.