Case Numbers: 2215140/2023 & 6007261/2024
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EMPLOYMENT TRIBUNALS
Claimant: Ms V Woodall
Respondent: Google UK Limited
Heard at: London Central (in person)
On: 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19 November 2025
20, 21, 24 November 2025 (in chambers)
Before: Employment Judge B Smith (sitting with members)
Tribunal member Marshall
Tribunal member Keyms
Representation
Claimant: Ms Page KC and Ms Sidossis (counsel, instructed directly)
Respondent: Ms Mayhew KC (counsel)
RESERVED JUDGMENT
The unanimous judgment of the Tribunal is as follows:
1. The complaint of protected disclosure detriment is not well-founded and is
dismissed.
2. The complaint of victimisation is not well-founded and is dismissed.
3. The complaint of unfavourable treatment because of something arising in
consequence of disability is not well-founded and is dismissed.
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REASONS
Introduction
1. The claimant has been employed as a Senior Industry Head (‘Industry
Head, or ‘IH’) at the respondent (a well known technology company) since
3 November 2014. She remains employed by the respondent.
2. For claim one (2215140/2023) ACAS conciliation commenced on 21 July
2023 and concluded on 1 September 2023. The claim was presented on 29
September 2023. For claim two (6007261/2024) ACAS conciliation
commenced on 5 June 2024 and concluded on 17 July 2024. The claim was
presented on 31 July 2024.
3. The claimant brings complaints of:
(i) Protected disclosure detriment (‘whistleblowing detriment’);
(ii) Victimisation; and
(iii) Unfavourable treatment because of something arising in
consequence of disability.
4. Other complaints and some elements of the above complaints were
dismissed upon withdrawal at various stages of the proceedings. These are
reflected by way of separate Judgments.
5. The respondent agreed that the claimant was disabled for the purposes of
s.6 EQA 2010 at the material times.
Procedure, documents, and evidence heard
6. During the hearing the claimant was represented by Ms Page KC and Ms
Sidossis (both counsel instructed on a direct access basis). The claimant
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was represented by solicitors until February 2025. During the final hearing
the respondent was represented by Ms Mayhew KC. The respondent was
also represented by solicitors throughout.
7. In terms of adjustments for the final hearing, the Tribunal had full regard to
the Equal Treatment Bench Book and the Presidential Guidance:
Vulnerable parties and witnesses in Employment Tribunal proceedings. We
also had full regard to the claimant’s medical evidence on this issue. The
claimant’s application for reasonable adjustments was dated 22 September
2025 and this was determined as a preliminary issue. It was said that the
adjustments sought were reasonable and required because of the
claimant’s ADHD, mixed anxiety and depressive disorder, traits of ASC, and
dyslexia. In particular, the claimant relied on a letter by her treating
psychiatrist Dr Bachlani dated 19 September 2024.
8. The Tribunal found that the evidence of Dr Bachlani was of limited value. It
included a general overview of ADHD and stated that the claimant has traits
of ASC. However, the evidence was, on the whole, fairly generalised (such
as stating to the effect that people with ADHD have specific difficulties with
concentration and organisation). The letter did confirm the claimant’s mental
health diagnoses and identify that the claimant was finding the proceedings
stressful and that the effect of her mental health diagnoses was profound
and significant. However, the specific adjustments recommended were only
ones which ‘may’ help the claimant participate in the hearing.
9. Addressing the specific adjustments requested by the claimant for the final
hearing, we did not permit the claimant to refer to her own chronology during
her evidence. This is because no such document was provided to the
Tribunal and parties are not normally permitted to consider their own notes
during their evidence. The claimant was however provided during the latter
part of her evidence with the agreed chronology in order to help her consider
the timeline when it was clear that this would assist her in giving her
evidence. Also, the Tribunal made it clear throughout that it was not a
memory test. We did not hold any chronological error on the basis of the
claimant’s memory during oral evidence against her. When chronology was
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a relevant part of her evidence it was also possible to identify relevant
documents which showed the timelines and also the Tribunal sometimes
asked its own questions to locate the issue in question in terms of
chronology. The adjustment requested was not required for a fair hearing.
10. The Tribunal did not permit the claimant to use her own differently arranged
electronic bundle when giving her own evidence, although she was
permitted to refer to it in the other parts of the hearing. It was not permitted
during her evidence because it was not necessary for a fair trial and she
was sufficiently able to give evidence from the same versions used by the
parties and Tribunal. The claimant had a choice between electronic and
hard copy versions to use during her evidence. Also, we considered that if
the claimant was looking at documents arranged in a significantly different
manner on a laptop then it would be difficult for the Tribunal to know what
she was answering questions about. It was also not a request sufficiently
supported by the claimant’s medical evidence. Also, it was apparent to the
Tribunal that, particularly during the claimant’s evidence, the claimant was
under a slight misapprehension about what was required of her during her
evidence. What was required was that she answer the respondent’s
questions. Those questions clearly identified the pages she was being
asked about. Where the claimant wanted to refer to a document in rebuttal
of a point she thought the respondent was making, this was fairly dealt with
either in re-examination (for example, the claimant was able to be pointed
to the documents she wanted to refer to in her original evidence during re-
examination by her counsel) or in submissions: the claimant was reminded
that she did not have to refer to every possible document in her own oral
evidence, and that she only had to answer the respondent’s questions to
the best of her ability. The claimant was reassured during her evidence of
these points at several times by the Tribunal, specifically that her evidence
was not a memory test; her counsel could (and in fact did) take her to
additional relevant documents she wanted to refer to in re-examination; and
that all was required of her was that she answer the respondent’s specific
question. The claimant was also permitted, and did, to take notes during her
evidence about points she might want to return to later. The claimant was
not required, in effect, to conduct a researched and page-referenced
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answer to the respondent’s questions during her evidence. Accordingly, the
claimant had full access to the documents necessary for her to give
evidence fairly and properly during the hearing as a whole and her own oral
evidence.
11. The claimant was given regular breaks both in a timetabled manner and
when required.
12. The Tribunal did not permit the claimant’s supporter from a charity
(The Whistler: NB if this refers to WhistleblowersUK it is NOT a “charity”) to
observe remotely. This was not necessary because the claimant was
represented by two barristers during the hearing. The supporter was in
attendance for a significant amount of the hearing in any event.
13. The claimant was not permitted to rely on notes taken by her supporter
during her oral evidence. As a reasonable adjustment this was not
sufficiently supported by evidence. Also, the claimant had two barristers
representing her during the hearing. Re-examination took place to ensure
that any of her answers were clarified. The claimant was also able to use
their notes, and any notes from her supporter, after her evidence was
complete. The Tribunal did not consider it appropriate for the claimant to
review another person's notes of her evidence during her evidence. It would
have to have been provided to the respondent for review during the hearing
to ensure procedural fairness which would involve additional delay and cost.
