Ms K Anderson v East Dunbartonshire Council: 8002033/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8002033/2024

Venue Glasgow

Hearing 3, 4, 5 and 6 November 2025

Between

Ms Kirsty AndersonClaimant

East Dunbartonshire CouncilRespondent

Before

Employment Judge L Wiseman

Ms C Magowan (instructed by Solicitor) for respondent

Date 29 January 2026

JUDGMENT

The judgment of the tribunal is:(i) to dismiss the complaint that the claimant was subjected to detriment on the ground of having made a protected disclosure (section 47B Employment Rights Act);

(ii) to dismiss the complaint the dismissal of the claimant was automatically unfair (section 103A Employment Rights Act) and

(iii) to dismiss the complaint of unfair dismissal.

REASONS

[1]The claimant presented a claim to the Employment Tribunal on the 4 December 2024 alleging she had been unfairly dismissed; automatically unfairly dismissed for making a protected disclosure and subjected to detriment for making a protected disclosure.

[2]The respondent entered a response admitting the claimant had been dismissed for reasons of gross misconduct but denying the dismissal was unfair and denying the claimant had made protected disclosures and was subjected to detriment and dismissal for that reason.

[3]The case was subject to case management, following which a Note was issued. The Note confirmed the claimant relied on two disclosures: the first was made at a meeting with her line manager on the 15 September 2022 and the second was made in a grievance letter dated 6 November 2022 which had been sent to HR.

[4]The detriments relied upon by the claimant were:-(i) not being included in a restructure of the team;

(ii) not being included in the development of certain policy initiatives, specifically (a) a review of the community grants scheme; (b) the development of the warm spaces grant scheme policy and processes and (c) the Ukrainian resettlement scheme.

(iii) new line management arrangements;

(iv) being removed from team meetings;

(v) being subjected to a fact finding investigation; (GAC) report); 2023; (ix) being subjected to a disciplinary process (x) dismissal and (xi) increased workload and isolation.

[5]This hearing was restricted to determining merits only. The tribunal heard evidence from Ms Pamela Campbell, Team Leader in Community Planning and Partnership and the claimant’s line manager; Ms Evonne Bauer, Executive Officer of Community Services and Ms Angela Fegan, Executive Officer for Customer Services and Organisational Development, who took the decision to dismiss. The claimant and Mr Craig Bell, Unison trade union also gave evidence.

[6]The tribunal was also referred to a jointly produced file of documents for the hearing. The claimant also produced a folder of documents.

[7]The tribunal, on the basis of the evidence before it, made the following material findings of fact.

Findings of fact

[8]The claimant commenced employment with the respondent on the 10 September 2014 until the termination of her employment on the 24 June 2024.

[9]The claimant was employed as a Policy Adviser and reported to Ms Pamela Campbell, Team Leader in Community, Planning and Partnership, who took up her appointment in 2021.

[10]One of the issues outstanding on Ms Campbell’s appointment was an application by a community organisation for the transfer of an asset which had been validated but not progressed. The respondent has a Community Asset Transfer (CAT) policy which provides for the transfer of assets to community organisation in certain circumstances. The CAT policy was drafted by the claimant.

[11]The respondent also has a steering group established to participate in the process. The members of the steering group were Ms Campbell, the claimant, the Equality Officer and five others. The purpose of the steering group was to discuss the application and supplementary information.

[12]The steering group met and scored the application against certain criteria. The scoring outcome indicated the group were marginally “in favour” of the application but there was concern regarding the respondent’s standard conditions which were set out in its policy. The standard conditions related to the control of the asset and the issue related to the fact the body making the application for the asset transfer intended to sublet it.

[13]The recommendation of the steering group was that the application should go to the senior management team to make recommendations for the PNCA committee. A report was prepared by Ms Campbell and her team (page 92(a)) and circulated to the members of the senior management team (page 92(c)). The report recommended agreeing to the application for the asset transfer.

[14]The senior management team decided to recommend to the PNCA committee that the application should be refused because of the issue regarding the standard conditions. Ms Campbell fed this information back to her team either directly or via the AssetTransfer inbox (a general email inbox for the team).

[15]A further report was prepared by Ms Campbell and the team leader for Estates Management (page 93) which recommended rejecting the application. The recommendations also invited the committee to note the standard conditions and risks outlined in the Report.

[16]The PNCA committee met on the 30 September 2021 (page 99) and decided to continue a decision on the issue until further information had been provided. The committee met again on the 11 November 2021 (page 110). It was noted the Chief Solicitor and Monitoring officer advised that Officers were required to recommend rejection of the application because the respondent’s policy stated that if the body was not in direct control of the asset which was the subject of the application, then it could not be transferred. The Chief Solicitor further advised that officers were unable to set aside the requirements of the policy given that it was approved by committee, however the PNCA committee could decide to review the policy.

[17]The PNCA committee decided to again continue the matter until the meeting on the 25 November 2021 (page 119). At that meeting the committee decided to approve the application and to instruct Officers to review the CAT policy and submit proposed changes to a future meeting of the committee.

[18]The claimant, who had written the CAT policy, was not at all happy with the decision of the PNCA committee to approve the application, or the decision to review the policy. She was also not happy with Ms Campbell and some of the reports which had been written for the senior management committee. These matters came to a head at a one-to-one meeting with Ms Campbell on the 15 September 2022.

[19]Ms Campbell had, since shortly after taking up her post, found the claimant’s behaviour to be challenging in terms not only of the community asset transfer and the preparation of reports, but also in terms of the claimant persistently failing to comply with management instructions. Ms Campbell sought advice from HR regarding managing the claimant’s behaviour and tried to address it through informal conversations with the claimant and one-to-one meetings.

[20]Ms Campbell decided that it would be appropriate, in a team meeting on the 16 June 2022, to remind employees of the respondent’s Dignity at Work policy. This was not directed entirely at the claimant but was a reminder of the behaviour expected. Ms Campbell was aware that some of the claimant’s colleagues had raised concerns regarding the claimant not respecting their professional role and qualifications and the claimant being derogatory when discussing policy issues. There had also been an issue regarding the claimant’s body language in terms of rolling her eyes, speaking over others and, when Ms Campbell was addressing her, turning away.

[21]Ms Campbell agreed a timeframe with the team for the review of the CAT policy, which would also consider what other local authorities were doing. The claimant did not think the policy required to be reviewed and did not want to participate in the review. The claimant emailed Ms Campbell in these terms on the 2 September 2022 (page 382). Ms Campbell responded to say this issue would be picked up at the one-to-one meeting on the 15 September.

[22]A note of the one-to-one meeting held on the 15 September 2022 was produced at page 127. The claimant repeated her view that she did not agree with the need to review the CAT policy because she felt it aligned with Scottish Government guidance and regulations. The claimant was of the opinion the CAT application should not have been progressed by Ms Campbell and she was frustrated that it had progressed. The claimant also believed the respondent had acted unlawfully in approving the application and challenged the decision to review the policy. Ms Campbell reminded the claimant that the Officers’ recommendation had been to refuse the application and that the Chief Solicitor had been present at the committee meeting. The claimant confirmed she did not want to be part of the CAT policy review and stated she had no confidence, trust or faith in Ms Campbell’s leadership and management. Ms Campbell asked if the claimant would agree to mediation but the claimant was not interested in this.

[23]Ms Campbell contacted HR on the 26 September 2022 (page 378), which was a follow-on from a discussion which had taken place on the 22 September, regarding the claimant. Ms Campbell confirmed there were two distinct issues regarding the claimant and they were(i) she had raised a serious allegation that she considered the Council had made a decision against legislation and she had no confidence in the Chief Solicitor and

(ii) the claimant had no confidence, faith or trust in Ms Campbell’s leadership or management and did not wish to consider mediation. Ms Campbell did not consider these to be minor issues and she also included some emails demonstrating the claimant did not show respect to colleagues and was unwilling to undertake tasks allocated.

[24]The claimant emailed Ms Campbell and Ms Bauer, Executive Officer, on the 6 October 2022 (page 132) to complain about the recent appointment of 6 new posts to support refugees. The claimant felt that another member of staff should have been appointed instead. The claimant asked for her email to be sent to the Head of HR whom, she stated “should not have allowed this to happen”.

[25]The respondent introduced a warm spaces grant scheme as a measure to reduce the impact of the cost of living crisis. The claimant was asked to undertake some work regarding this scheme. The claimant refused to do so because she was already involved in a Community Grant Scheme and considered that warm spaces could be accommodated within that scheme rather than a new scheme being set up and administered. The claimant was also concerned at the potential for organisations to receive two grants for the same objective.

