MISS M C DOHERTY v THE TRAINING AND DEVELOPMENT AGENCY FOR SCHOOLS [2009] UKEAT 0394_09_2910

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0394_09_2910

Case No Appeal No. UKEAT/0394/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS M C DOHERTYAPPELLANT

THE TRAINING AND DEVELOPMENT AGENCY FOR SCHOOLSRESPONDENT

Before

Mrs Justice Cox Professor S R Corby Mr M Worthington

Date 29 October 2009

[1]APPEARANCES For the Appellant MR NICHOLAS TOMS (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House of Lords Great Russell Street London WC1B 3LW For the Respondent MR PHILIP MEAD (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team) One Kemble Street London WC2B 4TS SUMMARY UNFAIR DISMISSAL Reason for dismissal including substantial other reason Reasonableness of dismissal JURISDICTIONAL POINTS: Extension of time: just and equitable VICTIMISATION DISCRIMINATION: Other forms of victimisation The Claimant, a senior manager employed by the TDA, appealed against the ET's dismissal of her victimisation and unfair dismissal claims. The challenges on appeal were based on perversity and flawed reasoning by the Tribunal in a case involving extensive factual dispute, in which the ET upheld one only of the victimisation complaints. The appeal in relation to the victimisation claim was dismissed, save that the appeal against the finding that there was no jurisdiction to determine her one, successful, complaint was upheld. The Claimant succeeded in her perversity challenge to the decision on unfair dismissal and the case was remitted for re-determination to a fresh ET. THE HONOURABLE MRS JUSTICE COX This is an appeal by the Claimant, Mary Doherty, from a judgment of the London Central Employment Tribunal, promulgated with reasons on 18 June 2008, dismissing her claims of sex discrimination by way of victimisation and unfair dismissal.

[2]The Respondent, the Training and Development Agency for Schools (TDA), has responsibility in England and Wales for the recruitment and training of teachers. The Claimant, who was employed as Director of Teachers Programme, had joined its forerunner (the Teacher Training Agency - TTA) in November 2000, as Director of Teacher Supply and Recruitment (TSR). She had worked in the education field for over 30 years.

[3]The events which ultimately formed the subject matter of her complaints spanned a period running from 2001 to 18 December 2006, when she was dismissed with effect from 20 December 2006. Her appeal against that dismissal was rejected on 2 February 2007.

[4]She submitted two claims to the Tribunal, firstly on 17 August 2006 and then, after her dismissal, on 6 March 2007.

[5]She complained in her first claim of direct sex discrimination, relying on four substantive acts and other background matters, which were identified as the issues to be determined at a CMD held on 12 October 2006.

[6]At the subsequent CMD, held on 21 June 2007 to consider both claims, those issues were confirmed. In relation to the second claim it was agreed that the Tribunal had to determine claims of(1) unfair dismissal; and

(2) victimisation (including jurisdictional time-limit/continuing act issues in relation to matters pre-dating 23 September 2006).

[7]The Tribunal hearing commenced on 2 November 2007, both parties being represented by counsel. On that day the Claimant withdrew her complaint of direct sex discrimination in the first claim; and she was permitted to amend that claim to be one of sex discrimination by way of victimisation, relying essentially on the same facts. The Tribunal refused an application by the Claimant to further amend her ET1 by adding a completely new claim of direct sex discrimination, and no issue as to that arises in this appeal.

[8]The hearing lasted some 24 days, adjourning part heard from 23 November 2007 to 26 March 2008 and ending on 3 April 2008. The judgment reflects the substantial quantity of evidence adduced and the extensive factual dispute between the parties. The Facts

[9]We shall endeavour to refer to the main points which are relevant to the issues arising in this appeal. At a preliminary hearing in the EAT, grounds 1, 2, 5 – 7 and 9 – 10 only were permitted to proceed to a full hearing, grounds 3, 4 and 8 being dismissed. However, the permitted grounds raise allegations of perversity and a failure by the Tribunal to consider the facts as a whole in arriving at their decisions, and it is therefore necessary to refer to the factual matrix in greater detail than would otherwise be the case. The Early Years and the Claimant's Appraisals

[10]When the Claimant joined the TTA in November 2000 she led a group of senior employees. At first all appeared to go well. In the early years the Tribunal found that the then Chief Executive, Ralph Tabberer, relied extensively upon the Claimant, who had shown herself to be a person of substantial ability and commitment. As a result of their joint and effective contributions the TTA became significantly more successful. It eventually evolved into the current Respondent.

[11]In these early years the Tribunal noted occasional, minor difficulties, in relation to two members of staff managed by the Claimant (Helen Lepieta and Matt Mitchell), but the Claimant's annual appraisal for 2001 – 2002, carried out in July 2002, was noted to be an "excellent" one. The then Chair of the Board noted that the Claimant's job was "one of the toughest jobs in education" and recorded that "Mary is carrying it out with distinction". Mr Tabberer noted that staff satisfaction in general had risen and that, in relation to the Claimant, "the personal coaching and challenge she has provided have been the source of strength and the guarantee of performance – sometimes, the only source or guarantee before new systems are fully embedded".

[12]In late 2001 and early 2002 Michael Day and Christopher Dee joined the Respondent from the DfES as Directors.

[13]Mr Tabberer had encouraged all the Directors of the Respondent to be challenging, in respect of each others papers or views. The Claimant was found to be "trenchantly critical", if she considered papers presented by her fellow Directors at senior management meetings to be poorly conceived or inaccurate. Mr Day did not find these discussions fruitful. Mr Dee's response was to adopt a more jovial and jocular style. The Claimant saw herself as the butt of these jokes, but the Tribunal found that the evidence did not support this suggestion.

[14]A dispute arose in late 2002, when Mr Day was annoyed with the Claimant for raising with Mr Tabberer a matter for which he had primary responsibility. In general, however, Mr Day was found to have had satisfactory meetings and dealings with the Claimant.

[15]In May 2003 the Claimant underwent her performance appraisal for 2002/2003. This was also very positive. The Claimant was awarded a "highly effective" rating in respect of staff development, and the Claimant's results in the annual staff satisfaction survey were also good. It was noted that she adapted her management approach to individuals, "with some using a directive style until she perceives people are mature in role, and with others allowing more latitude. This gives her a high performing team culture. Mary inspires the loyalty of good colleagues, recognises training needs and concentrates on delivery". Mr Tabberer made reference to one member of staff who had "not settled or met delivery expectations", namely Linda Rowe. He had, however, dealt with that matter and the Tribunal were satisfied that Mr Tabberer had no criticism of the Claimant in respect of the circumstances under which Ms Rowe left the Claimant's Directorate to go elsewhere.

[16]Mr Tabberer did note that there was one area for improvement, namely "the extent to which other Groups perceive TSR as easy to work with". However, he also noted that, while some managers had not performed to the required level, the Claimant "takes responsibility when the chips are down and assures proper delivery". He noted that the Claimant's relationships with senior management peers were "occasionally uneven and some have at times found her difficult to work with", but considered that "these difficulties emerge from Mary's high standards and expectations and have always been resolved".

[17]The ratings given to the Claimant were either "met with distinction" or "objectives met in full" or somewhere between the two.

[18]Her overall result in this appraisal was what appeared to be the top grade, namely "1 very good". However, the Claimant then discovered that it was possible to receive a higher "1 Star" grading and appealed, explaining the further evidence that she would have produced in order to try and obtain it. Mr Tabberer responded by referring to the fact that several staff had moved out of her Directorate to other Directorates. He stated that he had drafted the sentence about that fact "…in order to temper the positive part of my judgment about her leadership with the fact that there have been occasions when a few individuals within the Group's staff have expressed difficulty with Mary's management style." He continued, "The record can be changed to read 'occasionally, there have been colleagues who have not settled or met delivery targets', but this does not change my overall judgment".

[19]The upshot was that her appeal was rejected, the letter stating that the Appeal Panel "noted the concerns that your line-manager raised and your response to these concerns with regards to working with colleagues, management style …".

[20]Before her next performance appraisal, in May 2004, the Tribunal refer to only one incident, towards the end of 2003, when the Claimant made an informal complaint about Mr Dee having raised his voice to her in a dispute on the telephone. Mr Tabberer decided not to take the matter any further.

[21]The Claimant's May 2004 appraisal was also very positive. In particular, so far as the Claimant's management of her staff was concerned, Mr Tabberer noted that she showed "strong leadership" and that "her excellent staff survey results confirmed her progress in forging her teams. The results demonstrate that Mary gives good attention to individuals, both the strong and weak, while pursuing her Group's goal … the Group has enjoyed some stability for the last year, which has helped developments. The challenge ahead will be to continue to differentiate their support and to give some the opportunities to progress that they will deserve." The Claimant was awarded a "met with distinction" rating for that area.

[22]So far as working with colleagues was concerned, Mr Tabberer noted that he had "rehearsed the importance to Mary of taking full responsibility for establishing the partnerships she needs at the next stage, in order to make the policy and operational progress she seeks in areas such as allocations, partnership and services. This is an area where Mary needs to continue to manage the perceptions of her senior colleagues; there remains scope for misinterpretation on all sides". Mr Tabberer awarded the Claimant a "met in full", the middle grading.

[23]In terms of knowledge and competences the Claimant was awarded a "highly effective" grading in terms of staff development, with particular reference made to the staff survey results. In terms of working together he awarded the Claimant an "effective" rating which is the middle rating of three, noting that there were "still some weaknesses in SMG (Senior Management Group) relationships, but Mary sets a strong example in her Group and with external partners in collaborative working". The Claimant received a "highly effective" grading in respect of leadership and management on the basis of "strong leadership skills".

[24]At about this time Mr Tabberer was considering recommending that a new position should be created, namely Deputy Chief Executive, for which there would have to be an open selection process. The Claimant and Mr Tabberer discussed this position, and reference was made to the need for the Claimant's relationships with her colleagues to improve if she wanted to be appointed.

[25]The Tribunal rejected the Claimant's allegation that Mr Tabberer orchestrated a "fall-out" with her in May or June 2004 because he did not want the Claimant to become his deputy and wanted Graham Holley instead. They accepted Mr Tabberer's evidence that he had genuine concerns about the Claimant's relationship with her colleagues. Furthermore, the alleged fall-out had occurred only a short time after he had given her that very positive performance appraisal. The Claimant applied for the post of Deputy CE.

[26]In October 2004 the Claimant commenced a three month sabbatical, returning to work in January 2005. In that month the interviews for the post of Deputy CE were conducted by Mr Tabberer, Sir Brian Follett (Chairman) and an external Director, Deborah Eyre. Graham Holley was found to be the best candidate and Mr Day was the runner up. The Claimant had applied for other posts, in addition to this one, and was promoted to the post of Teachers' Director. In the meantime Liz Francis had joined the Respondent.

[27]On 8 June 2005 the Claimant had another appraisal discussion, in which Mr Tabberer described her as a very important part of the senior team "combining substantial educational expertise with considerable senior management experience". He stated "she can be a key player in setting the tone for collaborative working and help us avoid falling back into silo working [ a reference to Directors working independently of each other], which I have no doubt will damage the Agency's future". He continued "I am very pleased with the many examples where Mary has paused to take other's views and find common solutions, which help build corporate behaviour across the senior group".

[28]The Tribunal found that Mr Tabberer considered the Claimant's working relationships with her colleagues had been improving and that the problems were diminishing. He gave the Claimant the middle rating of "met in full". So far as working with the Claimant's own staff was concerned Mr Tabberer wrote that she had "led her group with distinction … the fact that key outcomes were achieved is a testimony to the leadership she has given her group and the teamwork she has embedded". He gave her the top mark of "met with distinction". He summed up by noting the Claimant to be a "highly accomplished leader" and observing that she had fully merited her promotion.

[29]Importantly, in our view, the Tribunal found as follows at paragraph 3.16:

"Although it appears that the Claimant was not at fault in any significant way in respect of any of the people who had had problems working for her, a reputation was built up about them as being 'Mary's victims', it appears to the Tribunal based purely on hearsay and erroneous information."

Developments in 2005/2006

[30]Towards the end of 2005 consideration was being given to merging the Claimant's Directorate, namely the Teachers' Directorate, with the Wider Workforce Directorate. This meant that the Claimant's job was in jeopardy.

[31]Whilst this merger was under consideration a dispute arose between Mr Day and the Claimant concerning a meeting that Mr Day wanted to have with her. The Claimant asked for an agenda in advance and Mr Day complained to Mr Tabberer about this. On 13 January 2006, at a meeting with the Claimant, Mr Tabberer told her that she was imposing her discipline about meetings on others and that this did not foster good relations with her peers. While the other Directors set up their computer diaries so that they could be accessed by others, to arrange appointments with her in that way, the Claimant never allowed her diary to be accessed. It appeared to the other Directors that, while she would demand that they attended meetings she wanted, she was not cooperative about attending meetings they sought.

[32]It appears that around this time meetings were being held between certain members of the Corporate Leaders' Group (CLG), at which the Claimant was not present, when there were discussions as to how to deal with the Claimant's style at the full CLG meeting and how to ensure that all voices were heard.

[33]On 20 January 2006 the Claimant had another meeting with Mr Tabberer, at which he was critical of a document she had drafted for the Secretary of State, as not sufficiently reflecting the Respondent's view. The Claimant felt "battered" by him at this meeting and sought to resolve the problem by inviting him to a restaurant for lunch. Over lunch Mr Tabberer apologised and the matter was apparently resolved. The Tribunal found that Mr Tabberer also confirmed to the Claimant at this point that her job was no longer at risk. The merger project was no longer proceeding.

[34]On 1 September 2005 Ms Kitson had joined the Respondent. On that same day Ms Kitson started to keep a log, which she kept for the first couple of months of her employment. This log included detailed references to incidents involving the Claimant, where the Claimant was alleged to have been critical of her, or of her work, and had upset her. The Tribunal referred to these in detail at paragraphs 3.22-24. They included instructions from the Claimant not to question or change any of the work she had done on a particular project whilst she was on leave. Another such incident, on 8 September 2005, involved the Claimant drawing lines through some draft slides provided by Ms. Kitson for a presentation, criticising her for talking to a colleague about the work, and dictating what should replace the deleted work. Other concerns raised included the Claimant criticising her spelling, shortening her first name on one occasion, and telling her that they were not working together in the way she would like.

[35]Ms Kitson discussed her concerns about the Claimant with Jacqui Nunn, Director of Initial Teacher Training Development, and then with Stephen Fry, Head of Human Resources, after which she stopped keeping a log of incidents. She did not ask Mr Fry to speak to the Claimant and he did not do so. However, Ms Kitson started to look for other jobs with a view to leaving the Respondent.

[36]The Tribunal found that Liz Francis, Director of Teachers' Directorate, herself had an uneasy relationship with the Claimant. Ms Francis found her to be "patronising, treating people like children" and was upset by what she regarded as the Claimant's style from time to time. A number of disputes arose between them. On one occasion the Claimant was very critical in her feedback relating to a discussion paper Ms Francis had prepared and this upset her. Following further discussions between them, however, the Tribunal found that it was agreed that the Claimant would herself take this paper forward because Ms Francis was about to go on leave. The final version of the paper was substantially the Claimant's work, supporting the Claimant's evidence as to what had been agreed between them both.