Also, if there was a dispute about the notes, in terms of accuracy or
otherwise, this would have required resolution by the Tribunal at a time
when completing the claimant’s evidence was a priority. Also, parties are
not normally provided with a record of their evidence overnight as it is given.
If the claimant had been unsure of anything that she had said, this could be
more appropriately dealt with either by way of a question to the Tribunal or
consideration of her representative’s notes after her evidence was
completed.
14. We kept the above decisions under review and were prepared to depart
from them if necessary in light of developments in the case. However, it was
not necessary to do so. Overall, we were satisfied that the adjustments
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allowed and kept under review, and those adaptations during the claimant’s
evidence, were sufficient to enable her fair and full participation in the
proceedings.
15. The witnesses who were cross-examined gave evidence under oath or
affirmation.
16. The claimant gave evidence and Mr Daniel Bendix Christensen gave
evidence as a witness for the claimant. Both were cross-examined. A further
signed statement by a witness for the claimant from an individual named
Claudia was read by the Tribunal who was not required for cross-
examination. That statement is subject to privacy orders made by the
Tribunal, some of which is only to be referred to in private in order to give
effect to those orders. By agreement, paragraphs 5 to 10 of that statement
were struck out. A further signed statement by an individual named Richard
was read by the Tribunal and was not required for cross-examination. Mr
Bendix gave evidence by remote video link from the Republic of Ireland with
the Tribunal’s permission. Two other proposed witnesses for the claimant
did not give evidence and their statements were therefore ultimately not
relied on by the claimant.
17. The respondent’s witnesses were Matthew Bush, Annette Evans, Stuart
Green, Kaly Little, Joanne McDermott, Dyana Najdi, and Carl Read. A
signed statement by William Malcolm was read by the Tribunal and he was
not required for cross-examination.
18. By the time of the hearing, there was an agreed list of issues which was
updated during the course of the hearing. Save in respect of remedy, this is
reproduced at Appendix A below.
19. The parties confirmed from the outset of the hearing that no applications to
amend the claims were required or made, save as follows. By consent,
paragraph 23 of the Grounds of Complaint was amended in respect of
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detriment 4 to correct a date error, namely 22 November 2022 was
amended to 28 November 2022 (in the list of issues, issue 11(d)).
20. The agreed documents were:
(iv) Hearing bundle 1 paginated to 2634 (over three ‘files’);
(v) Hearing bundle 2 paginated to 495;
(vi) Hearing bundle 3 paginated to 231 (242 in PDF);
(vii) Agreed reading list;
(viii) Agreed cast list;
(ix) Agreed chronology;
(x) Claimant and respondent openings;
(xi) Claimant closing submissions; claimant legal submissions;
claimant’s table of claims; claimant’s identification of relevant
passages for PDs8-10;
(xii) Respondent closing submissions;
(xiii) Agreed and updated list of issues;
(xiv) The witness statements above;
(xv) Ms Evans notes dated 20 March 2023 (by consent, disclosed during
the hearing); and
(xvi) Respondent admitted facts.
21. By consent, the Tribunal granted the claimant’s application to rely on
Hearing bundle 3 above. The original application in relation to a larger
bundle 3 was strongly opposed by the respondent. However, the application
as advanced during the hearing in relation to a more limited bundle 3 was
not opposed. Equally, it was expressly not conceded by the respondent that
the claimant had acted reasonably in respect of bundle 3, its position on
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costs was entirely reserved, and the Tribunal did not expressly make any
determination on the relevance or reasonableness of bundle 3 at that time.
22. There was disagreement about whether the claimant should be permitted
to rely on a supplemental witness statement to the extent that it addressed
matters outside the case management order of EJ Brown dated 12
September 2025. The claimant accepted that some of that statement fell
outside of the scope of the permitted supplementary statement but asked it
to be included in the interests of justice. The Tribunal permitted the claimant
to be able to rely on those parts of the statement that fell outside of EJ
Brown’s order above in the interests of justice because it related to
documents now in evidence (ie. the originally contested bundle 3) and we
found that it would not cause the respondent sufficient prejudice that
permission to rely on those paragraphs should be refused.
23. The Tribunal only took into account those documents which the parties
referred to during the course of the hearing in accordance with the normal
practice of the Employment Tribunals. The parties were made aware of this
from the outset and both parties indicated specific pages for the Tribunal to
read.
24. Both parties made oral submissions at the close of the evidence. Both
parties made written submissions. A reasonably generous amount of time
was given for the parties to both finalise their written submissions and read
the other side’s submissions. It was made clear to the parties that if they
relied on any specific findings of fact other than those inherent in the list of
issues then this must be clearly drawn to the Tribunal’s attention. We have
only resolved the issues of fact necessary to make our decisions.
25. The Tribunal heard some evidence in private in order to give effect to the
privacy orders of EJ Brown. Further privacy orders were made by the
Tribunal during the hearing after hearing from the parties and having given
the press an opportunity to respond (although no submissions were made
by the press at the relevant time that the additional privacy orders were
9
made). Public and private versions of the witness statements were utilised
to the extent that they covered material to be heard only in private.
26. It was submitted by the claimant that additional redactions were required in
light of EJ Brown’s privacy orders. The Tribunal considered the matter
carefully but concluded that the redactions applied by the parties so far were
sufficient to fulfil those privacy orders. It was not the role of the Tribunal to
take every possible step to avoid jigsaw identification of individuals,
particularly for those who were redacted in respect of commercial
confidentiality as opposed to (for example) in respect of their personal and
private matters. The redactions orders should only go as far as reasonably
practicable. Also, the orders made did not go as far as to provide for strict
anonymity: they provided for redactions and cyphers and the Tribunal
considered that the redactions asked for by the claimant would go
significantly further than the orders already made by EJ Brown. Any such
extension would need to have been made by way of a separate application
supported by evidence.
27. During the preliminary stage the Tribunal indicated that further privacy
orders about the claimant’s personal information would need to have been
made in writing and supported by evidence. No such applications were
made. Similarly, for the claimant’s witnesses to give evidence by remote
video hearing would need to have been made in writing and supported by
evidence. No such further applications were made.
28. The Tribunal did not agree to the claimant’s parents and supporters
observing the hearing remotely. This is because it was not required in the
interests of justice. The claimant was represented by two barristers and, for
most of the hearing, by a volunteer from a charity (The Whistler: NB if this
refers to WhistleblowersUK it is NOT a “charity”) who was taking notes.
