Case No: 2206237/2018
1
EMPLOYMENT TRIBUNALS
Claimant: Mrs R Wright-Turner
Respondents: London Borough of Hammersmith and Fulham (1)
Ms K Dero (2)
Heard at: London Central (by video using Cloud Video Platform)
On: 13-16, 19, 21-23, 26-29 April 2021
In chambers: 30 April, 5 May, 1, 3 & 9 June 2021
Before: Employment Judge Khan
Ms S Plummer
Mr D Kendall
Representation
Claimant: Mr B Collins QC, Counsel
Respondent: Mr D Basu QC, Counsel
JUDGMENT
The unanimous judgment of the tribunal is that:
(1) At all relevant times, the claimant was disabled by reference to ADHD
and PSTD / other psychological symptoms and the respondents had
knowledge of the same.
(2) The harassment complaint succeeds in part (paras 37(1)(a), (c) & (d)
POC)
(3) The direct discrimination complaint succeeds in part (paras 37(2) & (5)
POC)
(4) The discrimination arising from disability complaint succeeds in part
(paras 39(1) & (4) POC).
(5) The first respondent failed unreasonably to comply with the ACAS Code
of Practice on Disciplinary and Grievance Procedures.
(6) All the other complaints fail and are dismissed.
Case No: 2206237/2018
2
REASONS
1. By a claim presented on 28 September 2018 the claimant brought
complaints of disability discrimination, detriment and automatic unfair
dismissal (protected disclosures) and unauthorised deductions / breach of
contract. The respondents resisted these complaints.
2. The description of disability which the claimant relied on was amended by
agreement on day one of the hearing as set out below.
The issues
3. We were required to determine the issues listed below which were agreed
by the parties in advance and refined following discussion with them during
the final hearing.
A. Disability (section 6 & Schedule 1 of the Equality Act 2010 (“EQA”))
1. Did the claimant suffer from a mental impairment at the relevant
times by reason of (i) ADHD and/or (ii) PTSD / other psychological
symptoms identified in the Joint Statement of the expert
psychiatrists?
2. Did the impairment/s have a substantial and long-term adverse effect
on the claimant’s ability to carry out normal day-to-day activities? In
particular:
(1) was the effect of the impairment/s (taken in the absence of
treatment or other measures) more than trivial?
(2) did the impairment/s last, or were they likely to last, at least 12
months?
3. Did the first and/or the second respondent know, or could they
reasonably be expected to have known, that the claimant was
disabled?
B. Direct discrimination (section 13 EQA)
4. Did the treatment alleged by the claimant at paras 37(1) – (6) of the
particulars of claim (“POC”) occur? The alleged treatment is alleged
to have been carried out by both respondents.
Paras 37(1) – (6) POC
(1) In the course of the meeting on 2 May 2018:
a. Repeating to the claimant the suggestion that her brain
“doesn’t work like other people’s”.
b. Suggesting that the claimant’s actions in sending the
email in question were inappropriate or irrational, and
Case No: 2206237/2018
3
that someone who did not have ADHD would not have
sent the email.
c. Telling the claimant that she did not realise she was
being serious when discussing ADHD.
d. Accusing the claimant of failing to declare her disabilities
to the first respondent during the recruitment process.
e. When the claimant attempted to explain her conditions,
taking no interest in learning about them.
f. Asking about reasonable adjustments when the
circumstances did not disclose a need for that enquiry.
g. Suggesting that the claimant was incapable of
performing her role.
h. Conveying to the claimant that, in light of her disabilities,
she regretted her appointment.
i. Informing the claimant (without prior discussion) that the
HR Director would be appointed a “buddy” to support the
claimant, when no such buddy was required.
(2) Informing the claimant that her probation period had been
extended by three months (by letter dated 10 May, postmarked
17 May and received by the claimant on 19 May 2018).
Furthermore, doing so:
a. without giving her the opportunity to discuss or comment
on the decision before it was taken;
b. without having provided feedback on her performance in
accordance with the first respondent’s policy or at all;
c. after (by both the second respondent and Mr Grimley)
having described the claimant’s in positive terms;
d. without explaining which areas of performance required
improvement; and
e. when she was on sick leave.
The respondents accept (a) & (e) and deny (b) – (d).
(3) Making repeated attempts to meet with the claimant while she
was on disability-related sick leave i.e. on 24 May and 24 July
2018.
(4) Refusing to deal with the claimant’s grievance as sent by her
solicitors on 1 August 2018.
(5) Dismissing the claimant with effect on 9 August 2018. The
claimant says this decision was taken on 2 August. The
respondents say this decision was taken around 23 July with a
final discussion between the second respondent and Mark
Grimley on 30 July 2018. Furthermore, doing so without giving
her:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal; or
c. any opportunity to appeal.
Case No: 2206237/2018
4
(6) Failing to respond adequately or at all to the claimant’s further
grievance and request for an appeal sent by her solicitors on 15
August 2015.
5. Was the claimant thereby treated less favourably than a hypothetical
non-disabled comparator because of her alleged disability/ies?
C. Discrimination arising from disability (section 15 EQA)
6. Did the treatment alleged by the claimant at paras 39(1) – (5) POC
occur?
Paras 39(1) – (5) POC
(1) Informing the claimant that her probation period had been
extended by three months (by letter dated 10 May, postmarked
17 May and received by the claimant on 19 May 2018).
Furthermore, doing so:
a. without giving her the opportunity to discuss or comment
on the decision before it was taken;
b. without having provided feedback on her performance in
accordance with the first respondent’s policy or at all;
c. after (by both the second respondent and Mr Grimley)
having described the claimant’s in positive terms;
d. without explaining which areas of performance required
improvement; and
e. when she was on sick leave.
(2) Making repeated attempts to meet with the claimant while she
was on disability-related sick leave i.e. on 24 May and 24 July
2018.
(3) Refusing to deal with the claimant’s grievance as sent by her
solicitors on 1 August 2018.
(4) Dismissing the claimant. Furthermore, doing so without giving
her:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal; or
c. any opportunity to appeal.
(5) Failing to respond adequately or at all to the claimant’s further
grievance and request for an appeal sent by her solicitors on 15
August 2015.
7. Was the claimant thereby treated unfavourably because of her actual
and/or alleged disability-related sickness absence?
8. Was the claimant’s actual and/or alleged sickness absence
something arising in consequence of her alleged disability/ies?
Case No: 2206237/2018
5
9. Can the first or second respondent show that the treatment was a
proportionate means of achieving a legitimate aim? The respondents
rely on para 34 of the amended grounds of resistance (“GOR”).
Para 34 amended GOR
As to justification:
(i) It was both reasonable and standard practice for the first
respondent to extend the probationary period of an employee,
where that period had not been satisfactorily completed owing
to performance issues.
(ii) In the circumstances, it was reasonable for the respondents to
try to maintain some level of contact with the claimant while she
was absent with what the respondents understood to be work-
related stress.
(iii) The letter referred of 1 August indicated that the claimant
intended bringing a grievance; the first respondent was entitled
to respond as it did.
(iv) The first respondent was entitled to dismiss the claimant in
circumstances where her probationary period had been
extended and there were ongoing performance issues and to
do so without involving her in that decision.
(v) The first respondent’s response to the claimant’s solicitor’s
letter of 15 August was adequate in the circumstances.
D. Failure to make reasonable adjustments (section 20 & 21 EQA)
10. Did the respondents operate the provisions, criteria or practices
(“PCPs”) at paras 41(1) – (7) POC
1
?
Paras 41(1) – (7) POC
(1) Informing an employee of a decision to extend probation while
she is absent on disability-related sick leave.
(2) Failing to give an employee who is absent on disability-related
sick leave:
a. the opportunity to discuss or comment on a decision to
extend probation before it was taken;
b. proper and timely feedback on her performance (in
accordance with the first respondent’s Probation Policy
or at all);
c. an explanation as to which areas of performance
required improvement.
(3) Attempting to hold meetings with an employee when she is
absent on disability-related sick leave.
(4) Refusing to deal with a grievance filed by solicitors.
1
There is no para 41(5)
Case No: 2206237/2018
6
(6) Dismissing an employee while on disability-related sick leave
and without giving:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal;
c. any opportunity to appeal.
(7) Failing to respond adequately or at all to a further grievance and
request for an appeal sent by an employee who is absent on
disability-related sick leave.
11. If so, did those PCPs put the claimant at a substantial disadvantage
in comparison with a non-disabled employee?
12. Was it reasonable for the respondents to take the steps at paras
42(1) – (9) POC
2
in order to avoid the disadvantage to the claimant?
Paras 42(1) – (9) POC
(1) Ensuring no decision was taken to extend her probation while
she was absent on disability-related sick leave
(2) Ensuring that the claimant was given, at a time when she was
not on disability-related sick leave:
a. the opportunity to discuss or comment on a decision to
extend probation before it was taken;
b. proper and timely feedback on her performance (in
accordance with the first respondent’s policy or at all).
c. an explanation as to which areas of performance
required improvement.
(3) Waiting for the claimant’s return to work before holdings
meetings with her.
(4) Dealing with the claimant’s grievance which was filed by her
solicitors.
(8) Ensuring that a decision to dismiss was not taken when the
claimant was on sick leave and without giving:
a. the opportunity to be heard before the decision to
dismiss was taken;
b. any warning that she was at risk of dismissal;
c. any opportunity to appeal.
(9) Responding appropriately to the claimant’s further grievance
and request for an appeal.
13. Were those steps taken?
2
There are no paras 42(5) – (7)
Case No: 2206237/2018
7
E. Harassment (section 26 EQA)
14. Did the conduct alleged at paras 37 – 41 POC occur?
15. Was it unwanted conduct?
16. Was it conduct related to the claimant’s alleged disability/ies namely
her actual / perceived disability-related sickness absence?
17. Did that conduct:
(1) Have the purpose of violating the claimant’s dignity or creating
an intimidating, hostile, degrading, humiliating or offensive
environment for her?
(2) Have the effect of violating the claimant’s dignity or creating an
intimidating, hostile, degrading, humiliating or offensive
environment for her?
F. Victimisation (section 27 EQA)
18. It is accepted that the sending of the claimant’s letter of grievance
dated 1 August 2018 was a protected act within the meaning of
s.27(1) EQA.
19. Was the claimant dismissed because she sent the said letter?
G. Protected disclosures (sections 43A – H & 47B of the Employment
Act 1996 (“ERA))
20. Did the claimant make disclosures of information to her employer as
alleged at paras 46(1) – (8) POC and, specifically, by reference to
the documents enumerated in Appendix 1 of the claimant’s closing
submissions?
(1) She raised concerns about contractual arrangements and
governance for shared services.
(2) She raised issues with the PSR Budget and risks including the
non-delivery of statutory services and third party contracts.
(3) She raised concerns about member behaviour, the member
Code of Conduct, the first respondent’s constitution and
scheme of delegation.
(4) She raised concerns about GDPR compliance in third party
arrangements.
(5) She raised concerns about the waiving of notice periods in
breach of contract thereby risking delivery of statutory duties,
service quality and management.
Case No: 2206237/2018
8
(6) She raised concerns about the first respondent’s employment
duties and duty of care to employees.
(7) She raised concerns regarding facilities management, and, in
particular, health and safety corporate responsibilities.
(8) She raised allegations of disability discrimination.
21. If so, did the claimant make the disclosures in the reasonable belief
that:
(1) the information tended to show that a breach of a legal
obligation had occurred; and
(2) the disclosures were in the public interest?
22. Did the treatment alleged by the claimant at paras 37(1) – (6) POC
occur?
23. Was the claimant subjected to that treatment by the first and/or the
second respondent on the ground that she had made one or more of
the disclosures?
24. Did the second respondent decide that the claimant should be
dismissed?
25. If so, was the claimant dismissed as a consequence of that decision?
26. Did the second respondent take that decision on the ground that the
claimant had made one or more of the disclosures?
27. Was the second respondent at the relevant times another worker of
the first respondent?
28. Was the reason or the principal reason for the claimant’s dismissal
by the first respondent that she had made one or more of the
disclosures set out as issue 23 above?
H. Unauthorised deductions from wages / Breach of contract
29. Was the sum of £15,133.58 deducted from the claimant’s pay by the
first respondent?
30. Did that deduction amount to:
(1) An unauthorised deduction from the claimant’s wages in
contravention of section 13 ERA?
(2) A breach of the claimant’s contract?
I. ACAS Code of Practice
31. Did the matters alleged at paras 53(1) – (3) POC occur?
Case No: 2206237/2018
9
Paras 53(1) – (3) POC
(1) the refusal to deal with the claimant’s grievance;
(2) the failure to follow any procedure in dismissing the claimant,
and in particular:
a. the lack of warning;
b. the lack of opportunity to make representations, orally or
in writing;
c. the failure to give reasons;
(3) the failure to give any right of appeal.
32. Was the first respondent in breach of the ACAS Code of Practice on
Disciplinary and Grievance Procedures?
33. If so, what is the uplift which should be awarded pursuant to section
207A of the Trade Union and Labour Relations (Consolidation) Act
1992?
Relevant legal principles
Disability
4. Disability is defined by section 6 EQA:
(1) A person (P) has a disability if— (a) P has a physical or mental
impairment, and (b) the impairment has a substantial and long-term
adverse effect on P's ability to carry out normal day-to-day activities.
…
(4) This Act (except Part 12 and section 190) applies in relation to a person
who has had a disability as it applies in relation to a person who has the
disability; accordingly (except in that Part and that section)— (a) a
reference (however expressed) to a person who has a disability includes a
reference to a person who has had the disability, and (b) a reference
(however expressed) to a person who does not have a disability includes a
reference to a person who has not had the disability.
(6) Schedule 1 (disability: supplementary provision) has effect.
5. Section 212 EQA defines ‘substantial’ as meaning more than minor or trivial.
6. Paragraph 2 of schedule 1 EQA provides, in respect of ‘long-term’ effects:
(1) The effect of an impairment is long-term if— (a) it has lasted for at least
12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to
last for the rest of the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a
person's ability to carry out normal day-to-day activities, it is to be treated
as continuing to have that effect if that effect is likely to recur.
Case No: 2206237/2018
10
7. ‘Likely’ means that it could well happen (see SCA Packaging Ltd v Boyle
[2009] ICR 1056; and also the EQA Guidance on matters to be taken into
account in determining questions relating to the definition of disability).
Direct discrimination
8. Section 13(1) EQA provides that a person (A) discriminates against another
(B) if, because of a protected characteristic, A treats B less favourably than
A treats or would treat others.
9. The protected characteristic need not be the only reason for the treatment
but it must have been a substantial or “effective cause”. The basic question
is “What, out of the whole complex of facts before the tribunal, is the
‘effective and predominant cause’ or the ‘real or efficient cause’ of the act
complained of?” (O’Neill v Governors of St Thomas More RC Voluntarily
Aided Upper School and anor 1997 ICR 33, EAT).
10. The test is what was the putative discriminator’s conscious or subconscious
reason for the impugned treatment (see Nagarajan v London Regional
Transport 1999 ICR 877, HL).
11. Under section 23(1), when a comparison is made, there must be no material
difference between the circumstances relating to each case. Under section
23(2), where the protected characteristic is disability, the circumstances
relating to a case include a person’s abilities.
Discrimination arising from disability
12. Under section 15(1) EQA a person (A) discriminates against a disabled
person (B) if A treats B unfavourably because of something arising in
consequence of B’s disability and A cannot show that the treatment is a
proportionate means of achieving a legitimate aim.
13. Unfavourable treatment is not defined, the EHRC Code of Practice of
Employment says “must have been put at a disadvantage”. There is no need
for a comparator.
14. The unfavourable treatment must be shown by the claimant to be “because
of something arising in consequence of his [or her] disability”. The tribunal
must ask what the reason for this alleged treatment was. This need not be
the sole reason but it must be a significant or at least more than trivial reason
(see Secretary of State for Justice and anor v Dunn UKEAT/0234/16/DM).
If this is not obvious then the tribunal must enquire about mental processes
– conscious or subconscious – of the alleged discriminator (see R (on the
application of E) v Governing Body of JFS and The Admissions Appeal
Panel of JFS and Ors [2010] IRLR, 136, SC).
15. In Pnaiser v NHS England [2016] IRLR 170 Mrs Justice Simler set out the
following guidance:
(1) A tribunal must first identify whether there was unfavourable treatment
and by whom.
Case No: 2206237/2018
11
(2) The tribunal must determine the reason for or cause of the impugned
treatment. This will require an examination of the conscious or
unconscious thought processes of the putative discriminator. The
something that causes the unfavourable treatment need not be the main
or sole reason but must have at least a significant (or more than trivial)
influence on the unfavourable treatment and amount to an effective
reason for or cause of it. Motive is irrelevant. The focus of this part of
the enquiry is on the reason for or cause of the impugned treatment.
(3) The tribunal must determine whether the reason or cause is something
arising in consequence of B’s disability. The causal link between the
something that causes the unfavourable treatment and the disability
may include more than one link. The more links in the chain the harder
it is likely to be to establish the requisite connection as a matter of fact.
This stage of the causation test involves an objective question and does
not depend on the thought processes of the alleged discriminator.
(4) The “because of” enquiry therefore involves two stages: firstly, A’s
explanation for the treatment (and conscious or unconscious reasons
for it) and secondly, whether (as a matter of fact rather than belief) the
“something” was a consequence of the disability. It does not matter
precisely in which order these questions are addressed.
16. The employer will escape liability if it is able to objectively justify the
unfavourable treatment that has been found to arise in consequence of the
disability. The aim pursued by the employer must be legal, it should not be
discriminatory in itself and must represent a real, and objective
consideration. As to proportionality, the Code notes that the measure
adopted by the employer does not have to be the only way of achieving the
aim being relied on but the treatment will not be proportionate if less
discriminatory measures could have been taken to achieve the same
objective.
Harassment
17. Section 26(4) EQA provides that:
(1) A person (A) harasses another (B) if –
(a) A engages in unwanted conduct related to a relevant protected
characteristic, and
(b) the conduct has the purpose or effect of –
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or
offensive environment for B.
…
(4) In deciding whether conduct has the effect referred to in section (1)(b),
each of the following must be taken into account –
(a) the perception of B;
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct to have that effect.
18. In deciding whether the conduct “related to” a protected characteristic
consideration must be given to the mental processes of the putative
harasser (see GMB v Henderson [2016] IRLR 340, CA).
Case No: 2206237/2018
12
19. In Pemberton v Inwood [2018] IRLR 542, CA Underhill LJ re-formulated his
earlier guidance in Richmond Pharmacology v Dhaliwal [2009] IRLR 336,
EAT, as follows:
''In order to decide whether any conduct falling within sub-paragraph (1)(a)
of section 26 EqA has either of the proscribed effects under sub-paragraph
(1)(b), a tribunal must consider both (by reason of sub-section 4(a))
whether the putative victim perceives themselves to have suffered the
effect in question (the subjective question) and (by reason of sub-section
4(c)) whether it was reasonable for the conduct to be regarded as having
that effect (the objective question). It must also take into account all the
other circumstances (subsection 4(b)). The relevance of the subjective
question is that if the claimant does not perceive their dignity to have been
violated, or an adverse environment created, then the conduct should not
be found to have had that effect. The relevance of the objective question is
that if it was not reasonable for the conduct to be regarded as violating the
claimant’s dignity or creating an adverse environment for him or her, then
it should not be found to have done so.''
20. The claimant’s subjective perception of the offence must therefore be
objectively reasonable.
Reasonable adjustments
21. The duty to make reasonable adjustments is set out in sections 20 – 21
EQA. Where a provision, criterion or practice (“PCP”) of the employer puts
a disabled person at a substantial disadvantage in relation to a relevant
matter in comparison with persons who are not disabled, the employer is
required to take such steps as it is reasonable to have to take to avoid the
disadvantage.
22. Under Schedule 8, paragraph 5(1), a ‘relevant matter’ is either deciding to
whom to offer employment or the employment of the complainant.
23. Section 212(1) defines ‘substantial disadvantage’ as one that is more than
minor or trivial.
24. Under Schedule 8, paragraph 20(1), an employer has a defence to a claim
for breach of the statutory duty if it does not know and could not reasonably
be expected to know that the disabled person is disabled and is likely to be
placed at a substantial disadvantage by the PCP, physical feature or, as the
case may be, lack of auxiliary aid. A tribunal can find that the employer had
constructive (as opposed to actual) knowledge both of the disability and of
the likelihood that the disabled employee would be placed at a
disadvantage. In this case, the question is what objectively the employer
could reasonably have known following reasonable enquiry.
25. In Environment Agency v Rowan [2008] IRLR 20 (approved by the Court of
Appeal in Newham Sixth Form College v Sanders [2014] EWCA Civ 734)
the EAT said that in considering a claim for a failure to make adjustments
the tribunal must identify the following matters without which it cannot go on
to assess whether any proposed adjustments are reasonable:
(1) the PCP applied by / on behalf of the employer, or
Case No: 2206237/2018
13
(2) the physical feature of the premises occupied by the employer, or
(3) the identity of non-disabled comparators where appropriate, and
(4) the nature and extent of the substantial disadvantage suffered by the
claimant
26. The onus is on the claimant to show that the duty arises i.e. that a PCP has
been applied which operates to their substantial disadvantage when
compared to persons who are not so disabled. The onus also falls on the
claimant to identify in broad terms at least the nature of the adjustment that
is said will alleviate the disadvantage. The burden then shifts to the
employer to show that the disadvantage would not have been eliminated or
alleviated by the adjustment identified, or that it would not have been
reasonably practicable to have made that adjustment. If the claimant is
unable to show that the PCP has put her at such a substantial disadvantage
the respondent will not be under a duty to make any adjustments in relation
to that PCP.