[37]Jill Staley, Director of the Wider Working Programme, was also found to have a "sometimes difficult relationship" with the Claimant. The Claimant criticised her openly at meetings, upsetting her on at least one occasion when the criticism was made in front of junior staff, including Ms Kitson.

[38]Paul Moses, Head of Standards in Initial Teacher Training, had worked in the Claimant's Directorate between 2001 and 2004. After working elsewhere for a time he then applied successfully to rejoin the Respondent, but he was not short-listed for the position he had sought in the Claimant's Directorate. He claimed he had been told that this was the Claimant's decision, but the Tribunal found that, in fact, the decision not to short-list him had been taken by a panel of three.

[39]The Tribunal referred to an incident involving Mr Moses in late 2005. On 16 December Mr Moses, working in Ms Nunn's Directorate, attended a meeting with the Claimant, together with Ms Nunn, to discuss in part communication problems, including Mr Moses' failure to attend a number of Project Team meetings. The Claimant told Ms Nunn that Mr Moses had not been invited to this meeting and should not remain, side-lining him and addressing her remarks to Ms Nunn. Mr Moses agreed to leave the room but he was embarrassed and upset by the awkward situation created, he felt, by the Claimant's manner.

[40]Following his own discussions with her in January, Mr Tabberer asked Sir Brian Follett to have a word with the Claimant. He did so on 2 February 2006. The Claimant also took this opportunity to speak to Sir Brian about the previous difficulties in her relationship with Mr Tabberer, which she felt had just been resolved. Sir Brian told her that he had watched their relationship over a number of years and that in the main he considered it was a very successful one, although from time to time there were fall-outs. He said he was convinced that their relationship would always be like that. Events leading up to the Claimant's Grievance

[41]Events moved on. On 22 February Sir Brian sent an email saying that Mr Tabberer was going to be leaving the Respondent, although that would not happen immediately. Mr Holley was appointed interim CEO and Mr Day was appointed interim Executive Director of the ITT Directorate.

[42]On the following day Mr Holley had a series of meetings with the Directors. Mr Holley had sent an email to the Claimant on 22 February saying that he wanted to discuss QTS standards. The Claimant assumed that the meeting she was attending on the 23rd was going to be about Standards. However, this turned out to be a one-to-one, personal meeting.

[43]At this meeting the Tribunal found that there was some discussion about the future of the Respondent. Reference was made to a recent staff survey, the results of which had not been very good, although the Claimant's own results had been better than the overall average. Since the Claimant had previously had a good relationship with Mr Holley, she decided to raise with him the concerns she had about what she regarded as a "club culture" in the organisation. She complained that Mr Dee (who had left in 2004) and Mr Day had been "stereotyping" her for several years. She also referred to Leanne Hedden (Director of Corporate Services) as being part of this club culture.

[44]The Claimant was unaware that, by this time, Mr Holley had been approached by Ms Nunn on a couple of occasions about the Claimant's relationships with staff and others, and had also been spoken to by Ms Staley, at length, in an earlier one-to-one meeting, when she too had complained about the Claimant's behaviour. The Tribunal found that :

"Mr Holley reflected back to [the Claimant] that she appeared to be painting a picture of someone who did not fit in and that people had suggested to him that she did not fit in. The Claimant therefore suggested that, if that was the case, then the Respondent should pay her off and she would go. Mr Holley told her that he would arrange for Mr Fry to provide her with severance figures."

[45]Mr Fry met the Claimant on 28 February, though he did not have any figures with him at that time. At that meeting, however, the Claimant made it clear that she intended to raise a grievance, and it was agreed that Mr Fry would inform Mr Holley of this.

[46]At paragraph 3.35 the Tribunal found as follows:

"The Claimant then had a meeting with Sir Brian, where she explained what she saw as the problem which has arisen between her and Mr Holley. Sir Brian had already heard Mr Holley's account of this. The Claimant alleged that Sir Brian said words to the effect that the Claimant would have to go or be transferred to another Government agency. Sir Brian denied this, explaining that he was not in a position to say that as it was not within his power. The Claimant did not raise this as a grievance, notwithstanding that it appears to the Tribunal to be a clear indication that her employment was, in reality, over with the Respondent and yet she did raise in her grievance her complaint about the appraisal meeting, which took place on the day she submitted the grievance, 6 March. Furthermore, the Tribunal has formed the view that Sir Brian is extremely experienced and would not commit himself on the spur of the moment to such a position."

Although they make no express finding on this dispute of fact, we understand from this paragraph that the Tribunal rejected the Claimant's allegation that Sir Brian had said she would have to go or be transferred.

[47]In late February Mr Moses approached Mr Holley in order to raise a complaint about the Claimant on the grounds of "bullying" and what he described as her "bizarre behaviour". Mr Holley advised Mr Moses to hold off for a while because he wanted to consider his options. The Tribunal found that he had in mind the possibility that the Claimant might take early retirement by agreement.

[48]On 6 March 2006 the Claimant had her appraisal meeting with Mr Tabberer. It started with his rating her performance as good. After setting out the increasingly political nature of the Respondent's work, he referred to her strengths as having been shown in several areas, though he noted that, "for the first time at the Agency she has slipped on a couple of deadlines and failed to complete a managed exchange …". Later on he said, "in one area there remains some considerable concern, however. Relationships with her senior colleagues have deteriorated through the year and Mary now needs to address these with the serious intent to rebuild them. It is in Mary's working approach that she sets herself and others high standards. Others are experiencing her approach from time to time as difficult and obstructive, however, and this is preventing a high level of senior team interaction from developing. Working as she does on Standards in an area which needs a lot of collegial support, Mary is beginning to find that the success of her work programme is at risk because she is not winning hearts and minds". He concluded that the Claimant nevertheless remained "an excellent educational professional with the understanding and experience to make a difference in her Agency role".

[49]After this appraisal meeting there was a CLG meeting at 10.00am to discuss budget allocations. Without any warning to the Claimant Mr Tabberer announced that she would not be allocated a budget directly, but that the funds for her Directorate would be given to Mr Holley to administer.

[50]The Claimant was now deeply unhappy, both with Mr Tabberer's remarks at the appraisal meeting and at these developments. She did not accept that she had missed any deadlines and, during the course of the meetings with Mr Tabberer and colleagues from the DfES since September 2005, she had believed there had been an excellent relationship between them. Accordingly she withdrew from the meeting. She submitted her grievance on the same day. The Claimant's Grievance – March 2006

[51]In her grievance she complained about the meeting with Mr Holley, referring to the fact that he had said that she lacked a willingness to respond to changes; that her colleagues had said that the Claimant did not fit in; and that Mr Holley had then asked Mr Fry to show her some figures. She also complained about Mr Tabberer's appraisal note, to the effect that she had missed a couple of deadlines and in respect of what he said about her working relationships.

[52]The Claimant agreed to a request for Sir Brian to consider her grievance and a meeting was arranged for 21 March. The Tribunal found that she had discussed with Ms Francis concerns that she was going to be "got rid of" as a result of her bringing the grievance.

[53]At their meeting on 21 March, after the Claimant referred again to a "club culture" at the Respondent, Sir Brian took the view that she was referring to this as "a boys' thing". He decided that he had no option but to have the issues she was raising investigated by someone unconnected with the Respondent. The person appointed to this task was Gareth Roberts, a lay member of the Bristol Employment Tribunal.

[54]The Tribunal rejected the Claimant's allegation that, at their meeting, Sir Brian referred to the appointment of Mr Holley and Mr Day to interim senior posts and said that the Claimant had not been considered for Mr Day's post because she was too busy.

[55]Time pressures relating to the Respondent's work on Standards, currently being carried out by the Claimant, led to an agreement to delay the grievance investigation.

[56]On 6 April the Claimant had a meeting with Mr Moses, at which she referred to him at one point as "irritating". He then complained to Mr Holley about the Claimant's conduct towards him. The Tribunal found at paragraph 3.47:

"Mr Moses was reluctant to do nothing and, because Mr Holley considered that Mr Moses' complaint touched on whether or not the Claimant 'fitted in', he said he would arrange for Gareth Roberts to interview Mr Moses. He discouraged Mr Moses from pursuing the matter as a complaint because he did not want such a complaint to appear to be linked to the Claimant having brought a grievance, which he did not explain to Mr Moses. Mr Holley then told Human Resources about the need for Mr Roberts to interview Mr Moses."

[57]On 7 April there was a meeting to sign off on the Standards. During the course of that meeting the Tribunal found that Sir Brian congratulated Ms Francis on what he described to the Tribunal as her "sterling work", but ignored the Claimant's contributions.

[58]On that same day Mr Fry told the Claimant that her grievance was to be investigated by Gareth Roberts. Mr Holley had sent to him a list of the people he should talk to "to be able to judge whether I was correct and truthful in stating that people said [the Claimant] did not fit in at the Agency". Mr Fry asked the Claimant if she had a list of people too, but the Claimant was reluctant to give the names of people who might support her because she was concerned that they would be vulnerable. She also explained that by now she was feeling isolated in terms of support from senior colleagues.

[59]The Claimant was asked to attend a meeting with Mr Roberts on 18 April. Her entitlement to be accompanied by a union representative or independent colleague was explained and she was asked to maintain confidentiality.

[60]On 11 April Ms Kitson went to see Mr Holley. The Tribunal rejected her evidence that at this time she had no idea that the Claimant had brought a grievance. They found that Ms Kitson told Mr Holley that five of the seven principal officers in the Claimant's Directorate were on the verge of leaving "because of Mary". She said they had serious concerns and that there was no sense of direction in the Directorate. Mr Holley told Ms Kitson that he could not comment on the investigation and was simply urging people to tell the truth if they were asked.

[61]On 12 April Mr Fry met the Claimant and reiterated the formal offer of early retirement, saying that it was now on the table and "may not be repeated". The Claimant declined the offer.

[62]The Claimant produced a further explanatory note of her grievance for the investigation meeting, which went ahead on 18 April, giving further details of the complaints she had raised and claiming that she had been discriminated against on grounds of sex.

[63]Mr Roberts subsequently interviewed some, but not all, of those the Claimant had identified as involved, taking the view that some individuals could not give evidence relevant to the key issues in her grievance.

[64]Mr Roberts completed his report in May 2006. So far as the meeting between Mr Holley and the Claimant was concerned, he noted that there was no independent witness present. He did not accept that, if the Claimant was told that she did not fit in, it could be construed as constructive dismissal, given the context and the seniority of their positions, together with subsequent events. He stated that "confronting issues cannot be regarded as a fundamental breach of trust and confidence unless the Agency clearly says that it is, or the allegations are a fabrication to conceal a hidden agenda. Neither appears to be the case here".

[65]So far as the appraisal meeting with Mr Tabberer was concerned, he noted that the issue of the Claimant's relationships with others had been discussed previously and that it was unlikely that it would have come as a surprise in the most recent appraisal. So far as missing deadlines was concerned, he considered that the best way to resolve that was through a "sensible evidence-based discussion at the appraisal between job-holder and manager". Mr Roberts noted that the progress letter to the Secretary of State had been presented to the Chief Executive late in the day that it was to be sent. The Claimant recognised that this gave him little time to comment or amend it. It was clear, therefore, that any discussion about deadlines was not a "smokescreen" but a genuine topic for debate.

[66]So far as the Claimant's relationship with Mr Tabberer was concerned, Mr Roberts had heard evidence that the Claimant appeared to others to receive more favourable treatment. He concluded that the evidence was "wholly incompatible with allegations of bullying or lack of support" made by the Claimant.

[67]He also noted that he had been asked to interview people who had complained about the Claimant's conduct, when they became aware of the grievance, but he stated that he had not done so because he was conducting a grievance investigation, not a disciplinary one.

[68]In relation to the Claimant's complaints about the appointments to interim senior management positions, Mr Roberts examined the recruitment file and noted that there had been a "rigorous assessment process that followed best practice". He observed that the Claimant had rated slightly higher than Mr Day on the test, but much lower on the structured interview. He considered it to be clear on the evidence that Mr Day would correctly be regarded as a more suitable candidate for the role of interim Executive Director than the Claimant.

[69]Mr Roberts noted that the "club culture" complaint had subsequently become an allegation that there was a "boys' club" that "works against women generally". He found that, including the Chief Executive, there were ten Directors, of whom five were women. He found that this was a "significantly best demonstration of equal opportunities than the great majority of organisations in the public or private sector", which was inconsistent with a boys' club undermining opportunities for women.

[70]He also remarked on the differences in style, adding "some members of the CLG believe it is important to talk regularly and informally without the need for appointment or agenda". The Claimant, on the other hand, seemed to have a high regard for structure, for appointments and agendas, and regarded chat as an unnecessary distraction from the serious task of work. There were differences in style between the Claimant and her male colleagues, but there were also differences in style between the Claimant and her female colleagues. He found no evidence of a boys' club operating to the detriment of women generally or of the Claimant in particular.

[71]He rejected the Claimant's allegation of "stereotyping". He found that there was a consistent theme, from the interviews, of difficulties with working relationships caused by the Claimant and problems that people had encountered in working with her. He found that "no-one has failed to mention her intellectual ability, her contribution to the organisation and her powers of insight. It is ironic that with such insight she has been unable to see her values and behaviour as the cause of so many of her problems".

[72]Mr Roberts was critical of the meetings within "inner CLG", to which the Claimant was not invited, which had considered ways of trying to "manage" her. Dancing around one problem, he felt, had created another and, ironically, "recent steps to more actively manage the problem have caused the current grievance".

[73]He noted in conclusion that "it is easy in hindsight to be critical of the way that [the Claimant] has been managed but there has been enormous pressure on the Agency to deliver some highly visible and politically important work to an exacting deadline … the Chief Executive has tried to focus on delivery whilst coaxing improvements to [the Claimant's] relationships with others. That has been construed by her colleagues as favouritism and made them less tolerant of her ineptitude at managing relationships".

[74]He made a number of recommendations, including one that the appraisal discussion between the Claimant and Mr Tabberer should be reconvened, and, further, that the contribution the Claimant makes to her own relationship problems should be "clearly explained and actions identified with her to improve". He also recommended that the CLG should set out a clear statement on the standards of conduct for CLG meetings and that, at the end of each meeting, there should be an assessment of the success of that meeting in upholding such standards; and any derogatory remarks publicly made by one person against another should be swiftly rebuked. The CLG, he considered, should defend each other's position in public regardless of private differences.

[75]He also recommended that the Claimant should seek out a "life-coach", to help her achieve a harmonious work-life balance, to make career management decisions, to manage her stress levels, particularly in relation to current events, and to advise on relationship management. He considered that the TDA might wish to consider providing financial assistance to help her secure the services of such a coach.