The claimant also had some those known to her attend as observers for
some of the hearing. We did not consider it to be consistent with the
overriding objective for the Tribunal to have permitted remote observation.
The task of ensuring that the privacy orders and access to documents and
day to day running of the hearing would have been made considerably more
difficult if it were to be effectively broadcast to remote observers. The
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claimant was also well supported during the hearing by her legal team.
However, the Tribunal was able to, and did, accommodate remote
attendance by one of her barristers who was unable to attend the hearing
for a very short part of the hearing for personal reasons. Remote attendance
by a legal representative, not for wider broadcast to other observers, was
plainly a substantially different matter given the professional obligations
engaged.
29. Balancing the respective needs for open justice, and for observers to be
able to adequately follow the proceedings, and also efficient administration
of the Tribunal, and proper maintenance of the Tribunal’s privacy orders, by
consent the observers (including the press) were provided with both
electronic and hard copies of the relevant documents, save for the hearing
bundles. This is because further privacy orders would have been justified if
electronic versions of the hearing bundle were to be provided to a large
number of people with no control over distribution. A large number of hard
copies of the hearing bundles however were provided to the observers at
the hearing to ensure that it could be fully observed, understood, and
reported.
Relevant Law
30. We had full regard to the parties legal submissions. It is neither necessary
nor proportionate for us to repeat them here. The fact that not every
authority relied on by the parties is summarised below does not mean that
we did not take it into account.
31. In appropriate circumstances the Tribunal can draw inferences from the
deliberate destruction and concealing of evidence, or missing evidence,
although it should not make purely speculative or fanciful findings: Shobna
Gulati and others v MGN Limited [2016] 2 WLR 1217. Similarly, the Tribunal
can in appropriate circumstances draw inferences from the absence of
witnesses. However, this should normally be a matter of common sense
and will depend entirely on the context and particular circumstances: Royal
Mail Group Ltd v Efobi [2021] UKSC 33 at [41]. There may, for example, be
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uncontradicted evidence: Northbay Pelagic Limited v Colin Anderson
UKEATS/0029/18/JW. Equally, if someone does not give evidence about
why something happened, this may have implications in a detriment claim:
International Petroleum ltd and ors v Osipov EAT 0058/17 at [115].
32. We applied and took into account the EHRC Code of Practice (‘the Code’)
where relevant.
PROTECTED DISCLOSURE DETRIMENT
33. Section 43A ERA says:
In this Act a ‘protected disclosure’ means a qualifying disclosure (as defined
by section 43B) which is made by a worker in accordance with any of
sections 43C to 43H.
34. Section 43B ERA says:
(1) In this Part a ‘qualifying disclosure’ means any disclosure of
information which, in the reasonable belief of the worker making the
disclosure, is made in the public interest and tends to show one of
more of the following: -
(a) that a criminal offence has been 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,
[…]
(f) that information tending to show any matter falling within any
one of the preceding paragraphs has been, is being or is likely
to be deliberately concealed.
(2) For the purposes of subsection (1), it is immaterial whether
the relevant failure occurred, occurs or would occur in the
United Kingdom or elsewhere, and whether the law applying
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to it is that of the United Kingdom or of any other country or
territory.
[…]
35. Section 43C ERA says:
(1) A qualifying disclosure is made in accordance with this section if the
worker makes the disclosure –
(a) to his employer,
[…]
36. Section 47B ERA says:
(1) A worker has the right not to be subjected to any detriment by any
act, or any deliberate failure to act, by his employer done on the
ground that the worker has made a protected disclosure.
[…]
37. The burden is on the claimant to prove each of the necessary elements:
Western Union Payment Services UK Ltd v Anastasiou UKEAT/0135/13/LA
at [44] (HHJ Eady QC):
The burden of proof in this regard is on the employee. As observed by
HHJ McMullen QC in Boulding v Land Securities Trillium (Media
Services) Ltd EAT/0023/06:
“24 . . . As to any of the alleged failures, the burden of the proof is upon
the Claimant to establish upon the balance of probabilities any of the
following:
(a) there was in fact and as a matter of law, a legal obligation (or
other relevant obligation) on the employer (or other relevant
person) in each of the circumstances relied on.
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(b) the information disclosed tends to show that a person has failed,
is failing or is likely to fail to comply with any legal obligation to
which he is subject.
25 'Likely' is concisely summarised in the headnote to Kraus v Penna
plc [2004] IRLR 260:
'In this respect 'likely' requires more than a possibility or risk that
the employer (or other person) might fail to comply with a relevant
obligation. The information disclosed should, in the reasonable
belief of the worker at the time it is disclosed, tend to show that it
is probable, or more probable than not that the employer (or other
person) will fail to comply with the relevant legal obligation. If the
claimant's belief is limited to the possibility or risk of a breach of
relevant legislation, this would not meet the statutory test of likely
to fail to comply.’
38. The Claimant must establish a disclosure of information that they
reasonably believed tended to show a breach or likely breach of a legal
obligation. It is not sufficient for the claimant to make allegations without
conveying facts: Cavendish Munro Professional Risks Management Ltd v
Geduld [2010] IRLR 38 per Slade J at [24]. A mere expression of opinion
does not amount to a disclosure of information: Goode v Marks & Spencer
plc UKEAT/044/09 per Wilkie J at [38].
39. For the purposes of this part, notions of information and mere allegations
are not mutually exclusive. Allegations can amount to disclosures
information depending on the content and the surrounding context: Kilraine
v London Borough of Wandsworth [2018] ICR 1850. There is no rigid
dichotomy between information and allegations (at Kilraine at [30]). The
disclosure has to have ‘sufficient factual content and specificity such as is
capable of tending to show’ one of the five wrongdoings: per Sales LJ in
Kilraine at [35] (also Simpson v Cantor Fitzgerald Europe [2020] ICR at
[43]).
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40. Whether communications should be read together is a question of fact for
the Tribunal, and communications can be read with earlier communications:
Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 540 EAT.
41. It is necessary for the discloser to have a genuine belief that the disclosure
tends to show a relevant failure, and that belief must be a reasonable belief.
Reasonableness involves the application of an objective standard to the
personal circumstances of the discloser: Babula v Waltham Forest College
[2007] ICR 1026 at [75]. It is relevant what the discloser believed at the time
of making the disclosure and not what they may have come to believe later
on: Dodd v UK Direct Solutions Limited [2022] EAT 44 at [55]. The objective
test is what a person in their position would reasonably believe: Korashi v
Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4 at
[62]. A belief may be a reasonable belief even if it is wrong: Babula.