27. The question of whether the employer has complied with its duty to make
adjustments is an objective test (see Tarbuck v Sainsbury’s Supermarkets
[2006] IRLR 664). Ultimately, the tribunal must consider what is reasonable
(see Smith v Churchills Stairlifts Plc [2006] ICR 524). The focus is the
reasonableness of the adjustment not the process by which the employer
reached its decision about the proposed adjustment.
28. The tribunal must consider the guidance contained in the EHRC Code of
Practice on Employment 2011, and in particular the following six factors it
enumerates, when considering the reasonableness of an adjustment:
(1) Whether taking any particular steps would be effective in preventing the
substantial disadvantage
(2) The practicability of the step
(3) The financial and other costs of making the adjustment and the extent
of any disruption caused
(4) The extent of the employer’s financial or other resources
(5) The availability to the employer of financial or other assistance to help
make an adjustment (such as through Access to Work)
(6) The type and size of the employer
Victimisation
29. Section 27(1) EQA provides that a person (A) victimises another person (B)
if A subjects B to a detriment because B does a protected act, or A believes
B has done, or may do a protected act.
30. Section 27(2) EQA enumerates the four types of protected act which include
making an allegation (whether or not express) that A or another person has
contravened this Act.
31. As to causation, the tribunal must apply the same test to that which applies
to direct discrimination i.e. whether the protected act is an effective or
substantial cause of the employer’s detrimental actions.
Case No: 2206237/2018
14
32. In a victimisation complaint, as essential element of the prima facie case is
that the claimant must show that the putative discriminator knew about the
protected act on which the complaint is based or believed that a protected
act was done by the claimant (see Chief Constable of Kent Constabulary v
Bowler UKEAT/0214/16/RN).
Detriment
33. Section 39(2) EQA provides that:
An employer (A) must not discriminate against an employee of A’s (B) –
…
(a) by subjecting him to any other detriment.
34. A complainant seeking to establish detriment is not required to show that
she has suffered a physical or economic consequence. It is sufficient to
show that a reasonable employee would or might take the view that they
had been disadvantaged, although an unjustified sense of a grievance
cannot amount to a detriment (see Shamoon v Chief Constable of RUC
[2003] IRLR 285, HL).
35. The EHRC Employment Code provides that “generally, a detriment is
anything which the individual concerned might reasonably consider
changed their position for the worse or put them at a disadvantage”.
36. Any alleged detriment must be capable of being regarded objectively as
such (see St Helens MBC v Derbyshire [2007] ICR 841).
Discrimination – Burden of proof
37. Section 136 EQA provides that if there are facts from which the court could
decide, in the absence of any other explanation, that a person (A)
contravened the provision concerned, the court must hold that the
contravention occurred.
38. Section 136 accordingly envisages a two-stage approach. Where this
approach is adopted a claimant must establish a prima facie case at the first
stage. This requires the claimant to prove facts from which a tribunal could
conclude that on the balance of probabilities the respondent had committed
an unlawful act of discrimination. This requires something more than a mere
difference in status and treatment (see Madarassy v Nomura International
plc [2007] ICR 867, CA). If the burden shifts, it is for the respondent to show
an adequate i.e. non-discriminatory reason for the treatment. This
explanation does not have to be reasonable or sensible provided it has
nothing to do with the protected characteristic relied on (see Laing v
Manchester Council [2006] ICR 1519).
39. The two-stage approach envisaged by section 136 is not obligatory and in
many cases it will be appropriate to focus on the reason why the employer
treated the claimant as it did and if the reason demonstrates that the
protected characteristic played no part whatsoever in the adverse treatment,
the complaint fails (see Bowler). Accordingly, the burden of proof provisions
Case No: 2206237/2018
15
have no role to play where a tribunal can make positive findings of fact (see
Hewage v Grampian Health Board [2012] IRLR 870, SC).
40. In exercising its discretion to draw inferences a tribunal must do so based
on proper findings of fact (see Anya v University of Oxford [2001] IRLR 377,
[2001] ICR 847, CA).
41. Tribunals must be careful to avoid too readily inferring unlawful
discrimination on a prohibited ground merely from unreasonable conduct
where there is no evidence of other discriminatory behaviour on such
ground (see Igen Ltd v Wong [2005] IRLR 258, CA).
Mutually exclusive complaints under the EQA
42. A tribunal cannot find both direct discrimination under section 13 EQA and
harassment under section 26 in respect of the same treatment. This is
because section 212(1) provides that:
‘detriment’ does not, subject to subsection (5) include conduct which
amounts to harassment
Protected disclosure
43. For there to be a protected disclosure, a worker must make a qualifying
disclosure, as defined by section 43B ERA, and do so in accordance with
sections 43C – 43H, where relevant.
44. Section 43B(1) provides that a qualifying disclosure means any disclosure
of information which, in the reasonable belief of the worker making the
disclosure, is made in the public interest and tends to show one or more of
the following six prescribed categories of wrongdoing:
(a) that a criminal offence has been committed, is being committed or
is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with
any legal obligation to which he is subject,
(c) that a miscarriage of justice has occurred is occurring or is likely to
occur,
(d) that the health and safety of any individual has been, is being or is
likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
or
(f) that information tending to show any matter falling within any one of
the preceding paragraphs has been, or is likely to be deliberately
concealed.
45. Section 43L(3) provides that where the information is already known to the
recipient, the reference to the disclosure of information shall be treated as
a reference to bringing the information to the attention of the recipient.
46. As has been recently restated in Williams v Michelle Brown
UKEAT/0044/19/OO, a qualifying disclosure must have the following
elements:
Case No: 2206237/2018
16
(1) It is a disclosure of information (taking account of section 43L(3), if
relevant). This requires the communication to be of sufficient factual
content or specificity to be capable of tending to show a relevant failure;
whether this standard is met is a matter of evaluative judgment for a
tribunal in light of all the facts of the case (see Kilraine v Wandsworth
LBC [2018] ICR 1850, CA).
(2) The worker has a reasonable belief that this information tends to show
a relevant failure. This has both a subjective and objective element so
that the worker must have a subjective belief and this belief must be
reasonably held (see Kilraine). In considering this the tribunal must take
account of the individual characteristics of the worker (see Korashi v
Abertawe Bro Morgannwg Local Health Board [2012] IRLR 4, EAT). In
making an assessment as to the reasonableness of the worker’s belief
that a legal obligation has not been complied with a tribunal must firstly
identify the source of the legal obligation that the worker believes has
been breached (see Eiger Securities LLP v Korshunova [2017] IRLR
115, EAT).
(3) The worker also has a reasonable belief that the disclosure is made in
the public interest. A tribunal must first ask whether the worker believed
that the disclosure was in the public interest, at the time that it was
made, and if so, whether that belief was reasonably held (see
Chesterton Global Ltd v Nurmohamed [2017] IRLR 837, CA). There is
no legal definition of “public interest” in this context. The question is one
to be answered by the tribunal on a consideration of all the
circumstances of the particular case. Relevant factors could include: the
numbers in the group whose interests the disclosure served; the nature
of the interests affected and the extent to which they are affected by the
wrongdoing disclosed; the nature of the wrongdoing disclosed; and the
identity of the alleged wrongdoer (see Chesterton). Public interest need
not be the only motivation for making the disclosure.
45. Whether the information amounts to a disclosure and whether the worker
had a reasonable belief that this information tended to show a relevant
failure must be considered separately by a tribunal but these issues are
likely to be closely aligned (see Kilraine). If a statement has sufficient factual
content and specificity such that it is capable of tending to show a relevant
failure then it is likely that the worker’s subjective belief in the same will be
reasonable. The reverse is equally applicable. However, it will often be
necessary for a tribunal to consider the wider context in which the
information has been disclosed, where relevant.
46. A qualifying disclosure is protected if it is made to the employer (section
43C).
Protected disclosure – Detriment
47. Section 47B ERA provides that a worker has a right not to be subjected to
any detriment by any act, or any deliberate failure to act, by his employer
done on the ground that the worker made a protected disclosure.
48. Once it is established that a worker has made a protected disclosure and
that he was subjected to a detriment, it is for the employer to show the
ground on which any act, or deliberate failure to act, was done (section
48(2)).
Case No: 2206237/2018
17
49. The correct approach on causation is for the tribunal to consider whether
the making of the detriment materially influenced, in the sense of being a
more than trivial influence, the employer’s treatment of the worker (see NHS
Manchester v Fecitt [2012] IRLR 64, CA).
50. In Timis and anor v Osipov (Protect Intervening) [2019] ICR 655, CA the
Court of Appeal held that an employee was not precluded under section
47B(2) ERA from bringing a detriment complaint under section 47B(1A)
against a co-worker for subjecting him to the detriment in the form of
dismissal. The corollary of this is that such a detriment complaint can also
be brought against the employer who will be liable for that detriment under
section 47B(1B) subject to the employer’s reliance on the reasonable steps
defence available under section 47(1D).
Dismissal
51. As the claimant does not have the requisite qualifying service i.e. two years
of continuous employment to bring a claim for ordinary unfair dismissal the
burden is on her to show that the reason or principal reason for her
dismissal was that she made a protected disclosure (see Ross v Eddie
Stobart Ltd UKEAT/0068/13/RN).
52. The focus of the tribunal’s enquiry must be the factors that operated on the
employer's mind so as to cause him to dismiss the employee. In Abernethy
v Mott, Hay and Anderson [1974] ICR 323, Cairns LJ said this (at p. 330 B-
C):
"A reason for the dismissal of an employee is a set of facts known to the
employer, or it may be of beliefs held by him, which cause him to dismiss
the employee."
This guidance was approved by Underhill LJ in Beatt v Croydon Health
Services NHS Trust [2017] IRLR 748:
"As I observed in Hazel v Manchester College [2014] EWCA Civ 72, [2014]
ICR 989, (see para. 23, at p. 1000 F-H), Cairns LJ's precise wording was
directed to the particular issue before the Court, and it may not be perfectly
apt in every case; but the essential point is that the 'reason' for a dismissal
connotes the factor or factors operating on the mind of the decision-maker
which cause them to take the decision – or, as it sometimes put, what
‘motivates’ them to do so…”
Discussion – Bias
53. Justice must not only be done but seen to be done. The rule providing for
the disqualification or recusal of a judge / tribunal non-legal members is one
which provides litigants with protection against bias. There are three
categories of bias which are capable of undermining the impartiality of a
tribunal (see Locabail (UK) Ltd v Bayfield Properties Ltd [2000] IRLR 96,
CA):
(1) Actual bias which will apply where a judge allows his or her decision to
be influenced by partiality or prejudice.
Case No: 2206237/2018
18
(2) Automatic disqualification which will arise where a judge is shown to
have an interest in the outcome of the case.
(3) Where there is a real possibility of bias, the test for which was set out
by the House of Lords in Porter v Magill [2002] UKHL 67 as follows:
“The question is whether the fair-minded and informed observer, having
considered the facts, would conclude that there was a real possibility
that the tribunal was biased.”
54. At the start of day four of this hearing, Mr Basu, for the respondents,
enumerated several “grave concerns” about my conduct of the proceedings
to date, namely that:
(1) I had entered into the arena with an intervention relating to the use of
the term “paranoid” in a GP letter [2737] during his cross-examination
of the claimant.
(2) I had given the impression that I had either made up my mind in relation
to the claimant’s credibility or failed to understand that questions of
credibility in cross-examination were permissible; if my concern related
to proportionality then that was a matter for submissions; I had been “at
pains to insist to ensure” that the claimant completed her answers.
(3) I had allowed Mr Collins to “wind down the clock” in permitting him to
make “numerous lengthy objections” which had not resulted in a single
line of his questioning being stopped.
(4) I had shown an “almost immediate hostility” to the respondents’ case in
referring to the overriding objective and putting the respondents on
notice that their position on disability in relation to ADHD was
misconceived and in asking Mr Basu several times to clarify the
respondents’ case on justification in relation to the section 15 EQA
complaint.
(5) There was a “serious concern” that his cross-examination of the
claimant would be guillotined. This would be injurious to a fair trial. He
referred to another case when he had had to raise this issue with the
tribunal.
Having made these representations, Mr Basu did not say that these
concerns meant that I or the tribunal were biased or there was a real
possibility of bias nor that the proceedings to date had been unfair nor that
a fair trial was no longer possible. He expressly reserved the respondents’
position on whether I could continue to hear this case and requested that
the tribunal took no action at this stage.
55. Mr Collins, for the claimant, responded as follows (as numbered above):
(1) The tribunal had been entitled to raise concerns about the way that the
question had been put by Mr Basu in cross-examination.
(2) Mr Basu had not understood my question. I had not asked him to explain
how credibility was relevant to cross-examination per se but had asked
him to clarify how the line of questioning being put to the claimant was
relevant to the issue of credibility.
(3) The objections which he had made in relation to Mr Basu’s cross-
examination were valid. Some had been sustained by the tribunal and
others had not. The respondents had been allocated two and a half days
Case No: 2206237/2018
19
to cross-examine the claimant. If they wanted to focus on credibility
rather than issues of substance that was a matter for them.
(4) It was appropriate for a tribunal to identify the overriding objective and
raise any concerns which were potentially misconceived. Advocates
should expect to be robustly questioned in relation to their pleaded
cases.
(5) It was agreed that the parties had a right to a fair trial. There was nothing
in this proposition and it was not one which should be left unresolved.
The respondents had not, despite expressing these concerns, made a
recusal application. If it proceeded with such an application the same
would be resisted by the claimant.
56. I ensured that Mr Basu was given the opportunity to make such an
application on behalf of the respondents which he declined. He said that no
one was questioning the honesty of the tribunal; most cases involved
unconscious bias or the appearance of bias; and usually these concerns
grew over time, and that was why he had raised them now. He did not say
that there was unconscious bias or the appearance of bias.
57. Having already explained that I had allowed the claimant to answer her
questions in full because she contended that she was disabled by reference
to one or more mental impairment(s) and emphasised that the tribunal
would be astute to ensure that each witness was afforded the latitude they
required, I responded to the first two of Mr Basu’s concerns:
(1) In relation to my intervention regarding the GP letter [2737], I explained
that when Mr Basu was cross-examining the claimant and questioning
her in relation to the use of the word paranoid, I intervened because I
was unclear as to the weight that Mr Basu was seeking to attach to this
letter. I clarified my understanding that a GP was not the same as a
mental health practitioner which was a distinction with an important
difference in terms of the scope of practice and level of expertise, and
therefore to the weight that should be attached to the medical opinion
in question. I was satisfied that this was not entering into the arena.
(2) In relation to my intervention on credibility, my recollection was close to
that articulated by Mr Collins’.
3
I added that this intervention was also
relevant to proportionality, as Mr Basu had correctly anticipated, and the
objective of ensuring that he was able to complete his cross-
examination within the time allotted.
58. Notwithstanding the absence of any application, the tribunal adjourned to
enable the parties to take a break (one had been requested by the claimant)
and to consider what we had heard. Having done so, we were satisfied that
there was no basis for recusal. For my part, I was satisfied that I had acted
with impartiality and without prejudice, I had no interest in the outcome of
these proceedings and a fair-minded and informed observer would not
conclude that there was a real possibility of bias from the way in which these
3
A review of my note confirmed this. In the afternoon of day three, and the second day of the claimant’s cross-
examination, Mr Collins objected to a line of questioning which Mr Basu explained related to the claimant’s
credibility. When I asked Mr Basu to explain how this was relevant, he replied that he was astonished by my
question. I clarified that I wanted to understand how these questions were relevant to the issue of credibility.
It seems that Mr Basu either misheard or misunderstood my query as one asking him to explain how the issue
of credibility was relevant. That was not the question I put to him.
Case No: 2206237/2018
20
proceedings had been conducted. When we resumed, I therefore explained
that we had considered the parties’ representations and were satisfied that
there was no reasonable basis for recusal. I briefly addressed the remaining
concerns which Mr Basu had raised (these follow the same numbering as
above, for ease of reference):
(3) The tribunal was bound to deal with any interventions or objections
made by a party as they arose and the same approach would be applied
when the respondents’ evidence was heard.
(4) In relation to the pleadings and list of issues, it was appropriate and
necessary for the tribunal to put a party on notice of a potentially
misconceived argument or position. It was also inappropriate to seek
clarity in relation to the pleaded cases. In both cases the object was to
ensure that the list of issues was fully operative and there was a sound
basis to proceed before the tribunal began to hear evidence. Mr Basu
had been invited to clarify the respondents’ case in relation to disability
status and also justification in relation to the section 15 EQA complaint.
He was correct to note that I did at one point wish to move the
discussion on. However, I heard Mr Basu’s intervention, listened
carefully to his representations and he was allowed to provide a full
response.
4
(5) I assured the parties that the tribunal regarded fairness to both parties
as the cornerstone of these proceedings.
59. Mr Basu made no further submissions in relation to bias or fairness nor
made a recusal application during the remainder of the hearing.
The evidence
60. The hearing was a remote public hearing, conducted using the Cloud Video
Platform (CVP) under rule 46. In accordance with rule 46, the tribunal
ensured that members of the public could attend and observe the hearing.
This was done via a notice published on Courtserve.net. The parties were
able to hear what the tribunal heard and see the witnesses as seen by the
tribunal.
61. For the claimant, we heard evidence from the claimant herself and also:
4
When we resumed after lunch on day two, I spent some time with the parties reviewing the list of issues. In
relation to the issue of disability, I questioned whether the respondents’ position on ADHD was misconceived
and within the overriding objective because the statement of the joint experts (from which the respondents did
not resile) agreed that this was a mental impairment which had had an adverse and substantial long-term
effect on the claimant’s day-to-day activities. As such, this statement confirmed, in relation to ADHD, that the
claimant satisfied the statutory test for disability status. I therefore invited Mr Basu to address the tribunal on
this. Conceding that it would not be at all surprising if we found that ADHD was a disability, Mr Basu explained
that the respondents sought a determination on the ways in which ADHD affected the claimant. He said that
the respondents did not “actively dispute” disability but put the claimant to proof. Although this did not address
the fact that whilst such findings were necessary to establish substantial disadvantage and the efficacy of any
potential adjustments (under section 20 EQA) and also the operative disability-related factors (under section
15 EQA) they were not necessarily required to establish disability status, given the terms of the joint expert
statement, nor in relation to the complaints of direct discrimination or harassment. In relation to the section
15 EQA complaint, I invited Mr Basu to explain the respondents’ justification defence. Mr Basu referred me to
paragraph 34 of the amended grounds of resistance. I invited Mr Basu two further times to explain the
respondents’ position. I considered this was necessary for fairness to give the respondents every opportunity
at this early stage to explain its justification defence because paragraph 34 did not appear to state, in every
case, the aim being relied on, or if it did, this was neither obvious nor apparent as a matter of common sense.
Case No: 2206237/2018
21
(1) Christian Rogers, formerly Director for the Commercial Ethical Debt
Collections and Business Intelligence Services;
(2) Sarah Thomas, formerly Acting Director of Delivery and Value and
Assistant Director for Public Services Reform (“PSR”).
(3) Barry Quirk, Chief Executive of the Royal Borough of Kensington &
Chelsea;
(4) Alix Cordell, formerly an interim consultant in PSR;
(5) Chris Barrett, formerly an interim consultant in PSR;
(6) Dave McNamara, formerly Tri-borough Director of Finance and
Resources in Children’s Services;
(7) Jessica Pezzolesi, formerly Executive PA to the claimant;
(8) Michael Hainge, formerly Commercial Director;
(9) Andy Rennison, formerly Tri-borough Assistant Director for Children’s
Services and latterly Director of 3BM.
62. For the respondents, we heard from:
(1) Kim Dero (now Smith), the second respondent and Head of Paid
Service (i.e. the Chief Executive);
(2) Hitesh Jolapara, formerly Strategic Director of Governance and Finance
and section 151 Officer;
(3) Mark Grimley, formerly Interim Director for HR (June 2017 – June 2018)
and Director for Corporate Services (June 2018 – May 2019);
(4) Rhian Davies, Director of Resources and Monitoring Officer, formerly
the Borough Solicitor;
(5) Emily Hill, Director of Finance and formerly Assistant Director,
Corporate Finance;
(6) David Hughes, Director of Audit, Fraud, Risk and Insurance;
(7) Tina Dempsey, formerly Head of People and Talent;
(8) Jessica Watts, Executive PA to the second respondent.
(9) Lisa Redfern, Strategic Director of Social Care.
63. Mr McNamara, Mr Hainge and Mr Rennison gave evidence pursuant to
witness orders made under rule 32 on 16 April 2021. By agreement, the
claimant relied on a supplemental statement provided by Ms Pezzolesi and
the respondent relied on a statement provided by Jane Watts neither of
which had been produced nor exchanged prior to this hearing.
64. There was a hearing bundle which exceeded 4,600 pages. By agreement,
we also admitted into evidence a supplemental bundle of 155 pages which
the claimant relied on. We read the pages to which we were referred.
65. We considered the written and oral submissions made by both parties.
66. References below to [25], [25S] and [X/25] are to the primary and
supplemental bundles and witness statements, respectively.
The facts
67. Having considered all the evidence, we make the following findings of fact
on the balance of probabilities. These findings are limited to points that are
relevant to the legal issues.