[26]Ms Campbell emailed the claimant on the 3 November (page 143) to say that if the recommendations for the new grant scheme were approved, she would interpret that as a reasonable management instruction to deliver the grant scheme. The claimant responded (page 142) to say she already did the Community Grant Scheme which paid for heating and equipment and “I have informed you I am not doing another scheme”.

[27]The situation between Ms Campbell and the claimant continued to deteriorate and Ms Campbell decided to raise a formal complaint against the claimant on the 2 November 2022 (page 139) because she had exhausted all informal measures to try to resolve the issue of the claimant’s behaviour. The complaint was sent to Ms Bauer.

[28]Ms Bauer had prior knowledge of the claimant’s behaviours because she had previously advised Ms Campbell to liaise with HR for support. Ms Bauer discussed Ms Campbell’s complaint with HR and decided the claimant should report to a different line manager and that there should be a fact-finding investigation. Ms Bauer asked Ms Fiona Mackay, a senior manager, to line manage the claimant.

[29]Ms Bauer asked Mr Clive Lewis, Community Protection Officer, to carry out the fact finding investigation (page 163).

[30]Ms Bauer advised the claimant, in an email dated 10 November 2022 (page 160) that a formal complaint had been received from Ms Campbell and this had been passed to HR for a fact finding investigation to take place. Ms Bauer confirmed Mr Lewis had been appointed to carry out the fact find. Ms Bauer also confirmed the claimant would be line managed by Ms Mackay with immediate effect. Ms Bauer was, at this time, aware the claimant had sent a grievance to the HR department but was not aware of the content of the grievance. Ms Bauer was subsequently advised the grievance was not competent.

[31]The claimant raised the issue of the warm spaces grant scheme with Ms Bauer on the 4 November (page 151). The claimant’s email stated there was no need for the new grant scheme and she had told Ms Campbell it could go through the community grant scheme. The claimant felt it was ridiculous to make all this additional work at short notice and they could not deal with two grant schemes at once. The claimant confirmed she had told Ms Campbell that she did not have capacity to be involved with the new scheme.

[32]Ms Bauer replied to the claimant (page 152) to say the claimant’s email required some future discussion regarding her attitude and misunderstanding of the council’s priorities and decisions. Ms Bauer confirmed the Council Leader and Administration had agreed on a programme of work to be implemented and the purpose of the new scheme was quite different from the existing scheme. Ms Bauer also confirmed that it was for employees to implement the instructions of Council.

[33]The claimant, by email of the 5 November 2022 (page 155) sent a grievance to the HR department regarding her line manager Ms Campbell. The claimant, in her grievance, stated that Ms Campbell was not following established legal and administrative processes and, as examples of this, the claimant made reference to the asset transfer policy, data protection, recruitment and selection and the warm spaces grant scheme. The claimant proposed that she be moved to another department.

[34]The claimant was advised by Ms Cunningham, Team Leader in HR, that the grievance she had submitted was not a competent grievance because it did not concern an alleged breach of the terms and conditions of employment. Ms Cunningham confirmed the grievance was not valid and that there was no right of appeal against that decision. Ms Cunningham further advised the claimant to discuss the matter with her trade union and to submit a competent grievance if she wished to do so.

[35]The claimant, by email of the 17 November (page 162) to Ms Cunningham stated she “actually recalled this after sending - I am discussing it with my Union in the first instance”.

[36]The claimant did discuss with her trade union representative, Mr Bell, whether the grievance was competent. He was of the opinion that the issue in the grievance regarding volume of work was competent and he had a telephone conversation with Ms Cunningham regarding that matter. The conversation ended without agreement.

[37]The claimant did not either re-submit her grievance or submit a new grievance.

[38]Ms Campbell invited the claimant to the next team meeting in November 2022 but when Ms Campbell was advised that Ms Mackay intended to meet with the claimant that day, Ms Campbell considered that as Ms Mackay was the new line manager, it was more appropriate for that meeting to take place.

[39]Ms Mackay also had difficulties managing the claimant. On the 21 February 2023 (page 171(a)) she emailed Ms Bauer and Mr Alistair McDonald, Head of HR, to advise that there were ongoing issues with the claimant. Ms Mackay, in her email, referred to the claimant’s annoyance about how the Warm Spaces Grant scheme had been set up and that she considered consultation should have taken place with those who were experienced in the application of a grant scheme prior to it being written and sent to the Council. The claimant had repeatedly advised she did not wish to be involved in the warm spaces grant scheme because she considered it to be “shoddy and terribly set up”. Ms Mackay confirmed she had on a number of occasions advised that the Council approved the scheme and as officers of the Council it was their role to implement these instructions, and the function was included in the claimant’s job role profile and formed part of her remit.

[40]Ms Mackay went on to confirm that she had advised the claimant, at a oneto-one meeting on the 12 January 2023, that her behaviours at the warm spaces meeting had not been appropriate, with specific reference to Ms Campbell.

[41]Ms Mackay referred to having chaired a meeting on 21 February regarding the Community Grant Scheme and the Warm Spaces Grant scheme to discuss double funding and a way to ensure this did not happen. Ms Mackay had advised the claimant, during this meeting, that she found her tone aggressive and that her reference to changes to the scheme being “Pam [Campbell’s] decision and fault” were inappropriate because the decisions regarding the warm spaces scheme were made by the Depute Chief Executive. Ms Mackay was concerned that despite the claimant’s understanding of the reporting structures in the Council, and how the committee system worked, the claimant was holding Ms Campbell responsible for the proposed changes to the Community Grant Scheme, which were to be discussed by the Council at a meeting on 23 February.

[42]Ms Mackay concluded her email by stating the claimant’s inappropriate behaviours at meetings was something that needed to be addressed in a formal manner because Ms Mackay’s normal management interventions were not having any impact on the behaviour.

[43]A meeting took place on the 1 March 2023 regarding the Community Grant Scheme governance process teams making assessments regarding grant applications, which go to the Grant Advisory Committee (GAC) which is a body independent to the respondent. This meeting did not go well and Ms Mackay emailed the claimant on the 2 March 2023 (page 369) confirming the claimant had advised that she would not produce the GAC report because she considered the Community Grant scheme and the Community Warm Spaces scheme to be the same scheme, which may lead in the long term to double funding. Ms Mackay confirmed the schemes were separate schemes as agreed by the Council, and as the claimant had refused to produce the GAC report, the work would be allocated to someone else. Ms Mackay also confirmed the claimant was not to attend the GAC meeting.

[44]The claimant in fact worked with her colleague, Ms Alison Gray, to finish the GAC report. The claimant emailed Ms Mackay on the 3 March (page 368) to confirm she had worked with Ms Gray and the GAC report had been finished. The claimant also confirmed she planned to attend the GAC meeting.

[45]Ms Mackay replied to the claimant on the 6 March (page 367) and confirmed it would not be appropriate for the claimant to represent the Council at the GAC meeting because the claimant was implementing the warm spaces scheme contrary to Council decisions.

[46]The claimant replied on the 7 March (page 367) to say she would not be gaslighted and the two schemes were the same scheme. The claimant confirmed she would attend the GAC. The claimant denied stating she would not produce the GAC report and in fact it had taken her and Ms Gray a month to do it. The claimant confirmed that she had said she would not produce a report that did not outline how the respondent was double funding projects via the warm spaces scheme.

[47]The GAC report completed by the claimant and Ms Gray was sent, by Ms Gray, to the GAC without it being reviewed by the line manager or Ms Bauer. This GAC report had to be recalled and another report issued for the GAC meeting.

[48]Ms Bauer met with Ms Shona Diack, HR Business Partner, on the 5 March 2023 to undertake a suspension risk assessment. The decision was taken to suspend the claimant because of a breakdown in trust and confidence in the claimant and because of the claimant’s behaviours and her repeated failure to follow reasonable management instructions. There was also a concern regarding the claimant’s statement that she would, contrary to management instructions, attend the GAC meeting.

[49]Ms Bauer emailed the claimant on the 7 March (page 178) to invite her to a workplace meeting with her and Ms Diack present. The claimant replied to ask what the meeting was about and if she could bring a trade union representative. Ms Bauer confirmed the claimant could bring a trade union representative, but if attendance at 11.15am was not possible, the claimant was to advise when her representative would be available. The claimant confirmed there was a branch executive meeting that morning and therefore, without a representative, she would be unable to attend.

[50]Ms Bauer emailed the claimant to say she needed to meet with the claimant that day and confirmed the claimant could bring an alternative representative. Ms Bauer suggested a meeting in the next hour, or at 4pm. The claimant replied to say she required to have a union representative present and it was unlikely she would be able to get one that day. The claimant confirmed her trade union representative could attend the following day at 11am.

[51]Ms Bauer emailed the claimant to confirm she was meeting with Ms Diack on Teams at 11.25 and she asked the claimant to join the meeting. The claimant replied to say she was not able to find a trade union representative.