42. The discloser must exercise their own judgment: Darnton v University of
Surrey [2003] IRLR 133 at [31]: ‘There must be more than unsubstantiated
rumours in order for there to be a qualifying disclosure. The whistleblower
must exercise some judgment on his own part consistent with the evidence
and the resources available to him.’
43. In Darton at [30] it was held that ‘…Parliament has not sought to import into
section 43B a requirement that the worker must hold the belief that the
information and allegation disclosed are substantially true.’ Equally. at [32]:
‘…for there to be qualifying disclosure, it must have been reasonable for the
worker to believe that the factual basis of what was disclosed was true and
that it tends to show a relevant failure, even if the worker was wrong, but
reasonably mistaken.’
44. For a potential breach of a legal obligation the discloser must have made a
disclosure of information tending to show that a breach was likely to occur
at some point in the future: Cantor Fitzgerald at [45].
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45. In the context of the relevant failure, ‘is likely to’ means that the information
disclosed should tend to show in the claimant’s reasonable belief that the
relevant failure was ‘probable or more probable than not’: Kraus v Penna
[2004] IRLR 260 EAT.
46. For breach of a legal obligation as the relevant failure, this includes breach
of an employment contract: Parkins v Sodexo [2002] IRLR 109.
47. The leading authority on whether the discloser has a reasonable belief that
the disclosure is made in the public interest is Chesterton Global Limited v
Nurmohamed [2018] ICR 731. The Tribunal must consider all the
circumstances, including the numbers in the group whose interests the
disclosure served, the nature and extent of the interests affected, the nature
of the wrongdoing, and the identity of the wrongdoer. There may be features
of the case that make it reasonable to regard disclosure as being in the
public interest as well as in the personal interest of the worker: Chesterton
at [37].
48. The claimant must prove that they had an actual belief at the time of making
the disclosure it was in the public interest and that belief must also have
been reasonable: Chesterton at [27-28]. The Tribunal must not substitute
its own view of whether the disclosure was in the public interest for that of
the worker: at [28]. This is a two-stage test and it should not be rolled into
one: Ibrahim v HCA International Ltd [2020] IRLR.
49. Tribunals should be cautious about finding that the public interest
requirement is satisfied in the context of a private workplace dispute merely
from the number of others who share the same interest: Chesterton at [36].
50. The fact that a private purpose exists does not mean that there cannot also
be a public interest: Dobbie v Paula Felton/Felton Solicitors [2021] IRLR
679 (referring to paragraph [17] of Chesterton): ‘Provided that the worker
making the disclosure reasonably believes that it is made in the public
interest it does not matter that he might be making the disclosure for some
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other purpose; the protection can apply even where the disclosure is made
in bad faith’ [at 23]. In mixed interest cases it is for the Tribunal to make a
finding as to whether there was sufficient public interest to qualify: Okwu v
Rise Community Action Ltd [2019] UKEAT/0082/19, at [20].
51. Dobbie contains a helpful summary of the main principles to be allowed at
[27] (HHJ Tayler):
(1) the necessary belief is that the disclosure is made in the public
interest. The particular reasons why the worker believes that to be
so are not of the essence
(2) while the worker must have a genuine (and reasonable) belief that
the disclosure is in the public interest, that does not have to be his or
her predominant motive in making it – Underhill LJ doubted whether
it need be any part of the worker’s motivation
(3) the exercise requires the Tribunal to recognise, as in the case of any
other reasonableness review, that there may be more than one
reasonable view as to whether a particular disclosure was in the
public interest
(4) a disclosure which was made in the reasonable belief that it was in
the public interest might nevertheless be made in bad faith
(5) there is not much value in trying to provide any general gloss on the
phrase ‘in the public interest’. Parliament has chosen not to define it,
and the intention must have been to leave it to employment Tribunals
to apply it as a matter of educated impression
(6) the statutory criterion of what is ‘in the public interest’ does not lend
itself to absolute rules
(7) the essential distinction is between disclosures which serve the
private or personal interest of the working making the disclosure and
those that serve a wider interest
(8) the broad statutory intention of introducing the public interest
requirement was that ‘workers making disclosures in the context of
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private workplace disputes should not attract the statutory protection
accorded to whistleblowers’
(9) Mr Laddie’s fourfold classification of relevant factors may be a useful
tool to assist in the analysis:
(i) the numbers in the group whose interests the disclosure
served
(ii) the nature of the interests affected and the extent to which
they are affected by the wrongdoing disclosed
(iii) the nature of the wrongdoing disclosed
(iv) the identity of the alleged wrongdoer
(10) where the disclosure relates to a breach of the worker’s own contract
of employment (or some other matter under section 45B(1) where
the interest in question is personal in character), there may
nevertheless be features of the case that make it reasonable to
regard disclosure as being in the public interest.
52. At [28] HHJ Tayler made further observations, summarised as follows: (1)
that a matter that is of public interest is not necessarily the same as one that
interests the public; (2) while the public will generally be interested in
disclosures that are made in the ‘public interest’, that does not necessarily
follow; (3) a disclosure could be made in the public interest although the
public will never know that the disclosure was made; (4) a disclosure could
be made in the public interest even if it is about a specific incident without
any likelihood of repetition; (5) the fact that it is a matter of educated
impression does not mean that it is not to be determined by a principled
analysis, and Mr Laddie’s factors in Chesterton are of assistance, and
failure to take into account relevant factors, or ignoring relevant factors, may
be an error of law; (6) Parliament must have considered that disclosures
about the types of wrongdoing in s43B ERA will often be about matters of
public interest and the legislative history is important for understanding that
the purpose was to ‘exclude only those whose disclosures about ‘wrong
doing’ in circumstances as where the making of the disclosure serves ‘the
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private or personal interest of the worker making the disclosure’ as opposed
to those that ‘serve a wider interest’; […] 8) while motivation is not the
issue…the person making the disclosure must hold the reasonable belief
that the disclosure is ‘made’ in the public interest.
53. The employer does not need to know that the disclosure qualifies as a
protected disclosure in law: Croydon Health Services NHS Trust v Beatt
[2017] ICR 1240 at [80].
54. Applying authorities decided in the context of the EQA, a detriment is
treatment of such a kind that a reasonable worker would or might take the
view that in all the circumstances it was to their detriment: Shamoon v Chief
Constable of the Royal Ulster Constabulary [2003] ICR 337 at [35] per Lord
Hope. An unjustified sense of grievance does not amount to a detriment:
Derbyshire v St Helen’s MBC [2007] ICT 841.