Case No: 2206237/2018
22
68. The first respondent is a local authority for which the second respondent
has been the Head of Paid Service i.e. the Chief Executive since April 2017.
69. The claimant was employed by the first respondent for less than nine
months from 13 November 2017 until 9 August 2018 as Director of Public
Services Reform (“PSR”). Prior to this she was employed by the Royal
Borough of Kensington & Chelsea (“RBKC”) as Tri-borough Director of
Commissioning for Children’s Services.
70. The Tri-borough was a shared services arrangement between the first
respondent, RBKH, and Westminster City Council (“WCC”). The services
under this agreement were disaggregated on 1 April 2018. The impending
repatriation of sovereign services to the first respondent led to the formation
of a new PSR Department and the creation of the claimant’s role.
71. The claimant was offered and accepted this post in July 2017. By this date
the claimant had been seconded by RBKC as the Humanitarian Assistance
Lead Officer supporting its response to the Grenfell Tower fire in June 2017.
The claimant extended this secondment which meant she did not take up
her post with the first respondent until 13 November 2017.
72. The claimant was diagnosed with Attention Deficit Hyperactivity Disorder
(“ADHD”) in November 2016. The claimant manages this condition with
daily medication.
73. The claimant was affected by her work dealing with the immediate aftermath
of the Grenfell Tower fire, and was diagnosed with Post Traumatic Stress
Disorder (“PTSD”) in October 2017. She began to exhibit symptoms in
August 2017 and experienced a panic attack later that month which she
reported to her employer (RBKC). This diagnosis resulted from the
screening process for employees which involved standardised questions
relating to trauma, anxiety and depression [AK/3] and an initial consultation
to determine whether intervention was required. The claimant was
assessed and referred for therapy to Agnes Kocsis, Consultant
Psychologist, and Head of Clinical Health Psychology at St Mary’s Hospital.
Their first appointment was in October 2017. She was in no doubt that the
claimant had PTSD. This therapy included EMDR (i.e. Eye Movement
Desensitisation and Reprocessing Therapy). These therapy sessions
continued intermittently until late 2018. RBKC paid for these sessions and
agreed to fund further counselling if it was needed.
74. Prior to taking up this post with the first respondent, the claimant completed
an Employment Health Assessment Form (“EHQ”) on 31 October 2017
[2632-7]. This form stated that its contents would be treated confidentially
and would not be disclosed to anyone outside the Occupational Health Unit
(“OHU”) without the employee’s written consent and the OHU “will retain
this form and will uphold the principles of the Data Protection Act 1998.” In
this form the claimant declared that she was taking medication for ADHD
and against the section headed “Mental illness (including depression,
nervous breakdown, anxiety, panic attacks or eating disorder)” she wrote
“No. Episode of PTSD following Grenfell debrief. Received therapy through NHS
Grenfell support for staff”.
Case No: 2206237/2018
23
The claimant also confirmed that there were no other illnesses which “may
be adversely affected by your work or may affect your working” nor that she
considered that she had a disability or any illness or impairment which might
affect her work, nor required any adjustments nor had any illness,
impairment or disability “which may have been caused or made worse by
your work”. In her oral evidence, which we accept, the claimant said in
completing this form she used “episode” instead of panic attack to describe
her PTSD flashbacks. She understood this to be an episodic occurrence or
reaction to events and not something that was inherently “wrong with me”
or an impairment. Because she was unsure whether she was describing this
correctly she provided the OHU with medical notes and she discussed this
with an OHU nurse on 1 November. From the handwritten note made by the
nurse on the EHQ this appears to have been a brief discussion when the
claimant reiterated that she was managing the conditions she had referred
to by medication (ADHD) and counselling (PTSD). At the end of this note,
the nurse wrote “Fit for post”. In her oral evidence, the claimant said that
she did not require any adjustments before 2 May 2018.
75. The claimant’s role of Director of PSR was created following the decision to
disaggregate the Tri-borough shared services arrangement and the return
of the Adults’ Social Care (ASC”), Public Health and Children’s Social Care
(“CSC”) services to the first respondent. 12 months’ notice of disaggregation
was served on 1 April 2017. Selected services would continue to be
provided by RBKC and WCC under a Bi-borough arrangement. The new
PSR Department would be responsible for a strategic reform agenda
incorporating adult and children’s social care commissioning, public health,
commercial services, procurement and policy. Phase one was to design and
deliver this new service and structure. The claimant would be responsible
for setting up the new department and the systems and staff to be
operational from 1 April 2018 when these sovereign services would go live.
Elected cabinet members decreed that the budget for the PSR Department
was limited to existing budgets, not including any one-off transition costs.
76. It was envisaged that the claimant and the other newly appointed directors
for Children’s and Adults’ Social Care would start in September 2017. They
would have seven months to re-establish these sovereign services.
Although she was keen for the claimant to start work in September 2017,
the second respondent agreed reluctantly to the claimant’s request to delay
her start to November 2017 because of her Grenfell work. It is likely that
one reason for this delay was the claimant’s doubts about taking up this new
position.
77. As a director, the claimant would be part of the second respondent’s Senior
Leadership Team (“SLT”). In her oral evidence, the claimant agreed that
she was reluctant to take up this appointment because she was concerned
about the second respondent whom she felt was an inexperienced leader
who related poorly to her SLT. She agreed that she had therefore formed a
view about what it would be like to be in the second respondent’s team
before she started. The claimant also understood that she had been foisted
on the second respondent by the Leader of the Council. She had been the
only person to be interviewed for this position. From her discussions with
the second respondent the claimant knew that this was a pressurised and
high-profile role with the need to deliver results. We find that despite her
Case No: 2206237/2018
24
reservations about the second respondent, the claimant was committed to
this role once she was in it. She was ambitious, this was a highly visible role
and one which she was determined to make a success to showcase her
talents. This is consistent with the evidence of Barry Quirk, Chief Executive,
RBKC, which we accept, that he told her that this role would make her well-
placed for more senior roles in local government.
78. Before taking up her post, the claimant began working on the new design
for PSR and identified several budgetary issues. In an email dated 20
October 2017 [3457] she queried her ability to fit the ASC commissioning
and transformation service costs within the allotted £840,000 budget. A third
share of the current workforce costs for ASC commissioning across Tri-
borough was £1.3m. This did not include senior management posts,
transformation and project management costs or infrastructure costs
supporting commissioning operations. A further issue was that permanent
posts in ASC commissioning were currently being funded from a wider
transformation reserve which was time-limited and this would leave a
funding gap when the service was repatriated. The data showed that the
first respondent employed around 40 of the 82 posts in ASC commissioning
in Tri-borough at a cost of £2m. The total workforce cost across Tri-borough
for ASC, Children’s Services and Public Health commissioning and
transformation was over £15m and included 262 staff. The claimant said
that she would continue to work on PSR structures to meet the service
requirements, however, she concluded that the budget for ASC
commissioning “presents service risks and safety impact for PSR and
consequently those supported by ASC, CHS and PH departments”. This is
not relied on by the claimant as a protected disclosure. (As will be seen, the
claimant sent another email on 31 October 2017 about this issue, which is
relied on as a protected disclosure.) Lisa Redfern, Strategic Director of
Social Care, replied on the same date, 20 October 2017, to agree that this
needed to be resolved. This email chain was copied in to several
colleagues, including Mr Jolapara and the second respondent.
79. The project of migrating services back to the first respondent was known as
the Moving On (“MO”) programme. The MO Programme Board made
strategic decisions for the programme. It included the second respondent
and the SLT. In a text dated 25 October 2017, the second respondent made
the budget position very clear to the claimant in the following terms [289]:
“Had a discussion with the Leader about Moving On costs and you need to
fit the budget envelop[e]…”
The Leader of the Council had made a public commitment that the
disaggregation of shared services would be achieved with no additional
cost, save for one-off transitional costs. The claimant understood that the
efficiencies resulting from the shared service model would be lost when
services were repatriated; and disaggregation would inevitably lead to
diseconomies of scale and additional cost in providing these sovereign
services. The aim was to create efficiencies by the combining services
under a new service design in the PSR department. This were would also
be a revenue-raising function.
80. We accept the claimant’s unchallenged evidence [C/25] that she was tasked
with creating a new department with an annual budget of around £3.5m
Case No: 2206237/2018
25
which was substantially less than the first respondent’s budget of almost
£6m for the same services being provided under the Tri-borough
arrangement. By fitting within this smaller financial envelope the new
service model would result in a reduction in service capacity. To achieve
this reduction, the claimant felt that a “reality check” was required. In a text
dated 10 January 2018 the claimant highlighted the scale of the challenge
she faced in in the following terms:
“there is a lot of work to be done to reconnect them [the Council] to the true
state of both the budget and services…Asc commissioning is a mess. But
the gap between expectations and reality is one of the largest I’ve seen and
we are approaching a crisis once clear of the local elections and the need
to balance the accounts materialises…”
81. We accept the evidence of Sarah Thomas, then Acting Director of Delivery
and Value, that it was apparent from early on that there were significant
issues with finance and budget for the new department. We also accepted
the evidence of Dave McNamara, the Tri-borough Director of Finance and
Resources for Children’s Services until its disaggregation in March 2018,
that the claimant inherited a service which did not meet service needs and
lacked adequate resources to rectify this funding shortfall. We also accept
the evidence of Alix Cordell, who was employed as an interim consultant
from September 2017 to March 2018 and worked alongside the claimant in
the development phase setting up the new department, that there were
constant changes to the budget and a lack of engagement from the
corporate HR team. The new department was much smaller in size and
resources than the constituent parts that were being repatriated had been
when they were separate service areas.
The claimant’s first day on 13 November 2017
82. On her first day in her new role, 13 November 2017, the claimant met with
the second respondent. Although the second respondent denied this, we
prefer the claimant’s evidence that she was that she was told that she was
an outsider, her new colleagues in the SLT did not trust her, she was not
seen as a team player and Councillor Ben Coleman, the new cabinet
member responsible for Adult Services and Public Health, had not “bought
in” to her appointment. We prefer the claimant’s evidence because she
referred to these comments in a text she sent to a former colleague later
that day [4496]. We also accept her evidence that she felt these issues were
more to do with perceptions and politics and she decided against
challenging the second respondent in the first hour of her first day at work.
83. The claimant told the second respondent that she had secondary PTSD as
a result her Grenfell work and she was having counselling for this. The
second respondent referred to another colleague who had been involved in
the Grenfell response who was being treated for PTSD, discussed the
details of a harrowing YouTube video of the fire, and her own experience of
being evacuated from her home at night by the fire service. Although the
claimant felt that her new line manager was being insensitive we accept the
second respondent’s evidence that she wanted to show empathy. When
she discussed the video, the claimant became distressed. The claimant’s
unchallenged evidence is that she started weeping and cried profusely and
was very upset and shaken. The second respondent suggested that the
Case No: 2206237/2018
26
claimant worked from home for the next fortnight and was mindful that the
impending Christmas holidays would offer further respite. As the second
respondent put in when giving evidence, having waited several months for
the claimant to start, she had not anticipated that they would be discussing
the claimant’s mental health at their first meet and greet. She was struck by
the claimant’s apparent fragility. As a result of this discussion, she
understood that the claimant had secondary PTSD and that this had not
been limited to a one-off episode and was therefore an ongoing condition
which the claimant was managing with counselling. The claimant did not
refer to ADHD during this meeting.
84. Later that day, the claimant returned from a counselling session at 1pm and
was in a meeting which Ms Thomas interrupted to ask her to join a meeting
with the second respondent and Cllr Coleman. The claimant decided
instead to continue with her meeting because she had not been given any
warning of the other meeting and felt that the way she engaged with the
second respondent on her first day would set the norms and boundaries for
their working relationship. At 2.23pm the claimant sent a text to the second
respondent to explain that she lacked access to a diary, email or executive
support [290]. In her reply at 9.09pm, the second respondent told the
claimant that she should have attended the meeting and asked her to send
an apology to Cllr Coleman copying her in. The claimant questioned this
reiterating that she had not been given any details of this meeting. However,
when she later clarified that Ms Thomas had told her about the meeting at
around 1pm but she had not been given any background information or
notice of this meeting, the second respondent felt that this conflicted with
the initial reason she had given for her non-attendance and now felt
distrustful of the claimant. She also felt that the claimant’s response was too
forthright and brusque. The claimant also referred to this issue in the text to
her former colleague to which we have already referred when she
concluded “I will be surprised to survive the week – feels like a complete set
up” [4496]. The working relationship between the claimant and second
respondent had not got off to a good start.
85. The claimant emailed Cllr Coleman to apologise the next day [1791]. The
second respondent was copied in to this correspondence and replied
“Perfect!”. The claimant felt undermined and patronised by this.
86. In January 2018, PSR took over responsibility for the MO programme. Kate
Evangeli, MO Programme Manager, and Ms Thomas, having reverted to
her substantive role of Assistant Director (now of PSR), were closely
involved in managing this programme. In a text sent to the second
respondent before this handover, on 19 December 2017, the claimant told
her that the MO programme lacked the resources to deliver on the next
phase and she had discussed this issue with Mr Jolapara and Mr Grimley
[1773].
87. The claimant did not have an Executive Support Officer until January 2018,
when Jessica Pezzolesi started in this role. Ms Pezzolesi knew the claimant
well, having supported her in a similar role at RBKC since 2014. We accept
her evidence that she saw that the department was extremely understaffed
with around 40 – 50 vacancies to fill. It was clear to her that the claimant
had not been given enough resources. In addition to being understaffed, the
Case No: 2206237/2018
27
claimant was being constantly interrupted in the open plan office where she
was based. Ms Pezzolesi knew that the claimant was working long hours
and staying in her London flat on week nights to get more work done.
93. In a text dated 23 February 2018 the claimant referred to her department
“of one [which] is certainly leading to some Grenfell-esque hours” [4385].
88. Christian Rogers, Director for the Commercial Ethical Debt Collections and
Business Intelligence Services, sat opposite the claimant in the same open
plan office as the SLT. He became increasingly concerned about the
claimant’s wellbeing from around December 2017 and over the next three
to four months. His evidence, which we accept, was that the claimant
appeared stressed and on occasion, distressed, and her physical state
deteriorated. He discussed this with Ms Thomas who agreed. He
understood that this was related to the claimant’s work. When the claimant
became his line manager in March 2017, following the departure of Mr
Hainge that month, Mr Rogers realised that she had a heavy workload and
was working long hours late into the night for a sustained period. He
overheard discussions the claimant was having in relation to resources and
budget and also meetings with Mr Jolapara about the financing of her
service areas. He overheard the claimant complain that the level of funding
allocated was insufficient. We accept his evidence that these discussions
could become heated.
89. Ms Pezzolesi also observed from close quarters that the claimant was
becoming more subdued by late March 2018. The pressure and working
hours were taking their toll and the claimant did not appear to be happy. On
one occasion the claimant told her that she was feeling shaky and her heart
rate was elevated. When she measured her heart rate using a colleague’s
smart watch it exceeded 100 BPM.
90. The claimant also brought in Chris Barrett as in interim consultant to conduct
a review of the Public Health services which were transferring to the first
respondent and also a risk assessment. They had worked together before
as part of the Grenfell response. We accept his evidence that when he
began in late March / early April 2018 there were not enough staff to carry
out the department’s work and the situation was very messy.
91. We therefore find that the claimant was under-resourced in her role, in which
she was faced with the challenge of establishing a department and staff
structure from scratch, recruiting into around two-thirds of all posts and
managing the transition of formerly shared services within a limited and
potentially unsustainable financial envelope. She worked increasingly
excessive hours as the April 2018 go live date approached.
Cabinet Member Decisions
92. A Cabinet Member Decision (“CMD”) is one requiring executive approval.
To obtain such approval, the cabinet member(s) with responsibility for the
relevant portfolio must be provided with a decision report setting out the
rationale for approval. We accept the second respondent’s evidence that
draft decision reports were usually circulated amongst the SLT before being
sent to a member for sign-off. She emailed the claimant and Mr Jolapara on
5 January 2018 to remind them about this [380]. In her evidence, the second
Case No: 2206237/2018
28
respondent said that this was not a significant issue although she felt that
the claimant had been somewhat cavalier in by-passing the SLT. However,
we were not taken to any contemporaneous or any other documents in
which she gave the claimant this feedback.
Interview panel on 26 January 2018
94. The claimant was scheduled to chair an interview panel alongside Cllr
Coleman on 26 January 2018 to fill the vacant position of Director of Public
Health. We accept her evidence that she was unable to attend work in time
to take part because she had an episode of urinary incontinence on her way
into work. She attended a private walk-in consultation in central London
when she was diagnosed as having two antibiotic-resistant UTIs. The
claimant contacted the second respondent to explain that she would be
unable to make the interview because she needed to attend a medical
appointment. Ms Redfern who had been responsible for Public Health under
the previous shared services arrangement, stepped in to chair the interview
panel. Ms Redfern concluded that the claimant’s failure to chair the panel
was unprofessional, although was not in possession of the full facts at the
time.
Concerns raised about member behaviour
95. The claimant says that she made protected disclosures when she raised
concerns about member conduct.
(1) On 26 January 2018, the claimant forwarded an email to the second
respondent she had sent to Cllr Coleman about the interviews that day
and also about his request that Ms Redfearn take part in the interviews
for PSR commissioning posts [1951]. She told the second respondent
that she would follow up this email and encourage “some open
discussion” and explained that she needed to reinforce her own
leadership and would not accept “this type of undermining /interference
from either officers or members”. When, two days later, Cllr Coleman
responded to advocate for Ms Redfern’s involvement, the claimant
forwarded this to the second respondent to say that she was not happy
to proceed in this way and complain that Cllr Coleman should not be
involved in this way (and also that other colleagues should neither
suggest nor support this approach). She wrote “The message here is
that I can’t be trusted to make decisions that support ASC or PH
interests, and it’s very damaging” [1956]. We find that the claimant was
raising a concern that her leadership was being undermined by Cllr
Coleman with Ms Redfern’s support. Her email did not refer to a legal
obligation nor was one obvious.
(2) On 16 April 2018, the claimant sent an email to Adewumi Keyode and
others, including Ms Pezzolesi, about the need to establish a clear
mechanism within PSR before reports were sent out for sign-off [109S].
She noted that she had flagged this issue before and the process
needed to be tightened to ensure that PSR approval for all reports sent
out was clearly evidenced. Excluding Ms Pezzolesi, the roles and
responsibilities of Ms Keyode and the other recipients of this email were
neither apparent from this email nor were they explained. This email did
not refer to a legal obligation.
Case No: 2206237/2018
29
96. The claimant referred to ADHD at an SLT training session on 7 February
2018 when she accidentally knocked over the facilitator, who used a walking
stick to mobilise, and said “don’t mind me, it’s my ADHD”. Although we
accept that the claimant was being literal and was therefore alluding to her
diagnosed condition, the second respondent was not cognisant of this and
understood that she made this comment to make light of an embarrassing
situation.
97. The second respondent was cognisant that the claimant had what she
understood to be secondary PTSD. Although she said that the claimant had
not completed the training, on 15 February, necessary to cover the
emergency Gold cover rota, in her oral evidence, the second respondent
also said that she was had questioned whether the claimant had the
resilience because of her PTSD to manage the Council’s response to major
emergencies.
98. The claimant emailed Mark Grimley, then Interim Director of HR, and Tina
Dempsey, Head of People and Talent, on 22 February 2018, [2081] in
relation to some interim changes she had made to the PSR structure and
the funding for two assistant director vacancies from the allocated budget.
99. The second respondent replied to an email from the claimant, copied to all
recipients, including Mr Quick and Stuart Love, Chief Executive of WCC, on
28 February 2018 [2074] in which she instructed the claimant to amend the
job title ‘Lead Director’ to ‘Director’ in the signature block of her email. In her
response, sent to the second respondent only, the claimant complained
about this “unnecessary and humiliating” rebuke and stated:
“I’m working like a dog for lbhf at the moment often around then clock and
this type of powerplay isn’t amenable to a productive working relationship
between us” [2076].
The second respondent called the claimant and sent her a “whole-hearted
apology” when she emphasised “What’s important here is a good working
relationship so please continue to share any concerns when they arise” and
stated “I continue to value your role in SLT” to which the claimant replied
“No problem – We’re good, you can rely on me…” The second respondent
then emailed Mr Quick and Mr Love [2074]:
“Barry, Stuart…you shouldn’t be sighted on my poor taste standing joke
with Rachel – she’s amazing which is why I worked really hard to secure
her!”
Although the claimant says that the second respondent deliberately rebuked
and undermined her we find the second respondent included the wider
group inadvertently and this was an error for which she apologised when
she took the opportunity to praise the claimant. We find that this praise was
genuine.
Concerns raised about PSR budget, including the delivery of statutory
services
100. The claimant says she made protected disclosures when she raised
concerns about the PSR budget and the impact on the delivery of statutory
Case No: 2206237/2018
30
services and also about third party contracts between 31 October 2017 and
2 February 2018.
(1) On 31 October 2017, the claimant emailed Mr Jolapara about the ASC
commissioning budget which she described as “a nonsense” when she
remarked that the current budget and capacity was much higher than
the proposed service level and queried whether the first respondent
could “accommodate such a reduction in capacity managing sensitive
service functions and activity in just a few months time?” [1741].