[52]Ms Bauer emailed the claimant (page 179) to confirm the decision to suspend the claimant from work with immediate effect whilst the fact finding investigation was carried out, regarding the failure to adhere to critical instructions, unreasonable and persistent refusal to comply with management instructions and bringing the name of the Council into disrepute and a serious breach of trust and confidence. A copy of the respondent’s Disciplinary policy was sent with the letter.

[53]Mr Clive Lewis concluded his fact finding investigation on the 28 July 2023 and he produced a Fact Finding Report (page 198 – 207). The claimant was interviewed during the fact finding investigation, as were Ms Campbell, Ms Mackay, Ms Bauer and Ms Gray and others.

[54]Ms Angela Fegan, Executive Officer for Customer Services and Organisational Development was appointed to hear the disciplinary hearing. She was, in advance of the hearing, provided with the fact finding report and all the papers (being the notes of the interviews and all relevant associated paperwork). Ms Fegan had no knowledge of the claimant’s grievance at the time of these events and only became aware of the one-to-one meeting between Ms Campbell and the claimant when this was referred to in the statements.

[55]Ms Fegan wrote to the claimant on the 13 December 2023 (page 414) to invite her to a disciplinary hearing on the 20 December 2023. The letter confirmed the allegations which related to the claimant’s behaviour were as follows:• a pattern of inappropriate and unacceptable behaviour/conduct;

• unreasonable and persistent refusal to comply with management instructions;

• failure to carry out work in line with Council decisions;

• action which brings the name of the Council into disrepute and

• serious breach of trust and confidence.

[56]The claimant was provided with the disciplinary pack which included the fact finding report, all statements and relevant paperwork.

[57]The disciplinary hearing did not proceed on the 20 December 2023 because the claimant was signed off as being unfit for work and not fit to attend the hearing.

[58]There then followed a delay whilst the parties engaged in a protected conversation.

[59]Ms Fegan wrote to the claimant again on the 21 May 2024 (page 423) when the claimant had returned to fitness, to invite her to attend a disciplinary hearing on the 28 May 2024.

[60]The disciplinary hearing was chaired by Ms Fegan who was accompanied by Ms McLaughlin, HR. The claimant attended with Mr Bell. The format of the disciplinary hearing was that Mr Lewis was invited to attend to present his fact finding report and be questioned by Ms Fegan and the claimant and Mr Bell. The claimant then made a presentation and was questioned by Ms Fegan. The claimant had prepared a substantial statement (pages 424 – 444) which she read out and provided to Ms Fegan.

[61]The hearing ran out of time and so was adjourned and continued to 12 June 2024. A note of the hearing on 12 June was taken (page 448). The focus of that hearing was the questions Ms Fegan had prepared to ask the claimant regarding each of the allegations.

[62]The claimant was advised by letter of 24 June 2024 (page 468) that Ms Fegan had decided to summarily dismiss her with effect from 24 June 2024. Ms Fegan went on in the letter to set out each of the allegations and her considerations and conclusions. Ms Fegan concluded the letter by confirming she had found that all six allegations had been substantiated. She confirmed she had considered the mitigation put forward by the claimant and whilst Ms Fegan noted the claimant had apologised for certain actions, she had undermined that by reiterating she maintained Ms Campbell had lied to her. Further, when asked by Ms Fegan if she would behave differently if faced with these circumstances again, the claimant had confirmed she would continue to raise concerns and would want senior managers to provide corroboration.

[63]The claimant appealed against the decision to dismiss. The appeal was heard by the respondent’s HR Appeals Board comprising elected members. Ms Fegan attended the appeal hearing to present the management case. The appeal was dismissed. Credibility and notes on the evidence

[64]The tribunal found the respondent’s witnesses to be both credible and reliable. Ms Campbell gave very full evidence regarding the process of the community asset transfer and the difficulties she had had with the claimant in terms of behaviour and refusing to comply with reasonable management instructions. The tribunal preferred the evidence of Ms Campbell to that of the claimant regarding the claimant’s position that Ms Campbell had instructed her to remove the standard conditions from the community asset transfer policy. The tribunal accepted Ms Campbell’s evidence that it was “not within my gift to change policy”, and found that no such instruction had been given and in fact what the claimant had been asked to do was undertake a review of the policy which would look, amongst other things, at what other local authorities did.

[65]Ms Bauer gave her evidence in a very straightforward manner and was very clear that the issue leading the respondent to take the actions that it did, was not that the claimant believed the community asset transfer to be unlawful, but the fact of her behaviour and refusal to comply with management instructions. Ms Bauer was at a loss to understand why the claimant thought Ms Campbell would be upset/angry about the claimant’s view of the community asset transfer. The claimant suggested to Ms Bauer that Ms Campbell’s complaint had been motivated by her issues with the transfer. Ms Bauer responded “but why would she be upset about that?” The claimant asked Ms Bauer questions regarding the warm spaces scheme and Ms Bauer stressed that whilst an employee may disagree with decisions taken by the elected members, it was not appropriate for those decisions to be challenged as the claimant had.

[66]Ms Fegan was an impressive witness: she had a very detailed and thorough knowledge of the issues which had been the subject of the fact finding investigation and the disciplinary hearing and was able to explain, in a straightforward manner, what she had considered and why she had reached the decision to dismiss. Ms Fegan responded clearly to all of the claimant’s questions.

[67]The tribunal did not find the claimant to be an entirely credible or reliable witness and this was principally because the claimant could not see past her position that this was all Ms Campbell’s fault because she progressed the community asset transfer application; the transfer was unlawful and she had been instructed to remove the standard conditions from the policy, which she had drafted. The claimant did not deny she had acted in the manner alleged in respect of the refusal to comply with management instructions, but sought to defend her position on the basis she had been right in her beliefs.

[68]The claimant could not view her actions with any objectivity and simply ignored the fact that the issues she had with Ms Campbell started before the community asset transfer was progressed and developed into issues which had nothing to do with the community asset transfer, for example, the warm spaces grant scheme. The tribunal considered the fact the claimant referred to the issues with the GAC report as being “a storm in a teacup” demonstrated her inability to view the reality of her actions. Respondent’s submissions

[69]Ms Magowan submitted the dismissal of the claimant had been fair and she had not been subjected to detriment or dismissed because of having made a protected disclosure. Ms Magowan invited the tribunal to find the respondent’s witnesses to be credible and reliable. They had been clear and straightforward in their evidence, in contrast to the claimant who had been vague and evasive when it suited her.

[70]Ms Magowan, in respect of the unfair dismissal claim, submitted the reason for dismissal had been conduct. She referred the tribunal to the Burchell case and to the evidence of Ms Fegan and the documents produced. Ms Magowan submitted the reason for dismissal was clear and there had been a reasonable belief the claimant was guilty of the alleged misconduct (as set out in the outcome letter).

[71]There had been a fair and thorough investigation by Mr Lewis, who had had no prior involvement in, or knowledge of, the issues. The fact his line-manager was Ms Bauer was of no consequence.

[72]The claimant had a full opportunity to respond to the allegations. Ms Fegan interrogated and tested the evidence; considered the mitigation put forward by the claimant and considered alternatives to dismissal.

[73]The claimant had, during the hearing made reference to Ms Alison Gray, who had also been disciplined and given a final written warning. The circumstances of her case had been different and this was supported by Mr Bell.

[74]Ms Magowan acknowledged the process had been lengthy but a number of factors had contributed to this: for example, the lengthy investigation, the claimant’s period of absence and a protected conversation had taken place and had to be concluded before the disciplinary hearing could proceed. It was submitted there had not been any evidence of any adverse impact caused by the delay.

[75]Ms Magowan noted the claimant had not raised any issues of fairness regarding the appeal. In the circumstances Ms Magowan invited the tribunal to find the dismissal was fair. If the tribunal was not with the respondent then Polkey should apply.

[76]Ms Magowan acknowledged the claimant relied on two disclosures as being protected disclosures: the meeting on 15 September 2022 and her grievance on 5 November 2022. Ms Magowan accepted there had been a disclosure of information on 15 September 2022 when the claimant said to Ms Campbell that the asset transfer was unlawful. Ms Magowan submitted this disclosure had not been in the public interest and was not a belief which was reasonably held because this was solely about the claimant’s own interests and her not wanting to do the tasks associated with it. Further, the claimant had been involved in the decision – making in 2021 but did not raise it as an issue until September 2022.

[77]Ms Magowan submitted, with regards to the second disclosure, that there had been no disclosure of information because the grievance had been withdrawn and not re-submitted. Furthermore, any disclosure was not in the public interest because it related to the claimant’s own interests.