55. The test is whether the worker was subjected to the detriment by the
employer on the ground that they made a protected disclosure. The initial
burden is on the worker to prove on the balance of probabilities that there
was a protected disclosure, that there was a detriment, and that the
employer subjected them to the detriment. If so, the burden shifts to the
employer to show the ground on which the detrimental act was done
(section 48(2) ERA): Serco v Dahou [2017] IRLR 81 at [29-31] CA.
56. The Tribunal must consider what the reason was for the detriment. The
employer must show that the protected disclosure played no part
whatsoever in its acts of omissions: Fecitt v NHS Manchester [2012] ICT
372 CA. The Tribunal must focus on the mental processes of the individual
decision maker. When determining whether a detriment was done on the
ground of a protected disclosure under s.47B the causation test is whether
the employer’s conduct is materially influenced by a protected disclosure:
Fecitt at [45]. However, the individual decision make does not necessarily
need to have knowledge of the full details of the protected disclosure, but
‘they ought to have some knowledge of what the employee is complaining
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or expressing concerns about’: Nicol v World Travel and Tourism Counsel
and others [2024] ICR 893 at [82].
VICTIMISATION
57. Victimisation is prohibited conduct under s.27 EQA:
A person (A) victimises another person (B) if A subjects B to a detriment
because –
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
58. Protected acts are defined in s.27(2) and include making allegations,
whether or not express, that someone has contravened the Equality Act
2010 and bringing proceedings under the EQA. One relevant question is
why was the discloser subjected to the detriment: was it because of the
protected act, or for wholly other reasons?
59. In Kokomane v Boots Management Services Ltd [2025] EAT 38 it was held
that, when considering whether something amounted to a protected act, the
Tribunal must consider the full context. The context includes the
respondent’s understanding of the act.
UNFAVOURABLE TREATMENT BECAUSE OF SOMETHING ARISING IN
CONSEQUENCE OF DISABILITY
60. Section 15 EQA says:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in
consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means
of achieving a legitimate aim.
Case Numbers: 2215140/2023 & 6007261/2024
20
(2) Subsection (1) does not apply if A shows that A did not know, and
could not reasonably have been expected to know, that B had the
disability.
61. ‘Unfavourably’ is not defined in the EQA. The Code at [5.7] says that this
means that the disabled person must have been put at a disadvantage.
62. The proper approach to determining s.15 EQA claims was summarised by
Mrs Justice Simler in Pnaiser v NHS England and anor [2016] IRLR 170
EAT at [31]:
‘(a) A Tribunal must first identify whether there was unfavourable treatment
and by whom: in other words, it must ask whether A treated B
unfavourably in the respects relied on by B. No question of comparison
arises.
(b) The Tribunal must determine what caused the impugned treatment, or
what was the reason for it. The focus at this stage is on the reason in the
mind of A. An examination of the conscious or unconscious thought
processes of A is likely to be required, just as it is in a direct discrimination
case. Again, just as there may be more than one reason or cause for
impugned treatment in a direct discrimination context, so too, there may
be more than one reason in a section 15 case. 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 so amount to an effective reason for or cause
of it.
(c) Motives are irrelevant. The focus of this part of the enquiry is on the
reason or cause of the impugned treatment and A’s motive in acting as he
or she did is simply irrelevant: … A discriminatory motive is emphatically
not (and never has been) a core consideration before any prima facie case
of discrimination arises…
(d) The Tribunal must determine whether the reason/cause (or, if more
than one), a reason or cause, is ‘something arising in consequence of B’s
disability’. That expression ‘arising in consequence of’ could describe a
21
range of causal links. Having regard to the legislative history of section 15
of the Act … the statutory purpose which appears from the wording of
section 15, namely to provide protection in cases where the consequence
or effects of a disability lead to unfavourable treatment, and the availability
of a justification defence, the causal link between the something that
causes unfavourable treatment and the disability may include more than
one link. In other words, more than one relevant consequence of the
disability may require consideration, and it will be a question of fact
assessed robustly in each case whether something can properly be said to
arise in consequence of disability.
(e) …the more links in the chain there are between the disability and the
reason for the impugned treatment, the harder it is likely to be to establish
the requisite connection as a matter of fact.
(f) This stage of the causation test involves an objective question and does
not depend on the thought processes of the alleged discriminator.
(g) […]
(h) Moreover, the statutory language of section 15(2) makes clear … that
the knowledge required is of the disability only, and does not extend to a
requirement of knowledge that the ‘something’ leading to the unfavourable
treatment is a consequence of the disability. Had this been required the
statute would have said so. … … it does not matter precisely in which
order these questions are addressed. Depending on the facts, a Tribunal
might ask why A treated the claimant in the unfavourable way alleged in
order to answer the question whether it was because of “something arising
in consequence of the claimant’s disability”. Alternatively, it might ask
whether the disability has a particular consequence for a claimant that
leads to ‘something’ that caused the unfavourable treatment.’
63. It follows that the something that causes the unfavourable treatment does
not need to be the main or sole reason but must have at least a significant
(or more than trivial) influence on the unfavourable treatment and so amount
to an effective reason for or cause of it: Pnaiser v NHS England (above) at
[31(b)].
22
64. A claimant bringing a complaint under s.15 EQA bears an initial burden of
proof. They must prove facts from which the Tribunal could decide that an
unlawful act of discrimination has taken place. This means that the claimant
has to show that they were disabled at the relevant times, they have been
subjected to unfavourable treatment, a link between the disability and the
‘something’ that is said to be the ground for the unfavourable treatment, and
evidence from which the tribunal could infer that the something was an
effective reason or cause of the unfavourable treatment. If the claimant
proves facts from which the tribunal could conclude that there was s.15
discrimination the burden shifts under s.136 EQA to the respondents to
provide a non-discriminatory explanation or to justify the treatment under
s.15(1)(b).
65. Direct evidence of discrimination is rare and the Tribunal may have to infer
discrimination from all of the available facts.
66. Whether or not unfavourable treatment is a proportionate means of
achieving a legitimate aim involves a balancing exercise between the
reasonable needs of the respondents and the discriminatory effect on the
claimant: Hampson v Department of Education and Science [1989] ICR 179
CA. Factors to be considered include whether a lesser measure could have
achieved the employer’s legitimate aim.
TIME LIMITS IN EQA CASES
67. Time limits for claims under the EQA are governed by s.123:
(1) Subject to section 140B proceedings on a complaint
within section 120 may not be brought after the end of—
(a) the period of 3 months starting with the date of the
act to which the complaint relates, or
(b) such other period as the employment tribunal
thinks just and equitable
[…]
(3) For the purposes of this section—
23
(a) conduct extending over a period is to be treated as
done at the end of the period;
(b) failure to do something is to be treated as
occurring when the person in question decided on
it […]
68. We have a wide discretion to extend time on just and equitable grounds:
Jones v Secretary of State for Health and Social Care [2024] EAT 2.