(2) On 23 January 2018, the claimant emailed Mr Jolapara and the second
respondent in which she forwarded an email chain to support her view
that the underlying budgetary assumptions in relation to commissioning
and transformation strategies needed to be reset [397]. There was a
variance between budget and spend and the latter would need to be
reduced by around 15-20% whilst at the same time building on the
investment strategy to meet demand.
(3) On 29 and 30 January 2018, the claimant had an exchange of emails
with one of her direct reports, copied to Mr Jolapara, Emily Hill then
Assistant Director, Corporate Finance, and Ms Redfern, about contract
renewals and the budget process [1975-9]. In essence, the claimant
was saying that more work was required to assess affordability before
a report was forwarded to members for sign-off.
(4) On 31 January 2018, the claimant emailed members, including Cllr
Coleman, as well as other colleagues including Ms Redfern, about
service contract renewals and governance [417]. She explained that
further work was needed to establish affordability without which there
was a risk that funding would not be available for this provision. The
claimant forwarded this email to Mr Jolapara and others including Ms
Hill, on the need to develop an holistic and shared approach [416].
(5) On 2 February 2018, the claimant emailed the second respondent in
which she forwarded an email chain related to ASC commissioning and
referred to a number of “potential risks” of funding shortfalls and work
capacity for services [1989].
101. We do not find that the claimant was saying in her emails on 31 October
2017 or 23 January 2018 that it was likely that statutory services would not
be delivered, she was asserting the need for a reset of current assumptions.
Notably, neither of these emails were written in the somewhat starker terms
of the claimant’s text of 10 January 2018. Nor do we find, that the claimant
was raising this concern in relation to contract renewals in her emails dated
29 to 31 January, because she agreed that further work was required to
establish this. She was taking steps to avoid this outcome. As she explained
in an email dated 29 January [1977-8]:
“I do recognise and appreciate service pressures, and we will need to look
at how we ensure that any process or potential change is managed
appropriately and with sufficient notice. But I am confident that there are
ways to achieve this together. There are choices available to us to cover
this risk and sustain service delivery for an interim time whilst we work
through the strategic position and context…”
and also on 31 January [417]:
“It is highly likely that assumptions are being made in individual projects or
Case No: 2206237/2018
31
decision papers that funding is available, and a significant risk that it is not.
I am advising Commissioners that I will support them to sustain service
provision or manage risks during the interim period…”
We do not therefore find that the claimant was reporting that it was likely
that the first respondent was going to be in breach of a legal obligation but
she was identifying risks which she was taking steps to resolve. Similarly,
as Mr Jolapara said when giving oral evidence, the claimant raised queries
or concerns in the context of debating and resolving these issues at SLT
level.
93. In her email to the second respondent on 2 February, the claimant was
clearly highlighting the risk of a funding shortfall in relation to three specific
services.
Concerns raised in relation to GDPR compliance, employment duties, and
health and safety.
102. The claimant also says that she made protected disclosures when she
raised concerns about: GDPR compliance in third party arrangements at
SLT meetings in February and March 2018; the first respondent’s
employment duties and duty of care to employees to Mr Grimley and Mr
Jolapara between 28 February and 1 May 2018; facilities management and
health and safety to the second respondent and Mr Jolapara in April 2018.
There was no documentary evidence to substantiate what these concerns
were nor did the claimant lead any other evidence on this.
Concerns raised about contractual arrangements and governance for
shared services
103. The claimant also says she made protected disclosures when she raised
concerns about contractual arrangements and governance:
(1) On 27 February 2018, the claimant emailed the legal team, including
Rhian Davies, then Borough Solicitor and Monitoring Officer, and also
Mr Grimley about the delay in concluding a collaboration agreement for
shared services with Bi-borough. This was agreed by the Leader on 29
March and sealed on 5 April.
(2) Also on 27 February 2018, the claimant emailed Mr Jolapara and Ms
Hill to request assistance with coordinating finance teams as there was
limited capacity in the project team to do this work [489-90].
(3) On 13 March 2018, the claimant emailed Ms Hill to make an urgent
request for a Head of Finance to work with her across PSR instead of
the current “unwieldy” arrangement of working with four or five separate
finance leads [798]. She also requested that PH finance was
repatriated.
104. Although the claimant was self-evidently raising issues about the delay in
securing the collaboration agreement and the lack of resources her
department had in relation to finance work, she failed to identify any
wrongdoing or failures and nor was this patent.
105. As a result of the second respondent’s reorganisation of her SLT and the
redistribution of responsibilities across what was now a smaller team, the
Case No: 2206237/2018
32
claimant’s base salary was increased to £125,000 from 1 March 2018. In a
letter confirming this contract variation dated 20 March 2018 [1624], the
second respondent thanked the claimant “for your continued energy,
leadership and support”.
106. In the same month, the former Commercial Department was transferred into
the PSR department.
107. In March 2018, the second respondent told the claimant that Ms Thomas
and Ms Evangeli were taking on the burden of the disaggregation work, the
claimant was not visible and she asked her to start attending weekly MO
meetings. The claimant disagreed and felt this demonstrated the second
respondent’s lack of knowledge about what work was being done and by
whom. She did not accept that she was over-delegating and she attended
MO meetings unless there was an exceptional reason not to.
108. The claimant denied that the second respondent also discussed issues
around governance and recruitment with her in February and March. We
were not taken to any contemporaneous documents in which the second
respondent referred to this issue.
109. The second respondent says that she also told the claimant that she needed
to work with SLT colleagues constructively and transparently to reallocate
budget resource and workforce across three departments and felt she was
having to referee between the claimant and her SLT colleagues. The
claimant denied that Mr Jolapara told her that her financial management
was not acceptable and we were not taken to any contemporaneous
documents which corroborated this. As we have noted, for Mr Jolapara, the
budget issues which the claimant raised with him were part of an ongoing
discussion in the context of debating and resolving issues and it is likely that
this applied both ways. In the absence of a service or budget, the focus of
the discussions in February and March 2018 was ensuring that the new
service model was costed within the available budget. This was a paper
exercise. The claimant needed to know what budgets would be available
when PSR went live on 1 April. This was a moveable feast: the migration of
departments, portfolios and services to PSR meant that the costs of the
service model needed to be readjusted. A related issue, which the claimant
had flagged, was that PSR lacked a dedicated finance lead to coordinate
this exercise.
110. Mr Grimley said he and the claimant had a cordial but occasionally
antagonistic relationship due to their respective roles as a result of which
there was an in-built tension between them [MG/30]. Whereas the claimant
was responsible for establishing a new service model, Mr Grimley was
responsible for coordinating the arrangements for the disaggregation of the
shared services which were returning to the Council. He also oversaw the
control of workforce expenditure and recruitment. Although he had several
criticisms of the claimant including that she did not did not always accept
the limits of her authority or scrutiny [MG/31] and of her style which he says
was to fight and not to resolve [MG/32] he agreed that there was a lack of
clarity in relation to the budget limits to which the claimant was working. His
evidence was also that concerns were escalated to him about the claimant
exceeding or side-stepping limits for grades [MG/30] although we do not
Case No: 2206237/2018
33
find that this is corroborated by the documents we were taken to which he
was aware of at the time and we note, in any event, that Mr Grimley’s
evidence was also that on each occasion he and the claimant agreed on a
practical way forward.
PSR goes live on 1 April 2018
111. The PSR Department became operational on 1 April 2018 when it assumed
responsibility for Children’s and Adults’ Services Commissioning, and
Public Health operations. We accept the claimant’s evidence that she had
been regularly working 12 hours or more each day, evenings and weekends
and her working hours increased in April.
112. The second respondent says that the claimant did not follow the agreed
procedural routes in terms of governance and audit: she had sought
retrospective approval to fund PSR posts, she had not been sighted on
these reports. She says she was also frustrated that this had taken place
when the claimant was on leave. The claimant sent six decision reports to
the Leader of the Council, Cllr Stephen Cowan, on 6 April 2021 to obtain
urgent sign-off for a batch of CMDs [2199]. In forwarding these reports, the
claimant explained that she had initially understood that they were within
Cllr Max Schmid’s portfolio, they had been discussed at the Finance Board
and also agreed at SLT. An award report had already been sent to and
agreed by Cllrs Schmid and Sue Macmillan on 28 March 2018 [1059].
Having been copied in to the claimant’s email, the second respondent’s
reply on 9 April 2018, was not critical but constructive. Although she alluded
to the number of reports which required urgent sign-off, she queried whether
the claimant was advising Leader Cllr Cowan directly as she had not been
sighted on these reports and she asked Cllr Schmid to discuss them with
the Leader to ensure sign-off. As noted above, the claimant emailed her
team on 16 April 2018 about the need to establish a clear mechanism within
PSR before reports were sent out for sign-off [109S]. She was therefore
cognisant that her internal governance process needed to be improved and
took action to rectify this.
113. An ongoing issue for PSR was that there was no facility to allocate separate
budget codes on the Agresso system which meant that the new staff
structure could not be uploaded. This was one of the issues that Ms
Evangeli identified in an email dated 7 March 2018 sent to the second
respondent, Ms Redfern, Mr Jolapara, Mr Grimley and others [2104].
114. Office space was another issue which Ms Evangeli flagged in the same
email. The claimant emailed Nigel Brown, a member of the Facilities
Management team, about this issue on 17 April 2018 [1091] when she
requested an update and noted that her staff were spread out across nine
locations and three buildings and with very limited management capacity,
and there was a lack of desks for new team members. She noted that a
planned move of staff from another team which would free up space was
no longer going ahead. She explained:
“Many staff will be in a situation where they have a vacancy for their
immediate line manager or even post above for several more weeks and
months, and the service will remain fragile until it reaches capacity. It is not
yet robust enough to easily withstand the additional complexity these
Case No: 2206237/2018
34
interim conditions are producing.”
The second respondent followed this up with an email to Mr Brown in which
she noted that she had already requested an update meeting and floor
plans and she acknowledged that “the Moving On issue is not easily
resolved in the short term” [1091]. The second respondent’s evidence
[R2/32] was that she was concerned that the claimant had raised this issue
at this late stage and she also says that she discussed this with the claimant
on two occasions. We were not taken to any contemporaneous documents
which substantiated these concerns or discussions. This issue had already
been raised by Ms Evangeli on 7 March 2018 and in an email to her team,
dated 16 April 2018, the claimant summarised the position “It is likely that
this is not well known or understood yet, as office space has been
unavailable and a moving feast throughout” [33S].
115. As the claimant explained in an email to Cllr Coleman on 9 April 2018 [51S],
the Agresso issue also meant that the team were unable to raise new
purchase orders that were necessary for more than 300 contracts which
needed to be set up now that PSR was live. A related issue was the need
to reconcile the handover details from Tri-borough with the data held on the
Council’s systems.
116. In an email to her team on 18 April 2018 [35-6S], the claimant alluded to
“some turbulence and practical challenges” which the formation of PSR
presented especially without IT finance and HR systems being in place and
with her team scattered across locations. She remained mindful of the need
to establish processes and systems to safeguard governance and oversight
[36S]:
“…with manual processes in place wherever our backoffice arrangements
such as Aggresso continue to present risks. This means ensuring we have
an accurate and total view of all contracts and providers, and that all of
these have been contacted to confirm contact details for the team and a
link officer. It means ensuring we can and have raised Purchase orders. It
means we know who is on annual leave. It means we know who is working
from home, and that everyone has the right kit to do their job. It means
having an understanding of our budgets, and business plans. It means
understanding and managing our risks…”
It was therefore necessary to create a weekly spreadsheet as “a failsafe
and basic management tool” in the interim [34S].
One-to-one meeting between the claimant and the second respondent on
18 April 2018
117. The claimant had a one-to-one meeting with the second respondent on 18
April 2018. The issue of cabinet member reports was discussed. It is agreed
that the second respondent told the claimant that she needed to plan more
efficiently and show leadership.
118. This was meant to be an appraisal, however, the second respondent did not
proceed with one because the claimant seemed downbeat and upset. When
she asked the claimant, at the start of this meeting, how she was feeling on
a scale of 1 – 10, the claimant said “3”. Although the claimant referred to
Case No: 2206237/2018
35
this in a text sent that evening and commented “that might have put her off
– lol x” [4352] we do not find that this connotes a deliberate intention by her
to deflect the second respondent but reflected the second respondent’s
decision to change tack because of the response the claimant had given.
Nor do we find that this text illustrates that the claimant’s response was not
a genuine one. It is notable that in several texts we were taken to the
claimant made light of difficult matters and displayed what she described in
oral evidence as her “self-deprecating” humour. She also said that her mood
and state of mind could change throughout the day.
119. We also accept Ms Pezzolesi’s evidence that the claimant had been
apprehensive going into this appraisal because of the lack of feedback to
date from the second respondent and when they discussed this meeting
afterwards, the claimant told her that the second respondent had been very
positive and was pleased with her performance. We do not therefore find
that the claimant came away from this meeting with the impression that the
second respondent had any serious concerns about her performance.
Concerns raised in relation to breach of contract (notice periods)
120. One of the issues which the claimant and the second respondent discussed
at their one-to-one was the movement of staff between boroughs in breach
of contractual notice periods. The claimant says that she made protected
disclosures when she raised the following concerns about this issue:
(1) On 6 April 2018, the claimant emailed Mr Grimley and others about staff
transfers between the first respondent and Bi-Borough and queried
whether the first respondent should also ignore notice periods for
incoming staff or insist on a week’s notice [87S].
(2) On 17 April 2018, the claimant forwarded an email she had sent to
another colleague about this issue, to the second respondent, which
she said presented the risk for ongoing service collaboration and
partnership working between the boroughs [2208-9]. The claimant
identified this as an operational issue for discussion at their next one-
to-one. She said that it “should be a mere irritant – but which may have
the potential to bubble and expand”. When they discussed this issue,
the second respondent agreed that the claimant should email the other
boroughs to send a firm response. She told her to ruffle feathers and
threaten to send them an invoice for the cost of staff used to backfill the
vacant posts.
(3) On 19 April 2018, the claimant followed this instruction with an email to
Mr Grimley and others, including the second respondent, Mr Quirk and
Mr Love headed ‘The Sporting news – Hide and Seek” [1106-7] in which
she complained about the lack of collaboration and “fair play” from some
officers within Bi-borough. She cited the example of one ex-colleague
whose notice had been waived by Bi-borough without discussion. This
had impacted on the workload and capacity of her team, and the first
respondent had incurred costs to backfill this vacancy. The claimant
queried whether contracts, notice periods and collaboration were now
regarded by their counterparts as being out of date or optional.
121. The claimant was clearly complaining that Bi-borough had unilaterally
waived contractual notice periods for incoming staff leaving the Council
Case No: 2206237/2018
36
which impacted on its capacity and costs although she was not saying that
this meant that it was likely to result in the first respondent not fulfilling its
statutory functions. As she had noted in her email of 17 April, this was “a
mere irritant” but had the potential to expand. In her email of 19 April, she
suggested that this could work both ways and the second respondent
followed this up the next day with an email to her fellow chief executives to
suggest that it was “in none of our interests to appear lawless to staff”
[1106]. Although the second respondent agreed that this was an issue for
the Council and one that warranted a robust approach she was critical of
the claimant’s email which she felt was sarcastic, overfamiliar and had been
copied to a junior colleague. We find that these were genuinely held
concerns, which the second respondent discussed with her counterparts on
20 April.
‘The Sporting news’ email
122. The second respondent discussed this email with Mr Quirk and Mr Love
when they attended a Chief Executives London Committee meeting at
Guildhall on 20 April 2017.
123. In his oral evidence, which we accept, Mr Quirk said that although the
claimant’s email contained evocative language and an element of sarcasm
he did not feel that it had been inappropriate nor was it of any consequence.
124. The second respondent and Mr Quirk then had a separate discussion about
the claimant. She knew that they had worked together before. Mr Quirk told
the second respondent that he had a high regard for the claimant’s
professional competence, he referred to her Grenfell work and to her related
counselling support. He also referred to the claimant’s ADHD which he said
explained her creativity and drive. In his oral evidence, which we accept, he
said that when the claimant first told him that she had ADHD in November
2017 this made sense because it explained many of her positive personal
qualities at work including her character, drive, creativity and energy. It is
clear that Mr Quirk assumed that the second respondent was not already
cognisant that the claimant had ADHD because he thought hard about
sharing this information with her and in doing so was concerned to allay any
misunderstanding she might have about this condition and put it in a positive
light. Although he could not recall saying that the claimant’s “brain did not
operate in the same way” as he felt that this was a very crude and crass
way of explaining ADHD he did not deny that this was possible. We also
accept the claimant’s evidence that when she later met with Mr Quirk he
told her that he had discussed her ADHD with the second respondent in
these terms. Given his opinion of the claimant in general, his understanding
that some of her positive qualities were attributable to ADHD and the
relationship of trust between them, it is likely that he used words to this effect
to explain this condition to the second respondent.
125. Although we find that the claimant discussed her mental health with
colleagues, including the second respondent, we find that this was the first
time the second respondent was made aware that she had ADHD. There
was no evidence to suggest that the second respondent knew about this at
an earlier date. This is also consistent with the claimant’s solicitors’ letter
dated 1 August 2018 [2449-51] in which they asserted that the claimant had
Case No: 2206237/2018
37
discussed her PTSD diagnosis with colleagues and also with the second
respondent on 13 November 2017 whereas no assertion was made they
had discussed her ADHD before May 2018.
126. Mr Grimley gave contradictory evidence in relation to when he first became
aware that the claimant had ADHD: in his witness statement he said July
[MG/19] and in oral evidence, which we accept, he was first made aware
that the claimant had ADHD by the second respondent around 20 April
following her discussion with Mr Quirk. We find it likely that the second
respondent was blind-sided by Mr Quirk’s disclosure and would have
shared this revelation with her close colleague without delay.
127. A week after their one-to-one meeting on 18 April 2018, the second
respondent told the claimant “Some people around her need to remember
they’re on probation” to which the claimant replied “If you’re not happy I will
move on then” [C/45]. The second respondent drew a dot on a piece of
paper with a larger circle around it. Although the second respondent denies
this, we prefer the claimant’s evidence that the second respondent told her
to accept this feedback “everything else is brilliant” and the claimant would
be working for the Council for a long time. This is in fact consistent with the
second respondent’s evidence that she felt that the claimant needed a lot
of positive affirmation [R2/37]. We also find the claimant’s evidence was
more credible and reliable than the second respondent’s for the reasons set
out below.
128. The claimant took leave on 22 – 25 April 2018 to attend an Ernst & Young
conference in Amsterdam. She had been invited to take part in this event in
2017 before she took up her role with the first respondent. We accept Ms
Pezzolesi’s evidence that the claimant instructed her to declare this
conference in the first respondent’s Gifts and Hospitality Register. The
second respondent was not aware that the claimant attended this
conference until related correspondence was disclosed for the purposes of
these proceedings.
129. By late April, the claimant was facing external pressures on several fronts:
one of her children was struggling at school and she was having marital
conflict.
130. In a text sent by the claimant on 28 April 2018, she said that felt a “bit tight-
chested” although her pulse was normal and she was taking aspirin twice a
day as a precaution [4724].
131. Later that afternoon, some nine days after the claimant sent ‘The Sporting
news’ email, and without discussing this with her, the second respondent
emailed the claimant [1106] to complain about her use of sarcasm, her
overfamiliarity with the chief executives and her inclusion of a junior officer
in this email. Alluding to Mr Quick and Mr Love, she wrote “we all thought
that, as a director you were wrong to write in this way”. As we have noted,
Mr Quirk felt that this email was of no consequence, although we accept the
second respondent’s oral evidence that Mr Quirk told her that he was not
offended by this email but agreed with her suggestion that it had been
inappropriate to copy in a junior officer. We therefore find that her email was
misleading because it suggested that he also agreed that her use of
Case No: 2206237/2018
38
sarcasm and overfamiliarity were “wrong”.
132. The second respondent emailed the claimant and Mr Jolapara on the same
date to request a report about the Council’s commercial strategy when she
complained that she “felt like a broken record in trying to get a more strategic
approach to financing nailed down” [1112]. She noted that she would be
making similar requests to the SLT in other areas. We therefore find that
this criticism applied equally to Mr Jolapara and the other members of the
SLT.
133. An hour later, the second respondent emailed two other officers copied to
the claimant and Mr Grimley and others with a query about website content
relating to the Public Sector Equality Duty. The claimant updated her and
the second respondent asked her to send the new content to her directly
instead of waiting for the next SLT [1127].
134. The claimant’s probation was due to end on 11 May 2018. In April, she
discussed her probation with Mr Grimley. Although the Mr Grimley says that
the claimant told him that she was anxious about the possible extension of
this probation, we prefer the claimant’s evidence that she was not at all
concerned by this prospect or at least not by reference to her performance
which she felt she had no reason to be concerned about. She felt that it was
unusual and inappropriate for her to be on probation because she had been
a senior officer who had moved across to another local authority. It is also
likely that she felt as a director that this was demeaning. We find that any
anxiety the claimant had in relation to her probation related to her health:
she was working long hours, she was experiencing an exacerbation in her
anxiety and depressive symptoms, and was concerned to avoid taking any
significant time off because of this, for fear that her employment would be
terminated. She wanted to take leave but wanted to wait until her probation
had been confirmed. This is consistent with what the claimant told to Dr
David Oyewole, Consultant Psychiatrist, when she was interviewed by him
in relation to an expert report he prepared on her behalf for these
proceedings [2774]. We also find the claimant’s evidence was more credible
and reliable than Mr Grimley’s for the reasons set out below.