[78]The claimant relied upon eleven alleged detriments. It was submitted that none of the incidents relied upon were detriments and, even if they were, they had not occurred because the claimant made a protected disclosure. The claimant had failed to establish a causal link between the detriment and the disclosure.

[79]Ms Magowan invited the tribunal to dismiss the automatically unfair dismissal. It was submitted that Ms Fegan had no knowledge of the claimant’s grievance and the claimant had not, in evidence, put to Ms Fegan that the reason for the dismissal had been because she had made a protected disclosure. The Employment Judge had put that question to the witness, and Ms Fegan had answered it “no”. Claimant’s submissions

[80]The claimant produced a skeleton submission which she spoke to. The claimant invited the tribunal to find she had made a disclosure of information on 15 September 2022 when she told Ms Campbell the asset transfer had been unlawful, and on 5 November 2022, when she submitted her grievance regarding the same issue. The claimant referred to the cases of Stewart v Foreign, Commonwealth and Development Office

2021 EAT 102

and Kilraine v London Borough of Wandsworth

2018 EWCA Civ 1436

[81]The claimant believed she had suffered the eleven detriments set out. It was submitted there was a causal link between the disclosures and the detriments because Ms Campbell’s complaint about the claimant (2 November 2022) referred to the community asset transfer. Ms Campbell sent her complaint to HR and invited them to conduct a fact finding investigation. The causative link was the issue regarding the community asset transfer. The claimant referred to the case of Fecitt v NHS Manchester

2021 IRLR 64

[82]The claimant submitted the respondent had only started to criticise her tone and body language after the first disclosure had been made. The claimant considered she had been suspended for 15 months for a “storm in a teacup over the GAC report”.

[83]The main reason for the dismissal had been her failure to follow reasonable management instructions. The claimant had protested about the community asset transfer and the review of the policy and she had been dismissed for this reason.

[84]The claimant referred to the cases of Hastings v King’s College Hospital NHS Trust

2017 UKEAT.0242/16

and Cox v NHS Commissioning Board where a protected disclosure had been reframed as conduct.

[85]The claimant submitted there had been no fair and reasonable dismissal process. The claimant had not been given any chance to address the behavioural concerns; the allegations had started off at 3 in number and increased to 6; a transfer out of Ms Campbell’s department was never considered; she had been given a new line manager but all of her work was still for Ms Campbell; she had been suspended in her absence and had been treated differently to Ms Gray.

[86]The claimant invited the tribunal to uphold her claim. Discussion and Decision Did the claimant make a protected disclosure

[87]The tribunal decided to first determine the issue of whether the claimant had made protected disclosures, as alleged, on 15 September 2022 and on 6 November 2022. The tribunal had regard to the terms of section 43A Employment Rights Act which provides that a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of section 43C to 43H.

[88]Section 43B sets out the meaning of disclosures qualifying for protection and provides that a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making it, 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 obligations to which he is subject;

(d) that the health or safety of any individual has been, is being or is likely to be to 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 or is likely to be deliberately concealed.

[89]Sections 43C to 43H set out to whom a disclosure may be made. Section 43C provides that a worker may make a disclosure to his employer.

[90]The tribunal also had regard to the cases of Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

and Kilraine v Wandsworth London Borough Council

2018 ICR 1850

because these cases clarified that when considering whether there has been a disclosure of information, the key issue is that the disclosure must convey facts. It was said in the latter case that “in order to be a qualifying disclosure, the disclosure had to have sufficient factual content and specificity, that is, sufficient factual information, to be capable of tending to show one of the matters listed in section 43B(1)(a) – (f).”

[91]The claimant asserted she made a qualifying disclosure during her one-toone meeting with Ms Campbell on the 15 September 2022. The tribunal noted that the respondent’s representative, in her submissions to the tribunal, accepted there had been a disclosure of information in circumstances where the claimant had said to Ms Campbell that she considered the CAT was unlawful. The respondent did not accept the belief was reasonable or that it is was in the public interest.

[92]The tribunal accepted there had been a disclosure of information by the claimant during the meeting on 15 September 2022. The information disclosed by the claimant set out not only that she believed the asset transfer had been unlawful but also that this was because the application had not met the requirements of the standard conditions as set out in the Council’s CAT policy.

[93]The tribunal further accepted that the claimant reasonably believed that the information disclosed tended to show a relevant failure had occurred and that she had a reasonable belief that the disclosure was made in the public interest. The tribunal could not accept the respondent’s submission that it was not in the public interest because it had merely been in the claimant’s own interests because she had not wanted to do the tasks associated with the policy review. There was no dispute regarding the fact the claimant did not want to undertake the policy review because she did not consider it necessary, however the key issue for the claimant was that the application to transfer the asset should not have been granted in the first place. The tribunal considered that issues concerning public assets and their transfer would be a matter of public interest and that the claimant reasonably believed it to be so.

[94]The tribunal concluded the claimant made a qualifying disclosure at the meeting on 15 September 2022.

[95]The claimant also asserted she made a qualifying disclosure on 5 November 2022 when she submitted her grievance. There was no dispute regarding the fact the claimant sent her grievance by email on 5 November (at 18.13) to Ms Annemarie Cunningham, HR (page 155). The grievance concerned the ways in which the claimant believed Ms Campbell was not following established legal and administrative processes. The matters listed included the asset transfer policy and an assertion that Ms Campbell and Ms Bauer knowingly progressed through committee a request for asset transfer that was not compatible with the Council’s policy or the government’s Community Empowerment Act.

[96]Ms Cunningham acknowledged receipt of the grievance on 10 November (page 161) and confirmed the grievance was not competent and could not proceed.

[97]The claimant stated in an email sent to Ms Cunningham on 17 November (page 162), entitled Grievance Complaint, that she had “actually recalled this after sending……”

[98]The respondent did not accept the grievance was a qualifying disclosure because it had been withdrawn and because it had been raised in connection with the claimant’s own interests and not in the public interest. The tribunal noted there was no dispute regarding the fact the respondent had advised the claimant the grievance was not competent and therefore could not proceed. The tribunal further accepted the grievance had been withdrawn and not ever resubmitted. The tribunal however concluded that a grievance had been received by the respondent and Ms Cunningham, or someone in HR, had read it in order reach the conclusion that it was not a competent grievance. The tribunal accordingly concluded, given the content of the grievance, that a disclosure had been made, albeit it was subsequently withdrawn.

[99]The tribunal further concluded that the disclosure made in the grievance was a qualifying disclosure because the key focus of the grievance related to the asset transfer and the review of the policy, which were issues the claimant had previously raised. There was sufficient information in the grievance to allow someone who had no previous knowledge of these matters, to understand the issue and to understand why the claimant believed a legal obligation had been breached.

[100]The tribunal was satisfied that the claimant reasonably believed the information disclosed tended to show a breach of a legal obligation and that she reasonably believed the matter was in the public interest (see above).

[101]The tribunal decided the claimant made a qualifying disclosure on the 5th November 2022 when she sent her grievance to Ms Cunningham. Was the claimant subjected to detriment because of having made a protected disclosure - was the claimant subjected to detriment?

[102]The tribunal had regard to the terms of section 47B Employment Rights Act which provides that 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.

[103]The detriments said by the claimant to have occurred and to have occurred because she had made a protected disclosure were:-(i) not being included in a restructure of the team;

(ii) not being included in the development of certain policy initiatives, specifically ~ a review of the community grants scheme; ~ the development of the warm spaces grant scheme policy and processes and ~ the Ukrainian resettlement scheme.

(iii) new line management arrangements;

(iv) being removed from team meetings;

(v) being subjected to a fact finding investigation; (GAC) report); 2023; (ix) being subjected to a disciplinary process (x) dismissal and (xi) increased workload and isolation.

[104]The first issue for the tribunal to determine is whether the claimant was subjected to the alleged detriments: so, did the act alleged by the claimant occur as asserted and if so, was that a detriment?

[105]The tribunal noted that the evidence given in respect of the first alleged detriment was scant. The only reference to this point was in the cross examination of the claimant where it was put to her that there had not been a restructure of the team. In response to this the claimant referred to the new resettlement officers, being allocated a new line manager and said “it seemed there was a change”. The claimant accepted the team concerned was Ms Campbell’s team and she was reminded that Ms Campbell had stated in evidence that there had been no restructure.

[106]The tribunal, in considering the claimant’s suggestion that there had been a restructure of the team, preferred Ms Campbell’s evidence and concluded there had not been a restructure of the team. Ms Campbell was the line manager and would know whether her team had been restructured. The tribunal further noted that even if there had been a restructure of the team, there was no evidence to suggest the basis upon which it was said this was a detriment for the claimant. The tribunal further noted that the issue of new line management arrangements is a separate point and is considered below.