Relevant factors I should normally take into account are: the length of (and
reasons for) the delay, and whether the delay has prejudiced the
respondent (for example, preventing or inhibiting it from investigating the
claim while matters were fresh), whether someone was in ignorance of their
rights or had received incorrect advice, if there was an ongoing internal
procedure, and reasons relating to disability or ill health.
69. We must distinguish between acts which are properly analysed as conduct
extending over a period and discrete acts with continuing consequences.
Also, the statute requires us to distinguish between acts extending over a
period and a succession of unconnected or isolated specific acts: Hendricks
v Metropolitan Police Commissioner [2003] IRLR 96. The fact of common
individuals to the allegations is relevant but not conclusive: Aziz v FDA
[2010] EWCA Civ 304.
BURDEN OF PROOF – EQA CLAIMS
70. The burden of proof for the EQA claims is governed by s.136 EQA:
(1) This section applies to any proceedings relating to a contravention of
this Act.
(2) If there are facts from which the court could decide, in the absence
of any explanation, that a person (A) contravened the provision
concerned, the court must hold that the contravention occurred.
24
71. It was held in Field v Steve Pie [2022] EAT 68 at [37]:
‘In some cases there may be no evidence to suggest the possibility of
discrimination, in which case the burden of proof may have nothing to add.
However, if there is evidence that discrimination may have occurred it
cannot be ignored. The burden of proof can be an important tool in
determining such claims. These propositions are clear from the following
well established authorities.’ Further at [41] that ‘if there is evidence that
could realistically suggest that there was discrimination it is not appropriate
to just add that evidence into the balance and then conduct an overall
assessment, on the balance of probabilities, and make a positive finding
that there was a non-discriminatory reason for the treatment.’
72. Once the burden has shifted, the employer must prove that the relevant
treatment was in no sense whatsoever because of the protected
characteristic: Wong v Igen Ltd [2005] EWCA Civ 142.
Findings of fact
73. We made findings of fact on the balance of probabilities. We only resolved
issues of fact insofar as was necessary for a fair determination of the claims.
We applied the correct burden of proof to our findings as set out in the legal
section above. Although these facts are grouped under headings, our
factual findings informed each other even if there is no express reference to
other related facts under the same heading. We carefully considered the
parties written and oral submissions even if they are not expressly
referenced in these Reasons. Is neither necessary nor proportionate to
repeat the parties’ submissions here. It is not necessary for us to explain
the evidential findings where they were not, or not effectively, in dispute.
However, our overall findings of fact were all based on the witness and
documentary evidence available to us.
25
(i) Overall narrative
74. The following findings of fact are made in terms of the overall narrative of
events. These are largely made on the basis of the agreed chronology.
75. The claimant has been employed as a Senior Industry Head (‘Industry
Head, or ‘IH’) at the respondent (a well known technology company) since
3 November 2014. She remains employed by the respondent on long-term
sick leave supported by income protection insurance.
76. For claim one (2215140/2023) ACAS conciliation commenced on 21 July
2023 and concluded on 1 September 2023. The claim was presented on 29
September 2023. For claim two (6007261/2024) ACAS conciliation
commenced on 5 June 2024 and concluded on 17 July 2024. The claim was
presented on 31 July 2024.
77. The claimant’s employment started at level 7 (‘L7’). The claimant was
managed by Mr Matt Bush from May 2015. The claimant took extended
leave from 2017 to 2020 for highly personal family reasons. Her return to
work was staggered from 1 January 2020 with Mr Bush her line manager
throughout until his departure.
78. The claimant’s performance rating on 16 November 2021 was that she
consistently meets expectations for the third quarter (‘Q3’) of 2021. In March
2022 Mr Bush awarded the claimant the same for Q4 2021.
79. On 23 August 2022 a female client of the respondent told the claimant that,
at a recent lunch, a male colleague of the claimant (hereafter referred to as
Mr O) had made inappropriate sexual comments and that this was
witnessed by Mr O’s line manage Jehan Shah. Mr Shah was another L7 IH
in the same team as the claimant. This was reported by the claimant to Mr
Bush in a pre-scheduled one to one (‘121’) meeting later that day. Mr Bush
reported the incident to Kaly Little, a People Partner at the respondent. The
respondent’s HR team is divided, broadly speaking, into People Partners,
26
People Consultants, and Employee Relations (‘ER’). They have different
functions. The claimant’s disclosure to Mr Bush was the first protected
disclosure and protected act.
80. Various alleged other detriments were said to have taken place after the
claimant’s initial disclosure to Mr Bush. These are largely attributed to Mr
Bush and are on a theme of unwarranted performance management or acts
otherwise said to undermine the claimant. These are considered in more
detail below. Similarly, other later disclosures made by the claimant to other
people are set out in more detail below.
81. In August and September 2022 Mr Bush presented an option to the claimant
and Mr Max MacIntosh, another L7 IH, to swap their respective client
accounts (client A to move from the claimant to Mr MacIntosh and Mr
MacIntosh to take client B). The work with client A had previously been
successful under the claimant. Further findings on this alleged detriment are
made below.
82. Project Britannicus was an internal project which took place in around
September 2022.
83. Following the claimant’s report to Mr Bush about Mr O an ER investigation
took place led by Mr Jose Ullastres. The claimant was interviewed as part
of this on 16 September 2022.
84. The claimant and Mr Bush had a 121 meeting on 4 November 2022 and a
call on 15 November 2022 during which she says she made further
disclosures.
85. Mr Ullastres’s written investigation report into Mr O was dated 15 November
2022. The investigation included allegations beyond those initially reported
by the client to the claimant, and the scope included Mr Shah and Mr
MacIntosh as alleged bystanders to sexual harassment and or in their role
as managers.
27
86. The claimant contacted Mr Ullastres on 24 November to discuss a perceived
threat of retaliation.
87. Between November and December 2022 a ‘support check in’, a new
process, was carried out by Mr Bush on the claimant (‘the first support check
in’). Further factual findings are made about this below. The claimant
alleged to Mr Ullastres that this was retaliatory on 25 November 2022. The
notes of the first support check in were formalised by Mr Bush on 29
November 2022 on the respondent’s performance management tool.
88. On 20 February 2023 the claimant emailed Annette Evans from People
Operations to share concerns about alleged disparities she was
experiencing.
89. Ms Debbie Weinstein was appointed to the role of Vice President Google
and MD of Google UK & Ireland in March 2023.