135. On Mr Grimley’s evidence, whilst he and the second respondent routinely
discussed the performance of other members of the SLT, including the
claimant’s, they did not discuss extending the claimant’s probation before
May 2018 [MG/42].
136. When the claimant texted the second respondent on 30 April 2018 to query
some interim changes to leadership in Bi-borough and Policy [1784], she
replied the next day “let’s meet up tomorrow for coffee – Jane [Watts]
arranging – we don’t see enough of each other…” This meeting was
scheduled on 2 May. We find from this contemporaneous exchange that
this was an ad hoc meeting over coffee to discuss this leadership issue and
also to catch up. This is also consistent with an email sent by Mr Grimley at
30 April 2018 to confirm that the second respondent had time to meet her
on 2 May, Ms Watts would send an invite and he would keep his diary free
if he was needed [146S]. This was likely to be about the handover of the
Programme Management Office (“PMO”).
Case No: 2206237/2018
39
137. Ms Pezzolesi drafted an agenda for this meeting [2246]. Although the
second respondent did not recall seeing this document, we find that was a
working agenda which Ms Pezzolesi drafted to incorporate items to be
discussed whenever the claimant and second respondent had their next
one-to-one. The agenda had four items: three of which the claimant had
flagged in emails dated 17 April [116S], 18 April [2249] and 2 May 2018
[2251] which the second respondent had seen; and the second respondent
agreed that the fourth item was a live issue at the time. The agenda did not
refer to the claimant’s probation.
The Probationary Procedure
138. The second respondent was familiar with the Probationary Procedure
[3311-3312]. Although this Procedure did not apply to the claimant because
she was a chief officer, as provided by paragraph 1.3, the second
respondent’s evidence is that she followed the spirit of this procedure in
relation to her.
139. The Probationary Procedure provides for the following steps to be taken: a
programme of review meetings shall be scheduled and confirmed in writing
(paragraph 2.1); there will be a minimum of three meetings, with a final
meeting no later than the end of the fifth month (paragraph 2.2); these
meetings shall be recorded and any concerns identified so that the
employee is made aware of the standards required of them that they are
not meeting and with any further support or training identified and the same
confirmed in writing (paragraph 2.4); where the manager proposes at the
final meeting to terminate or extend the probationary period, the employee
shall be given at least five working days’ notice of this and given the right to
attend with a colleague or trade union representative, and the reasons for
any dismissal shall be confirmed in writing and they must be allowed to
appeal (paragraph 2.6).
140. As will be seen, the second respondent failed to take any of these steps
when she extended the claimant’s probation.
141. For example, although the second respondent says that she had three
review meetings with the claimant, in February, March and May 2018 we do
not accept this evidence because there are no records of these discussions,
we have found that the meeting on 2 May 2018 was an ad hoc meeting over
coffee and which was neither scheduled nor conducted to review the
claimant’s performance or discuss her probation. We also find, for the
reasons set out below, that the second respondent’s evidence on this point
was neither credible nor reliable.
The meeting between the claimant and the second respondent on 2 May
2018
142. It is likely that this ad hoc meeting was relatively brief. The second
respondent was focused on the Council elections which were taking place
the next day when she would be the Chief Returning Officer and overseeing
the ballot count.
143. The second respondent reiterated the points she had made in her previous
Case No: 2206237/2018
40
email about ‘The Sporting news’ email. The claimant did not accept this
criticism which she felt was unfair and taken out of context. It is likely that
she felt she was being criticised for following the second respondent’s
instructions. We have found that these criticisms were genuinely held by the
second respondent and preceded her knowledge that the claimant had
ADHD and we do not therefore find that she was suggesting that someone
with ADHD would not have sent this email, as is contended.
144. The focus of the remainder of this meeting was the claimant’s ADHD. The
second respondent told the claimant that Mr Quirk had disclosed that she
had ADHD. We find that the second respondent did comment that the
claimant’s brain “doesn’t work like other people’s”. We find that the second
respondent was repeating or paraphrasing words used by Mr Quirk to
describe the claimant’s ADHD. We find that this revealed her lack of
knowledge about ADHD. We accept her evidence that she felt awkward
about raising this subject. We also find that in the circumstances in which
she did not hold the claimant in the same regard as Mr Quirk, and in which
there was a more difficult working relationship and less trust between them,
these words were likely to have had a very different effect on the claimant
than had Mr Quirk used them. It is likely that the claimant found this
comment both humiliating and offensive.
145. We also find that the second respondent queried why she had not been
made aware that the claimant had ADHD before and she also questioned
whether the claimant had disclosed this condition during the pre- and post-
employment screening process. We have found that the second respondent
had been blind-sided by Mr Quirk’s disclosure. We also find that the second
respondent’s reaction revealed that this was of significance and concern. It
is likely that she was not only disappointed with the claimant for not
discussing this with her directly but now questioned whether the claimant
had also failed to disclose her ADHD to OHU. This was also consistent with:
her instruction to Mr Grimley to check the claimant’s OHU file to establish
whether she had disclosed ADHD during pre-employment screening; the
claimant’s evidence, which we accept, that she told the second respondent
that she had declared both PTSD and ADHD to OHU; and the evidence of
Ms Dempsey that the claimant reiterated this to colleagues later that day.
The claimant therefore understood that she was being accused of
deliberately concealing her ADHD. It is likely that the claimant found this
both humiliating and offensive. As will be seen, she continued to be
exercised by this issue and discussed it with colleagues later that day.
146. When the claimant alluded to her comment about ADHD on 7 February, we
find that the second respondent told her that she had not understood that
the claimant was “being serious”. Although we do not find that the second
respondent was suggesting that the claimant had been making fun of this
condition but was instead conveying what she had understood at the time
i.e. that the claimant had made this comment to alleviate an embarrassing
situation, in the context of this discussion about the claimant’s ADHD in
which the second respondent had made the other offensive comments we
have found, we conclude that the claimant found this humiliating and
offensive.
147. The second respondent asked the claimant whether she needed any
Case No: 2206237/2018
41
adjustments. The claimant said she needed none. We find that this was a
reasonable enquiry because, as we have found, having been made aware
that the claimant had ADHD on 20 April, this was the first time the second
respondent discussed this condition and potential disability with the
claimant. We do not find the second respondent was suggesting that the
claimant was incapable of performing her role because she had ADHD
although this is exactly what the claimant now understood and felt insulted
by this.
148. The claimant was told that she and Mr Grimley would be paired as buddies.
We find that the second respondent had discussed a new buddying
arrangement with the other directors at the last SLT meeting which the
claimant had not attended. The claimant was therefore unaware of this and
in the context of this discussion understood that she was being singled-out
as having this need for additional support and also scrutiny by Mr Grimley.
Whilst the claimant felt that a buddy was not required, this requirement was
being applied to the other members of the SLT.
149. We find that as a result of this discussion in which the second respondent
focused on her ADHD, paraphrased Mr Quirk’s description of ADHD,
challenged her about her failure to disclose this condition, asked her
whether she required any adjustments and told her that she would be paired
with Mr Grimley, the claimant now understood that because of her ADHD,
the second respondent viewed her as someone who had “special needs”
who required adjustments and a buddy. We do not find that the second
respondent conveyed that she regretted the claimant’s appointment for
reasons connected with either of PTSD or ADHD, although we accept that
this is what the claimant now understood.
150. Although the claimant says she tried to explain her ADHD and the second
respondent was not interested, we find that there was no detailed
discussion about ADHD as a result of this fraught interaction. The claimant
who was by now feeling extremely uncomfortable, told the second
respondent that she was lucky to have a “genius” in her SLT. We find it likely
she used this description as a retort to what she now understood to be the
second respondent’s perception that she had “special needs” and also a
deliberately grandiose statement made to lighten the tension. The second
respondent understood that the claimant was being literal.
151. During this meeting, they also discussed the PSR structure and where the
service was, a month in. It is likely that they also discussed the transfer of
the PMO to Mr Grimley. We do not find that the second respondent specified
any areas of performance which required improvement and nor did she refer
to the claimant’s probation or its extension and we do not therefore accept
the second respondent’s evidence to the contrary, for the following reasons:
(1) The second respondent had not discussed extending the claimant’s
probation with Mr Grimley.
(2) It is agreed that the claimant was given no warning in advance of this
meeting that her probationary period would be discussed or extended.
(3) This meeting had in fact been arranged at short notice to be a brief catch
up meeting over coffee.
(4) The agenda prepared by Ms Pezzolesi made no reference to probation.
Case No: 2206237/2018
42
(5) The second respondent made no note of this meeting. We do not find
that the decision to extend the claimant’s probation is equivalent to the
exchange between the claimant and the second respondent on the
claimant’s first day which the second respondent failed to document so
that it does not follow that the latter omission makes it any more likely
that the second respondent failed to record a decision she says she
made on 2 May.
(6) We find that the second respondent’s evidence is inconsistent with the
terms of the letter dated 10 May confirming her decision to extend the
claimant’s probation, in which she wrote “we are unable to have the
conversation about the areas of progress and as such I have decided
to increase your probationary period” [1626] (and also the terms of the
termination letter dated 31 July [1266]).
(7) We find, for the reasons set out below, that: the claimant did not refer to
the extension of her probation when she was with colleagues, including
Ms Hill and Ms Grimley, later that day and nor did she refer to this in
any of her communications around this date with the second
respondent; she first knew that her probation had been extended on 19
May 2018.
152. We have not therefore accepted the second respondent’s evidence that she
made and conveyed her decision to extend the claimant’s probation on 2
May. In this respect and in relation to a central issue of factual dispute
between the parties we have found the second respondent’s evidence to be
unreliable. As we set out below, we also find that in giving evidence in these
proceedings which contradicted his near-contemporaneous account of the
relevant events on 2 May, Mr Grimley was an unreliable witness. Unlike, Ms
Dempsey whose collateral evidence in relation to this issue we also find to
be unreliable, we conclude that the second respondent and Mr Grimley
gave evidence under oath which they knew to be untrue. As will be seen,
we also come to the same conclusion in relation to evidence they gave in
respect of other central factual issues.
153. In oral evidence, the second respondent agreed that there were no
documents to substantiate the feedback she says she gave the claimant in
relation to her performance which she has set out in her witness statement
nor of any of the discussions she says she had with Mr Grimley about the
claimant’s performance before 2 May 2018. She also agreed that she did
not apply the formal appraisal procedure to the claimant. We have also
found that she praised the claimant in late February, and gave her positive
feedback in the second half of April. Given the lack of any contemporaneous
documents, and our findings in relation to the credibility and reliability of
these witnesses we do not find it likely that the second respondent had
raised serious concerns about the claimant’s performance or critical areas
of the claimant’s responsibility which required demonstrable improvement
and warranted an extension of her probationary period nor that she had any
intention of extending the claimant’s probation on this date.
154. We therefore find that whatever concerns the second respondent did have
in relation to the claimant’s performance she did not view them as being
serious enough to warrant this step. In circumstances in which the second
respondent had not already raised such concerns about the claimant’s
performance nor conducted any performance review meetings in
Case No: 2206237/2018
43
accordance with or in the spirit of the Probationary Procedure nor put the
claimant on notice that she was contemplating or intending to extend her
probation nor scheduled a formal meeting with the claimant to discuss her
probation in the limited time remaining of the probation period, and with the
Council elections taking place within the same period, we also find that but
for the claimant’s sickness absence from 3 May it is likely that the claimant’s
probation would have been confirmed on 11 May.
The Hampshire Hog pub incident
155. At around 4.30pm, the claimant went to the Hampshire Hog, a pub close to
the Town Hall, with Emily Hill, Assistant Director of Finance. In a statement
completed on 5 June 2018 [1567-8], Ms Hill explained that she bumped into
the claimant as the latter was leaving the building looking harassed and they
agreed to go to the pub so that the claimant could eat. She said that her
main concern was the claimant’s welfare. During their discussion, the
claimant made no reference to probation. Ms Hill left at around 6.30pm.
156. Mr Grimley was also in the pub having a meeting with Ms Dempsey and
another colleague. The claimant joined them. She recounted details of her
meeting with the second respondent: she said that they had discussed her
ADHD and the second respondent was treating her unfairly and like she had
“special needs” because of this and she had been accused of not disclosing
her ADHD during the recruitment process. The claimant also complained
about buddying.
157. Mr Barrett was seated nearby. We accept his evidence that he overheard
the claimant telling her colleagues that she was exhausted and stressed,
and there was a chronic shortage of staff in PSR. The claimant said that
she needed a break and referred to The Priory. She was struggling with her
mental health and she referred to marital difficulties. We accept her
evidence that she did not refer to her probation having been extended. She
was not concerned about her performance but about the consequences of
taking sick leave before she reached the six-month milestone. However,
she now felt that the second respondent was questioning her abilities
because she had ADHD. It is likely that she told her colleagues that she
would not be able to pay her children’s school fees if she did not remain in
post. This financial issue was also related to the breakdown of her marriage.
We find that she was expressing her anxiety about the potential
repercussions of taking sick leave before she completed her probation.
158. Although he denied this, we find that it is likely that Mr Grimley attempted to
reassure and placate the claimant and told her that no one would consider
her performance was an issue. He could see that the claimant was
becoming upset. He was uncomfortable that the claimant was openly
discussing the second respondent in what he felt was a sarcastic and
disparaging way. His aim was to de-escalate. We also prefer the claimant’s
evidence to Mr Grimley because we find the latter was not at all times a
credible and reliable witness. The claimant felt that Mr Grimley was being
dismissive of her concerns. As will be seen, Mr Grimley had the mistaken
belief that the claimant was becoming intoxicated.
159. Although we accept the evidence of Mr Grimley and Ms Dempsey that
Case No: 2206237/2018
44
before the claimant joined them, Mr Grimley was recalled to the Town Hall
by the second respondent, before returning to the pub, we do not accept Mr
Grimley’s evidence that this is when the second respondent told him that
she had extended the claimant’s probation and asked him to draft a letter to
confirm this decision. This is because in a statement prepared later that
month by Mr Grimley, about these events, for the purposes of an internal
fact-finding exercise (and not these proceedings) [1563], he made no
reference to this meeting with the second respondent, he did not recollect
that the claimant told him that her probation had been extended at the pub,
and he confirmed that he had only subsequently become aware of this
extension. We therefore find that Mr Grimley gave evidence in these
proceedings which contradicted this near-contemporaneous account.
Notably, in neither account did Mr Grimley say that the claimant referred to
her probation being extended at the pub. We have found that the claimant
did not refer to her probation being extended. We find it highly likely that
had the second respondent conveyed this decision to her earlier that day,
the claimant would have complained about this to her colleagues at the pub,
including Mr Grimley with whom she had a close working relationship, in
addition to the others matters she had discussed with them. As for Ms
Dempsey’s evidence, although the account she gave on 21 May to the fact-
finding exercise [1565] and for these proceedings was consistent in that she
says that the claimant referred to her probationary extension at the pub, we
find that this part of her evidence is neither credible nor reliable. She was
the only witness who was able apparently to recall that the claimant said
this at the pub. We find that Ms Dempsey’s recollection is erroneous: she
heard the claimant complain about the imposition of a buddy by which the
claimant understood that the second respondent now felt that she was
incapable of doing her job because of her mental health, the claimant had
expressed her anxiety about completing her probation (for the reasons we
have set out above), and it is likely that by the date she gave her account
on 21 May, Ms Dempsey knew that the claimant’s probation had been
extended. Her recollection fitted with the narrative that the decision to
extend the claimant’s probation had been made and communicated to the
claimant on 2 May and before she went on sick leave the following day.
Although this narrative was one which supported the respondents’ case we
do not find, unlike the second respondent and Mr Grimley, that Ms Dempsey
deliberately gave a false account but rather that she recounted a genuinely
held but mistaken belief.
160. They were then joined by Ms Thomas and Mr Rogers. We find that Mr
Rogers brought a bottle of champagne with him as recounted by the
claimant, Ms Thomas and Ms Dempsey, and it was not the claimant, as Mr
Grimley recalled in his evidence. Not long after they sat down, the claimant
began to have a panic attack with flashbacks in response to her discussion
with Mr Grimley. We accept the claimant’s evidence that whilst she
recognised that her reaction to Mr Grimley was disproportionate, their
interaction triggered a Grenfell-related flashback. She was becoming
overwhelmed and confused. Her heart was racing and she felt sick. She
stood up and went to the toilet accompanied by Ms Thomas.
161. Ms Thomas’ evidence, which we accept, was that the claimant did not
appear to her to be drunk, or to have consumed much alcohol. The claimant
broke down in the toilet. They remained there for some time. Ms Dempsey
Case No: 2206237/2018
45
joined them. The claimant was seated in a cubicle. She became incoherent,
was hyperventilating and refusing to leave. Although Ms Dempsey says that
the claimant sent texts to the second respondent we find that the claimant
sent only one text to the second respondent later that evening. After some
time had passed, Mr Grimley said that he would try to coax the claimant out,
we do not accept his evidence that he was asked to do this but find that he
acted on his own volition because he was unable to identify who he said
asked him to intervene. He understood that the claimant had been upset by
their discussion and was now concerned about her welfare. When he came
into the ladies’ toilets and tried to approach the claimant his path was
blocked by Ms Thomas and he was ushered out.
162. Still distressed but calmer, the claimant was helped out of the toilets and
outside the pub. Ms Thomas remained at her side and they were
accompanied by Mr Rogers who by this time had booked a taxi. Although
the claimant was largely incoherent they understood from what she was
saying that there was a risk of self-harm, even suicide. They decided to take
her to the A&E Department at Charing Cross Hospital where Ms Thomas
remained with the claimant. The claimant texted the second respondent en
route at 8.22pm to say that “I’m sorry not to appear grateful and I was too
paranoid to say earlier, but my “buddy” isn’t a safe buddy for me…This
needs a rethink. I can move on if this isn’t fixable” [328]. The claimant’s
focus was on being paired with Mr Grimley and she made no reference to
her probation which we find she would have done had this been discussed
with her that day.
163. Ms Thomas sat in on the initial assessment when the claimant reported that
she had had between one and two glasses of wine between 4 – 6pm. The
claimant was assessed as being depressed, suicidal and traumatised and
not intoxicated [2645]. Treatment options including in-patient psychiatric
care or a specialist clinic were discussed. The claimant was discharged with
medication and it was agreed that she would return later that day for a
review.
164. Some time after the claimant had left the pub, Mr Grimley texted the second
respondent at 9.03pm to report that the claimant had “booked herself into
A&E, but don’t worry. She’s ok. It’s not an emergency she’s had a lot to
drink” [3503]. This was inaccurate in several respects. The claimant had not
booked herself into A&E, she was not drunk but had had a panic attack and
was feeling suicidal. Mr Grimley and the second respondent also had a brief
telephone discussion later that night and again the next morning. In oral
evidence, he agreed that he told the second respondent that the claimant
had been intoxicated and wanted to be sectioned.
The decision to extend the claimant’s probation
165. The claimant texted the second respondent at 6.34am that morning [328].
She said that she was not well, had spent much of the previous night at A&E
and would be returning to hospital to be reviewed later that day. She
anticipated she would need time off and would keep the second respondent
updated.
166. We accept Ms Thomas’ evidence that Mr Grimley told colleagues that day
Case No: 2206237/2018
46
about this incident which he put down to the claimant having had too much
to drink. This is consistent with what he told the second respondent. It is
very likely that colleagues discussed and speculated about the events the
night before. This included the rumour that Mr Grimley had kicked down a
door in the ladies’ toilets to gain access to the claimant because she was
suicidal.
167. Having spoken to colleagues, the second respondent understood that the
claimant had been intoxicated, was upset about her marriage, had made
disparaging remarks about her and their meeting on 2 May, and wanted to
be sectioned. She had been on duty as Returning Officer from 6am and
would be working overnight overseeing the ballot count. At around 11.16am,
she texted Mr Grimley to instruct him to draft a letter extending the
claimant’s probation in the following terms [3503]:
“Can you draft letter to extend probationary period for me to sign today –
can discuss but it’s the right thing to do”
We find that this text is inconsistent with there having been any prior
discussion between them about this issue. We have found that the second
respondent did not discuss the claimant’s probation with her the day before.
We find that the second respondent did not take this decision until the
morning on 3 May 2018 when she knew that it was likely that the claimant
would be on sick leave for the remainder of her probation. We also find that
the second respondent understood that there had been a deterioration in
the claimant’s mental health which was or could have been related to both
conditions of which she was now cognisant.
168. Having seen the Crisis Intervention Team at Charing Cross Hospital at 1pm,
the claimant, accompanied by her husband, met with Jo Rowlands,
Strategic Director of Economy, at the Town Hall extension to collect some
personal belongings, to debrief her on the events the night before and to
discuss handover of the PSR work although it is likely that this handover
was a cursory one because of the claimant’s health and her text later that
day in which she agreed to send a handover note to Ms Rowlands. Ms
Thomas was also in attendance for part of this meeting. In her oral evidence,
which we accept, the claimant said that Ms Rowlands tried to manage her
expectations when she told her she was likely be absent for several months
because she had been to A&E and was feeling suicidal. Ms Rowlands
updated the second respondent on this meeting when she explained that
the claimant had not wanted to come into the Town Hall itself.
169. The claimant texted Ms Rowlands later that day to confirm that she had
been assessed as having “PTSD plus acute anxiety” and was not fit to work
for at least one month “as have reached total breakdown” [4621]. The plan
was that she would have medication, ongoing therapy and weekly medical
reviews.