[76]Following Mr Roberts' investigation and report the grievance continued with a meeting, on 6 June 2006, between the Claimant and Sir Brian Follett. Events took a rather different course from that suggested by Mr. Roberts. Events following the rejection of the Grievance – the Claimant's Appeal and parallel Disciplinary Proceedings

[77]Firstly, Sir Brian rejected her grievance on the grounds that Mr Roberts' report had indicated that there was no evidence of constructive dismissal, sex discrimination, or a boys' club culture. The Tribunal rejected the Claimant's allegation that Sir Brian had shouted at her at this meeting.

[78]Mr Fry then joined the meeting, noting that there were "very serious issues that the TDA felt were unresolved". He added that, during the time that her grievance was being processed, a couple of members of staff had come forward with other complaints, which had not been taken forward. He was referring to Ms Kitson and Mr Moses. He raised once again the question of the Claimant's early retirement. The Claimant's response was that she did not believe that Mr Roberts' report was fair and that she would exercise her right of appeal.

[79]Mr Fry then said that the TDA "would have to follow up on [the Claimant's] behaviour, conduct and performance issues". He stated that "they could run in parallel to the appeal".

[80]Mr Fry concluded that it was now necessary to institute disciplinary proceedings against the Claimant. The Tribunal found that this was on the basis of(a) the oral complaints to Mr Holley by Ms Kitson and Mr Moses;

(b) Mr Roberts' finding that the Claimant had been responsible for her difficulties with her peers; and

(c) the fact that over the years various members of the Claimant's staff had approached him with their concerns about the Claimant's treatment of them, but had not wanted to pursue matters any further at the time.

[81]He discussed the matter with Sir Brian, who agreed with the proposed procedure. They also agreed that it would not be sensible to suspend the Claimant, but that it was necessary for any disciplinary investigation to proceed "unencumbered by the presence of the Claimant". Accordingly they decided that she should be required to work "off-line", that is out of the office and at home.

[82]On 8 June the Claimant had a meeting with Mr Fry. There was a discussion at the start about the appeal process to be followed in respect of the grievance. However, Mr Fry also told her that disciplinary proceedings were now to be pursued. She would be given details of the two further complaints made about her during the grievance process and Mr Fry told her that Mr Roberts' report would also be part of the disciplinary evidence. He said that it was likely that the disciplinary hearing would be conducted by Board members not involved in the grievance and he asked for the Claimant to submit a written response in advance of the hearing.

[83]He also told her of the need for her to work off-line and of consequential modifications to procedures. The Claimant was told not to approach any witnesses herself, but to provide him with a list of names of potential witnesses.

[84]The Tribunal found that at this meeting: "The Claimant asked what specifically was in the report which had led to the decision that there should be a disciplinary investigation, and Mr Fry said that the report highlighted 'deep seated issues of behaviour and conduct which impacted upon and caused concern to those on the receiving end and potentially TDA's business".

[85]The Respondent's procedure for serious disciplinary offences provides at paragraph 14 that "where formal disciplinary proceedings are contemplated, a proper investigation of the matter is essential before considering any formal charges …"

[86]On 12 June Liz Francis was appointed interim Director in the Claimant's place. On 15 June the Claimant was told once again that she should not contact directly any potential witnesses to the disciplinary investigation, which would be commencing shortly.

[87]The Tribunal found that a number of witnesses (six are referred to) provided detailed statements which were strongly supportive of the Claimant; of her abilities and leadership style; of the support she had given to Mr Tabberer and others; and of her fierce loyalty to her team. There were references in those statements to "a complacent senior management group" and to conflicts within the senior management team that the Claimant had had to deal with.

[88]The Claimant had by now instructed solicitors, Russell, Jones and Walker, who, on 20 June 2006, submitted lengthy and detailed grounds of appeal against the rejection of her grievance, setting out the history in full and complaining of constructive dismissal, sex discrimination, serious procedural irregularities in the conduct of her grievance, and failings in Mr Roberts' investigation and findings.

[89]Meanwhile, Mr Moses submitted a written grievance about the Claimant to Mr Fry on 12 June, referring to the earlier matters we have mentioned previously in this judgment. The Tribunal also found that when Ms Kitson returned from holiday in June:

"Mr Holley invited her to see him and told her that the Claimant was working off-line. He explained there was a disciplinary investigation underway into the Claimant's conduct and that she should 'feel free' to write a statement about what she had raised earlier. He did not put her under pressure to do so and the Tribunal accepted her evidence that she did not feel that she was under pressure to provide a statement but did so because she felt sufficiently aggrieved to do so."

[90]Ms Kitson, therefore, submitted a statement regarding the Claimant on 24 June, in which she set out her various complaints relating to what she alleged was unprofessional and undermining behaviour. Despite the Claimant's positive attributes, she said that she found it difficult to work with her.

[91]On 27 June the Claimant's solicitors complained that the Claimant's enforced removal from work amounted to a suspension and asked for her to be reinstated. This was refused.

[92]Ms Nunn submitted a statement on 29 June. In that statement she referred to what she had been told about the Claimant by Helen Lepieta, as long ago as 2002. She stated that Ms Lepieta had had a very difficult working relationship with the Claimant and that she had instigated legal proceedings against her for harassment, although the Tribunal found there was no evidence before them to show that this was true.

[93]Ms Nunn made further references to alleged incidents occurring as long ago as 2002, involving Ms Rowe, Matt Mitchell and Mr Dee. She stated that people referred to the Claimant as "scary Mary". She talked of the Claimant's "casualties", and criticised examples of the Claimant's management style in incidents alleged to have occurred between the years 2002 and 2004.

[94]In response to a request for information from Mr Fry, Mr Holley explained that Mr Tabberer had decided to appoint Mr Day as the interim Executive Director. He stated that Mr Day had done better than the Claimant in the selection process during the previous year. However, he also suggested that Mr Tabberer's view was that, while Mr Day's performance had remained broadly as assessed, the Claimant's performance had worsened. Rejection of Claimant's Grievance Appeal

[95]The grievance appeal hearing took place on 5 July before Ms Munro, a member of the TDA Board. She considered the documentation for some two hours and the hearing then adjourned part-heard to 11 July, when she concluded matters.

[96]On 24 July she wrote to the Claimant telling her that she had concluded that the grievance procedure was correctly followed; that a competent, thorough, fair and open investigation had been undertaken; and that appropriate recommendations and decisions had been made. Accordingly the grievance appeal was dismissed, and she explained that there was no further right of appeal. However, she made recommendations that the Respondent now needed urgently, and fully, to address the difficulties and tensions within the CLG, including unprofessional behaviour between members of the CLG; and that it needed to tackle and resolve interpersonal differences between colleagues as soon as they arose, using an external mediator if necessary. The Disciplinary Investigation

[97]In the meantime Ms Morehen, an HR consultant and lay member of the Nottingham Employment Tribunal, had been appointed to conduct the disciplinary investigation. She was given no written terms of reference, but was merely asked orally "to investigate allegations in respect of the Claimant's conduct". The Claimant was told of her appointment on 6 July.

[98]Ms Morehen conducted interviews with a large number of individuals. On Friday 28 July the Claimant was sent, by courier, some 62 pages of evidence, including notes of interviews and statements from 15 individuals, all making a large number of allegations, covering many separate incidents over a lengthy period of time. Ms Morehen grouped them into four groups of allegations, namely conduct which had caused colleagues or staff to feel intimidated, insulted, or undermined; conduct which had led to complaints of the Claimant exerting improper and inappropriate levels of control over the work of colleagues or staff resulting in a sense of loss of professional autonomy; conduct which had caused senior colleagues to feel professionally aggrieved about the Claimant's conduct towards them, or to colleagues or subordinates; and conduct which failed to demonstrate adherence to the Respondent's requirement to act collaboratively, which had put the Respondent's work and reputation at risk.

[99]This material arrived at about 7.40pm on the Friday evening and the Claimant was informed that she was to attend an interview with Ms Morehen on the following Friday, 4 August. On Monday 31 July the Claimant was sent a further 14 pages of evidence.

[100]However, the interview did not take place on 4 August. The Claimant was by now suffering from stress- related illness and was signed off by her doctor as medically unfit to work for two weeks. The medical certificate referred to her suffering from chest pains, gastric problems and insomnia. The Claimant's solicitors, when sending the first medical certificate, stated in their letter that the Claimant believed her removal from the workplace to be an act of victimisation, following her complaint of sex discrimination which was a protected act.

[101]Ms Morehen produced an interim report on 10 August. She noted that the Claimant had not attended the interview on 4 August, which had been postponed, so that her findings were without the benefit of the Claimant's responses. However, she had nevertheless concluded that there was "considerable evidence that there is a prima facie case to answer in respect of the allegations, which should be pursued, with a probable and realistic prospect that the allegations be founded at the next stage of the disciplinary procedure". She stated that several interviewees had considered telling the Claimant that her conduct was unacceptable, but did not do so because they thought it would be futile, or would exacerbate an already poor working relationship with her, or because they thought they might not have support from other senior management. Some had said that they were saddened and ashamed that the Respondent had not itself tackled the Claimant's conduct. The evidence before her contained "a significant number of examples" where the Claimant had not acted collaboratively and where some interviewees had witnessed or been subject to "continuous intimidation and improper control of their own or others' professional work". One interviewee, namely Mr Dury, had expressed a direct relationship between bullying he said he had received from the Claimant and his serious illness from stress.

[102]Ms Morehen stated that the alleged misconduct was perceived as harassment and/or bullying by most of those concerned, which would be regarded by most employers as gross misconduct, and stated "that the position of the employee would be untenable. It is my view that the Agency should regard this case as gross misconduct". She referred to the provision in the Claimant's contract for termination without notice or pay in lieu of notice on the ground of gross misconduct, although she also stated that employment would not normally be ended without a written warning having first been given. She noted that the Claimant had not received a written warning, although, she said, "…it had to be clear to her that there were serious concerns about her conduct, in particular through discussions concerning her appraisal".

[103]If employment could not be ended by agreement she stated that the Respondent should instigate the disciplinary procedure, warning that the allegations could amount to gross misconduct, which would result in the termination of the Claimant's contract. She continued that if "a decision to terminate the contract on grounds of gross misconduct is not found, there is considerable risk to the Agency for the employment relationship to continue, even with a disciplinary sanction imposed". She referred to the possibility of a loss of confidence in senior management across the Respondent and to the common law duty of care that the Respondent owed to its other employees, both in terms of personal injury, particularly psychiatric illness, and by reference to the Protection from Harassment Act 1997 .

[104]In sending her report to Mr Fry, Ms Morehen wrote that she had understood that the reason why the investigation meeting with the Claimant had been postponed was because there were "discussions regarding an agreed outcome relating to ending her employment" with the Respondent. This was not correct because the Claimant was in fact sick and unfit to be at work, and the offer regarding an agreed early retirement had in any event been withdrawn.

[105]On 15 August the Claimant's solicitors wrote setting out what they described as heads of a further grievance, namely that the Claimant had been subjected to continuing acts of victimisation and to an ongoing breach of the implied duty of trust and confidence because of the decision to commence disciplinary action against her; her removal from the workplace; the Respondent's attempts to deny her access to witnesses in support of her grievance appeal; the decision to limit unreasonably the time allotted for the hearing of the grievance appeal; providing to the Claimant without warning the large bundle of evidence on 28 July; and refusing to discontinue the disciplinary process and to reinstate the Claimant.

[106]The Claimant issued her first claim to the Tribunal on 17 August 2006.

[107]Mr Fry responded to the solicitors on 21 August, dealing briefly with the points raised. He said that Ms Morehen still wanted to have a meeting with the Claimant, to hear her response to the evidence obtained to date, and that she was available to meet the Claimant on either 31 August or 12 September. However, Ms Morehen would also consider any other suggestions the Claimant might have for submitting her response, for example through a work colleague representative or in correspondence.

[108]On 29 September Ms Wainwright wrote again to the Claimant's solicitors expressing concern as to the delay, and informing them that if there was no response by 6 October the Respondent would decide how to proceed on the basis of the information so far received.

[109]The solicitors responded on 6 October explaining that the Claimant was in the process of providing a detailed, written response to the evidence presented to her as part of the disciplinary investigation. They stated that inevitably "this is a difficult and very distressing process for our client, as it would be in any event, but particularly in the light of her current ill health".

[110]Ms Wainwright said that the Claimant's written response was to be submitted by 27 October and informed the solicitors that "a date for a hearing" had provisionally been booked for 6 November 2006, "without prejudging the findings of the independent investigator's report". That hearing, she said, would be conducted by the Director, Chris Baker, and the Claimant was told that she was entitled to be accompanied by a work colleague or trade union representative.

[111]The deadline imposed for Ms Morehen to produce her final report was 1 November. The Claimant's detailed response was, in fact, received by her on that day, just two hours before the deadline expired.

[112]The response ran to 52 pages. It was extremely detailed and it also raised a large number of substantive and procedural objections to the process, including the fact that the disciplinary investigation had been run in parallel with her grievance appeal. She expressed serious concerns as to her inability to gain access to several witnesses; as to the lack of any terms of reference for the disciplinary investigation; and as to the fact that she had received no clear statement from the Respondent as to the particular aspects of her conduct which were a cause for concern.

[113]She made the point that many of the allegations now being relied upon were based on hearsay, or involved minor incidents occurring over a five-year period, none of which had been raised with her at the time. It was also clear from the Claimant's response that she disputed many of the facts of those matters now being alleged against her.

[114]Criticisms by the Claimant as to Ms Morehen having, on occasions, used leading questions in questioning witnesses were rejected by the Tribunal, who set out at paragraphs 3.95 – 3.99 a summary of the Claimant's full and detailed responses to the various allegations.

[115]We shall not set them out here. Suffice it to say that the Tribunal referred, in particular, to the Claimant's references to her positive appraisals over the years, and to the praise she had received, in particular, for her abilities in relation to staff management and development. They also noted that the Claimant disputed the facts in relation to a large number of the allegations.

[116]The Tribunal found that Ms Morehen only had a couple of hours to consider the Claimant's response before producing her final report. She did not seek an extension of time. She noted in that report that she had received a copy of the Claimant's response only that morning and had had limited time to consider it. However, she did make some comments on that response in her report. The Tribunal found that the final report largely reflected the interim report, though providing greater detail. Ms Morehen concluded that "this employment situation is obviously of grave concern to the Agency and should be concluded as a matter of urgency". The Disciplinary Hearing and the Claimant's Dismissal

[117]Mr Fry advised the Claimant's solicitors on 2 November that the matter would now proceed to a disciplinary hearing, to be conducted by Chris Baker on 6 November. He set out four charges, which reflected the four groups of allegations identified by Ms Morehen in her interim report. The relevant documentation was all enclosed and the procedure to be adopted was explained.

[118]Notwithstanding the fact that Ms Morehen's role, as investigator, had concluded and that Mr Baker was to conduct the next stage, the Tribunal found that Ms Morehen wrote a note for Mr Baker on 3 November, which set out some concerns that she had about the process.