[107]The second alleged detriment was that the claimant had not been included in certain policy initiatives. The claimant did not speak to this alleged detriment in her evidence in chief, but she was asked about it in cross examination. The claimant, in her responses, stated that Ms Campbell had excluded her from a review of the community grant scheme but she could not recall the timing of this and could not say if this occurred because of having made a protected disclosure. The claimant also maintained that Ms Campbell had excluded her from the development of the warm spaces grant policy and processes and the Ukrainian resettlement scheme. The claimant acknowledged the Ukrainian resettlement scheme was not part of her work, but she had “expected to be involved because [she] had been involved in the Syrian resettlement scheme”.

[108]The only other evidence regarding these matters was from Ms Campbell who confirmed there had been a review of the community grant scheme and that the claimant had no role in the resettlement scheme which was relatively new and separate. Ms Campbell, in cross examination, rejected the suggestion she had excluded the claimant from the review of the community grant scheme and confirmed she had not been the claimant’s line manager at the time. Ms Campbell also confirmed she had not excluded the claimant from the resettlement scheme work and that there had been an agreement with an outside body regarding the scheme.

[109]The tribunal took from this evidence that there had been a review of the community grant scheme, but Ms Campbell had not, as alleged, excluded the claimant from this review. The tribunal accepted Ms Campbell had not been the claimant’s line manager at the time and therefore could not have made this decision.

[110]The tribunal considered there was insufficient evidence regarding the development of the warm spaces grant policy and processes to make any finding that the claimant had been excluded from this work. The claimant’s evidence, at its strongest, was that Ms Campbell was “primarily” responsible for excluding her, but there was no evidence to say when this occurred or how this was done. Further, it would have been difficult to accept that if this had occurred, it would have been a detriment in circumstances where the claimant did not agree there should be a separate scheme for warm spaces and did not want to be involved in it.

[111]The tribunal concluded, with regards to the resettlement scheme, that the claimant was not excluded from this. The tribunal reached this conclusion because it accepted this was not part of the claimant’s role.

[112]The tribunal, for these reasons, concluded the claimant had not been subjected to the second detriment.

[113]The third detriment was that the new line management arrangements were put in place. There was no dispute regarding the fact this had happened and the claimant’s line manager changed from Ms Campbell to Ms Mackay around November 2022. The tribunal noted that the claimant did not offer any evidence or explanation why this was considered to be a detriment and this was particularly important in circumstances where the claimant, in her evidence, confirmed she had wanted a move away from Ms Campbell and was critical of the change in line management because it had not sufficiently removed her from Ms Campbell and the work carried out by that team. The tribunal took from this evidence that the detriment was not the fact new line management arrangements were put in place, but rather that they had not gone far enough in moving the claimant to a different department. In those circumstances the tribunal concluded the claimant had not been subjected to the detriment as detailed by her.

[114]The fourth detriment was being removed from team meetings. The tribunal noted this referred to a team meeting on 17 November 2022 which the claimant had been due to attend with Ms Campbell. Ms Campbell accepted the claimant was advised not to attend the meeting because her line management had changed to Ms Mackay. The tribunal accepted this alleged act did occur and that it amounted to a detriment because it was done at short notice with no explanation how the new line management arrangements were going to work when all of the claimant’s work was still within Ms Campbell’s remit.

[115]The fifth detriment was that the claimant was subjected to a fact finding investigation. There was no dispute regarding the fact the claimant was subjected to a fact finding investigation and the tribunal was satisfied this amounted to a detriment.

[116]The sixth detriment was being instructed not to send the Grants Advisory Committee (GAC) report. There was no dispute regarding the fact the claimant was instructed not to send the GAC report. The preparation of the report fell within the claimant’s remit and, taking that at face value, the tribunal accepted the instruction amounted to a detriment.

[117]The seventh detriment was being suspended on 7 March 2023. There was no dispute regarding the fact the claimant was suspended on 7 March 2023 and the tribunal accepted this amounted to a detriment.

[118]The eight detriment was being prevented from attending the GAC meeting on the 8 March 2023. The tribunal accepted the claimant was instructed not to attend the GAC meeting on 8 March 2023 and that this amounted to a detriment in circumstances where the claimant always attended that meeting.

[119]The ninth detriment was being subjected to a disciplinary process. There was no dispute regarding the fact the claimant was subjected to a disciplinary process and the tribunal accepted this amounted to a detriment.

[120]The tenth detriment was dismissal and there was no dispute regarding the fact the claimant was dismissed and that this would amount to a detriment.

[121]The final detriment was increased workload and isolation. The claimant clarified that she believed her administrative workload had been increased, but that she had been removed from policy work and that she had been sidelined by Ms Campbell. The claimant put a timeframe of December 2022 to March 2023 on this. The tribunal considered that the removal from policy work has been dealt with above in relation to the second detriment. The claimant did not clarify what she meant by being “sidelined”: for example, there was a lack of detail to allow the tribunal to understand when this was said to have happened and what happened. The tribunal considered the alleged detriment had been far too generally identified and for this reason (and having regard to the conclusions set out above regarding the second detriment) the tribunal concluded the detriment did not occur.

[122]The tribunal in conclusion decided the claimant had been subjected to detriment in the following ways: (iv) being removed from team meetings (17th November 2022); (v) being subjected to a fact finding investigation (Ms Bauer instructed this investigation to be carried out on 17 November 2022); (GAC) report (1 March 2023); (Ms Mackay told the claimant on the 6th March that it would not be appropriate for the claimant to attend the GAC meeting); (ix) being subjected to a disciplinary process (the claimant was first invited to attend a disciplinary hearing on 13 December 2023. The disciplinary hearing took place on 28 May 2024 and the claimant received out the outcome letter dated 24 June 2024) (x) dismissal (effective date of termination was 24 June 2024) . Was the claimant subjected to these detriments on the ground she made a protected disclosure/s

[123]The tribunal must now go on to determine whether the claimant was subjected to these detriments on the ground she made a protected disclosure. The tribunal, prior to considering this issue, had regard to the case of Aspinall v MSI Mech Forge Ltd EAT 891/01 where it was said that “on the ground that” requires a causal nexus between the fact of making a protected disclosure and the decision of the respondent to subject the worker to the detriment.

[124]The tribunal also had regard to the case of Fecitt v NHS Manchester

2021 ICR 372

where the Court of Appeal confirmed the test to be applied was whether the protected disclosure materially influenced the employer’s treatment of the worker. The tribunal had to have regard to the conscious and unconscious motivation of the employer.

[125]The claimant, in her submissions, made reference to the complaint submitted by Ms Campbell on 2 November 2022 which complained about the claimant and made reference to the community asset transfer. The claimant, on this basis, made a causal link between disclosures (which had been about the community asset transfer) and the detriments. This submission is considered below.

[126]The tribunal reminded itself that the protected disclosures made by the claimant were on 15 September 2022 and on 6 November 2022. The issue of knowledge of the disclosure/s was an issue in this case and this is also dealt with as appropriate below.

[127]The tribunal firstly had regard to the detriment of the claimant being removed from team meetings which occurred on 17 November 2022. The tribunal noted above that Ms Campbell accepted the claimant had been excluded from the team meeting on that date. Ms Campbell was also aware the claimant had made a disclosure of information at the one-to-one meeting on15 September 2022 which could be classed as “whistleblowing”. Ms Campbell had referred the claimant, at that meeting, to the respondent’s whistleblowing policy. There was no evidence before the tribunal to suggest Ms Campbell had been aware of the claimant’s grievance on 6 November 2022. The claimant, by this time, had moved to be line managed by Ms Mackay.

[128]The tribunal considered what had motivated Ms Campbell’s decision to exclude the claimant from the team meeting on 17 November. Ms Campbell told the tribunal the claimant had recently moved to be line managed by Ms Mackay and she considered that in those circumstances it would be more appropriate for the claimant to meet with Ms Mackay.

[129]The tribunal noted Ms Mackay commenced temporary line management of the claimant on 10 November 2022 and that they had their first meeting on 24 November. The tribunal considered the fact their first meeting was not until 24 November lent weight to the position of Ms Campbell that the claimant should not attend the team meeting until she had met with Ms Mackay.

[130]The tribunal also had regard to the fact the first disclosure took place on the 15 September and this detriment occurred on 17 November, almost two months later. The tribunal considered that much had happened in that period in terms of the deterioration in the relationship between Ms Campbell and the claimant and the escalation of the claimant’s behaviour and whilst some of that revolved around the community asset transfer and the review of the policy, it had also moved on to other issues such as the warm spaces grant scheme.