170. The claimant forwarded her statement of fitness for work (“fit note”) to Ms
Dempsey and Mr Grimley, which was copied to the second respondent, the
next day, on 4 May 2018, when she confirmed that her GP had advised her
to take a “complete break and no contact with/from work” [1165]. The fit note
confirmed that she had been certified as unfit for work for one month
because of “Post-traumatic Stress Disorder/Acute anxiety” [2356]. In her
Case No: 2206237/2018
47
oral evidence, the second respondent agreed that she was therefore aware
that the claimant’s absence was related to PTSD. She also said that when
writing her witness statement in which she referred to neither PTSD nor
ADHD but to “work-related stress” she had in mind the claimant’s ADHD.
She therefore understood the claimant’s sickness absence was also related
to ADHD.
Fact-finding investigation
171. On 3 May 2018, the second respondent commissioned a fact-finding
investigation in relation to the events in the Hampshire Hog the previous
day. She did so following her telephone discussion with Mr Grimley that
morning and his advice to obtain statements from witnesses without delay
so that the first respondent would have near contemporaneous accounts if
a full investigation became necessary. As he said in evidence, this was a
defensive strategy. The second respondent also discussed this with Ms
Davies whose evidence, which we accept, was that the second respondent
told her that she was particularly concerned about potential reputational
issues and particularly the rumour that Mr Grimley had kicked down a toilet
door. Although Mr Grimley denied this, we do not find it credible was he was
neither aware of this rumour nor discussed this with the second respondent.
He was a trusted aide to the second respondent and it is likely that she
would have discussed this very serious allegation with him if only to
reassure herself that there was nothing in it.
172. Reg Davies, who was known to the second respondent and Mr Grimley,
was appointed to investigate. Neither was able to recall who instructed him
or on what basis. There were no terms of reference or if there were these
were not disclosed. Although the second respondent’s evidence was that
fact-finding was needed in order to establish whether there were any
reputational issues for the Council particularly in relation to Mr Grimley we
find that the principal focus of this fact-finding was the claimant’s conduct.
173. Ms Thomas was asked by the second respondent and Mr Grimley to
complete an incident report in relation to the events on 2 May 2018. She felt
that the second respondent had accepted Mr Grimley’s version of events.
Although Ms Thomas says that the second respondent and Mr Grimley
discussed implementing a disciplinary process in relation to the claimant,
we do not find that they used these words but this is what she understood
to be the purpose of this exercise. When she met with Mr Davies on 21 May,
he confirmed that this fact-finding exercise was being conducted outside
any formal process and she described it as a “witch-hunt” [1561-2].
174. Mr Davies also interviewed Ms Dempsey on the same date [1565-6]. She
told Mr Davies that the claimant had told her that her probation had been
extended during a “monologue” she gave at the pub. For the reasons we
have given we do not find that this recollection is reliable. Ms Dempsey was
neither asked about nor volunteered any information relating to the
interaction between Mr Grimley and the claimant in the ladies’ toilets.
175. Mr Grimley was interviewed on 30 May when he provided a statement he
had prepared in relation to the events on 2 May (which was not disclosed).
In relation to the claimant’s probation Mr Grimley was recorded as saying
Case No: 2206237/2018
48
this [1563]:
“RWT had been anxious about her probation for some weeks but could
not recall that she had talked about any proposed extension of her
probation in his presence that night. MG was now aware that her
probation had been extended”.
Mr Grimley also stated in relation to the claimant’s alcohol consumption
[1564]:
“could have influenced her reaction to their conversation. MG felt that in
relation to alcohol, RWT can have problem with limits – been known to
move onto ‘shots’ during social events”.
This was mistaken and misleading. In his oral evidence, Mr Grimley
explained that this related to a one-off example. It is clear from the note of
this interview that the focus of the questions was the claimant’s and not Mr
Grimley’s conduct. He was not asked about the rumour that he had kicked
the toilet door down.
176. When Ms Hill was interviewed on 5 June, the focus was again on the
claimant.
177. No final report was completed and Ms Davies had no involvement in this
process. Nor did the claimant. As will be seen, the second respondent did
not follow-up on this exercise until late July 2018 when she was on the verge
of dismissing the claimant. We find that the lack of urgency to conclude this
fact-finding, the second respondent’s lack of oversight of this process, the
actual focus of the fact-finding conducted by Mr Davies and the fact that Mr
Grimley remained in situ throughout this period, are inconsistent with the
second respondent’s evidence that this fact-finding was necessary because
of reputational concerns which related primarily to Mr Grimley.
Confirmation of the decision to extend the claimant’s probation
178. The second respondent emailed cabinet members on 10 May 2018 to
explain that the claimant was unwell, needed rest and her GP had
requested no contact [1172]. She also stated that the claimant would be
absent until at least late June, although the claimant’s fit note expired on 3
June. The second respondent also confirmed that Mike Boyle, Bi-borough
Director of Integrated Commissioning, would cover the claimant’s role in the
interim from 21 May, although he had already begun to attend key meetings.
The second respondent evidently assumed that the claimant would require
an extended period of sick leave. She said that this was informed by the
discussion she had with Ms Rowlands about the claimant on 3 May.
179. By a letter also dated 10 May 2018 [1626], the claimant was informed that
her probationary period had been extended by three months to 9 August in
the following terms:
“…You will understand from our previous discussions that there are areas
of performance that I would like to see improve. Given your current
absence, we are unable to have the conversation about the areas for
progress and as such I have decided to increase your probationary
Case No: 2206237/2018
49
period…
“Under the Council’s Probationary Policy, I will arrange a formal meeting to
discuss the extension when you are fit to attend work. The meeting will
cover specifically the reasons for the extension and the objectives that will
need to be met during the extended period. You are entitled to be
accompanied at this meeting….
“When you are well enough to attend work, we will discuss in detail the
areas of focus and delivery during the extension period…”
The second respondent therefore acknowledged that there had not been a
formal meeting with the claimant to discuss her extension to explain the
reasons for this decision or to identify the standards she was required to
meet during this period. We have found that this is inconsistent with her
evidence that she told the claimant that she was extending her probation on
2 May and notably, there is no reference to this meeting in the letter. In oral
evidence, the second respondent was unable to explain this omission. Her
letter also confirmed that the reason for this extension was because the
claimant’s sick leave had intervened to prevent such a meeting from taking
place. As Mr Grimley agreed in oral evidence, it was necessary to extend
the claimant’s probation because she would otherwise have been outside
her probationary period because of her fit note. He also agreed that a
discussion about extending the claimant’s probation should have taken
place before the end of the fifth month of probation but had not. This letter
did not identify the areas of performance which required improvement.
180. This letter was postmarked 17 May 2018 and received by the claimant on
19 May. In view of this time-lag the second respondent conceded that there
may have been a delay in her signing this letter because of other
commitments. We heard there were four internal post collections during the
day at the Town Hall. It is therefore likely that the letter was collected and
posted on the same day that it was signed. We therefore find that the
second respondent signed this letter on 17 May. We do not find it likely that
it took the second respondent a week to sign this letter and we conclude
that this letter was completed and printed after 10 May and therefore back-
dated. We do not therefore accept the second respondent’s evidence to the
contrary which we find she knew to be untrue. Not only did the second
respondent sign this letter knowing that it was back-dated, it is likely that
she either instructed that this letter was back-dated or she sanctioned this
decision. She was the Chief Executive, it was her letter and signature.
Although we have found that she decided to extend the claimant’s probation
on 3 May, the second respondent therefore acted to deliberately mislead
the claimant by concealing the fact that the letter had not been finalised and
signed before 11 May when her probation was due to end.
181. Upon receipt of this letter the claimant sent a text to Ms Rowlands [4621]:
“…just received a letter from Kim and HR where she has extended my
probation and referred to areas of poor performance. This has not been
discussed with me before now, other than the minor cmd issues I picked
up from sarah t [sic]. Do I need proper legal representation now as this is
not feeling secure at all, and I don’t see that my return is part of the game
plan here…”
Case No: 2206237/2018
50
We find that this was the first time the claimant was informed that her
probation had been extended. The claimant now felt that the second
respondent wanted to dismiss her. This impacted on her mental health. She
had a panic attack.
The second respondent’s contact with the claimant on 24 May 2018
182. In oral evidence, Mr Grimley agreed that the Managing Sickness Absence
Policy [3094-100] applied to the claimant. This policy provides that a
manager should “normally” arrange an OHU appointment for an employee
who has been absent for 20 working days or more (section 12.1) and also
emphasises the need for managers to be “particularly alert” to disability-
related absences and, where applicable, to obtain HR or OHU advice
(section 13.3). The second respondent’s oral evidence was that although
she did not consult with OHU she relied on Mr Grimley, with whom she did
consult about the claimant’s absence. She also said that she decided
against an OHU referral initially because the GP had requested no contact.
Whilst we accept that was her initial view, we find that there was an
inexplicable failure to refer the claimant to OHU for the entire three-month
period of her sickness absence.
183. The second respondent sent a WhatsApp message to the claimant on 24
May 2018 noting that her fit note was coming to an end and suggesting a
meeting in central London “to have a chat about how things are going and
how you’re feeling about return [sic]” [1193]. The claimant replied that she
was due to see her GP when it was unlikely that she would be deemed unfit
for work. She agreed to provide an update.
184. We accept the second respondent’s evidence that she made contact in
order to check on the claimant’s welfare. It is also likely that she wanted to
gain a clearer understanding of the claimant’s prognosis to enable her to
plan cover in the longer term because Mr Boyle had been engaged on an
interim basis. As her line manager, and with the claimant in a key role and
responsible for the delivery of statutory services this was appropriate. As
was her suggestion to meet in central London. We do not therefore find that
this was because of or related to the claimant’s ADHD or PTSD. Overall,
we find that the second respondent acted reasonably and proportionately
when she made contact on this date. She did not contact the claimant again
for two months.
185. The claimant forwarded a fit note dated 30 May 2018 in which she was
certified as remaining unfit to work for another month because of PTSD and
acute anxiety [2357].
186. The claimant’s GP wrote to her treating psychiatrist the next day when she
referred to “flash-backs…feelings of intense anxiety, paranoid and
persecutory thoughts regarding her husband and people from work” [2637].
We accept the claimant’s oral evidence that her GP was summarising what
she had described. By ‘paranoid’ the claimant meant feeling insecure and
unsafe. She agreed that she had persecutory thoughts which related to the
events at work. She had referred to the first respondent as ‘little Argentina’
and says that former colleagues were often referred to as “The
Disappeared”. She saw her dismissal as being a confirmation of these fears.
Case No: 2206237/2018
51
Interim arrangements in PSR
187. It was agreed that Ms Redfern would act as Joint Director of Social Care /
PSR when Mr Boyle left at the end of June. The second respondent emailed
colleagues on 1 June to confirm these arrangements when she noted that
the claimant had been signed off work for another month [1178].
188. In the meantime, Mr Boyle completed a review of the PSR department on
11 June 2018. Although this highlighted budgetary and workforce
challenges, the size of the projected overspend was revised downwards.
189. Danielle Wragg, Finance Business Partner, costed the new PSR business
structure and emailed Mr Jolapara and Mr Grimley about this on 25 May
[3405] when she identified a PSR staffing cost shortfall of approximately
£850,00. Ms Hill who was also involved in this discussion, says that this
initial work identified an underlying structural pressure of £1.7m and a
decision was taken by the SLT to freeze all further recruitment into the new
structure, which was expected to achieve savings of £1m and result in an
yearly overspend of £700,000. Her evidence was that the claimant recruited
into posts for which there was no approved budget and some of these were
expensive interim positions. However, the proportion of the staff cost this
was said to account for was not identified.
190. An updated forecast showed an expected underlying structural overspend
of £1.1M. In an undated budget note produced by Ms Hill [3677A-B] she
confirmed that none of the overspend reported at month 2 was attributable
to the claimant and went on to explain:
“as Director responsible should have been working to make progress on
these but it was early on in the year and no detailed plans for income likely
to have been handed over and we know the Council has subsequently
considered these not achievable and has written off.”
We accept Mr Jolapara’s evidence that this related solely to the commercial
activities because in this part of her report, Ms Hill focused on the non-
delivery of Business Intelligence and Ethical Debt sales (£1.8m) and
Contract Management savings (£0.5m). Ms Hill then went on to deal with
the projected staffing overspend. She referred to the initial figure of £0.7m
and identified an underlying structural overspend of £1.1m plus £0.2m
“additional costs of the team treated separately” plus £0.5m budget transfer
to support PMO. She reported that this overspend was “exacerbated by high
cost interim arrangements needed to be mitigated in-year”. She
emphasised that computing this headline figure had been “a very
complicated and detailed piece of work” and, like Ms Wragg, she had made
several assumptions including costing salaries at mid-point where these
salaries were unknown.
191. When Ms Evangeli conducted this exercise using actual salary costs for
staff in post from 1 April, she computed a total staff cost of £2.6m excluding
interims. She set out her calculations in an email to Mr Boyle dated 15 June
2018 [4774-5], when she concluded that PSR would not be overspent
unless the costs of interims was £1.88m. This was unlikely. When Mr Boyle
forwarded these figures to Ms Redfern, Mr Grimley and Mr Jolapara, the
latter replied “we agreed that one version of the truth needs to be held by
Case No: 2206237/2018
52
Danielle and can we please stick to that” [4774]. We infer from this that Mr
Jolapara had already decided on the version of the truth to be used and was
resistant to altering this view. Mr Boyle clarified that whilst Ms Wragg and
Ms Evangeli had used the same structure chart (and salaries), Ms Wragg
had made the incorrect assumption that where names were assigned to this
structure these staff were in post. In a subsequent email in the same chain
of correspondence to which Ms Redfern and Mr Grimley were copied, Mr
Boyle agreed to commit to a nil overspend by year end “given the level of
vacancies and the current freeze” [4773].
192. In his witness statement, Mr Jolapara tabulated the cumulative monthly
overspend for PSR in 2018/19. The figure at May 2018 when the claimant
went on sick leave was £1.86m. In his oral evidence, he agreed that this
was the overall debt figure for the department that did not identify which part
of this debt was attributable to the claimant. He said that at the point when
the services transferred to a director they needed to start taking action. As
we have noted, when the claimant commenced sick leave PSR had been
operational for one month, and as we have found, there was a underlying
structural overspend in month 2 of £1.1m which was not attributable to her.
At the end of 2018/19, some 11 months after the claimant had last been
actively in post, there was an overspend of £442,000 relating to staffing
costs. There was no evidence to show to what extent this was attributable
to the claimant. The claimant was not given any opportunity to make any
representations about this overspend.
193. The claimant submitted another fit note dated 20 June 2018 in which she
was signed off work until 23 July because of an “Acute stress reaction”
[2533].
The second respondent’s contact with the claimant on 24 July 2018
194. The second respondent contacted the claimant for the second time since
she had commenced sick leave on 3 May 2018 and two months after her
initial contact. The claimant’s fit note expired on 23 July 2018. The second
respondent texted the claimant the next day when she noted this and
requested that they met that week [378]. The claimant replied around an
hour later to say that she had been to her GP and would forward the latest
fit note.
195. The claimant’s medical notes show that she did not in fact obtain another
(back-dated) fit note until 24 August, however, these records also show that
she had reported a domestic abuse incident to the police on 10 July which
she discussed with her GP a week later, in the following terms: “ongoing
issues with high levels of stress relating to marriage and dispute with
work…” [2674] and her GP agreed that she remained unfit to work; and also
noted that a child safeguarding referral was required. Although the claimant
did not therefore comply with the requirement to provide her employer with
a timely fit note for this ongoing period of sick leave, this was not a factor
which the second respondent took into consideration when she
subsequently decided to dismiss the claimant. However, we find that the
second respondent now understood that the claimant remained unfit to work
and was likely to be signed-off for at least another month in line with her
previous fit notes. In her oral evidence, the second respondent said that she
Case No: 2206237/2018
53
did not know whether the claimant would remain absent for one, two or three
month(s).
196. The second respondent replied to thank the claimant for the update and she
said that she would still like to meet up that week. When the claimant did
not respond, the second respondent made no further contact. As with her
first attempt to contact the claimant two months earlier, we find that the
second respondent acted reasonably and proportionately when she made
contact on this date. In her oral evidence, she said the reason for making
this contact was related to the claimant’s welfare and also her status i.e. to
establish when she was likely to return. Whilst we accept that these were
both factors, we find that the principal factor was that the second respondent
was keen to discuss the claimant’s probationary extension. The claimant
had been absent for almost three months, her probationary extension was
due to end and because the second respondent was due to go on leave on
1 August she had limited time to make a decision about the claimant’s
ongoing employment. As we have found, she had discussed this with Mr
Grimley the day before. We have accepted Mr Grimley’s evidence that in
corresponding with the claimant on this date, the second respondent was
trying to engage with the claimant and she wanted to rule out all options
before she made a decision. We do not therefore find that this was because
of the claimant’s ADHD or PTSD.
The decision to dismiss the claimant
197. We also accept Mr Grimley’s evidence that in their discussions about the
claimant’s ongoing employment, he and the second respondent were
mindful of the “high-pressure nature” of the role, the duty of care owed to
the claimant and whether “the pressure would be too much” for her to
succeed [MG/77]. However, the respondents did not consider obtaining
OHU input in relation any potential adjustments. Nor did they seek OHU
advice on the claimant’s fitness to deal with these pressures nor the
likelihood of when she would be fit to return to work.
198. Mr Grimley’s evidence was also that the second respondent’s initial view
was that the claimant should be given the opportunity to continue in her role
in recognition of her accomplishments in delivery, particularly in regard to
contract negotiations, her problem-solving and her rapport with the cabinet
and be given greater support although she wanted the claimant to be more
transparent about her plans for improving the service [MG/74]; and the
second respondent became increasingly concerned about how the claimant
would be able to return to work satisfactorily [MG/76].
199. He reminded the second respondent on 23 July that the claimant’s extended
probation was due to end on 9 August. There was limited time to decide on
what action to take as the second respondent would be on annual leave
from 1-13 August. Theoretically, the respondents had three options: to
confirm the claimant in post, to dismiss her or to extend her probation for a
further period. However, even had the respondents wanted to performance
manage the claimant in the interim, her ongoing sickness absence
precluded this, so the reality was that there were only two options: dismissal
or a further extension to her probation.
Case No: 2206237/2018
54
200. The second respondent’s evidence was that by 23 July 2018 it was evident
that there were staff divisions in PSR, budget issues and concerns
regarding Early Years’ provision. In addition, a new cabinet member for
PSR was appointed in May 2018 and keen to make progress. She said that
Mr Boyle’s review had revealed that the new department was neither
dynamic nor transformative and there was a top-heavy structure with too
many senior posts. She was concerned about the viability of this new
flagship department to achieve the necessary reforms. She said she
reviewed Mr Boyles’ review in mid-July and sought the views of SLT
members and concluded that these concerns would remain unresolved
were the claimant to return to work. In his evidence, Mr Grimley said that
because of the issues which had become apparent during her sickness
absence, bringing the claimant back to work would have exposed the
respondent to unmitigated risk and a breakdown of governance.
201. We found Ms Redfern’s evidence particularly illustrative in that it revealed
to us the lack of any engagement between the respondents and the
claimant in relation to these issues and the failure to take account of the fact
that not only was this a newly formed department but that when Ms Redfern
took over responsibility for PSR in July 2018, it had been without leadership
for two months; as Mr Boyle had had an oversight role and was required to
deal with urgent matters, and was not therefore engaged to provide
leadership for the department. Her witness statement enumerates various
criticisms relating to the state of PSR: the department was dysfunctional
and in chaos [LF/6]; there was a considerable overspend on staff, there was
no overall leadership and staff management [LF/7]; an HR consultant had
been recruited outwith the usual governance arrangements [LF/9]; and
there was a lack of accountability and governance systems in place [LF/13].
There is an absence of any detail in her evidence about which of these
concerns she conveyed to the second respondent and when. Nor did the
second respondent’s evidence deal with this. Mr Grimley’s evidence was
that Ms Redfern conducted several reviews and reconciliations [MG/72]
although we were not taken to any specific documents. He says that this
confirmed the second respondent’s concerns about the budget position, the
lack of clarity around roles and the recruitment process.
202. In her oral evidence, Ms Redfern acknowledged that she did not know
where the claimant was working from day-to-day; she had very limited
contact with the claimant over the six months she was at work; she was not
aware of the Agresso issue in relation to HR and finance systems or the
issue with accommodation. Although Ms Redfern did not agree entirely that
operational processes and procedures could only start with staff in place
because she said other colleagues including herself were available to step
in, she was not aware that prior to April the claimant had asked for people
to be released to assist her and this request was refused. Ms Redfern said
that there was a lack of cohesion within the department in that there were
no workplans in place, staff did not appear to understand their roles and had
not been formally introduced to each other, and there were no systems in
place. However, when she assumed responsibility in July the claimant had
been absent for two out of the three months in which PSR had been
operational and some of these staff had joined during her absence. Ms
Redfern was unable to dispute the assertion that the HR consultant whom
she alleged had been recruited “privately” had in fact been recruited by the
Case No: 2206237/2018
55
MO team when the second respondent’s was at the helm and on a date
before the claimant began in post. Nor was she able to dispute the
contention that the claimant had brought in consultants to provide short-
term cover for essential work pending the recruitment of permanent staff
because she said that her focus was not what they did but on reducing the
staffing budget. Ms Redfern cited a issue in relation to Family Services
(“FS”) which she said placed the Council at serious clinical and financial risk
but was unable to challenge the assertion that the claimant did not have
commissioning capability because she lacked the staff and the five staff who
were working on FS contract came into post after the claimant went on sick
leave. We therefore find that whilst Ms Redfern was genuinely concerned
about the state of the PSR department she took over her conclusion that
this “could only have resulted from incompetent leadership and
management” [LF/19] was based on an incomplete set of facts and without
the claimant being given an opportunity to address any of these issues.