[119]These concerns included the fact that she considered it to be "unfortunate that the grievance investigation and disciplinary investigation had run in parallel or overlapped". She added that it might have been "safer" for the grievance appeal to have been concluded before the disciplinary investigation commenced.

[120]In this note Ms Morehen also acknowledged the fact that the Claimant's excellent appraisals did not refer to all the issues raised by Mr Tabberer as to her conduct, and that a question arose as to whether the Claimant knew of the concerns and that improvements on her part were required. Ms Morehen stated that if she did not know, or could not have known because she was never told about her behaviour, the outcome would have to be a sanction which allowed her to improve, for example, a final written warning.

[121]Amongst other observations in this note Ms Morehen stated, in regard to the Claimant's complaints of procedural unfairness, that she had prepared a document setting out the allegations in preparation for her interview with the Claimant on 4 August, which did not then take place. She "assumed", however, that the allegations had now been clarified and said that the Claimant had now been able to respond to them in any event. This complaint, she considered, was "a bit of a red herring".

[122]The disciplinary hearing began on 6 November 2006. The Tribunal found that Mr Baker had not conducted a disciplinary hearing before and did not receive any training in relation to it, although he had received some general guidance from Mr Fry. Nor had he received any training in relation to equal opportunities.

[123]Mr Baker was assisted by Mr Fry and Ms Wainwright and the Claimant was assisted by Ms Bellas. Ms Morehen was the first person to attend the hearing. Mr Baker stated that because the issues were personal and potentially emotional for everybody involved he had decided that all questions had to be raised through him and there was to be no direct questioning. This, he indicated, would apply to both sides.

[124]The Tribunal found that:

"It is clear from going through the notes of the disciplinary meeting that the Claimant was given an opportunity to ask questions of the various witnesses and to challenge their assertions, but the Tribunal accepts that the Claimant had understood that she was limited in what questions she could put."

[125]At the hearing, in addition to Ms. Nunn, Mr. Baker heard from the Claimant herself, Ms Staley, Ms. Kitson, Mr. Moses, Ms. Seesurrun, Mr. Holley and Mr. Tabberer. The hearing adjourned part heard to 22 November and at its conclusion Mr Baker considered his decision.

[126]He produced his report and conclusions on 18 December. He declared himself satisfied that there had not been any orchestration of the complaints against the Claimant or in respect of the statements. He was also satisfied that Ms Morehen had carried out "an independent and robust investigation". He considered that it was reasonable to take the witness statements produced, making complaints about the Claimant, as reasonable and independent documents. He noted that, of 15 statements provided to Ms Morehen, 8 of them reported behaviour by the Claimant which had directly affected them and 5 related to perceived adverse impact on colleagues. The remaining 2 statements reported that the Claimant could be a difficult officer to work with, but that her behaviour had not been unpleasant and was, they considered, within normal parameters for a line manger. He referred to additional statements the Claimant had produced, which in fact praised her management style. Mr Dury's statement related to incidents before the Claimant took a sabbatical in 2004, so that he was inclined to give it less weight as being less current, while other witness statements had referred to events in the period after the Claimant's sabbatical.

[127]He characterised the Claimant's response to the statements as consisting generally of misunderstandings as to what was said, or part of the normal process of performance management, or evidence of the stereotyping which she had alleged to have taken place against her. Some incidents, he said, were also denied.

[128]He acknowledged that the Claimant had drawn attention to her consistently excellent appraisals. However, he said that there had been some discussion about the Claimant's relationships with colleagues in the 2003 and 2004 appraisals.

[129]In his findings, in relation to the Claimant's conduct towards her colleagues, he found that her behaviour "detracted from the functionality of the SMG/CLG" and "put the objectives of the Respondent at risk".

[130]In relation to the allegations against her by junior colleagues, he stated, erroneously, that two of them, namely Ms Kitson and Mr Moses, were dependent on the Claimant for advancement. The Tribunal found this to be an incorrect conclusion so far as Mr Moses was concerned. He did not work to the Claimant and his interaction with her had been extremely limited. He referred to Mr. Moses having suffered from raised blood pressure, though he said that this had occurred when Ms. Nunn told him of criticisms she said the Claimant had made of him, not as a result of anything the Claimant herself had done. This was inconsistent with Ms. Nunn's evidence that she could not recall the Claimant making any criticisms of Mr. Moses. It appears from the Tribunal's findings at paragraph 3.108 that Ms. Nunn was the only witness at this hearing to suggest that the Claimant's behaviour amounted to bullying in the workplace.

[131]Referring to Ms. Kitson and Mr. Moses, Mr. Baker nevertheless concluded that, "… on a balance of probability both the complainants suffered behaviour which had a material impact on their well-being and self confidence. I do not consider that any organisation, especially one with the values of the TDA, should tolerate behaviour which reduced credible professional staff to tears, caused them to consider leaving the Agency, or induced potentially dangerous medical symptoms. I therefore find that Mary was guilty of gross misconduct in her relationships with junior colleagues".

[132]At paragraph 3.111 the Tribunal made this, significant finding in respect of Mr. Baker's conclusions:

"Mr Baker had come to his conclusions in respect to the junior staff on the basis of the totality of the evidence before him, albeit that some of the evidence was vague, for example the circumstances when Mr Moses was supposed to have suffered from raised blood pressure, Mr Moses not having said what Ms Nunn had said to him. It is also clear that Mr Baker had accepted the evidence in respect of the older events, for example regarding Mr Dury, Ms Lepieta and Ms Rowe, about which no action had been taken against the Claimant notwithstanding Mr Tabberer's involvement."

[133]Mr Baker decided that the appropriate sanction in respect of the Claimant's conduct towards her subordinates, which he found amounted to gross misconduct, was dismissal. He accepted that, while appraisals had drawn attention to shortcomings in her relationships with her peers and external stakeholders, which he considered amounted to serious misconduct, the Claimant had not been given a clear warning that her behaviour in that respect was unacceptable. He also observed that she had not been "counselled with sufficient urgency about the need to eradicate the behaviours which, in relation to her subordinates, I have found to constitute gross misconduct justifying dismissal". He therefore decided that she should be dismissed with notice.

[134]The Claimant was notified of the decision by letter of 18 December 2006, in which Mr Baker stated that he had decided to dismiss her with payment in lieu of three months' notice. Her last day of employment was 20 December 2006. She was advised of her right of appeal. The Claimant's Appeal against Dismissal

[135]The Claimant exercised that right, appealing against the decision on 5 January 2007. Her solicitors set out further allegations of victimisation, referring to evidence upon which she relied in support of those allegations.

[136]Mr Buck, a member of the Board, conducted the appeal hearing. He was required to consider whether there had been any deficiencies in the disciplinary process or the substantive decision, and not to conduct a rehearing of the original complaints.

[137]After reading all the documentation he wrote to the Claimant, giving her an opportunity to address any further matters she wished, and including in his letter a list of the key questions arising on appeal.

[138]These referred to whether the proper procedures had been followed and, if not, whether they had prevented the Claimant from receiving fair treatment; whether sufficient and appropriate evidence had been considered; whether the evidence had been properly and fairly evaluated; whether any new evidence had been provided, which materially changed the overall context and affected the judgments made at the disciplinary hearing; and whether the disciplinary penalty imposed was a reasonable one.

[139]The Claimant sent a ten page addendum in respect of her appeal. The appeal hearing took place on 24 January 2007 and the Claimant made no complaint before the Employment Tribunal as to the conduct of that hearing.

[140]Mr Buck drafted his report on Sunday 28 January. He declared himself satisfied with the investigation carried out by Ms Morehen and specifically found that there was no evidence to conclude that she had led witnesses to say things which they did not intend to say. He considered that the questions she asked were appropriate. He observed that, although Ms Morehen had only had a limited time to consider the Claimant's response to the evidence, that response had been available at the disciplinary hearing.

[141]He accepted that the investigation started before formal, written notice of complaints was received from Ms Kitson, Ms Nunn and Mr Moses. He was satisfied, however, that the documentation showed sufficient grounds to commence an investigation, based on the outcome of the grievance hearing. Furthermore, he understood that the three members of staff concerned had approached Human Resources to voice their concerns orally. He also noted the evidence suggested that the request for Mr Moses' complaint to be held back was to avoid any complications which might arise if the two procedures overlapped. He also acknowledged that Ms Nunn's statement was not a complaint itself, but predominantly supported the complaints made by Mr Moses and Ms Kitson, as well as commenting on her own views in relation to her own dealings with the Claimant.

[142]He then set out his conclusions in respect of the charges, which he divided into two parts, namely those which led to the finding of gross misconduct and those which led to the finding of serious misconduct. In relation to the former he accepted that "whilst there is a possibility that some of this information may have been misunderstood or misinterpreted, the sheer size of the corroborated evidence has led me to conclude that, on the balance of probabilities, the conclusions reached by the investigator and Disciplinary Hearing in relation to this charge were justified". He had reviewed the evidence and he said that he found no compelling reason to overturn the judgment and penalty.

[143]He added that there were "too many separate accounts of her unacceptable behaviour for all of them to be misinterpretations on the part of others. I believe her behaviour towards colleagues did amount to bullying. In many situations I believe Mary was not aware of the impact that her management style was having on others. It is my view that she was overly focused on 'task completion' and thereby seriously neglected the needs of the individuals in her team. I therefore find Mary Doherty guilty of gross misconduct as stated in Annex 1 of the TDA Disciplinary Policy". So far as penalty was concerned, having regard to the number of staff affected, he decided that dismissal was the appropriate penalty.

[144]He also upheld the three charges which had led to the finding of serious misconduct, on the basis that he felt there was evidence on which to base those findings.

[145]Mr Buck wrote to the Claimant on 2 February 2007 advising her that he had dismissed her appeal, having concluded that proper and fair procedures had been followed in line with the disciplinary policy; that a case for gross misconduct was correctly established; and that the penalty imposed was reasonable and proportionate to the offences.

[146]The Claimant presented her second claim to the Tribunal on 6 March 2007 (although the Tribunal refer to this date as 23 March, it is accepted that this is incorrect and that the claim was lodged on 6 March). (1) VICTIMISATION

[147]We deal first with the Tribunal's decision. The issues had been clarified at the earlier CMDs. The Tribunal identified the issues to be determined in the first claim as follows, the Claimant relying on a hypothetical comparator:

"1.1.1 Whether any statement by the Claimant to Graham Holley on 23 February 2006 constituted a protected act for the purposes of section 4 Sex Discrimination Act. 1.1.2 If there was a protected act, did the Respondent treat the Claimant less favourably so as to victimise her by: 1.1.2.1 the statement by Graham Holley to the Claimant on 23 February 2006 (if it was made) that she did not fit in and that others thought she did not fit in; 1.1.2.2 Mr. Holley's email to the Claimant on 24 [22] February 2006; 1.1.2.3 The criticisms of the Claimant's conduct in the appraisal meeting with Mr.Tabberer on 6 March 2006."

[148]The issues relating to victimisation in the second claim were identified as follows at paragraph 1.3 of the judgment, the Claimant relying on Graham Holley as a comparator or on a hypothetical comparator:

"1.3.1 Did the Claimant's grievance on 6 March 2006 (either at the time or as subsequently clarified) and/or her grievance on 15 August 2006 [in her solicitors' letter] constitute a protected act or protected acts? 1.3.2 If there was or were a protected act(s), did the Respondent treat the Claimant less favourably as defined by section 4 of the 1975 Act by: 1.3.2.1 Mr. Holley instigating Paul Moses and Alison Kitson to make their complaints; 1.3.2.2 Instituting the disciplinary investigation into the Claimant; 1.3.2.3 Failing to follow a fair disciplinary procedure; 1.3.2.4 Relieving the Claimant of her duties as Director of the Teachers' Programme and requiring her to work off line from home; 1.3.2.5 [This complaint regarding the issuing of a visitor's badge was withdrawn within the course of submissions]; 1.3.2.6 Denying the Claimant access to witnesses for her grievance appeal; 1.3.2.7 Unreasonably limiting the time allotted to hear the Claimant's grievance appeal; 1.3.2.8 Delivering to the Claimant's home address at 7.40 p.m. on 28 July 2006 without warning a bundle of witness statements for the disciplinary investigation; 1.3.2.9 Upholding the allegations against the Claimant and concluding she was guilty of gross misconduct in relation to subordinate colleagues and serious misconduct in respect of the other charges; and 1.3.2.10 Dismissing the Claimant."

[149]In relation to the victimisation claim the Tribunal also had to determine whether the acts relied upon by the Claimant constituted a continuing act or, if not, whether it was appropriate for the Tribunal to exercise their discretion on the basis of it being just and equitable to consider any claims found to be out of time. The Respondent contended that any act before 24 September 2006 was out of time.

[150]The Tribunal directed themselves correctly as to the relevant statutory provisions and legal principles relating to victimisation, and no complaint is made as to their directions on the law set out at paragraph 4 of the judgment. The First Claim

[151]In relation to the complaint of victimisation in her first ET1, the first issue was whether the Claimant's complaints to Mr Holley at their meeting on 23 February 2006 constituted a protected act. The Tribunal held, having regard to their findings of fact (see paragraphs 41-44 above), that Mr Holley was not aware on that date that the Claimant was making a complaint of sex discrimination, in referring generally to the "club culture" (including Leanne Hedden, as part of that culture); to her "fall-outs" with Mr Tabberer; and to the way that the Respondent organisation was being "poorly run". Accordingly, the complaints she made did not amount to a protected act or to a statement from which Mr Holley knew or suspected that the Claimant intended to carry out a protected act. The claim of victimisation in her first ET1 was therefore dismissed. The Second Claim

[152]The Tribunal found that there were two protected acts. Firstly, although her grievance of 6 March 2006 did not itself suggest a complaint of sex discrimination, it became clear in her discussions with Sir Brian Follett on 21 March that she was making such a complaint. Her further, formal grievance note of 18 April also made it clear that she was making complaints of sex discrimination. This amounted to a protected act on her part.

[153]The second protected act was to be found in the letter of 15 August 2006 from the Claimant's solicitors, which clearly made complaints of sex discrimination on her behalf.

[154]The Tribunal then identified, at paragraphs 5.5 -5.42, the nine matters listed above, which were relied on by the Claimant as comprising acts of victimisation. These alleged acts, and the Tribunal's conclusions upon them, were as follows.

[155](1) The first act of less favourable treatment relied upon by the Claimant was that Mr. Holley had instigated both Mr. Moses and Ms. Kitson to make complaints against her. Mr. Moses had presented his statement on 21 June and Ms. Kitson on 24 June 2006.

[156]Referring to their findings of fact (see paragraphs 47 and 56 above), the Tribunal rejected this allegation in relation to Mr. Moses. In February 2006, when Mr. Moses had first raised a complaint about bullying, Mr. Holley was of the view that an early retirement agreement might yet be reached with the Claimant and he therefore discouraged him from pursuing any complaint at that time. In April, he had once again actively discouraged Mr. Moses from pursuing a complaint about the Claimant's behaviour at a meeting, because he did not want that complaint to appear to be linked to the fact that the Claimant had brought a grievance. There was no evidence that Mr. Moses' formal complaint, presented in June, had been instigated by Mr. Holley.