[131]The tribunal must consider what consciously and unconsciously motivated Ms Campbell to act as she did and we must ask whether the disclosure made by the claimant materially influenced Ms Campbell to act as she did. The tribunal considered that Ms Campbell’s actions in excluding the claimant from the team meeting were motivated wholly by the fact the claimant had recently moved to be line managed by Ms Mackay and her belief that the claimant should meet with her new line manager first before attending any further team meetings. Ms Campbell had put in a formal complaint about the claimant and the new line management arrangements stemmed from this. The tribunal considered all of those facts supported the motivations of Ms Campbell. There was nothing to support the disclosure made at the one-to-one meeting on 15 September being the reason for the exclusion in circumstances where matters had moved on considerably since that time. Ms Campbell’s issues with the claimant concerned her behaviour, which had been an issue prior to the disclosure being made and had only deteriorated.

[132]The claimant next argued that being subjected to a fact finding investigation was a detriment on the ground she had made a protected disclosure. The tribunal noted that this decision had been made by Ms Bauer on 17 November following receipt of Ms Campbell’s formal complaint about the claimant.

[133]There was little clarity from the claimant whether she sought to argue this detriment was on the ground of the first disclosure or the second disclosure or both. The tribunal was satisfied Ms Bauer had knowledge of the first disclosure because the note of the one-to-one meeting (page 127) confirmed matters would be escalated to Ms Bauer because of the nature of the comments made by the claimant regarding Ms Campbell. The tribunal was not satisfied Ms Bauer had knowledge of the second disclosure, being the claimant’s grievance, because Ms Bauer’s evidence was that although she was aware a grievance had been submitted by the claimant, she was not aware of its content and she had been told the grievance was not competent. The tribunal accepted the evidence of Ms Bauer and accepted she was not aware of the second disclosure.

[134]The tribunal asked what motivated Ms Bauer to instruct a fact-finding investigation and whether she was consciously or unconsciously motivated by the fact of the claimant’s first disclosure. The tribunal considered that timing strongly supported that Ms Bauer instructed a fact finding investigation following upon the receipt of Ms Campbell’s formal complaint about the claimant’s behaviours. This was sent by Ms Campbell to Ms Bauer on 2 November. The fact Ms Campbell made a complaint was not a surprise to Ms Bauer in circumstances where she was aware of the difficulties with the claimant’s behaviour and had previously advised Ms Campbell about approaching HR for advice. The tribunal accepted Ms Bauer discussed the complaint with senior HR colleagues before deciding to instruct a fact finding investigation on 17 November. This was some two months after the first disclosure had been made.

[135]The claimant argued there was a causative link between the disclosure and the detriment because Ms Campbell’s formal complaint had referred to the community asset transfer. The tribunal could not accept that argument. The disclosure concerned the legality of the community asset transfer whereas the complaint concerned the claimant’s behaviours in a number of respects. The fact the claimant had challenged the legality of the community asset transfer throughout its process and at the one-to-one meeting on 15 September, and the fact the respondent had taken no adverse action against the claimant at that time, supported the fact that it was the claimant’s behaviour rather than the disclosure that motivated Ms Bauer’s actions.

[136]The tribunal concluded, for these reasons, that the first disclosure had not materially influenced Ms Bauer to instruct the fact finding investigation.

[137]The claimant next argued that the detriment of being instructed not to send the GAC report was done on the ground she had made a protected disclosure. The tribunal acknowledged that the instruction had been given by Ms Mackay. There was no clarity whether the claimant relied on the detriment being on the ground of the first and/or the second disclosure and there was no evidence whether Ms Mackay knew of the first and/or second disclosure.

[138]The evidence before the tribunal regarding this matter came from Ms Bauer and the fact finding report. The respondent had a Community Grant Scheme which the claimant had been involved with for some time. The respondent agreed to implement a Warm Spaces Grant scheme as a way to help with the cost-of-living crisis. The claimant, notwithstanding clear information and direction that the schemes were separate, with two separate funding caps, continued to assert otherwise and insist they were the same scheme. The Grant Advisory Committee report was usually prepared by the claimant (regarding the community grant scheme) and approved by Ms Bauer and detailed the grant applications and an assessment of each of them. This is sent to the GAC for approval of grant applications.

[139]A meeting took place on 1 March 2023 with Ms Campbell, Ms Mackay, the claimant and Ms Alison Gray present. The meeting was reconvened on 2 March. The claimant refused to make requested changes to the GAC report and left the meeting after being told that the work would be allocated to someone else. Ms Mackay told the claimant she would not attend the GAC meeting. The claimant in fact worked with Ms Gray to complete the GAC report.

[140]The tribunal concluded, on the basis of the evidence of Ms Bauer, (which was not disputed by the claimant) and having regard to the fact finding report, that the reason why Ms Mackay instructed the claimant not to send the GAC report was because the claimant refused to make the amendments which Ms Mackay had instructed should be made. The claimant, who was adamant the two schemes were really one scheme and that there was a risk of double funding, refused to do as requested by Ms Mackay and insisted on producing a GAC report in the format which supported her position.

[141]There was no evidence to support the claimant’s position that Ms Mackay was motivated by the disclosures made by the claimant. This was particularly so in circumstances where the claimant did not clarify which disclosure motivated the detriment and did not suggest Ms Mackay had knowledge of either disclosures. The tribunal, for these reasons, concluded neither disclosure materially influenced Ms Mackay’s decision to instruct the claimant not to send the GAC report.

[142]The claimant argued that the detriment of being suspended on 7 March 2023 was on the ground that she had made the first protected disclosure. The decision to suspend the claimant was made by Ms Bauer. Ms Bauer, in her evidence, told the tribunal that on Monday 5th March she had met with a senior HR officer to undertake a suspension risk assessment. Suspension was being considered because of the breakdown in trust and confidence in the claimant, the fact the claimant’s behaviours were poor and she was repeatedly not following reasonable management instructions. The latest example of this was with regards to the GAC report which the claimant and Ms Gray had ultimately sent to the GAC without approval from management, and which had led to the report having to be retracted and replaced with Ms Mackay’s report. The claimant had been told not to attend the GAC meeting, but the claimant had responded to this to say she would attend and the respondent did not want the claimant to attend the meeting.

[143]The tribunal firstly noted there was an intervening period of almost six months between the first disclosure and this detriment. The tribunal also noted that the circumstances which led to the claimant’s suspension had nothing whatsoever to do with the community asset transfer (that is, the subject matter of the disclosure). The tribunal considered it of note that the respondent had not suspended the claimant upon receipt of the formal complaint and pending the fact finding investigation. The issue of suspension only came about following the claimant’s behaviour regarding the community grant scheme and the warm spaces grant scheme and the GAC report.

[144]The claimant offered no explanation why this detriment was caused by the first disclosure other than to believe everything went back to the issue of the community asset transfer. The difficulty with that position was that it ignored the fact that the claimant’s behaviour regarding the two grant schemes had nothing whatsoever to do with the community asset transfer and policy.

[145]The tribunal concluded for these reasons that the decision to suspend the claimant was motivated by the fact the respondent did not want the claimant to attend the GAC meeting in circumstances where there was real concern that the claimant would ignore management’s instruction not to attend and where the claimant had already confirmed she intended to ignore the instruction not to attend. The first disclosure was so far removed in time and relevance to the circumstances leading to the decision to suspend that the tribunal was absolutely satisfied it did not materially influence Ms Bauer’s decision to suspend.

[146]The claimant next argued that the detriment of being instructed not to attend the GAC meeting was on the ground she had made a protected disclosure. The instruction not to attend the GAC was given by Ms Mackay on 6 March. There was no evidence Ms Mackay knew of the first disclosure. Further and in any event the tribunal considered that for the reasons set out above that even if Ms Mackay had known of the first disclosure, it did not materially influence her decision to issue this instruction to the claimant.

[147]The claimant next argued that being subjected to a disciplinary process was a detriment done on the ground she had made a protected disclosure. The issue of who had taken the decision to proceed to a disciplinary hearing was not entirely clear. Ms Fegan told the tribunal that in October 2023 she had been allocated the disciplining officer and she believed either Ms Anne Davie, Chief Executive or Ms Bauer had made this decision. Ms Bauer was not asked about this matter in evidence.

[148]The tribunal considered that if Ms Davie took the decision, there was no evidence to suggest she had been aware of either protected disclosure and accordingly the disclosure/s could not have materially influenced her decision. If Ms Bauer made the decision, she was aware of the first protected disclosure made on 15 September 2022.

[149]The tribunal, in considering what materially influenced Ms Bauer in making the decision to proceed to a disciplinary hearing, had regard to the fact that a lengthy and detailed fact finding investigation was undertaken which investigated the allegations of unacceptable/inappropriate behaviours by the claimant and failure to follow and refusal to comply with reasonable management instructions: both of these matters were serious matters. This investigation followed on from the complaint made by Ms Campbell which had not been about the community asset transfer (the subject of the disclosure) but rather the claimant’s behaviour. The fact finding report (page 199) detailed the unacceptable behaviour and the failure to follow/refusal to comply with reasonable management instructions. The details made clear that the issue was not the fact the claimant disagreed with the transfer, but rather her behaviour: for example, her refusal to engage with the process of reviewing the Community Asset Transfer policy and a disrespectful attitude towards Ms Campbell with daily complaints that seemed to stem from the claimant’s disagreement with a Council decision about a community asset transfer.