203. We find that it is likely that the second respondent was concerned about the
PSR structure and its ability to deliver the reforms it had been set up to
achieve. However, there was no corroborative evidence to show what, if
any, performance concerns the second respondent had in mind when she
decided to dismiss the claimant. We were not taken to any document in
which the second respondent or Mr Grimley recorded the concerns they had
about the claimant’s performance at around this time or the basis for the
decision to terminate her employment. In relation to the recruitment process
which the claimant conducted, much of the material we were taken to was
disclosed for the purposes of these proceedings and was not therefore in
the respondents’ possession and knowledge at the relevant time.
204. Following their discussion on 23 July, Mr Grimley made initial enquiries with
the legal team about a draft termination letter [3461]. We do not accept that
this is when a decision was made to dismiss the claimant and we find that
in giving evidence to the contrary the second respondent and Mr Grimley
sought to rely on facts which they knew to be untrue. We find that a final
decision had yet to be made because on his own evidence Mr Grimley said
that in corresponding with the claimant on 24 July, the second respondent
wanted to engage with the claimant [MG/81] and she also wanted to explore
all options before making a final decision [MG/82]. As will be seen, there
were also a number of outstanding queries which needed to be resolved
before a decision could be made.
205. Mr Grimley emailed the second respondent on 26 July. We were not taken
to the contents of this email. The second respondent replied on 29 July, a
Sunday, as follows [1265A]:
“I need Susan [Walsh, Senior Employment and Litigation Solicitor] to be
precise – the Secondary PTS[D] and ADHD might form RWT’s argument
that she is treated unfairly especially as I discussed this with her prior to
her going off sick (Please confirm Susan is aware of ADHD as she does
not mention this).
I would like to see all of the Interviews which Reg Davies undertook into the
events before she went on leave – this is outstanding, and I’d like to meet
with you and Susan tomorrow.
I’m hugely disappointed that we have left this so late in the day – so my
Case No: 2206237/2018
56
options to act before 9
th
August are limited as my AL is on 1 – 13
th
August.
I think that I should formalise my request to meet her first before issuing
any final letters – please draft a letter with Susan.
Can I have confirmation on the continuous service issue – does it apply to
someone on probation and does it give rise to unfair dismissal? Surely that
means that no one could be released on probation if they were
underperformed in a new area but they had continuous service from a
previous [sic]?”
206. We make the following observations and findings in relation to this letter:
(1) The second respondent was mindful of the conditions which the
claimant relies on as disabilities and the risk that the claimant would
assert that she had been treated unfairly particularly in relation to ADHD
because of the discussion on 2 May.
(2) At this stage when the second respondent was on the verge of
dismissing the claimant she regarded the fact-finding investigation
which we have found related to the claimant’s actions and not a
reputational issue relating to Mr Grimley’s conduct, as a potentially
relevant consideration.
(3) The limited time available meant that fewer options were available to
the second respondent with the implication being that she would have
had more options if there was more time in which to make a decision.
This contemporaneous document is wholly inconsistent with the second
respondent’s evidence [R2/68] that she had given consideration to
possible outcomes over the previous two and a half months.
(4) It is clear from this email that termination of the claimant’s employment
was being considered, however, it is equally apparent that the second
respondent had not made this decision at this date. She had raised
several queries – in relation to the claimant’s PTSD and ADHD, Mr
Davies’ factfinding, and the claimant’s continuous service – which
needed to be addressed before she would be in a position to make a
final decision. She also instructed that a letter was drafted to formalise
her request to meet the claimant.
(5) Although the second respondent referred to underperformance in a new
area there is a lack of any detail in relation to any specific areas of poor
performance.
207. Mr Grimley reviewed the claimant’s OHU records in response to this email.
He did this to establish whether the claimant had disclosed her ADHD
before commencing her role. As we have found, the second respondent was
concerned that the claimant had failed initially to disclose this. We do not
find that another aim was to check for adjustments because neither the
second respondent nor Mr Grimley considered making an OHU referral,
throughout the extended period of the claimant’s sickness absence. It is
striking that neither had any concern that Mr Grimley’s actions breached the
claimant’s medical confidentiality and data protection rights.
208. Mr Grimley and the second respondent discussed these queries the next
day when Mr Grimley confirmed that Legal were aware that the claimant
had ADHD, it was unnecessary to formalise the request to meet the claimant
and the latter did not have continuity of service from her previous local
government employment. As the second respondent’s query had made
Case No: 2206237/2018
57
clear, the implication was that the claimant lacked the requisite service to
bring a claim of ‘ordinary’ unfair dismissal. We were not taken to any
documents substantiating this discussion. However, as the second
respondent had underlined the day before, time was critical because she
was due to go on leave on 1 August. She would also be out of the office the
next day on business which meant that this was her last day in the office
before the claimant’s probationary extension expired. We do not find it likely
that the second respondent, evidently mindful of the limited window she
had, would have left this issue unresolved before she went on leave. The
second respondent’s evidence was that she agreed that a letter of
termination could be sent to the claimant. She says she did not have a final
copy of this letter to hand to sign herself so she instructed that Mr Jolapara
who had authority to act on her behalf, signed this letter as she would be on
leave. Mr Grimley says that they agreed on some amendments to a draft
termination letter. We were not taken to any correspondence between them
in which Mr Grimley forwarded this termination letter to the second
respondent. We find that it is likely that they agreed that Mr Grimley would
make some amendments and Mr Jolapara would sign the final version by
which time the second respondent would be on leave.
209. The second respondent’s evidence was that she decided on dismissal
instead of extending the claimant’s probation because the claimant had
been unable to improve her performance as she was on sick leave, there
was no end in sight in respect of this sick leave; there had been no contact
from the claimant in the intervening period; and she took advice from Mr
Grimley. The claimant was in a high profile role, there were expectations on
her department to deliver and she could not countenance an open-ended
continuation of this status quo.
210. The termination letter which was sent to the claimant was dated 31 July
2018 [1266]. It was signed by Mr Jolapara on 2 August 2018. We were taken
to a document recording the metadata for a Word document entitled
“180730 RWT End Probation Final” [1271]. This metadata shows that this
document was created by Sheelagh Conway, about whom no evidence was
given, and last modified by Mr Grimley. It had been printed on 27 July and
last modified on 2 August at 1.18pm. Mr Grimley emailed this document to
Jane Watts, the second respondent’s Executive PA, three minutes later, at
1.21pm [1271A].
211. This letter confirmed that the claimant’s employment would end on 9 August
2018 on the expiry of her extended probation. This was a relatively short
letter of four substantive paragraphs, the first two of which dealt with the
extension of the claimant’s probation and the summary reasons for her
dismissal in the following terms:
“On 10
th
May, I wrote to you setting out that your probationary period would
be extended to 9
th
August 2018, a 3-month extension beyond the usual
probationary period. This followed our meeting on the 2
nd
May 2018 when
we again discussed the development and pace of delivery within Public
Services Reform (PSR) and your leadership and management of the
service.
I have had an opportunity to review the PSR service and the current and
future challenges it faces, particularly the budget and within the required
Case No: 2206237/2018
58
timescales. This leads me to conclude that you will not be able to complete
your probationary period satisfactorily. Because of this, I cannot confirm
your employment as Director of Public Services Reform as required in your
Statement of Particulars.”
212. As with the probationary extension letter dated 10 May, the second
respondent did not assert in this letter that she had discussed extending the
claimant’s probation on 2 May 2018, as is now contended. We find that is
further evidence that it was not discussed at that meeting.
213. As we have found, the respondents had two options: to extend the
claimant’s probation for a further period or to terminate her employment.
This letter failed to explain why the second respondent had decided against
extending the claimant’s probation. As for the decision to dismiss the
claimant, the second respondent provided a little detail. Although she
referred to the budget, her letter did not refer to the staffing structure, service
provision or governance in relation to hiring and pay. As we have found,
none of these issues had been discussed with the claimant.
214. Nor did this letter make any reference to the claimant’s sickness absence
which had spanned the entire duration of the extended probationary period.
Taking into account the second respondent’s query about the claimant’s
PTSD and ADHD on 29 July, we find that the absence of any reference to
the claimant’s sickness absence or the conditions which she relies on as
disabilities, was a deliberate omission to avoid any inference that this
decision was in any way connected with the claimant’s mental health or
related sickness absence. The obvious fact was that the claimant’s sickness
absence was a factor which precluded the claimant’s extended probation
being signed off and its open-ended nature militated against a further
extension. Mr Grimley’s evidence was that the second respondent was
mindful that the claimant had not an opportunity to address the performance
concerns to date. As he agreed in oral evidence, but for the claimant’s sick
leave she would have been entitled to a formal meeting, accompanied, to
discuss an extension to her probation to set performance targets which
would be recorded in writing. Instead the claimant had not been told what
performance concerns warranted an extension of her probation nor had any
objectives been agreed. The fact that she had been on sick leave meant
that she had not had such a meeting to discuss her performance nor an
opportunity to demonstrate her capability.
215. Nor had the claimant been invited to a formal meeting to discus her potential
dismissal on performance grounds. In his evidence, Mr Grimley said that he
felt that it was not appropriate to raise performance issues with the claimant
whilst she was on PTSD-related sick leave as this would compound her
absence although this view was informed by input from OHU. Nor did Mr
Grimley advise the second respondent to follow the Sickness Absence
Policy and to write to the claimant to warn her that she was at risk of
dismissal because of her ongoing sickness absence and give her an
opportunity to make representations at a meeting with a companion. As Mr
Grimley conceded, he was not aware of any other employees who had been
dismissed without warning and without the opportunity to make
representations. He was well placed to know this as former Interim Director
of HR.
Case No: 2206237/2018
59
216. This letter also confirmed that the claimant would receive a month’s pay in
lieu of notice. She was told that the balance of the outstanding overpayment
would be recovered in her final salary unless alternative repayment
arrangements were made.
The claimant’s holding grievance dated 1 August 2018
217. In the meantime, the claimant’s solicitors emailed the respondents on 1
August at 4.52pm attaching a document entitled “holding grievance” [2453
& 1267-9] which put them on notice of the claimant’s intention to submit a
formal grievance. This letter referred to the claimant’s PTSD and ADHD and
her belief that she had been subjected to disability discrimination and
harassment. This was said to include the meeting on 2 May 2018 when it
was alleged the second respondent had “focused only on our client’s ADHD
and commented on her performance” and also the decision to extend the
claimant’s probation allegedly “because of her disabilities and the
perception that she can no longer perform her role, as was suggested by
Kim Dero in the meeting on 2 May…” as well as the text messages sent by
the second respondent to arrange a meeting with the claimant. This letter
also alluded to a “whistleblowing” complaint without providing any detail.
The claimant’s solicitors requested that no further action was taken pending
the completion of grievance proceedings and confirmed that the claimant
had commenced the ACAS early conciliation procedure. The respondents’
accept that this letter amounts to a protected act for the purposes of the
Equality Act 2010.
218. Ms Watts texted the second respondent to alert her to this letter at a time
recorded as 4.19pm [4772] which is likely to be related to the 1-hour time
difference between the UK and the second respondent’s location. She
noted that it was marked “private and confidential” and had not opened it
but “can see the first few words, hence this text”. She therefore understood
that this was an important letter which the second respondent needed
urgently to see. The second respondent replied at 8.21pm initially to thank
Ms Watts and then remarked “unbelievable – i’m really furious”. She
forwarded this letter to Mr Grimley and Ms Davies at 8.28pm without
comment [3507]. Mr Grimley replied at 9.01pm [3505] to confirm that he
would instruct Legal the next day. Ms Davies forwarded this letter to the in-
house employment team the next morning.
219. Mr Grimley responded to the 1 August letter the next day [2454], to confirm
that the first respondent would not be engaging with the claimant’s solicitors
in the following terms:
“You will know that this matter is an internal one between the employee and
employer. We have established policies and procedures for dealing with
such issues.
“Therefore, we shall not be engaging in any corresponding in any
correspondence with you with respect to our internal procedures.”
Signing-off on the dismissal letter on 2 August 2018
220. The second respondent called Mr Grimley in the morning on 2 August when
they discussed the claimant’s solicitors’ letter and Mr Grimley confirmed that
Case No: 2206237/2018
60
the termination letter had not been sent [R2/79]. (Mr Grimley made no
reference to this discussion in his witness statement.) We accept the
second respondent’s evidence that she was disappointed by this although
it is likely that in the circumstances her reaction was considerably stronger
and in keeping with her text to Ms Watts. It was now imperative to avoid any
further delay. Another imperative was to avoid the impression that the
decision to dismiss the claimant had been made in response to the 1 August
letter.
221. Mr Grimley emailed the termination letter dated 31 July to Ms Watts at
1.21pm on 2 August. As we have found, the metadata shows that this
document was last modified before it was emailed at 1.18pm. It is likely that
Mr Grimley made some amendments to this letter before forwarding it to Ms
Watts. The delay between his morning call with the second respondent and
his email to Ms Wats is also consistent with the need for him to make
amendments to this letter before it was printed and signed. Ms Watts’
evidence, which we accept, is that Mr Grimley came to see her in her office
and asked her to amend this letter, print it and take it to Mr Jolapara to sign.
We find that this amendment was to back-date the letter, for the reasons
below. The email he sent to her had no content other than the attached
letter and we infer from this that Mr Grimley had given these instructions to
Ms Watts verbally.
222. Ms Watts took this letter to Mr Jolapara to sign. Although his evidence was
that Ms Watts told him that the second respondent had agreed to send this
letter before she went on leave we do not find she said this because of our
finding below that Ms Watts was genuinely concerned about the back-dating
of this letter. Before signing this letter, Mr Jolapara sought advice from Ms
Davies and he also checked this with Mr Grimley. Mr Grimley provided
immediate confirmation that this letter had been authorised by the second
respondent. Ms Davies took longer to provide this assurance. She had not
seen this letter before although Ms Walsh had told her earlier that day that
she had advised Mr Grimley about a termination letter concerning the
claimant. She therefore contacted the second respondent, unaware that she
was on leave. During their brief discussion, the second respondent
confirmed that she had approved the termination decision and letter. Ms
Davies then told Mr Jolapara he could sign it. Although Ms Davies’ says that
she understood that this letter was dated 31 July because it had been
printed before Ms Smith went on leave, it is unclear how she arrived at this
conclusion and she failed to consider why Mr Jolapara had not been asked
to sign this letter before 2 August, which is when we have found this letter
was printed. Like the second respondent and Mr Grimley, Ms Davies knew
about the 1 August letter.
223. Mr Jolapara signed this letter on the second respondent’s behalf on 2
August [1266].
224. We find that Ms Watts discussed this letter with Ms Thomas on 2 August
2018 because Ms Watts agreed that she had often confided in Ms Thomas
in the corridor outside her office and we accept the evidence of Ms Thomas
and Ms Pezzolesi that the former asked the latter to go down to the post
room and check whether the letter had been sent out that day [JP/11]. When
she did, Ms Pezzolesi was, quite properly, denied access to this information.
Case No: 2206237/2018
61
We find that Ms Thomas would not have known about this letter unless Ms
Watts had told her about it. We also find that Ms Watts would not have
confided in Ms Thomas unless she had been concerned about this letter.
We also find that Ms Thomas would not have asked Ms Pezzolesi to take
the action she did unless what she had been told by Ms Watts caused her
alarm. We accept Ms Thomas’ evidence that Ms Watts told her that she had
been asked to backdate the letter so that it appeared to predate the
grievance which Ms Watts knew about. We do not find that Ms Watts told
her that she had been told to backdate the termination letter by the second
respondent, as Ms Thomas says, because of our finding that these
instructions came directly from Mr Grimley, although Ms Watts would have
understood that he was acting on the second respondent’s authority. We
therefore find that Ms Watts felt conflicted about what she had been asked
to do by Mr Grimley.
225. The claimant received this letter which was postmarked 2 August 2018, on
4 August 2018.
226. This letter had therefore been amended and printed on 2 August and
backdated to 31 July. We do not find it likely that Mr Grimley acted without
the second respondent’s authority. They had therefore acted together to
deceive the claimant and her solicitors to maintain the fiction that the
termination letter had been finalised and sent on a date before the
respondents received the 1 August letter. This was the second time in which
the second respondent acted to deliberately mislead the claimant in this
way. Although Mr Jolapara was not cognisant of the 1 August letter he
knowingly signed the termination letter dated 31 July, on 2 August. It
mattered not that Ms Davies advised him to sign the letter, he was her senior
officer, the director responsible for governance as well as finance, and
Section 151 Officer (i.e. with responsibility for overseeing the administration
of the Council’s finances). For her part, Ms Davies who was not only the
Borough Solicitor but Monitoring Officer (i.e. with responsibility for reporting
illegality, maladministration, governance and the conduct of councillors and
officers) was content for Mr Jolapara to sign a letter two days after it was
dated and which predated the 1 August letter that she had seen. We
therefore find that the Council’s Chief Executive, Interim Head of Corporate
Services, Strategic Director of Governance and Finance and Section 151
Officer and the Borough Solicitor and Monitoring Officer were involved in
this deception.
227. The claimant’s solicitors wrote to Mr Grimley on 3 August, in response to
his letter the day before, to complain about the refusal to engage with them
and to request the “reasonable adjustment” of enabling them to
communicate on the claimant’s behalf in relation to her “employment and
grievance” [2457]. They explained that the claimant was “concerned that
direct contact with LBHF will result in further discriminatory treatment,
and/or will serve to exacerbate her disabilities and delay her recovery”. The
respondents did not respond to this request.
The claimant’s appeal and grievance dated 15 August 2018
228. The claimant submitted an appeal against her dismissal and grievance via
her solicitors on 15 August 2018. Her employment had ended by this date.
Case No: 2206237/2018
62
229. In her grievance, the claimant asserted that the second respondent had not
raised any significant concerns about her performance or capability.
230. In appealing against dismissal, the claimant complained that this decision
was an act of discrimination and victimisation and that:
a. No procedure had been followed.
b. The reasons given for her dismissal i.e. budget and timescales “are
completely out of the blue”.
c. She was not given an opportunity to engage with the budget issue.
d. She was not given a right of appeal.
231. The claimant also alleged that the dismissal letter had been backdated upon
receipt of the letter of 1 August 2018 and this was part of the same pattern
in which the letter extending her probation had also been backdated. She
alleged that this “raises serious concerns about the internal governance,
accountability and conduct of senior post holders within LBHF.” We have
found that both letters were back-dated.
232. Although the respondents’ amended grounds of resistance refer to ongoing
correspondence with the claimant in relation to this, and, the second
respondent’s evidence was that she took advice from HR and Legal and
decided to deal with this under the modified grievance procedure as a post-
employment grievance, we were not taken to any documents substantiating
this and we find that the respondents did not deal with the claimant’s
grievance or appeal. Nor did they adduce any evidence to explain this
failure.
The claimant’s pay in August 2018
233. As the dismissal letter had warned, the first respondent recovered an
outstanding overpayment from her final salary. This meant that the claimant
did not receive any pay in her final month.
234. In March 2018 the claimant received a delayed payment for overtime and
reimbursement of expenses from RBKC. Mr Grimley emailed her on 6 April
to explain that this had been paid via the Council’s payroll. He advised the
claimant that both councils would need to make adjustments to HMRC
under their respective employer codes and the claimant would need to
check her P45 / 60s for the 2017/18 tax year, there was a risk that HMRC
would assume that she had been paid the same amount twice i.e. by each
employer and this could also impact on her tax code. The claimant replied
that she had been in regular contact with HMRC, they had made this
assumption, her tax code had been affected and she needed help
understanding the figures in order to resolve this issue with HMRC. Mr
Grimley replied that the claimant had been paid the correct amount and in
relation to the “tax code / correct tax issue” the best thing to do was to
complete her tax return for 2017/18. The email exchange between the
claimant and Mr Grimley was amicable and he offered support.
235. A second pay issue related to the market supplement. The claimant was
entitled to an one-off annual payment of £5,800. She was instead paid this
amount in each month from February to May 2018 (the February pay
Case No: 2206237/2018
63
included back-payments of this supplement for November 2017 to January
2018). This resulted in a total net overpayment of market supplement of
£15,133.58. Although the claimant did not have access to her payslips at
the time, this overpayment was confirmed by the first respondent on 27 June
2018 [2440].
236. The claimant replied on 6 July 2018 [2444-5] to explain that there remained
inconsistencies in relation to data on earnings and tax. She suggested that
her earnings had been overstated by the first respondent with the tax office
so that she had been overtaxed and/or had an excessive tax liability. There
were overpayments in both tax years and the payment for the additional
hours worked at RBKC impacted on these calculations. At 2.54pm Mr
Grimley emailed the claimant to offer to pause this overpayment issue until
she returned.
237. The claimant does not dispute this market supplement overpayment but
says that because of the lack of clarity in relation to earnings and tax she
was unable to understand definitively what the correct pay position was.
The claimant did not say what sum was properly payable to her in her final
salary payment.