[157]In relation to Ms. Kitson, when she approached Mr. Holley in April (see paragraph 60 above) he was at first "fairly neutral" in his response, merely saying that he was advising people to tell the truth if they were interviewed. However, when Ms. Kitson returned from holiday in June, Mr. Holley had invited her to see him, told her that the Claimant was working off-line, and told her that she should feel free to write a statement because there was now a disciplinary investigation under way (see paragraph 89 above). Whilst he put her under no pressure to make a statement, the Tribunal were satisfied that Mr. Holley did instigate the formal complaint that she subsequently submitted.

[158]The Tribunal then went on to consider causation, namely whether the Claimant had proved facts from which they could conclude, absent an adequate explanation, that Mr. Holley's instigation of Ms. Kitson's complaint against the Claimant was, consciously or unconsciously, by reason of the protected act.

[159]Counsel for the Claimant, Mr. Toms, had referred in his written submissions to 14 factors upon which he relied generally in the case, as supportive of his submissions that there was an orchestrated campaign against the Claimant, and/or that all the alleged acts of less favourable treatment were by reason of the protected act. The Tribunal referred to these factors in detail at this stage and made findings upon them (see paragraphs 5.11-5.28), before returning to this first act of less favourable treatment by Mr. Holley.

[160]They did not accept that the actions of Mr. Holley in response to the Claimant's grievance amounted to an "attack" upon her, as alleged. They referred to the observations of Sir Brian at the time that, if the Claimant pursued her grievance it would "let the genie out of the bottle", and considered that this proved to be true as a result of the allegations made against her during the course of the grievance.

[161]At paragraph 5.14, a paragraph upon which Mr. Toms places considerable reliance in this appeal, the Tribunal held as follows:

"The Tribunal agrees with [Mr Toms'] submission to the effect that Mr Holley had accepted during the course of the Tribunal proceedings that the Claimant would not have been subjected to a disciplinary procedure had she not brought the grievance and that, instead, she would have been managed. However, it is to be noted that what led to the disciplinary action was the number of complaints which surfaced during the course of the grievance procedure."

[162]However, they rejected his submission that Sir Brian's evidence was also that the reason for the disciplinary action and the decision to take the Claimant off-line was because she had made complaints about the boys' club culture and discrimination, which had failed. His statement, during his evidence, that this was one of the factors behind his decision to take the Claimant off-line and commence disciplinary action, had to be considered in the context in which it was said. The Tribunal held that his evidence was, rather, that the genesis of the disciplinary proceedings was not the allegations of discrimination and boys' club culture, which had not been upheld, but the information that arose during Mr. Roberts' investigation and the complaints referred to in his report. They also noted that, notwithstanding the Claimant's grievance, Sir Brian had asked her to complete the work she was doing at that time on standards. They therefore concluded that, "…Sir Brian was not intending to say that the reason for the disciplinary action was because she had made complaints about the boys' club culture and discrimination."

[163]They rejected further criticisms of Sir Brian by Mr. Toms, holding that in his evidence he had accepted equal opportunities training to be of value, and that his recognition of the importance of the Claimant's complaints of sex discrimination was shown by his decision as to the need for an external investigation. He was entitled to have regard to Mr. Roberts' report, in arriving at his own decision to reject her grievance as being without foundation. Whilst he had told the Tribunal that he believed the Claimant to be emotionally or mentally ill, that was his view; and they held (at 5.26) that it was:

"…not clear whether he would have had a different view if the person with whom he was dealing was a man; that was never put to him."

[164]The Tribunal further held that there was insufficient evidence to conclude that Mr. Baker was not independent or open-minded in conducting the disciplinary hearing. Whilst it was correct that he was on Mr. Holley's list of witnesses prepared in response to the grievance, he had not in fact been called; and there was no evidence as to what he might have said had he been called.

[165]They rejected the submission that Ms Nunn denied any knowledge of other complaints against the Claimant, in order to hide the fact of an orchestrated complaint against her. Rather, she did know that others had complained but did not decide to provide any statement herself until she inferred that the Claimant was on "garden leave" and that some form of action was being taken against her.

[166]In considering Mr. Toms' reference to the striking contrast between the Claimant's appraisals and the vague, unparticularised allegations of misconduct against her, in the context of the victimisation claim, the Tribunal considered that Mr. Tabberer had to some extent used "coded language", in describing difficulties people experienced when working with her, and problems arising in her relationships with her peers; and that these issues had been raised in earlier appraisals.

[167]They considered there to be no evidence to indicate victimisation in relation to Ms. Munro's involvement in the grievance appeal. It was not her role to reinvestigate the whole complaint, but rather to decide, as a Board member, whether there had been a fair investigation and whether appropriate conclusions had been drawn. Whilst she did discuss the future conduct of the SMG with Mr. Holley, this was only after she became aware of what had happened at SMG meetings, about which she was entitled to be concerned. There was nothing wrong with her advising the Claimant, at the outset, of the time she had allocated to hearing the appeal on the first day; and she had held a second meeting with the Claimant. There was no suggestion by the Claimant that she had not been able to put forward all she wished to in support of her appeal.

[168]The Tribunal accepted that no action had been taken against the Claimant at the time that any alleged incident occurred, but only after she had presented her grievance. In relation to the matters with which Mr. Tabberer had been concerned over the years, it was correct that none of the allegations made was new to him. When Mr. Holley became involved in February 2006, however, it was at a time when it was thought that the Claimant might part company with the Respondent on agreed terms.

[169]Finally, the Tribunal having rejected the complaint of unfair dismissal, to which we shall turn later on, there was no ground for any inference of victimisation being drawn on this basis.

[170]Having considered all this evidence the Tribunal returned at paragraphs 5.29-5.30 to the issue of Mr. Holley's instigation of Ms. Kitson's complaint and causation. Their conclusion was as follows:

"5.29 …It is certainly the case that Mr Holley had denied instigating a complaint from Ms. Kitson, whereas he certainly spoke to her in June and that led to her complaint, and Mr. Holley accepted that, if it had not been for the grievance procedure, the Claimant would not have been subjected to the disciplinary procedure, although that is tempered by the fact that various complaints were raised during Mr. Roberts's investigation. Furthermore the Claimant had accused Mr. Holley of sex discrimination. The Tribunal has therefore come to the conclusion that the Tribunal could infer from what the Claimant has proved that seeking a statement from Ms Kitson amounted to a victimising act. 5.30 The next matter to be considered by the Tribunal was whether the Respondent proved that it did not treat the Claimant less favourably by reason of the protected act. Mr. Holley's explanation as to why he called Ms. Kitson to see him was that he wanted to finish the discussion which had started in April. However, there was nothing to suggest that Ms Kitson felt that the discussion had not been completed. Ms Kitson had said that she felt that Mr Holley needed to know about morale issues in the Directorate. The explanation given by Mr. Holley is unsatisfactory; during the course of his evidence it was clear that he might have considered approaching Mr Moses but did not need to because Mr Moses was "champing at the bit"

. As the Tribunal has not accepted Mr Holley's explanation that he was merely "finishing a discussion started in April", it follows that the Respondent has not proved that it did not treat the Claimant less favourably by reason of the protected act. Accordingly, the Tribunal finds this allegation proved."

[171]However, this was the only allegation of victimisation which succeeded. In relation to jurisdiction, the Tribunal held that this act had occurred no later than 24 June 2006, when Ms. Kitson submitted her statement. They held that the Claimant's second ET1 was not submitted to the Tribunal until 23 March 2007, that is nine months later. (In fact it is agreed that the claim was submitted on 6 March, but that does not affect the point being made.)

[172]At paragraphs 5.44-45 they held:

"5.44 …The Tribunal has noted that the Sex Discrimination Act provides for a three months time limit to issue proceedings, subject to the Tribunal having discretion to extend time if it would be just and equitable to consider the complaint. The 1975 Act does not provide a power for amendment to be effected by Regulations. However, section 33 of the 2002 Act provides that the Secretary of State can, so far as is relevant in this case, make provision for the time in which a complaint of sex discrimination must be brought by Regulations. The Secretary of State has done so by regulation 15 of the 2004 Regulations. That regulation provides that, where one of the statutory grievance procedures applies, as is the case here, time is extended by three months from the "normal time limit" which is the time limit imposed by the statute without the Tribunal's exercising its discretion, in other words the period of three months only, which cannot include any further time by virtue of the Tribunal deciding that it is just and equitable to consider the complaint since that amounts to the exercise of the discretion specifically barred in Regulation 15(5)(a)(i). The Secretary of State has therefore changed the time limit for complaints being brought under the Sex Discrimination Act to an absolute period of no more than 6 months. 5.45 If the Tribunal is wrong in that conclusion, no evidence was given as to why no complaint was made about that matter within the initial three months' time limit with a view to explaining why it would be just and equitable for the Tribunal to consider it. Accordingly there is no basis on which the Tribunal could exercise its discretion."

The Claimant's successful complaint of victimisation, on the basis that Mr. Holley had instigated Ms. Kitson's complaint against her by reason of her protected act, was therefore held to be out of time and the Tribunal decided that there was no jurisdiction to consider it.

[173](2) The second act of victimisation relied upon by the Claimant was the commencement of the disciplinary investigation against her.

[174]There being no evidence that anybody who had not carried out a protected act had had disciplinary proceedings instituted against them, the Tribunal proceeded to determine whether the Claimant had proved facts from which they could conclude that this amounted to a victimising act.

[175]This they determined against the Claimant. They held that there was no evidence to suggest that Mr. Fry, either consciously or unconsciously, had victimised the Claimant. He had decided to take the matter up with Sir Brian, after being notified of Mr. Roberts' findings. Further, referring again to their findings in relation to Sir Brian (see paragraphs 161-2 above), whose decision it was to commence disciplinary proceedings, they held that there was no evidence upon which they could conclude that he had so decided by reason of the protected act.

[176]In any event, even if the burden of proof had transferred to the Respondent, they held that Mr. Fry and Sir Brian had both satisfactorily explained that the reason for instituting proceedings was the evidence that had arisen during the course of the grievance investigation. This allegation of victimisation therefore failed.

[177](3) The third allegation was that the Respondent had failed to follow a fair disciplinary procedure.

[178]Accepting that the external consultant, Ms Morehen, had not investigated "every possible aspect" of the complaints made against the Claimant, the Tribunal declared themselves satisfied that "in broad terms she acted reasonably". She had wanted to interview the Claimant and, although the Claimant was too unwell, she was able to produce a substantial response to the evidence against her. The matter then moved to Mr. Baker, who considered all the evidence, and the Claimant "had the opportunity to arrange for witnesses" to support her. They accepted his evidence, that it was the weight of the evidence against her, as he saw it, that persuaded him that the allegations had been made out. They recognised that there were "some defects" in the evidence, for example in relation to the evidence of Mr. Moses and Ms. Nunn. They also noted that Mr. Baker accepted Ms Kitson's evidence without knowing the details of the verbal criticism of Ms Kitson alleged to have been made by the Claimant.

[179]They noted that there was no criticism made of Mr. Buck in relation to his conduct of the Claimant's appeal.

[180]They concluded that there was nothing to suggest that the procedure adopted by the Respondent was any different from the procedure it would have adopted in respect of a person who had not done a protected act. If they were wrong about that they held that they were satisfied that there was no evidence from which they could conclude that the way in which Ms. Morehen, Mr. Baker or Mr. Buck had acted was by reason of the protected acts.

[181](4) The Claimant relied, fourthly, on the requirement imposed that she work off-line pending the investigation.

[182]This, again, was found to be a decision taken by Sir Brian, in consultation with Mr. Fry, who recommended it as a course of action because of the scale and seriousness of the complaints that had been made against her, and the fact that no action had been taken earlier on because the complainants did not then wish to pursue these matters. Sir Brian agreed with him and then took the matter to Mr. Holley, since it was for him to decide how, practically, to implement this step.

[183]The Tribunal held that the Claimant had not proved facts from which they could conclude that moving the Claimant off-line was done, consciously or unconsciously, by reason of the protected act. If, however, the burden had been transferred to the Respondent, the Tribunal was satisfied, by the explanations of Sir Brian and Mr. Fry, that they had not required the Claimant to work off-line by reason of the protected act.

[184](5) and (6) The fifth allegation, that the Claimant was denied access to witnesses for her grievance appeal, was held not to have been made out on the facts. The Claimant was told that she could arrange for any witnesses to be notified to HR. She had named some witnesses and Ms Munro had considered their statements, together with the documentation submitted by the Claimant. The sixth allegation, that Ms. Munro unreasonably limited the time allotted to hear the grievance appeal, was also rejected on the facts for the reasons already referred to (see paragraph 167 above).

[185](7) The claimant relied upon the delivery to her, late on the evening of Friday 28 July, when she was unwell, of a large quantity of evidence relating to the disciplinary investigation.

[186]This was held to have happened at the request of Ms. Morehen, and the Tribunal accepted that it would have been "a shock for the Claimant to receive such a weighty bundle". There was, however, no reason to believe that anybody who had not carried out a protected act but who was absent on sick leave would have been treated any differently. This allegation therefore failed in addition. Even if they were wrong about that the Tribunal held that the Claimant had not proved facts from which the Tribunal could conclude that sending the bundle of evidence that Ms. Morehen had so far accrued in that way was by reason of the Claimant's protected act. It was part of the disciplinary process that the Claimant needed to be informed of the evidence that had been gathered during the course of the investigation.

[187](8) The Claimant alleged that Mr. Baker's decision to uphold the allegations of gross misconduct in respect of her subordinates, and of serious misconduct in respect of the other charges, amounted to victimisation.

[188]In rejecting this allegation, the Tribunal referred again to Mr. Toms' reliance, in support of it, on the fact that the investigator, Mr. Baker, had been on Mr. Holley's list of grievance witnesses, which they rejected for the reasons already given (see paragraph 164 above). At paragraph 5.41 they stated, "…it is clear that Mr. Baker took the investigation seriously. While some criticisms can be levelled at his investigation, for example in respect of the paucity of evidence regarding some of the complaints involving Mr. Moses, Ms. Nunn and Ms. Kitson, he had before him such a weight of evidence that his conclusion that the Claimant was guilty of the offences with which she was charged was one that the Tribunal has concluded was not arrived at as a result of the Claimant having carried out a protected act. Accordingly the complaint fails."

[189](9) The final act of victimisation relied upon was Mr. Baker's decision to dismiss the Claimant. This too was rejected, the Tribunal referring to their previous findings and holding that, "… In broad terms, once Mr. Baker was satisfied that the Claimant had bullied junior staff, he was entitled to conclude that the Claimant should be dismissed. There is nothing in that decision which suggests that there was intentional or unintentional discrimination. Accordingly this complaint also fails."

[190]The parties had agreed that consideration would need to be given, as appropriate, to whether the acts relied upon by the Claimant constituted a continuing act of victimisation for the purposes of time limits and jurisdiction.