[150]Ms Bauer, in response to questions in cross examination, confirmed she had been aware the claimant was unhappy with the community asset transfer, but the elected members on the committee had made the decision. Ms Bauer acknowledged there were issues regarding the transfer in terms of the policy, but there had also been social and community benefits and further information had been sought before the decision was made. Ms Bauer rejected the suggestion that the disclosure had been the reason for the decision to proceed to a disciplinary hearing and confirmed there had been a “catalogue” of issues to address.

[151]The tribunal had regard to the fact the one-to-one meeting took place on the 15 September 2022 and the decision to proceed to a disciplinary hearing was made in or about a year later.

[152]The tribunal concluded that the decision to proceed to a disciplinary hearing was taken because the fact finding investigation had been concluded and identified a number of significant issues to be addressed (which did not relate to the claimant’s belief the community asset transfer was illegal). Ms Bauer was materially influenced by the fact there was a catalogue of unacceptable behavioural issues to be addressed and numerous instances of the claimant failing to follow, or refusing to follow, reasonable management instructions. The fact of the protected disclosure was not a material influence in circumstances where matters had moved on: the issue was not the claimant’s disagreement with the decision made, but her subsequent behaviour particularly in matters which had no bearing to the community asset transfer policy, such as the warm spaces grant and the preparation of the GAC report.

[153]The claimant’s final argument was that dismissal was a detriment done on the ground she made a protected disclosure. The decision to dismiss was made by Ms Fegan. Ms Fegan, prior to commencing the disciplinary hearing, had not been aware of the details of the one-to-one meeting on 15 September 2022. The note of that meeting was referred to in the statements of Ms Campbell and Ms Mackay and, having had regard to those statements, Ms Fegan became aware of the content of the note (the first disclosure).

[154]Ms Fegan was not aware of the claimant’s grievance raised on 6 November 2022. The fact of a grievance being raised was referenced in the fact finding report but only to the extent that it confirmed the grievance had not been competent and had been withdrawn. Ms Fegan did not see the claimant’s grievance or know of its content until she was referred to it at this hearing. Accordingly, in considering whether the claimant was subjected to the detriment of dismissal on the ground of having made a protected disclosure, the only disclosure within the knowledge of Ms Fegan at the time of making the decision to dismiss was the first disclosure in September 2022.

[155]The tribunal has dealt with the issue of whether the dismissal was automatically unfair because the reason for it was having made a protected disclosure below.

[156]The tribunal, in conclusion, decided to dismiss this complaint because the claimant was not subjected to detriment on the ground of making a protected disclosure. Was the dismissal of the claimant automatically unfair (section 103A Employment Rights Act)

[157]The tribunal had regard firstly to the terms of section 103A Employment Rights Act which provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[158]The claimant made two protected disclosures: the first on 15 September 2022 and the second on 6 November 2022. The tribunal noted above that Ms Fegan, who made the decision to dismiss, had no knowledge of the second disclosure. Accordingly the question is whether she took the decision to dismiss because the claimant had made a protected disclosure in September 2022.

[159]Ms Fegan, in her evidence to the tribunal, summarised the main issues which had been explored at the disciplinary hearing and they were the community asset transfer and policy, the recruitment of the resettlement team, the cost of living paper , the warm spaces grant scheme and the GAC. Ms Fegan, in relation to the community asset transfer acknowledged there was “absolute disagreement” from the claimant to Ms Campbell that the community asset report to Council should not have been progressed. The claimant believed the Council’s decision not to be lawful. The committee had asked for a review of the policy because they had kept sending the application back for further information. This was the first time the committee had experienced the policy not facilitating a transfer.

[160]Ms Fegan noted the Council’s Chief Solicitor had been present at the committee meeting when the decision had been made to approve the application and seek a review of the policy. Ms Fegan was satisfied the claimant knew of this because she had been told by Ms Campbell.

[161]Ms Fegan found that the claimant was not told to remove the standard conditions from the policy: she was asked to review the policy but refused to do so. She also refused her manager’s request to become involved in drafting the standard operating procedure.

[162]The tribunal considered it clear from this evidence that the claimant’s view of the lawfulness of the decision to approve the transfer was not a concern for the respondent. The claimant had drafted the Community Asset Transfer policy and understood the standard conditions. The claimant’s view that the application should not be approved was the recommendation in the reports prepared for the senior management team and by the senior management team for consideration by the committee. The reason why that recommendation was made was because of the standard conditions. The respondent did not take issue with the fact the claimant believed the transfer not to be lawful: the issue for the respondent was the claimant’s subsequent behaviour in terms of her conduct towards Ms Campbell and her refusal to comply with reasonable management instructions. The claimant’s misconduct extended far beyond anything to do with the community asset transfer and the policy and was escalating.

[163]The tribunal asked whether the decision of Ms Fegan to dismiss the claimant was consciously or unconsciously motivated by the fact of what had been said by the claimant in the one-to-one meeting with Ms Campbell in September 2022. We were satisfied that the decision to dismiss was not motivated by the protected disclosure made in September 2022 and we say that because the information disclosed by the claimant simply was not an issue for the respondent. Further, the disclosure was made in September 2022 and Ms Fegan made the decision to dismiss in June 2024. The reason for the dismissal was not because the claimant had made a protected disclosure voicing her view that the transfer was not lawful, but rather because of her behaviour and her refusal to comply with reasonable management instructions.

[164]The tribunal, for these reasons, decided the reason for the claimant’s dismissal was not because she had made a protected disclosure. The tribunal dismissed this aspect of the claim. Unfair dismissal

[165]The tribunal had regard to the terms of section 98 Employment Rights Act which provides that it is for the employer to show the reason for the dismissal and that it is either a reason falling within section 98(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. If the employer is successful in showing the reason for the dismissal, the tribunal must go on to consider whether the employer acted reasonably or unreasonably in treating it as a sufficient reasons for dismissing the employee.

[166]The tribunal also had regard to the case of British Home Stores Ltd v Burchell (above) to which it was referred. In this case the EAT held that the employer must show that:• it believed the employee guilty of misconduct;

• it had in mind reasonable grounds upon which to sustain that belief and

• at the stage at which that belief was formed on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.

[167]The tribunal turned to have regard to the investigation carried out by the respondent. Ms Bauer instructed Mr Lewis to carry out the fact finding investigation following upon receipt of the formal complaint regarding the claimant made by Ms Campbell. Mr Lewis interviewed a large number of people and the claimant did not, in her evidence, suggest that Mr Lewis had interviewed people who were not relevant to the issues, or that he had omitted to interview relevant people. The claimant’s main criticism of the fact find investigation was that the statements obtained by Mr Lewis from the various witnesses had not been “wet signed”. Ms Fegan, when asked about this in cross examination, confirmed that Mr Lewis confirmed the statements had been signed and an email from each person had been obtained further confirming this. The tribunal accepted Ms Fegan’s evidence and concluded in the circumstances that the respondent had carried out as much investigation as was reasonable in the circumstances.

[168]The claimant raised the fact that Mr Lewis was line managed by Ms Bauer and took from this that the investigation had not been independent. Ms Bauer accepted Mr Lewis was line managed by her and explained that in terms of the respondent’s policy, the person conducting the fact find came from her area.

[169]The tribunal noted there was no evidence to support the claimant’s assertion there had been a lack of independence, and no suggestion Mr Lewis had included or omitted points because of the line-manager relationship. In the circumstances, the tribunal did not attach any weight to this point.

[170]The tribunal next asked whether, on the basis of the investigation, the respondent had reasonable grounds to sustain their belief that the claimant was guilty of the allegations. The allegations against the claimant were set out in the invite to the disciplinary hearing letter (page 414). The allegations were that there had been a breach of the Employee Code of Conduct/Discipline at Work policy and behaviour that was not in accordance with the Dignity at Work policy, including:• a pattern of inappropriate and unacceptable behaviour/conduct;

• unreasonable and persistent refusal to comply with management instructions;

• failure to carry out work in line with Council decisions;

• action which brings the name of the Council into disrepute and

• serious breach of trust and confidence.