90. Mr MacIntosh was made redundant and this was announced on 29 March
2023.
91. The claimant attended a second investigation meeting with Mr Ullastres on
31 March 2023 during which she raised a second complaint from a female
client regarding inappropriate comments made by Mr O.
92. On 31 March 2023, Jo McDermott (ER Partner) was appointed to conduct
an independent investigation into the culture of the Agency (the group the
claimant was in). This is known as the Culture Review. The Culture review
was about the dominant culture in the Agency team under Mr Bush and how
the culture was being experienced by women in the team.
93. Following an internal process Mr O was dismissed on 26 April 2023 by the
respondent by reason of gross misconduct.
28
94. The claimant was interviewed by Ms McDermott for the Culture Review on
15 and 17 May 2023.
95. The claimant met Ms Weinstiein for lunch on 18 May 2023.
96. A second support check in was held by Mr Bush with the claimant on 25
May 2023. The write up from this was submitted on 30 May 2023.
97. In May 2023 issues around an expenses report by Ms Judy Dinmore, one
of the claimant’s direct reports, arose and were dealt with by the claimant
and later Mr Bush.
98. The claimant started a period of annual leave on 30 May 2023.
99. The claimant submitted a grievance about her alleged treatment on 4 June
2023 to Ms Evans, Ms Little, and Ms McDermott. This was after an initial
email about raising a grievance on 26 June 2023. The grievance was about
alleged retaliation by Mr Bush because of the claimant’s first protected
disclosure.
100. On 8 June 2023 Mr Bush emailed the claimant explaining that he was
concerned about her taking annual leave at short notice and asking her to
approve his writeup of the second support check in. On the same day Ms
Little emailed the claimant telling her to take the holiday and leave that she
needs. The claimant took this as approval that she could extend her leave
by at least a further two weeks.
101. On 8 June 2023 Ms McDermott concluded the Culture Review. Three
current employees in the team and two current employees who had asked
to transfer out were spoken to. Also, Mr Bush was spoken to. The report
found that an event known as the ‘Chairmans Lunch’ had been an annual
event which had an exclusively male guest list involving the CEOs of media
agencies. It was organised by Mr MacIntosh from the respondent’s side in
2022. As a result of Mr Bush not feeling comfortable with the all-male invite
29
list the 2022 event was the last one. Ms McDermott’s investigation included
whether or not there was a ‘boys club’. Only one person she spoke to
described the culture in that way. Others told Ms McDermott that the culture
had changed over time and that in the past, around 6 years ago, there had
been a more laddish drinking culture. Two people spoken to had said that
in the past the culture had not felt particularly inclusive because some did
not go to the pub after work for various reasons. One interviewee stated that
the culture had become less ‘laddish’ in the last six years. Ms McDermott
concluded that ‘I do not feel that the culture in the Agencies team is having
a harmful impact on women or is inherently biased against them. It is clear
however that more could be done to ensure that women feel that they are
included...’ Mr Bush was to receive feedback to that effect. Various other
incidental recommendations were made.
102. On 12 June 2023 Stuart Green was appointed to hear the claimant’s
grievance. He was supported by Ms McDermott.
103. On 26 June 2023 Mr Bush had expected the claimant to return to work but
saw that the claimant had submitted a further request for leave through the
respondent’s system. He emailed her stating that this was not acceptable,
given it was not with his approval and was at short notice. He also emailed
her on the same day explaining that, him not having seen an improvement
over the last two support check ins, he would like to progress to a formal
performance expectation plan (‘PEP’).
104. On 26 June 2023 the claimant started a period of sick leave.
105. In or around July 2023 planning for a reorganisation of the relevant group
at the respondent, namely UKI LSC, took place. This included a new L8
Director and Head of Agencies & Partners role. This was supported by Ms
Good, an Executive Recruiter.
106. The claimant was interviewed for her grievance on 4 and 6 July 2023.
30
107. On 19 July 2023 Ms McDermott emailed Ms Weinstein and Ms Little, and,
separately, Mr Bush, summarising the findings from the Culture Review and
her recommendations.
108. On 13 September 2023, whilst still on sick leave, the claimant received the
Grievance Outcome. The grievance investigation included a review of the
claimant’s documents, and meetings with 9 individuals, and a review of
evidence supplied by Ms Evans (written answers to questions). Mr Green
found that Mr Bush had not used the first support check in as retaliation for
the claimant having raised concerns about Mr O. However, he did find that
there was some confusion about the communication of Project Britannicus.
Mr Green also found that the second support check in was not retaliatory
but was based on feedback Mr Bush had received and his own
observations. It also dismissed the claimant’s other concerns of
victimisation and retaliation. It found that the Chairmans lunch did not
support the respondent’s ethos of respect and inclusion but there was no
evidence that Mr Bush had organised the event. Also, Mr Bush had taken
appropriate steps to address the matter. He found no evidence that Mr Bush
had been discriminatory towards women before August 2022 (that being a
specific allegation). It also found that Mr Bush had not singled out the
claimant and that Mr Bush had done what Mr Green would have expected
a manager to have done, and that Mr Bush had acted in good faith. It
rejected the claimant’s allegation that Mr Bush had undermined or
gaslighted the claimant. It also rejected the claimant’s allegations of
inequitable client distribution although the communication over client A
could have been more sensitive.
109. In addition, following the issue having been raised by the claimant, Mr Green
addressed some other points. In respect of the Agency culture he found
that: ‘I have spoken with a large number of witnesses both men and women
in relation to their experience of the culture within the Agency team and it is
clear that people experience the culture as being inclusive, friendly and
supportive. It was acknowledged by some people that there used to be more
of a ‘laddish’ drinking culture 3-5 years ago, but that the team has ‘grown
up’ along with the industry and that this was not true today.’ He did,
31
however, find that there were strong friendships in the Agency team.
Overall, the claimant’s grievance was not upheld.
110. The claimant appealed the grievance outcome on 21 September 2023.
111. Mr Bush’s employment was terminated on 29 September 2023 by reason
of redundancy following a restructuring exercise.
112. On or around 2 October 2023 Dyana Najdi was appointed as hiring manager
for the new L8 Director and Head of Agencies & Partners role.
113. On 25 October 2023 William Malcom, Senior Director, was appointed to
hear the claimant’s grievance appeal. He was supported by Eamon Kirwan,
ER Partner.
114. Ms Najdi started her role as L9 Managing Director of Partners and
Specialists within the UKI LSC group.
115. On or around 26 October 2023 planning commenced for Project Neptune,
a restructuring exercise for the global LSC team.