[191]At paragraph 5.43 the Tribunal stated that the first matter they considered was whether or not, "…taking all the allegations together, they could together amount to a victimising act, notwithstanding that individually except in one case they do not appear to amount to victimisation." However, some of the allegations had failed on the facts and in respect of others, where the burden of proof had transferred, the Tribunal found that they were satisfied with the Respondent's explanation for their actions. There was therefore only one act of victimisation which succeeded, which was held to be out of time for the reasons already given (see paragraphs 171-72 above) and was dismissed. The Appeal in relation to Victimisation Grounds 1, 2 and 5

[192]These relate only to the findings on the Claimant's second claim.

[193]Mr. Toms' main challenge to the decision on the second claim, that all save one of the Claimant's allegations of victimisation failed, is that the Tribunal erred in failing to consider the case as a whole and in adopting a piecemeal and fragmented approach to the evidence (ground 1). In so doing he submits that they adopted a flawed reasoning process (ground 2). Alternatively, relying on essentially the same analysis, he contends that their conclusion that the Claimant had not been unlawfully victimised, save in the one matter identified, was perverse (ground 5). In his oral submissions Mr. Toms dealt with these three grounds together as amounting, effectively, to the same challenge, namely that the Tribunal's decision was unsustainable.

[194]In developing these submissions, Mr. Toms referred to the importance of effective protection for employees from victimisation, by reason of their carrying out protected acts under the discrimination legislation. He drew our attention to the now, well-known passages to this effect in the decision of the House of Lords in Derbyshire and Others v St, Helen's MBC

[2007] ICR 841

(see, e.g. the speech of Baroness Hale at paragraphs 30-35).

[195]His submissions in this case are essentially as follows. By presenting a grievance which was held to raise issues of sex discrimination, the Claimant carried out a protected act. The Tribunal's finding, in paragraph 5.14, that Mr. Holley had accepted that this Claimant would not have been subjected to the disciplinary process had she not brought her grievance, could not have been a clearer expression of the reason for disciplining her and therefore of unlawful victimisation. Whilst the Tribunal also noted, at paragraph 5.14, that what led to the disciplinary action was the number of complaints that surfaced during the grievance procedure, they had found that the most important of these complaints, from Ms. Kitson, had been instigated by Mr. Holley. That, they held, did amount to an act of unlawful victimisation.

[196]On that basis alone, he submits, Mr. Holley's admission, recorded at paragraph 5.14, was an admission of victimisation; and the Tribunal's decision to reject her claim was therefore perverse.

[197]Similarly, Sir Brian had said that her complaints about the boys' club and discrimination were "one of the factors" behind the decision to commence disciplinary action and to take the Claimant off-line. Further, the Tribunal accepted that none of the complaints made was new to the Respondent, and that no action had been taken when the incidents occurred, but only after she had presented her grievance. The problems with peer groups raised during appraisal were not the reason for her dismissal; and there were no criticisms of her staff management at the time the incidents now relied on were said to have occurred. There was, he submits, an overwhelming case that this Claimant was unlawfully victimised. In rejecting this clear evidence, that the Claimant's protected acts were the reason for the disciplinary action, the Tribunal's reasoning is unsustainable and their decision is perverse.

[198]Alternatively, Mr. Toms submits that the Tribunal erred in adopting a piecemeal approach to the acts of less favourable treatment relied upon; and in failing to stand back and consider the totality of the evidence and the inferences that could, and should, be drawn from the primary facts. He took us to the frequently cited passages in the guidance given as to the drawing of inferences in direct discrimination cases, by the EAT in Qureshi v Victoria University of Manchester [2001 ICR 863 , approved by the Court of Appeal in Anya v University of Oxford

[2001] IRLR 377

. Giving the judgment of the EAT in Qureshi , Mummery J. said, so far as is relevant, as follows:

"The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence… There is a tendency…where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint… The function of the tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating application were on 'racial grounds'. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds…"

[199]Mr. Toms submits that, by looking at each individual allegation and incident in isolation, this Tribunal lost sight of the overall picture and therefore of the cumulative effect that the primary facts in this case had on the issue of victimisation and the drawing of inferences. In particular, having found that Mr. Holley did victimise the Claimant, in instigating Ms. Kitson's complaint, they failed to consider the impact of this finding, and their rejection of his explanation, on the other facts found and the inferences that could be drawn from them. In so failing they erred in law and this Appeal Tribunal should intervene. In referring to the other facts Mr. Toms relied, effectively, on the submissions which he had relied on below, in support of the Claimant's case, and to which we have referred above. These were set out in considerable detail in his skeleton argument.

(A) Perversity – ground 5

[200]As Mr. Toms accepts, for this ground to succeed the threshold to be crossed is a high one. He must demonstrate either that there was no evidence to support a particular finding, or that the Tribunal's decision was one which no reasonable tribunal, properly directed in law, could arrive at on all the material available to them (see Yeboah v Crofton

[2002] IRLR 634

. ) The EAT should intervene only where "an overwhelming case is made out". Further, the EAT should always avoid the risk of substituting its own view for that of the tribunal below where of necessity, on appeal, the evidence is incomplete.

[201]No notes of the evidence given below are before us, and it appears that an earlier request by the Claimant for notes of the evidence in cross-examination of Sir Brian and Mr. Baker was refused.

[202]We note, first, that none of the Claimant's allegations, listed at paragraph 1.3 of the judgment, involved Mr. Holley and Sir Brian acting together as decision-makers. Indeed, the primary facts reveal that different personnel were involved in, or responsible for, the different acts of less favourable treatment relied upon at different times, some of whom were independent of the Respondent organisation.

[203]The Tribunal made express findings of fact (at paragraphs 3.67-68), as to who made the decision to institute disciplinary action against the Claimant and as to the reason for that decision. Mr. Fry it was who, after considering the position following Mr. Roberts' report, the history of concerns expressed to him by members of the Claimant's staff over the years, and the complaints made to Mr. Holley by Ms. Kitson and Mr. Moses, concluded that it was now necessary to commence a disciplinary investigation. He discussed the matter with Sir Brian, who agreed with him. They both decided, in addition, that the Claimant should be required to work off-line whilst the investigation proceeded, because of the nature and scale of the complaints made.

[204]Once this decision was taken, Mr. Holley was consulted about its practical implementation, and about the work that the Claimant would be required still to do, from home. The Claimant was informed by Mr. Fry as to the reason for the investigation, namely deep-seated issues of behaviour and conduct, which were said to be a matter of serious concern.

[205]We agree with Mr. Mead, appearing for the Respondent, that having regard, at least, to the oral evidence of Sir Brian, Mr. Fry and Mr. Holley, it cannot be said that there was no evidence to support the Tribunal's findings.

[206]At paragraph 5.15, where the Tribunal referred to Sir Brian's reference to the Claimant's grievance as being "one of the factors" behind his decision, the Tribunal were, in our view, doing no more than the task required of them, as fact-finders, in a case involving extensive oral and documentary evidence. They were, essentially, analysing and interpreting all the evidence they had heard from this witness, having assessed his reliability and credibility, considering the context in which that statement was made and all the other evidence before them. We note that they rejected all the other criticisms made of his evidence by Mr. Toms, as they were entitled to.

[207]The clear fact is that they accepted the explanation of the relevant decision-makers, as to the reason for commencing the disciplinary investigation into the Claimant's conduct. Their conclusions, in relation to these allegations of victimisation are clearly set out at paragraphs 5.31 onwards. They therefore rejected the Claimant's case, that her dismissal had been orchestrated and that the reason why she had been disciplined was the fact that she had brought a grievance and complained of sex discrimination.

[208]We do not consider that the finding relating to Mr. Holley at paragraph 5.14 assists the Claimant on this issue. Firstly, he was not the decision-maker in relation to the commencement of disciplinary proceedings. Secondly, the second sentence in that paragraph reflects the Tribunal's decision, on the evidence, that the reason for the institution of proceedings was not the fact that she had brought the grievance, but the number of complaints made against her that had surfaced during the course of that grievance investigation by Mr. Roberts.

[209]Mr. Toms' further submission, that none of the complaints made during the grievance procedure was new to the Respondent's managers, was a point he argued below (see paragraph 5.27), with partial success. Historically it appeared that some people had complained orally to Mr. Fry over the years about the Claimant's conduct, (the judgment is silent as to the details of these complaints), but that they had not wanted to pursue their complaints at the time. Mr. Tabberer was clearly aware of those matters which had been brought to his attention, as the Tribunal found. There is no finding, however, that the Respondent's managers already knew about all the complaints which surfaced during Mr. Roberts' investigation. In relation to Ms Kitson, the Tribunal found that Mr. Fry had known of her concerns (see paragraph 3.24), but there is no finding that either Mr. Tabberer or Mr. Holley, or indeed Sir Brian, knew about them at the time the alleged incidents occurred.

[210]These points will merit further consideration, in our view, in considering the appeal against the Tribunal's findings on unfair dismissal. In our judgment, however, Mr. Toms comes nowhere near the threshold he must cross in order to establish that the Tribunal's decision on victimisation was perverse. Ground 5 therefore fails.

(B) Grounds 1 and 2 – Flawed Approach

[211]The relevant provisions applying to claims of sex discrimination by victimisation are to be found in section 4 of the 1975 Act. This provides, so far as is relevant, that one person discriminates against another if, in any circumstances relevant for the purposes of any provision of the Act, he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so "by reason that the person victimised has – …(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act… or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them." The phrase "by reason that" was considered by the House of Lords in Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

. Whether an applicant was treated less favourably "by reason that" he had done a protected act, as referred to in the legislation prohibiting sex and race discrimination, raises a question of causation, which as Lord Nicholls observed is "a slippery word". As he pointed out, "The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact."

[212]Finding the reason why an alleged discriminator acted as he did, in a case where a claimant has established both that she had done an act referred to in section 4 [a protected act], and that she had been treated less favourably, as alleged, is an important task for the fact-finding tribunal.

[213]The Tribunal in this case correctly directed themselves as to the provisions of section 63A(2), namely that:

"Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent – (a) has committed an act of discrimination…against the complainant which is unlawful by virtue of Part 2… the tribunal shall uphold the complaint unless the respondent proves that he did not commit…that act."

[214]It is not is dispute that the Tribunal were referred to the relevant case law on the burden of proving allegations of discrimination, namely Igen v Wong

[2005] ICR 931

, which gives guidance as to the two-stage process an employment tribunal must adopt, if a complaint of discrimination is to be upheld.

[215]In considering whether the Tribunal correctly applied these principles in the present case, we have been unable to identify any error on their part in carrying out the exercise that was required of them.

[216]It was clearly necessary for them to decide, first, whether the Claimant had committed a protected act. That issue was resolved in her favour, the Tribunal identifying the two protected acts at paragraph 5.3.

[217]It was then incumbent upon them to decide whether the Claimant had been treated less favourably by the Respondent, as defined by section 4, in the ways she alleged; and whether any of the acts of less favourable treatment found to have occurred were by reason that she had committed the protected act.

[218]The list of acts of less favourable treatment, upon which the Claimant relied, were set out at paragraph 1.3, having been identified at earlier CMDs as the discrete heads of her complaint of victimisation, upon which the Tribunal therefore had to make specific findings. One of these was withdrawn during the hearing so that nine remained.

[219]The first of these, namely the allegation that Mr. Holley instigated the complaint made against her by Ms. Kitson, was resolved in the Claimant's favour on the facts. The Tribunal then proceeded, at paragraph 5.10, to the first stage of the two-stage test required, asking themselves whether the Claimant had proved facts from which they could conclude, in the absence of an adequate explanation, that the treatment was, consciously or unconsciously , by reason of the protected act.

[220]In order to consider this, the Tribunal took into account all those matters of evidence upon which the Claimant relied in support of her allegations of victimisation – the 14 matters referred to by Mr. Toms in submissions on her behalf. Each of these issues was considered and findings made upon them in paragraphs 5.11 – 5.28, as we have set out above. Clearly all these matters were relevant to all the heads of claim set out at paragraph 1.3.

[221]Having resolved these matters, the Tribunal then returned, at paragraphs 5.29 – 5.42, to all the heads of claim upon which the Claimant relied, in order to decide whether she had established that each of them was by reason of the protected act.

[222]The first head of claim, namely Mr. Holley's instigation of Ms. Kitson's complaint, was resolved in her favour, the Tribunal finding that the Claimant had passed the first stage of the process and then rejecting Mr. Holley's explanation for what occurred.

[223]They then dealt with each of the other heads of claim, deciding, as we have set out above, either that the Claimant had not proved facts from which they could conclude, in the absence of an adequate explanation, that her treatment was by reason of the protected act; or that, if they were wrong about that, finding that the Respondents had discharged the burden upon them of satisfying the Tribunal as to their explanation for the Claimant's treatment.

[224]As we have already noted, in considering the perversity challenge, the discrete heads of claim listed at paragraph 1.3 all involved the acts or decisions of different individuals, some of whom were external to the Respondent. The decision to institute disciplinary action and to require the Claimant to work off line was that of Mr. Fry and Sir Brian. The alleged failures to follow a fair procedure, the upholding of allegations of gross misconduct and the decision to dismiss the Claimant involved Ms. Morehen, Mr. Baker and Mr. Buck. The alleged denial of access to witnesses and limiting the time for determining the grievance appeal were the acts of Ms. Munro. The Claimant's case, that disciplinary action was orchestrated by the Respondent in order to get rid of her, had to be considered in the context of each of these discrete heads of claim, alleged against different actors and decision-makers, and taking place at different times. The Tribunal clearly rejected the suggestion of an orchestrated campaign to get rid of her because she had complained of sex discrimination in her grievance.

[225]Thus, Mr. Holley was not the decision-maker in relation to the other, alleged acts of less favourable treatment; and there was no finding of fact that he had been involved in any way in any of the other acts alleged to have been carried out by others. There was no evidential basis, therefore, for the discrete finding against him to have led the Tribunal to infer that the other individuals involved had unlawfully victimised the Claimant in respect of the other heads of claim.

[226]We agree with Mr. Toms that tribunals should always have regard to the totality of the evidence before them, when deciding whether inferences should be drawn from the primary facts and whether an allegation of discrimination, including victimisation, should be upheld. However, in this case the focus was on the reason why someone had acted as he had. It was therefore incumbent upon the Tribunal to decide whether the relevant person, in relation to each head of claim, had acted as he or she did by reason that the Claimant had made allegations of sex discrimination in her grievance. In respect of those acts of less favourable treatment which they found to have occurred, they were therefore required to ask why, in each case, the actor/decision-maker had acted as they did.

[227]In our judgment, this is what the Tribunal did. And in so doing, we are not persuaded that they lost sight of the overall picture in this case or erroneously approached the case in a fragmented and impermissible way, as Mr. Toms suggests. It is clear in any event, from paragraph 5.43, that the Tribunal expressly considered the totality of the allegations, in order to consider whether the Claimant could rely upon a continuing act of victimisation, so as to found jurisdiction to determine all her complaints.