[171]Ms Fegan, in the letter of outcome dated 24 June 2024 (page 468) set out each allegation and her decision. Ms Fegan noted, with regards to a pattern of inappropriate and unacceptable behaviour/conduct that four of the claimant’s colleagues, her substantive line manager and interim line manager had all confirmed that the claimant’s body language, conduct and tone in team meetings was challenging and rude. In addition to this, a number of email trails had been provided which clearly supported the allegations. These included:• one where the claimant called Ms Campbell a LIAR;

• one when the claimant bluntly refused to accept corrections to a minute of the CLD Steering Group from Ms Campbell;

• one where the claimant challenged a recruitment process when her colleague was not appointed to the newly formed resettlement team and

• an email where the claimant referred to the newly appointed resettlement team as “the vaccination team” when asking that they not be included in her team meetings.

[172]Ms Fegan found the allegation to have been fully substantiated.

[173]The next allegation concerned unreasonable and persistent failure to comply with management instructions. Ms Fegan noted that evidence had been provided in relation to not undertaking a review of the Community Asset Transfer policy in line with the decision of the Council, specifically in relation to one of the standard clauses; failure to accept that the Warm Spaces Grant Scheme and the Community Grant Scheme were two separate grant schemes; insistence that she could not be involved in the warm spaces grant scheme because it was ill-thought out and shambolic and insistence that she would not complete the final GAC report in line with management instruction provided at the meeting on 2 March.

[174]Ms Fegan noted the claimant considered the asset transfer decision illegal and maintained that position even when advised that the decision had been taken in consultation with the Chief Solicitor and Monitoring Officer who attends Council meetings. In relation to the warm spaces grant scheme, the claimant refused to accept feedback from the accountants, via her line manager, that the funding came from a separate cost centre to the community grant. The claimant refused to accept feedback from Ms Bauer that the scheme was a separate scheme and should be administered as such. The claimant continued to insist it was the same scheme. Ms Fegan concluded, based on the evidence, that the allegation was fully substantiated.

[175]The next allegation was failure to carry out work in line with Council decisions. This related to the respondent’s decision regarding the review of the community asset transfer policy and the warm spaces grant scheme. Ms Fegan noted that as council officers it is their responsibility to advise members of the Council, but that it was elected members who made Council decisions. It was then for Council officers in the relevant service areas to implement those decisions. Ms Fegan was satisfied the claimant knew this but acted contrary to it in any event. Ms Fegan found the allegation against the claimant fully substantiated.

[176]The next allegation was failure to adhere to critical instructions and gross insubordination. This allegation related to refusal to progress her line manager’s request to update minutes; refusal to provide a set of minutes to Ms Campbell following a request by Ms Mackay, responding that she could find them in the folders; refusal to provide Ms Campbell with a list of community grant recipients, citing GDPR concerns, despite feedback from Ms Campbell that the Data Protection Officer had confirmed that the request did not breach GDPR; refusal to review the Community Asset Transfer policy in line with the Council’s decision; refusal to accept the warm spaces grant scheme was a separate scheme to the community grant scheme and refusal to be involved in its implementation and refusal to update the final report to the GAC in line with management instructions at the meeting on the 2 March 2023. Ms Fegan set out the evidence gathered regarding this allegation and her finding that the allegation had been fully substantiated.

[177]The next allegation was actions which bring the name of the Council into disrepute. Ms Campbell and Ms Bauer alleged in their statements that the claimant’s actions and failures to implement council decisions/comply with management instructions bring the council into disrepute and one key example of this was in respect of the GAC report. Ms Fegan noted the evidence supported the fact that the claimant worked on the final GAC report with Ms Gray and, once completed, sent it to the GAC in the knowledge that the report had not been sent to the line manager and in the knowledge that its contents were in dispute. The report had had to be withdrawn and a new version issued. This did not prevent the GAC from becoming aware of the different recommendations made in the two reports. Ms Fegan concluded the allegation had been fully substantiated.

[178]The final allegation related to a serious breach of trust and confidence. Ms Fegan concluded that having found all of the allegations fully substantiated, these contributed to a serious breach of trust and confidence in the claimant’s ability to carry out her role in line with Council decisions and the requirements of her team. This allegation was also fully substantiated.

[179]The tribunal concluded, having had regard to the information available to Ms Fegan, the notes of the disciplinary hearing and Ms Fegan’s evidence, that the respondent had reasonable grounds upon which to sustain their belief that the claimant was guilty of the misconduct alleged.

[180]The tribunal next had regard to the procedure followed by the respondent when dismissing the claimant. The claimant challenged the fairness of the process principally because she had been suspended without meeting Ms Bauer. The tribunal noted that Ms Bauer had invited the claimant to meet with her, but the claimant wished to have a trade union representative present. There were no trade union representatives available because it was the monthly executive meeting. There were attempts to have an alternative representative present but the claimant insisted on a trade union representative. Ultimately Ms Bauer took the decision to suspend the claimant on full pay pending conclusion of the fact finding investigation.

[181]Ms Bauer acknowledged that she would have preferred to have suspended the claimant face to face, but that had not been possible. There had been a degree of urgency regarding the suspension in circumstances where the respondent wanted to ensure the claimant did not attend the GAC meeting.

[182]The tribunal noted there did not appear to be any dispute regarding the fact that suspension of an employee without a meeting/representative present was unusual. However, beyond the fact that it was unusual, there was no evidence to suggest it had caused unfairness or disadvantage to the claimant: this was particularly so given the respondent could have suspended the claimant much earlier in the process.

[183]The tribunal concluded the respondent followed a fair procedure when dismissing the claimant. The tribunal reached that conclusion in circumstances where the respondent had carried out a fact finding investigation, invited the claimant to a disciplinary hearing, provided the claimant with a copy of the fact finding report and all statements in advance of the hearing, gave the claimant an opportunity to say what she wanted to say in relation to the allegations, considered the points the claimant made regarding the allegations and in mitigation and gave her a right to appeal against the decision to dismiss.

[184]The tribunal next considered whether dismissal of the claimant for reasons of misconduct was fair or unfair. The test to be applied is whether the decision of the respondent to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted. The test is not whether the tribunal would have dismissed the claimant.

[185]The tribunal (above) noted the allegations against the claimant were fully substantiated. The tribunal further noted, from the evidence of Ms Fegan and the letter of outcome, that Ms Fegan had regard to the points made by the claimant in rebuttal and in mitigation. There was no suggestion by the claimant that her points had not been considered by Ms Fegan.

[186]Ms Fegan also gave consideration to whether there were any options other than dismissal. Ms Fegan told the tribunal that her concern was the failure to comply with management instructions and Council decisions, and there had been no reassurance that if the claimant was moved to another part of the organisation, that this would be any different. The claimant, in cross examination, accepted Ms Fegan had been entitled to conclude the claimant’s behaviour would not modify going forward.

[187]The claimant argued her dismissal had been unfair because the issues against her had been exaggerated and unreasonable; the issue with the grants report (GAC) had been a “storm in a teacup”; Ms Gray had not been dismissed and all of this could have been avoided if the claimant had been moved away from Ms Campbell. The claimant described her issue as being with Ms Campbell and not the respondent.

[188]The tribunal considered the fact the claimant saw the allegations against her as “exaggerated” and “unreasonable” and the GAC issues a “storm in a teacup” highlighted the fact the claimant was blinkered by her own beliefs and unable to appreciate or acknowledge her behaviour. Further, the claimant’s description of the issue being with Ms Campbell and not the respondent failed to appreciate that matters had escalated far beyond Ms Campbell: Ms , for example, described the claimant as being “unmanageable” and Ms Bauer had taken issue with the claimant regarding her position in respect of the warm spaces grant scheme. The fact the claimant saw fit to describe one of the Council’s policies as “ill thought out and shambolic” underscored the lack of credibility and awareness in the claimant’s position.

[189]The respondent accepted that Ms Gray had not been dismissed. Ms Fegan confirmed Ms Gray had been disciplined with a final written warning but not dismissed. Ms Fegan did not consider there had been any inconsistency of treatment in circumstances where the allegations against the claimant concerned much more than the GAC report.

[190]The claimant also argued that she had not been given an opportunity to address the behavioural concerns. The tribunal could not accept that submission because the evidence clearly demonstrated that the claimant had been given a number of opportunities to address her behaviour: for example, the offer of mediation by Ms Campbell; moving to a different line manager or carrying out management instructions when given reassurance regarding, for example, the fact the warm spaces grant scheme and the community grant scheme were two different schemes.

[191]The tribunal considered that a detailed fact finding investigation was carried out by the respondent and that Ms Fegan conducted a very thorough disciplinary hearing, during which the allegations were discussed, the claimant had an opportunity to say what she wanted to say and Ms Fegan had regard to all of those points before finding the allegations substantiated. The tribunal was satisfied the respondent had reasonable grounds to sustain their belief that the claimant was guilty of misconduct. The tribunal concluded that the decision to dismiss in those circumstances was reasonable: the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. The dismissal was fair.