238. We find that there was an overpayment of £15,133.58 which exceeded the
claimant’s final salary in August 2018 based on a date of termination of 9
August and a payment in lieu of one month’s notice and her monthly gross
pay of £10,416.67.
Conclusions
Disability
239. We find that the claimant was disabled by reason of ADHD and PTSD / other
psychological symptoms at all relevant times. These were mental
impairments which had a substantial and long-term adverse effect on the
claimant’s ability to carry out normal day-to-day activities.
240. The parties instructed their own medical experts: Dr David Oyewole,
Consultant Psychiatrist, for the claimant; Dr Michael Isaac, Consultant
Psychiatrist, for the respondents. These experts produced a Joint
Statement. We considered this Joint Statement, the individual expert
reports of Dr Oyewole and Dr Isaac, the claimant’s disability impact
statement, the evidence given by Dr Kocsis and the medical documents we
were taken to.
ADHD
241. In their Joint Statement, the experts agree that the claimant’s ADHD is a
mental impairment which has had an adverse and substantial long-term
effect on the claimant’s day to day activities [2912]. The claimant was
diagnosed as having ADHD in November 2016. It is a lifelong condition
which she has managed since her diagnosis with medication and by having
regular reviews at an Outpatients Clinic.
242. We accept the claimant’s unchallenged evidence in her disability impact
Case No: 2206237/2018
64
statement [2745-54] that this mental impairment affects her concentration,
focus, short-term memory, her ability to manage emotions, her appetite and
sleep, and social relationships.
PTSD / other psychological symptoms
243. The claimant was diagnosed with PTSD in October 2017 when she began
talking therapy and EMDR which continued for around 12 months. We have
found that the claimant told the second respondent that she had “secondary
PTSD” on 13 November 2017. In a letter dated 25 November 2019 Dr
Kocsis referred to “complex PTSD” [2790-1]. We remind ourselves that it is
necessary for the claimant to identify and prove a mental impairment and
not a particular clinical diagnosis or label.
244. Whilst they do not agree that the claimant has PTSD the experts agree
[2912] that she has reported symptoms that echo PTSD and the
“adverse psychological reaction” to events related to the Grenfell Tower fire
has “incorporated depressive symptoms and represented a pathologically
amplified psychological reaction to the claimant’s predicament”.
They note that this condition has improved “to a degree and that she has
been prescribed an antidepressant” [2913].
245. The claimant’s disability impact statement does not deal with PTSD
because of the respondents’ initial concession on disability status which
was subsequently withdrawn. We accept the claimant’s evidence that she
has had panic attacks since August 2017. We find that from this date she
had a mental impairment which had a substantial adverse impact on her
daily activities which was likely to last for more than 12 months. We find
from that date, the claimant had a predisposition to a “pathologically
amplified reaction” to triggers which has resulted in panic attacks,
flashbacks and intrusive thoughts. We find that during this flashbacks the
claimant is overwhelmed and ceases to function in her normal way. We
accept Dr Oyewole’s opinion that [2779]:
“Symptoms of PTSD, anxiety and depression would have affected her
ability to concentrate, be organised and be productive, deal with her
parental requirements, with feelings of being overwhelmed by the activities
she would normally have handled.”
Knowledge of disability
246. We find that the first respondent had knowledge of the claimant’s disabilities
when she completed the EHQ on 31 October 2017 and discussed them with
OHU the next day. We find that the second respondent had knowledge of
the claimant’s PTSD / psychological symptoms on 13 November 2017 and
ADHD on 20 April 2018.
Case No: 2206237/2018
65
Disability discrimination, harassment, victimisation
The meeting on 2 May 2018
Direct discrimination (para 37(1)) / Harassment
247. We uphold the harassment complaint in relation to issues (a), (c) and (d).
248. We have found that issues (b), (e) – (i) fail on the facts.
249. We have found that (a), (c) and (d) occurred. We find that this was unwanted
conduct which was related to the claimant’s ADHD. We have found that the
claimant felt she had suffered the proscribed effect as a result of this
conduct; she felt humiliated and offended. We find in the circumstances of
the discussion on 2 May it was reasonable for the conduct to be regarded
by her as creating an adverse environment for her. For completeness, whilst
we have found that the second respondent’s conduct had this effect we do
not find that she acted deliberately to harass the claimant.
250. It is not therefore necessary for us to make findings in relation to the direct
discrimination complaint.
The probationary extension
Direct discrimination (para 37(2))
251. We uphold this complaint.
252. It is agreed that the claimant’s probation was extended by three months.
This was a detriment. The factual issues (a) and (e) are agreed. We have
found that issues (c) and (d) also occurred. In relation to (b) we have found
that the second respondent provided the claimant with limited feedback
which was neither in accordance with the Probationary Policy nor warranted
an extension of the claimant’s probation. Therefore, issue (b) is also upheld.
253. We have found that the claimant first knew about this extension on 19 May
2018.
254. We find that the claimant has established a prima facie case that this
treatment could have been because of her disabilities:
(1) We have found that the second respondent did not discuss the
claimant’s probation with her on 2 May.
(2) There was no documentary evidence which substantiated the
second respondent’s case to the contrary. In fact, we have found that
the terms of the extension letter dated 10 May and the termination
letter dated 31 July are more consistent with the absence of any
discussion about the claimant’s probation and extension on 2 May.
(3) We have also found that on 2 May, the second respondent had
neither decided or intended to extend the claimant’s probation.
(4) We have also found that the second respondent had not scheduled
a formal meeting with the claimant to discuss her probation in the
limited time remaining of the probation period.
Case No: 2206237/2018
66
(5) We found that the second respondent failed to follow the provisions
or spirit of the Probationary Procedure in relation to the claimant.
(6) We also found that the second respondent took this decision on 3
May, following the commencement of the claimant’s sick leave which
she knew was likely to extend beyond the date when the
probationary period was due to end.
(7) We have found that the second respondent was concerned on 1
November 2017 about the claimant’s apparent fragility in relation to
PTSD. She also queried whether the claimant had the resilience
because of her PTSD to the deal with the Council’s response to major
emergencies.
(8) The second respondent’s focus on ADHD and the comments she
made to the claimant about this on 2 May revealed her lack of
knowledge and understanding about this condition and her concern
about it.
(9) It is likely that when she made the decision to extend the claimant’s
probation on 3 May the second respondent understood that the
claimant’s attendance at A&E and sick leave were or could have
been related to PTSD and ADHD.
(10) We have found that in giving evidence to the contrary, particularly,
that she told the claimant she was extending her probation on 2 May,
the second respondent sought to rely on facts which she knew not to
be true. We draw an adverse inference from this.
(11) We have also found that in giving evidence to support the second
respondent’s narrative in contradiction to his own near-
contemporaneous account, Mr Grimley also sought to rely on facts
which he knew not to be true. We draw an adverse inference from
this.
(12) We take account of our findings that the extension and termination
letters were back-dated and in both cases this was deliberately
misleading because it concealed the actual date when each letter
was competed and signed. We have found these steps were taken
by or on the second respondent’s behalf with her knowledge and
consent. We have also found that she gave deliberately misleading
evidence in relation to these facts. We draw an adverse inference
from this.
(13) We also take account of our finding that the termination letter
deliberately omitted any reference to the claimant’s sick leave or her
disabilities in the termination letter in circumstances in which the
second respondent was evidently concerned about the prospect of
the claimant complaining that this was linked to her PTSD or ADHD.
We draw an adverse inference from this.
255. In these circumstances the burden shifts to the respondents to establish
that this decision was in no sense whatsoever because of one or both of the
claimant’s disabilities. Because of our findings that the second respondent
had neither decided nor intended to extend the claimant’s probation on 2
May we do not accept the respondents’ evidence that this decision, made
on 3 May, was because of concerns about the claimant’s performance. We
have found that but for the claimant’s disability-related sickness absence
from 3 May, the second respondent would have confirmed the claimant in
post on 11 May because there were no performance concerns which
warranted a probationary extension. The respondents have not therefore
Case No: 2206237/2018
67
discharged this burden.
Harassment
256. It is not therefore necessary for us to make findings in relation to the
harassment complaint.
Discrimination arising from disability (para 39(1))
257. We also uphold this complaint. We find that the decision to extend the
claimant’s probation was unfavourable treatment which was related to the
claimant’s disability-related sickness absence. We have found that the
second respondent had neither intended nor decided to take this step on or
before 2 May. We have found that but for the claimant’s disability-related
sickness absence from 3 May, the second respondent would have
confirmed the claimant in post on 11 May. We have also found that the
reason for this extension was not because of the claimant’s performance
and we do not therefore find that the aim relied on by the respondent was
applicable.
The second respondent’s repeated attempts to meet with the claimant
Direct discrimination (para 37(3))
258. This complaint fails because we have found that the respondents have
provided cogent non-discriminatory reasons for this treatment. We have
found that the second respondent contacted the claimant on 24 May and
twice on 24 July 2018 to arrange a meeting with her because the claimant
was on sick leave for an extended period and the claimant was a member
of the SLT, and the director of a newly established and high-profile
department, and she had not initiated contact in the intervening period. In
respect of the second date of contact, we have also found that this related
to the intention to discuss the claimant’s ongoing employment because she
was coming to the end of her extended probationary period. We find that
the second respondent would have acted in the same way towards another
person who was in materially the same circumstances as the claimant save
for the claimant’s disabilities.
Discrimination arising from disability (para 39(2))
259. This complaint fails. Although we find that this was unfavourable treatment
which was related to the claimant’s disability-related sickness absence, we
also find that the aim of this treatment was to maintain contact with the
claimant during her sickness absence which was a legitimate one. We find
that the steps taken by the second respondent to contact the claimant to
arrange a meeting were a proportionate means of achieving this aim.
Failure to make adjustments (paras 41(3) & 42(3))
260. This complaint fails. Although we find that the PCP at para 41(3) was
operative and applied to the claimant, we do not find that the claimant has
established that this put her a substantial comparative disadvantage. Even
had we concluded this, we would not have found that the adjustment
Case No: 2206237/2018
68
contended for at para 42(3) was a reasonable one because of the open-
ended and therefore indeterminate nature of it. The practical effect of the
proposed adjustment would have meant that the respondents could not
arrange to meet the claimant whilst she remained on sick leave regardless
of its duration. It was also relevant that the claimant was in a senior role with
responsibility for a high-profile and newly established department. We do
not therefore find that the step contended for was practicable in the
circumstances.
Harassment
261. This complaint fails because we do not find that the second respondent’s
conduct (para 37(3)) or the failure to make the adjustment contended for
(para 42(3)) were related to the claimant’s disabilities. Nor, had we been
required to make findings on this, would we have concluded that this
conduct had the purpose or effect of violating the claimant’s dignity or of
creating an adverse i.e. harassing environment for her.
The refusal to deal with the claimant’s grievance dated 1 August 2018
Direct discrimination (para 37(4)) / Discrimination arising from disability
(para 39(3)) / Failure to make adjustments (paras 41(4) & 42(4)) /
Harassment
262. These complaints fail on the facts because the 1 August 2018 letter was not
a grievance. Although it was headed “holding grievance” it had the express
purpose of putting the respondents on notice that the claimant intended to
submit a formal grievance at a later date and to request that the status quo
was protected in the meantime. This letter did not therefore require the
respondents to address the complaints it alluded to.
The claimant’s dismissal
Direct discrimination (para 37(5))
263. This complaint is upheld.
264. We have found that the second respondent made the decision to dismiss
the claimant on 31 July. The claimant was neither warned that she was at
risk of dismissal nor given any opportunity to make representations before
this decision was taken. Nor was she given any opportunity to appeal. The
dismissal letter made no reference to a right of appeal and when the
claimant submitted one it was not dealt with.
265. We find that the claimant has established a prima facie because our findings
that:
(1) The second respondent was concerned on 1 November 2017 about
the claimant’s apparent fragility in relation to PTSD. She also queried
whether the claimant had the resilience because of her PTSD to the
deal with the Council’s response to major emergencies.
(2) The second respondent’s focus on ADHD and the comments she
made to the claimant on 2 May revealed her lack of knowledge and
Case No: 2206237/2018
69
understanding, and her concern about this condition.
(3) The second respondent understood that the claimant’s attendance
at A&E on 2 May and subsequent sick leave related to her
disabilities.
(4) The decision to extend the claimant’s probation was because of and
arose from her disabilities.
(5) Mindful of the high-pressure nature of the role, the second
respondent and Mr Grimley questioned whether the pressure would
be too great for the claimant if she returned to work.
(6) Mr Grimley also concluded that raising any performance issues with
the claimant would be likely to exacerbate her mental health.
(7) Before deciding to dismiss the claimant, the second respondent
instructed Mr Grimley to review the claimant’s OHU file for references
to her disabilities and noted the risk that the claimant would complain
about her dismissal because of their discussion on 2 May.
(8) The failure to follow any formal process including with reference to
the Probationary Policy and Sickness Absence Policy.
(9) The adverse inferences we have drawn in relation to the evidence
given by the second respondent and also Mr Grimley, the back-
dating of the probationary extension and dismissal letters and the
deliberate omission of any reference to the claimant’s sick leave or
disabilities in the termination letter.
266. In these circumstances the burden shifts to the respondents to establish
that this decision was in no sense whatsoever because of one or both of the
claimant’s disabilities. Whilst we have accepted that the second respondent
did have concerns about the PSR department by the date she decided to
dismiss the claimant we do not find that this was the sole reason or the only
significant or effective reason for this decision. We take account of the
absence of any contemporaneous evidence substantiating what these
performance concerns were at the relevant time, the lack of process, the
failure to communicate with the claimant, and the limited reasons set out in
the termination letter and the adverse inferences we have made in relation
to the second respondent’s and Mr Grimley’s evidence. We find that the
respondents have not discharged this burden. We find that a hypothetical
comparator who did not have the claimant’s disabilities would not have been
dismissed in the same circumstances.
Harassment
267. It is not therefore necessary for us to make findings in relation to the
harassment complaint.
Discrimination arising from disability (para 39(4))
268. We uphold this complaint.
269. We find that dismissal was unfavourable treatment which was related to the
claimant’s disability-related sickness absence. We find that the reason why
the respondents dismissed the claimant without any formal process was
because she was on sick leave. As Mr Grimley conceded, the claimant’s
probation would not have been extended without any discussion or formal
process if she had not been on sick leave. We find that the same is
Case No: 2206237/2018
70
applicable to the claimant’s dismissal. She was neither warned that she was
at risk of dismissal nor given any opportunity to make representations
before this decision was taken. Nor was she given any opportunity to
appeal. A second factor was the uncertainty about the duration of the
claimant’s ongoing disability-related sickness absence which we have found
meant that the respondents discounted the option of a further extension to
the probationary period. They did so without input from OH or the claimant’s
doctors and therefore without establishing the claimant’s prognosis, the
likely duration of her sickness absence and her ability to return to her role
with or without adjustments. Had the claimant remained at work, it is likely
the claimant would have had the opportunity to address any concerns about
the PSR department or her performance and the second respondent would
have been required to identify which areas of the claimant’s performance
required improvement together with agreed objectives and timelines. None
of this happened because the claimant was on sick leave and the prognosis
remained unclear.
270. As to proportionality, the respondents failed to give adequate consideration
to the alternative option of extending the claimant’s probation for a further
period. As the second respondent noted in her email of 29 July, she had
little time to make a decision which limited her options. They have not
therefore discharged the burden on justification.
Failure to make adjustments (paras 41(6) & 42(8))
271. This complaint fails because we have found that the decision to dismiss the
claimant was because of and arose from her disabilities. The PCP
contended for was not therefore operative.
Victimisation (para 45)
272. This complaint fails because of our finding that the first respondent made
the decision to dismiss the claimant before she went on leave on 31 July
which predated the claimant’s protected act on 1 August.
The failure to respond to the claimant’s further grievance and appeal dated
15 August 2018
Direct discrimination (para 37(6))
273. This complaint fails. Although we have found that the respondents’ failed to
respond to the claimant’s grievance and appeal we do not find that the
claimant has established a prima facie case that this detrimental treatment
could have been because of one or both of the claimant’s disabilities. The
claimant was no longer employed by the first respondent and the first
respondent had already refused to correspond to her solicitors. We find that
a hypothetical comparator would have been treated in the same way.
Discrimination arising from disability (para 39(5))
274. This complaint is fails because the claimant was no longer on sick leave on
15 August 2018.
Case No: 2206237/2018
71
Failure to make adjustments (paras 41(7) & 42(9))
275. This complaint fails because the claimant has failed to show that the PCP
was applied to her because she was no longer on sick leave on the relevant
date.
Harassment
276. This complaint fails because we do not find the second respondent’s
conduct (para 37(6)) or the failure to make the adjustment contended for
(para 42(3)) were related to the claimant’s disabilities.
Protected disclosures, detriment and dismissal
277. This complaint fails.
278. We do not find that the concerns which the claimant says she raised in
relation to GDPR compliance, employment duties and health and safety
amounted to qualifying disclosures because the claimant has failed to
establish that these were disclosures of information. We were not taken to
any documents nor did the claimant lead any evidence on this.
279. Nor do we find that the concerns which the claimant raised about member
behaviour, contractual arrangements and governance for shared services,
amounted to qualifying disclosures because: we have found that the
information disclosed did not identify any legal obligations and nor was this
patent; the claimant did not lead any evidence on her subjective belief that
this information tended to show that the first respondent was likely to fail to
comply with a legal obligation (or that she made this disclosure in the public
interest); we do not infer from the content of these disclosures that the
claimant had a subjective belief that they tended to show this likely failure;
and even had we found that the claimant had such a belief we would not
have concluded that this was reasonably held because this information did
not identify a legal obligation.
280. In relation to the concerns which the claimant raised about breach of
contract and notice periods, we find that these were disclosures of
information in which the claimant was identifying potential breaches of
contract by Bi-borough and not by the first respondent. We do not find that
these disclosures tended to show that the first respondent was likely to fail
to comply with a legal obligation. Once again, the claimant did not lead
evidence on her subjective belief. For the same reasoning set out above in
paragraph 279, we do not find that she had a subjective belief and even had
we found this we would not have concluded it was reasonably held.
281. In relation to the concerns which the claimant raised with the PSR budget,
whilst we have found that the claimant was concerned about the funding
shortfall and the capacity of PSR to deliver the same services that it had
provided under the Tri-borough arrangement, we have found that in only
one of the disclosures relied on, dated 2 February 2018, did she identify
with sufficient specificity that there was a risk of a funding shortfall for
services. We therefore find that the claimant had a subjective belief that this
disclosure tended to show that the first respondent was likely to fail to
Case No: 2206237/2018
72
comply with a legal obligation and we also find it likely that the claimant felt
that this was made in the public interest. We find in both cases that this
subjective belief was reasonable. In relation to the other disclosures, even
had the claimant such a subjective belief we would not have found that this
was reasonable (for the same reasoning set out above in paragraph 279).
In respect of the 2 February 2018 email which we find to be a protected
disclosure in that it was a qualifying disclosure which was made to the
second respondent, and for completeness, the other disclosures in this
category which the claimant also relies on, we do not find that she has
shown that they were causative of the impugned conduct we have upheld.
Although the claimant says that because she raised these concerns she
was viewed as confrontational and lacking in collegiality, she did not say in
what way, each of the specific disclosures which are relied was causative
of the conduct we have upheld and she did not put her case to the
respondents’ witnesses on causation.
282. For completeness, we also deal with the 1 August letter although this was
not listed at paragraph 44 of the claimant’s witness statement nor Appendix
1 of the claimant’s closing submissions because it was not formally
withdrawn. The claimant led no evidence on her subjective belief and nor
did she put her case to the respondents’ witnesses on causation. However,
even were we to find that this was a protected disclosure, the impugned
conduct we have upheld preceded this letter and it cannot therefore be
causative of this conduct.
Unauthorised deductions from wages / Breach of contract
283. This complaint fails because:
a. We have found that there was an overpayment which exceeded the
claimant’s final salary in August 2018.
b. Notwithstanding the lack of clarity around the claimant’s tax liability,
this deduction amounted to an excepted deduction for the purposes
of section 14(1)(a) ERA.
c. The first respondent did not breach the claimant’s contract when it
made this deduction to clawback the outstanding overpayment.
ACAS Code of Practice
284. We have found that the first respondent failed to comply with the ACAS
Code of Practice on Disciplinary and Grievance Procedures in relation to
the claimant’s dismissal and her appeal against dismissal dated 15 August
2018, and grievance of the same date. The first respondent failed to deal
with the grievance. In relation to dismissal, the claimant was not informed
of the alleged poor performance under consideration nor warned that she
faced dismissal nor invited to a meeting nor given any opportunity to make
representations nor afforded the right to appeal. We have also found that
the reasons given for this decision were limited and unclear. The
respondents failed to provide an explanation for these comprehensive
failures. We therefore find that this non-compliance was unreasonable.
285. The issue of whether it is just and equitable to increase any relevant
compensatory award made, and if so, by what percentage, under section
Case No: 2206237/2018
73
207A of the Trade Union & Labour Relations (Consolidation) Act 1992, shall
be determined at the remedy hearing.
Remedy
286. A preliminary hearing will be held to list a remedy hearing and make any
necessary case management orders.
287. I would like to apologise to the parties for the lengthy delay in promulgating
this reserved judgment.
__________________________________________
Employment Judge Khan
05.11.2021
RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON
05/11/2021.
.
FOR EMPLOYMENT TRIBUNALS