[228]The detailed submissions on the evidence set out in Mr. Toms' skeleton argument and pursued in his oral submissions amounted, in our view, to an attempt to re-argue the facts and did not therefore assist us in determining whether this Tribunal erred in law, as alleged.

[229]For these reasons grounds 1 and 2 are also dismissed. Ground 6 – The First Claim

[230]Mr. Toms challenges, as inadequately reasoned and unsustainable, the Tribunal's finding that there was no protected act carried out by the Claimant at the meeting between the Claimant and Mr. Holley on 23 February 2006. He submits that the Tribunal must have rejected Mr. Holley's account of this meeting, namely his evidence that the Claimant had not referred to being stereotyped or to the existence of a 'club culture' in the organisation, because they found that those allegations were in fact made by her. Yet they failed adequately to explain why they had rejected his account, and to address in particular what flowed from that, namely the inferences that could be drawn. Mr. Toms submits that their rejection of his account of the meeting supported the Claimant's case that he did understand the significance of her complaint, which was why he was now denying it. The Tribunal's reasoning in respect of their finding that there was no protected act was therefore wholly inadequate and their conclusion cannot stand.

[231]The Tribunal's findings of fact on this issue are set out at paragraph 3.33, and their conclusions appear at paragraph 5.1.

[232]Effectively, the Tribunal were faced with a conflict on the evidence as to whether or not, at this meeting, the Claimant had raised allegations of 'institutional' sex discrimination within the Respondent organisation, and whether Mr. Holley was aware that she was, or might be, raising such issues.

[233]They found as a fact that the Claimant had referred to there being a 'club culture' in the organisation, and to the fact that she had been 'stereotyped' for years by both Mr. Dee and Mr. Day. However, she had also included in this organisational club culture the behaviour of Ms. Leanne Hedden, Director of Corporate Services, and the Tribunal considered that she might also have had in mind the conduct of Ms. Nunn.

[234]The Tribunal concluded on the evidence they heard that, at this meeting, the Claimant's emphasis was on the way she considered that the organisation was in general being 'poorly run', and on the organisational culture which had led to her being stereotyped over the years by a number of people. Given her own reference to Ms. Hedden as being part of this culture, and the fact that the CLG at the time included equal numbers of men and women, the Tribunal were satisfied, based on the Claimant's own evidence, that Mr. Holley was not aware that she was raising any complaint of sex discrimination at this meeting. Recognising expressly at paragraph 5.1 that a woman "can of course discriminate against another woman on the ground of sex", they were nevertheless satisfied that the Claimant had said nothing during the course of this discussion to cause Mr. Holley to believe that discrimination on the ground of her sex was being alleged.

[235]We do not accept the submission that these findings disclose defective or inadequate reasoning. Once they had decided what, on her own account, the Claimant had said at this meeting, they were not required to assume that what she had said raised issues of sex discrimination, or to analyse further why they did not accept Mr. Holley's account of what the Claimant had said, and what inferences could be drawn from that. Their obligation was to make findings which were material to the issues in dispute. This, in our view, they did. They were satisfied on the evidence that Mr. Holley was not aware at that meeting that she had raised any complaint that she had been treated as she had been on the ground of her sex. This finding was clearly open to them on the evidence and we are not persuaded that any error in their reasoning is disclosed. Ground 6 therefore also fails.

[236]It therefore follows that the Claimant's appeal against the dismissal of her victimisation claim fails. In our judgment the Tribunal did not err in dismissing all her allegations of victimisation, save for that relating to Mr. Holley's instigation of Ms. Kitson's formal complaint against her. This claim was found to be out of time, however, and to that issue we now turn. Ground 7 – The Time Point.

[237]Mr. Toms submits that the Tribunal erred, on two bases, in concluding that this one, successful complaint of victimisation was out of time. Firstly, they erred in concluding that they had no discretion to extend the time limit beyond six months because the statutory dispute resolution procedure applied. Secondly, they erred in concluding that there was no evidence as to why the Claimant had not complained earlier on. There was, he submits, ample evidence that she was defending herself through the various stages of the internal disciplinary process, which was clearly an on-going act, and that she was unwell for much of that time.

[238]The first basis of challenge is, in our judgment, correct and indeed it is not resisted by the Respondent. Section 76(5) SDA provides that, "…A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so." This broad discretion is not limited in any way by the provisions of the Employment Act 2002 (Dispute Resolution) Regulations 2004 , Regulation 15 of which deals with time limits. We agree that the Tribunal erred in finding to the contrary at paragraph 5.44.

[239]We adopt the reasoning of the EAT on this issue in Carter v(1) London Underground Ltd. and

(2) Transport for London

UKEAT/0292/08/ZT

at paragraphs 44 – 46. Giving the Tribunal's judgment, Underhill P. stated at paragraph 46 that:

"The purpose of reg. 15 of the 2004 Regulations is, in effect, to impose a moratorium of three months before the normal time limit kicks in, in order to allow for the statutory procedures to run their course. That apart, its effect on the operation of the time limit contained in the relevant primary legislation should be entirely neutral. It would be extraordinary if its effect were to deprive employees of the benefit of the Tribunal's jurisdiction to consider an out-of-time complaint when it was just and equitable to do so. We cannot see that the words of reg. 15(1) and (5) have that effect. To say that the primary time limit is extended from three months to six has no bearing on the separate question whether a claim falling outside that extended time limit may nevertheless be considered."

[240]The question for us is therefore whether the Tribunal erred in concluding as they did, at paragraphs 5.45-46:(a) that the claim was issued nine months after the matter complained about;

(b) that no evidence was given as to why no claim was made, in respect of that one successful complaint, within the three months time limit, with a view to explaining why it would be just and equitable to permit the claim to proceed; and

(c) that they therefore had no jurisdiction to consider it. Mr. Mead submits, essentially, that the Tribunal were entitled to conclude as they did on this issue, and that no specific explanation had been provided by the Claimant in relation to seeking an extension of time.

[241]Mr. Toms accepts that the Claimant did not deal specifically with this issue in her lengthy witness statement. He submits, however, that no-one at that stage had anticipated this particular outcome, namely the upholding of one only of her many allegations of victimisation.

[242]He drew our attention to the recent decision of the EAT in Accurist Watches Ltd. v Mr. D Wadher

UKEAT/0102/09/MAA

, at paragraphs 15-18, where Underhill P, sitting alone, held as follows:

" ….it is always necessary, in the exercise of the discretion to extend time on the basis that it is just and equitable to do so, for a tribunal to identify the cause of the claimant's failure to bring the claim within the primary time limit."

Rejecting counsel's submission that the tribunal's finding on that issue must in every case be based on witness evidence, typically set out in a witness statement, upon which the respondent has a chance to cross-examine, he continued, "…I can see no basis in the Employment Tribunal Rules for making it an absolute requirement that evidence be adduced in that form. The practice of the employment tribunals generally has been to eschew evidential formalities, and although the provisions have changed over the years, there remains a reflection of that in rule 14.2 of the current Rules….In my view a tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question – that is, in a case like the present, as to the explanation for the delay. Such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents."

[243]We agree. Whilst there must be evidence before the Tribunal, upon which they can make findings as to the reason for the delay, and be satisfied that it is just and equitable to extend time, that evidence can come from a variety of sources and not just from the claimant in a witness statement or in the witness box. This is likely to be the case where, as here, there are many allegations of victimisation made on a "continuing act" basis, involving different events and personnel over a lengthy period of time, but where eventually only one of them succeeds. It is in our view unrealistic, in such circumstances, to expect a claimant, in evidence, to have dealt with the extension of time point separately, in respect of each, discrete allegation, on the somewhat artificial and entirely hypothetical basis that only one of them might succeed.

[244]There is, in addition, a particular difficulty caused where, as here, the Tribunal's judgment is reserved, and the parties have therefore not had an opportunity to address the Tribunal upon the evidence and make submissions on the issue of delay and 'just and equitable' extension, in respect of any individual allegation of victimisation, before the judgment is promulgated.

[245]We find Mr. Toms' submissions on this issue to be compelling. He contends that much could have been said, on the Claimant's behalf, in reliance upon the documentary evidence and the circumstances generally, in support of it being just and equitable for the Tribunal to extend time in relation to her successful claim. He points, for example, to the fact that, although the Tribunal refer to her being nine months out of time, the Claimant was unaware until 28 July 2006, when she received the witness statements for the disciplinary hearing, of Mr. Holley's involvement in Ms. Kitson's complaint. He submits that it would be unreal to expect her then to lodge another claim relating to this, discrete issue before she lodged her second claim in March 2007, given that her case was based on there being a continuing course of less favourable treatment, which amounted to unlawful victimisation.

[246]He submits that there was also a great deal of material before the Tribunal showing that the Claimant was ill at this time, suffering, as the Tribunal found, from significant, stress-related illness, including panic attacks, gastric problems and chest pains, such that she was unable to attend the disciplinary hearing on 4 August; and that her illness continued throughout the investigation.

[247]We accept Mr. Mead's submission that the presumption is against an extension of time, and that it is for the Claimant to show that there are good reasons why, exceptionally, time should be extended in her favour (see Accurist at paragraph 28). However, Mr. Toms has persuaded us that, contrary to the Tribunal's finding at paragraph 5.45, there was evidence here going to this issue, albeit not in the form of a witness statement or evidence directly from the Claimant herself, and yet it appears from the Tribunal's judgment that they did not have regard to any of it in coming to their decision as to jurisdiction.

[248]For these reasons this ground of appeal succeeds and, for reasons which will become apparent, the matter will have to be remitted to a fresh tribunal for determination on evidence, and after considering the submissions of the parties. (2) UNFAIR DISMISSAL

[249]The Tribunal's reasoned decision on this claim is much shorter, when compared with their more detailed analysis of the victimisation claim. It is set out at paragraphs 5.47 to 5.70 of the judgment.

[250]There was no suggestion that the Respondents had breached the statutory disciplinary and dismissal procedures, and they were found to have complied with all the steps required of them.

[251]The Tribunal was satisfied that the reason for the Claimant's dismissal was the Respondent's belief that she had been guilty of gross misconduct, in the way she had behaved towards her subordinates, and that this was a potentially fair reason.

[252]They referred to the guidance in BHS v Burchell

[1980] ICR 303

and considered first whether a reasonable investigation had been carried out, having regard to the extensive criticisms made of it on the Claimant's behalf.

[253]Many criticisms were made of Ms. Morehen's investigation, which was said not to have been a proper investigation in the circumstances. These included a number of alleged failures on her part: to interview any witnesses who might be favourable to the Claimant; to interview Mr. Watkins, who witnessed Mr. Dury's appraisal; to ask Ms. Nunn whether the Claimant had complained about Mr. Moses' competence; to seek out relevant documentary evidence regarding Ms. Kitson's complaint and Ms Francis' concerns in relation to recent feedback; to consider the contents of the staff survey; to obtain details as to what was said to Ms. Kitson in the presence of School Workforce Advisors; and to obtain sufficient details for the Claimant to be able to respond regarding Mr. Moses' complaint that her actions had caused his blood pressure to be raised.

[254]Other allegations were of more general failures on the part of Ms. Morehen, in particular her failure to set out properly the allegations with which the Claimant had to deal during the course of the disciplinary investigation; the failure to investigate any of the points made by the Claimant in her detailed response, and the fact that, in the brief passage where she addressed this, Ms. Morehen was largely dismissive of the key points in the Claimant's favour.

[255]Mr Toms also criticised the Respondent's failure to allow sufficient time properly to investigate the Claimant's response; and the fact that Ms. Morehen's final report, essentially, just repeated the preliminary conclusions contained in her interim report.

[256]Mr. Toms also made extensive criticisms of the disciplinary hearing itself, referring to Mr. Baker's lack of experience; his refusal to permit the Claimant to question witnesses fully; his failure to identify and deal appropriately with the difference between the contents of the Claimant's appraisals and the allegations now being made against her; the fact that he had before him no details of the incident which had allegedly led to Mr. Moses' blood pressure being raised; that he had not had regard to Ms. Nunn's evidence that the Claimant had not, to her knowledge, ever criticised Mr. Moses' competence or conduct; and the fact that he had not himself seen any of the documents alleged by Ms. Kitson and Ms. Francis to have been criticised by the Claimant, and was unaware also of the content of the verbal criticisms said to have been made of Ms. Kitson by the Claimant.

[257]Clearly, from their judgment, the Tribunal accepted some of these criticisms and rejected others. They did not consider, in conclusion, that there was a failure to carry out a proper investigation by Ms. Morehen in the circumstances. In relation to the failure to set out properly the allegations made against the Claimant they held that: "However, this is the result of the procedure itself which provides that charges are formulated at the end of the preliminary investigation. The Claimant had all the evidence that had been obtained and was able to put in a detailed response to the allegations raised in that evidence".

[258]In relation to Ms. Morehen's use of the Claimant's response, they accepted that she had certainly made "adverse comment" about various aspects of the response but said that it was a matter for the chair of the disciplinary hearing to decide the issues, on the basis of her report and the Claimant's responses. The Claimant's response had in any event been put in late, a deadline having been set for 27 October. Ms. Morehen had however received "substantial evidence" on which she could come to the conclusion that there were four charges that the Claimant should be required to meet.

[259]In relation to the criticisms made of the disciplinary hearing, they found that Mr. Baker was a Board member and that he had been assisted by Human Resources. Notwithstanding their earlier finding of fact that the Claimant had been limited in her ability to put the questions she wished (see paragraph 3.104), they held that there might have been a misunderstanding on the Claimant's part, and that she had given no indication to Mr. Baker that she had other questions that she wanted, through him, to be asked of any witness.

[260]In relation to the appraisals, the Tribunal stated that Mr. Baker:

"was entitled to take into account that there were indications in the appraisals of the sorts of problems which had led to the disciplinary proceedings."

[261]The Tribunal had appeared to accept (see paragraph 3.27) that the Claimant's criticisms of Ms. Francis' document were legitimate, at least to some extent, They decided, nevertheless, that although Mr. Baker had no details of the documents which Ms. Kitson and Ms. Francis said had been unfairly criticised, this did not mean that he was not entitled to accept their evidence about it. If the Claimant disputed what Ms. Kitson and Ms. Francis said, they held that "… there was no reason why she could not have requested the document to be produced". Further, even though he was unaware of the content of any verbal criticism made of Ms. Kitson, they held that he was entitled to accept Ms. Kitson's evidence on this point too.

[262]In conclusion the Tribunal held as follows at paragraphs 5.66-5.69:

"5.66 While some criticisms can be made of the investigatory and disciplinary process, the Tribunal is satisfied that the...process was reasonable in all the circumstances. It is not necessary for the process of gathering evidence to be perfect. Accordingly, the Tribunal does not conclude that the dismissal was unfair for procedural reasons. 5.67 Mr. Toms criticised the fact that the Respondent was not entitled to come to the conclusion that the Clamant was guilty of the misconduct alleged in respect of junior officers. However, while the Tribunal would not, on the basis of Mr. Moses's evidence to the Tribunal, have necessarily accepted everything that Mr. Moses said, the Tribunal is not permitted to substitute its own view of Mr. Moses's evidence for that of the employer. Mr. Baker was entitled to accept what Mr. Moses said, provided he had taken into account what the Claimant said. There is nothing to suggest that he did not take account of the Claimant's response to the allegations in respect of Mr. Moses. Similarly, Mr. Baker was entitled to prefer what Ms. Kitson said to what the Claimant said in respect of Ms. Kitson's complaint. 5.68 The next matter the Tribunal considered was, therefore, whether dismissal was within the range of reasonable responses. One of the matters that Mr. Baker highlighted himself was the fact that the Claimant was not, as he put it, "counselled with sufficient urgency about the need to eradicate the behaviours which, in relation to her subordinates, I have found to constitute gross misconduct justifying dismissal"

. However, he had also concluded that the Claimant's "return to the line would not be tenable in terms of the efficient functioning of the Agency because of the strain that this would put on the working of the CLG and the near impossibility of repairing the personal relationships which are a requisite of the effective delivery of the complex remit of the TDA". 5.69 The Tribunal is concerned about the fact that the criticisms of the Claimant in respect of her dealings with her subordinates during the years when Mr. Tabberer was the CEO were diffuse. However, the Claimant was a senior officer and she had been aware of the effect that she had had on staff, for example when she appreciated that she had upset Ms. Kitson who was reduced or almost reduced to tears. On that basis and having regard to the fact that the Claimant is clearly an intelligent woman who knew what effect her conduct had on those who worked to her, the Tribunal has concluded on balance that dismissal was within the range of reasonable responses bearing in mind that bullying is clearly set out as a matter of gross misconduct in the Respondent's disciplinary procedures. Accordingly, the complaint of unfair dismissal fails and is dismissed."

[263]In the final paragraph of their judgment the Tribunal noted that, "..in any event...there is a time issue in respect of the complaint of unfair dismissal. The parties agreed that the Claimant's effective date of termination was 20 December 2006. However, the claim complaining of unfair dismissal was not presented to the Tribunal until 23 March 2007. No explanation was given to the Tribunal why the claim had been presented out of time, time expiring on 19 March 2007."

[264]They therefore held that there was no jurisdiction to consider the complaint of unfair dismissal in any event. The Appeal against the finding on Unfair Dismissal – Grounds 9 and 10

[265]We shall deal firstly with the time point and we shall do so shortly, because the Respondent does not resist the 10th ground of appeal, relating to time limits and jurisdiction.

[266]Mr. Toms submits that the Tribunal were wrong to hold that the unfair dismissal claim was out of time. This was not an issue the parties had been asked to address, so that no evidence had been adduced dealing with the point, and the Tribunal did not ask for any explanation in respect of it. The Claimant's second claim had been presented on 6 March and not 23 March 2007, so that it was in fact in time. Mr. Mead does not take issue with this, and this ground of appeal therefore succeeds. Ground 9 - Perversity

[267]Mr. Toms acknowledged, once again, the high threshold to be crossed, in establishing that the Tribunal's decision on unfair dismissal was perverse, to which we have already referred when considering his challenge to their decision on this ground in relation to victimisation.

[268]Mr. Mead submitted that he does not cross it; and that his challenge amounts, effectively, to an attempt to re-argue the case on the facts, and to seek to persuade this Appeal Tribunal of the merits of submissions which failed below. He responded in detail, in both his written and oral submissions, to the points being made by Mr. Toms on this ground of appeal.

[269]We recognise that intervention by the EAT on this ground can only be in circumstances where an overwhelming case is made out. However, we have concluded that the Claimant's appeal on this ground is well-founded. In essence there is, in our view, a significant mis-match between the Tribunal's relevant findings of fact, recorded at length in paragraph 3, and their conclusions on unfair dismissal at paragraph 5. The extent of that mis-match is such that all three members of this Tribunal are wholly at a loss to understand how the Tribunal could have arrived at their decision,(a) that the Respondent had reasonable grounds for determining, after a reasonable investigation, that the Claimant had been guilty of gross misconduct; and

(b) that the Claimant was fairly dismissed, looking at the case as a whole. Our reasons for so concluding are as follows.

[270]The reason for this Claimant's dismissal was gross misconduct in relation to the treatment of her subordinates, and in particular her treatment of Ms. Kitson and Mr. Moses, whose oral complaints about her treatment of them were found as a fact to have caused Mr. Fry to decide to institute disciplinary proceedings against her. The Tribunal concluded that the decision that her conduct towards them constituted gross misconduct was one which the Respondent was entitled to reach on the available material.

[271]This conclusion, briefly expressed at paragraph 5.67, seems to us, however, to fly in the face of all the material available to the Respondent, as set out by the Tribunal in their findings of fact.

[272]In relation to the contrast between the allegations of misconduct by members of staff and the Claimant's regular appraisals, the Tribunal state at paragraph 5.62 only that Mr. Baker was entitled to take into account that there were "indications" in the appraisals of "the sorts of problems which had led to the disciplinary proceedings".

[273]This finding appears to us to be wholly unsupported by the Tribunal's own findings of fact. The contrast between them, on reading this decision, is striking. The Claimant's annual appraisals, from 2002 to 2005, were all extremely positive so far as her leadership and staff management were concerned. Each appraisal referred, for example, to there being no problems with staff satisfaction (2002); to the Claimant being highly effective in re staff development, adapting her management approach to the needs of individuals (2003); to her having shown strong leadership in re her management of her staff; to her giving good attention to individuals, both the strong and the weak; and to excellent staff survey results (2004); and to the fact that she had led her group with distinction, had provided strong leadership and had embedded teamwork in helping to achieve key outcomes(2005). The Claimant had been promoted in 2005. Even at the time of the meeting with Mr. Holley in 2006, the Tribunal found that there had been no reference to any staff problems, and that the Claimant's own results on the staff survey were better than the overall average.

[274]None of the minor matters referred to in the judgment as occurring in the early years, involving Ms. Lepieta, Mr. Mitchell and Mr. Dury, indicate evidence of misconduct by the Claimant, and none was taken any further at the time. The Tribunal found Ms. Nunn's statement to be, at least in part, inaccurate concerning these incidents. Both Mr. Mitchell and Mr. Dury were described as having medical or "personal" issues. In respect of Linda Rowe, who left the Respondent to go elsewhere in about 2002/3, the Tribunal declared themselves satisfied that Mr. Tabberer had no criticism of the Claimant in connection with her decision to leave (paragraph 3.9).

[275]We can therefore identify nothing in the findings of fact that would support the Tribunal's conclusion that there were indications, in these appraisals, of the sort of behaviour found by Mr. Baker to constitute gross misconduct.

[276]Ms. Morehen was found to have stated that "it had to be clear to the Claimant that there were serious concerns about her conduct, in particular through discussions concerning her appraisal" (see para.102 above). Yet the Tribunal's findings do not bear this out. The reference to Mr. Tabberer using "coded language", in relation to the Claimant's alleged shortcomings, related not to her management of her junior staff but, rather, to her difficult relationships with her peers, for which she was not dismissed.

[277]The Claimant's detailed response to these allegations, submitted to Ms. Morehen, indicated that many of them were based on hearsay, or involved minor incidents, or were disputed on the facts; and that none of them had been raised with her at the time.

[278]Further, and importantly, the Tribunal expressly found, at paragraph 3.16, that the Claimant had not been at fault in any significant way in respect of any of the people who had had problems working for her; and that their reputation as "Mary's victims" had been built on hearsay and erroneous information. The Tribunal's subsequent finding at paragraph 5.69, that the criticisms of the Claimant whilst Mr. Tabberer was CEO were "diffuse", is in our view contradictory and unexplained.

[279]Notwithstanding these findings, these earlier incidents were found to have been taken into account by Mr. Baker in coming to his decision, and therefore to have contributed to her dismissal.

[280]It appears that none of the complaints made were new to Mr. Fry, save for some of the allegations made by Mr. Moses. Yet it is not in dispute that no action had been taken against the Claimant at the time; and there is no evidence that she was even aware, at the time, of the complaints which were subsequently brought against her.

[281]In relation to the specific complaints brought by Mr. Moses, the Tribunal appear to have accepted (see paragraph 5.63)(i) that Mr. Baker did not have any details relating to the incident when his blood pressure was said to have been raised; and

(ii) that at the disciplinary hearing Ms. Nunn did not accept that the Claimant had ever criticised his competence or conduct. Mr. Moses had alleged that the Claimant's alleged criticisms had apparently been made to Ms Nunn, not to him personally.

[282]They also held (paragraph 3.110) that Mr. Baker had erred in finding that Mr. Moses was dependent on the Claimant for advancement. Further they found that the totality of Mr. Moses' interaction with the Claimant had comprised just 15 minutes; and that much of the evidence being relied on by Mr. Baker was "vague" (paragraph 3.111). Notwithstanding these findings, they nevertheless concluded that Mr. Baker was entitled to accept what Mr. Moses had said.

[283]In relation to the complaint presented by Ms. Kitson, the Tribunal accepted that Mr. Baker had not seen the documents which both she and Ms. Francis complained had been unfairly criticised by the Claimant. Nor did Mr. Baker know the content of any verbal criticisms of Ms. Kitson.

[284]We agree with Mr. Toms that it is hard to understand how an employee could properly defend herself against such complaints without being told the precise content of the criticism alleged to have constituted bullying behaviour.

[285]Nor can we understand how a reasonable employer could find a senior manager to be guilty of serious allegations of bullying, in respect of oral or written criticisms of the work of junior members of staff, without reading the relevant documents or knowing the precise words used. The decision as to whether there has been gross misconduct in such circumstances will always depend on exactly what was said and the context in which it was said. We agree that, without this information, no tribunal could reasonably conclude that this Respondent had reasonable grounds for concluding that the Claimant was guilty of gross misconduct.

[286]In the present case the facts found show that the Claimant had never received any warning, formal or informal, that she was managing her junior staff inappropriately. On the contrary, her appraisals repeatedly contained fulsome praise for her management and leadership skills. The Tribunal found that the Claimant had not been in any way to blame for the reputation that had developed around her, based purely on hearsay and erroneous information. In our view these findings, for the reasons we set out above, render the Tribunal's conclusion unsustainable.

[287]Mr. Toms referred us in addition to the substantive complaints presented by Ms. Kitson and Mr. Moses, at pages 239-245 of the appeal bundle, in support of his submission that, taken at face value and at their highest, the allegations being made simply cannot be said to amount to gross misconduct. In view of the decision we have arrived at on this ground of appeal, we shall say nothing as to the merits of this submission, save to observe that, in our view, the contents of the complaints, as summarised by the Tribunal at paragraphs 3.22-3.24, lend support to Mr. Toms' general submissions on this ground of appeal.

[288]Notwithstanding the fact that bullying is defined as gross misconduct, within the Respondent's disciplinary procedure, there are, within that term, as Mr. Baker accepted, many different shades of conduct and behaviour, not all of which will amount to gross misconduct meriting dismissal, and some of which will merit a warning and an opportunity to address less obvious, offending behaviour. The precise details of what was said, or written, and the context for criticisms from a senior manager alleged to have amounted to bullying or harassment, are therefore important. We find it astonishing both that Mr. Baker was unaware of them and that he did not seek to inform himself of them before concluding that this was gross misconduct. The Tribunal's suggestion that the Claimant could have called for the document to be produced if she was concerned does not in our view provide a satisfactory answer. In circumstances where she was being told repeatedly that she was doing a top-class job, all the members of this Appeal Tribunal struggle to understand from this judgment what it was in this case that this Claimant did or said that was found, reasonably, to have amounted to gross misconduct.

[289]Further, in relation to the alleged unfairness of the dismissal, the Tribunal appear to accept as valid at least some of the criticisms made by Mr. Toms as to defects in both the investigative and disciplinary process carried out. The findings of fact as to the disciplinary process being run in parallel with the Claimant's grievance appeal; the failure adequately to frame the allegations being made, so that the Claimant understood the case she had to meet; the communications as to the merits of the case between Ms. Morehen and Mr. Baker before the disciplinary hearing; and the failure to ensure that the Claimant was able fully to question witnesses called to give evidence against her at the disciplinary hearing, all seem to us to raise serious questions relating to the fairness and reasonableness of the disciplinary process carried out by the Respondent. The Tribunal's succinct finding, that it is not necessary for the gathering of evidence to be "perfect", does not, with respect, adequately address the issues.

[290]Nor is it an answer, in our view, that Mr. Buck arrived independently at the same conclusions on appeal. Whilst no criticisms are made as to the fairness of the appeal procedure, none of the substantive points we have addressed above were remedied by Mr. Buck. He does not appear to have addressed his mind at any stage to the issues we have identified. He, like Mr. Baker before him, was unaware of the contents of the oral and written criticisms said to have constituted gross misconduct. He too appears to have taken into account all the historical complaints found by the Tribunal to have been based on hearsay or erroneous information, or to have been regarded as matters for which the Claimant was not found to be responsible. His criticism, that she was 'overly focussed on task completion', cannot be reconciled with the praise regularly being given to her at appraisals for strong leadership leading to the achievement of key outcomes.

[291]Finally, the Tribunal having found that one of her complaints of victimisation had succeeded, they do not then ask themselves whether, and if so to what extent, this affected the fairness of the decision to dismiss her. Given the importance of Ms. Kitson's complaint in the decision to dismiss the Claimant for gross misconduct, the finding that Mr. Holley had unlawfully victimised the Claimant, by instigating Ms. Kitson's complaint, was clearly relevant to that decision, but the Tribunal do not appear to have considered it

[292]For all these reasons this Tribunal's conclusion, viewed broadly and fairly, that the Respondent's decision to dismiss the Claimant for gross misconduct was fair, is in our judgment one that no reasonable tribunal, properly directing themselves in law, could have reached on the material before them, and their findings of fact. This ground of appeal therefore succeeds.

[293]We make it clear that this finding, however, does not alter our conclusions in respect of the victimisation appeal. Different issues arise under that head and, for the reasons we have given above, our findings in relation to unfair dismissal do not in this case assist the Claimant in relation to victimisation.

[294]In view of our decision on ground 9, we have given careful thought to whether we can substitute our own decision in this case and conclude, on all the available material, that the decision to dismiss was unfair. We consider, however, that such a course is not open to us in this case. We have seen very little of the documentary evidence which was adduced below and no notes of evidence have been provided for this appeal. Whilst we have rejected Mr. Mead's submissions that the Tribunal's decision was one which was properly open to them, we consider that the detail and complexity involved in this case render substitution inappropriate. The unfair dismissal claim must therefore be remitted for re-determination before a fresh tribunal, together with the question of jurisdiction in respect of the one, successful complaint of victimisation.

[295]This appeal therefore succeeds on grounds 7 and 9, and also (the Respondent having conceded the point) on ground 10. The other grounds of appeal are all dismissed for the reasons we have given.`