116. Mr Read was appointed to the L8 Director role on 1 November 2023.
117. On 27 November 2023 the claimant informed the respondent of her
diagnosis, received on 6 October 2023, of ADHD. An occupational health
report was shared with the respondent on 28 November 2023.
118. On 17 January 2024 two collective consultation processes commenced.
Two formal collective consultation meetings took place on 17 and 23
January 2024 with those individuals identified as being at risk of
redundancy.
32
119. The individual consultation process commenced on 21 February 2024: the
claimant was notified of her provisional selection for redundancy and invited
to a one-to-one meeting with Mr Read.
120. On 6 March 2024 the claimant was notified that her role was confirmed as
redundant. She remains employed as set out above.
121. The claimant’s grievance appeal rejected all grounds and was dismissed by
communication dated 20 March 2024.
(ii) Specific findings of fact – protected disclosures/acts,
PD/PA1
122. The respondent accepted that this was both a protected act and a protected
disclosure. Specifically, on 23 August 2022 the claimant raised a complaint
regarding the conduct of Mr O, a L6 employee, and Jehan Shah, a L7
employee, to her manager Mr Bush. However, the scope of the disclosure
was disputed. The respondent did not admit that the claimant spoke to Mr
Bush about the conduct of Mr Shah and a discriminatory attitude in the
Agency team more generally. We therefore need to make findings of fact as
to whether the scope of this disclosure included those matters.
123. There was very little evidence about exactly what the claimant reported to
Mr Bush on 23 August 2022. This was an oral disclosure during a 121
meeting. The claimant’s statement was that she reported ‘this’ to Mr Bush.
‘This’ was that on the same day, a female client had contacted her to report
experiencing racial and sexual harassment during a business lunch with Mr
O and his line manager Mr Shah. The client had reported that Mr O had
boasted about the number of black women he had had sex with, whilst his
manager did nothing to stop him. Mr Bush’s evidence was that the claimant
had reported to him about Mr O but his evidence did not specifically include
a criticism of Mr Shah. There are no clear notes of exactly what was
reported.
33
124. We find that within that disclosure the claimant did mention Mr Shah’s
presence. This is because the claimant’s evidence appears to suggest that
this was the case and Mr Bush doesn’t expressly deny that she included
that detail. However, given the lack of clear evidence, we do not find that
the scope of this disclosure included that the claimant mentioned a
discriminatory culture more generally. This is because there is a lack of clear
evidence that this in fact was the case. Also, Ms Little’s evidence about what
Mr Bush reported to her did not include allegations about a wider
discriminatory culture, and this makes it less likely that the claimant stated
this to Mr Bush. The claimant’s suggestion that Mr Bush would have
deliberately downplayed any such wider disclosure was not sufficiently well-
supported by the evidence overall for this reasoning to be undermined.
PD/PA 2
125. The respondent accepted that to the degree that this PD echoed PD1, it
was a protected disclosure and protected act.
126. On 16 September 2022 the claimant made a disclosure to Mr Ullastres. We
find that the best evidence of what the scope of that disclosure included was
the meeting notes with Mr Ullastres (bundle p714). To the extent that the
claimant had any recollection beyond those notes, given the passage of
time and the nature of the document, we prefer the documentary evidence.
We consider that any points of significance are more likely than not to have
been included in those notes given the circumstances.
127. We find as a matter of fact that in this communication the claimant plainly
does repeat that Mr O had sexually harassed a woman from client A at a
business lunch and that Mr Shah was present. We therefore agree that it
was a protected disclosure and act to that extent as set out in our
conclusions below.
128. The claimant’s case on this disclosure was that the information provided
was that female employees of the respondent also felt a need to protect
34
themselves if working with Mr O and everyone knew that, and it was not
right, but he seems to get away with it. We find, on the basis of the record
of this disclosure, that information was also given by the claimant (as a
question of fact). Having considered the content of that disclosure, however,
we find that it does not amount information beyond that concerning Mr O,
other than the claimant’s concerns that Mr Shah was present and,
effectively, therefore that he had not intervened. However, to the extent that
the claimant says this disclosure contained information or allegations about
sexist bias and a discriminatory culture beyond those points, we find that
this was not, on the evidence, what was conveyed. This is because there is
insufficient evidence for us to make such a factual finding in terms of the
scope of the disclosure.
PD/PA3
129. This disclosure concerned a call between the claimant and Mr Bush on 4
November 2022. The alleged PD/PA was that the claimant had informed Mr
Bush of a sexist and discriminatory culture in the Agency team, of which the
conduct already reported was an example. The respondent accepted it as
a protected act but not as a protected disclosure. The respondent accepted
that the claimant had referred to her earlier report to Mr Bush during the call,
but not that the discussion was about a discriminatory culture and nor that
the claimant gave details.
130. We refer to our findings below about the 4 November 2022 call in respect
of Detriment C which explain in more detail why we do not accept the
claimant’s notes, on their face, as sufficient evidence as to exactly what was
said.
131. We find that to the extent that the issue of team culture was raised by the
claimant during that call, ie. the information she disclosed (as an issue of
fact), there was no cogent evidence that the claimant had provided factual
examples of a discriminatory culture beyond the specifics of what had
already been reported about Mr O. However, we are satisfied that the
35
claimant’s notes of the call are sufficient for us to find that she mentioned
team culture during the call (as a question of fact).
132. It did not appear to us from the claimant’s evidence about the content of that
call, and specifically from her notes, that she in fact repeated the information
contained disclosure which amounted to PD1.
133. We find that during the call the claimant’s information did include that
women warn each other about Mr O, that point being included in the
claimant’s notes, and that the claimant stated that Mr Shah was just as
culpable.
PD/PA4
134. This disclosure concerned the 15 November 2022 call between the claimant
and Mr Bush. The content of this call is in dispute and we prefer the
claimant’s notes to any wider recollection the claimant has as to what was
said given the effects of the passage of time. We find that the content of the
claimant’s notes does not establish, as a matter of fact, that the content of
the call included her providing information to Mr Bush as she alleges. This
is because of the content of her notes: these to not clearly establish what
the claimant alleges was said. The claimant’s position that during this call
she provided information that ‘there was a team culture of normalising
sexual harassment’ is not sufficiently clearly supported by her own notes,
and the claimant’s witness evidence that during this meeting she reiterated
her belief that this was a wider cultural issue in Agency was not clearly
reflected in her own notes. Accordingly, we do not find as a matter of fact
that such information was given.
PD/PA5
135. This disclosure concerned whether the claimant reiterated her concerns to
Ms Little during a call on 17 November 2022. There was a factual dispute
36
about the content of the call. Both Ms Little and the claimant gave evidence
on this and both had their own rival versions of notes of the call.
136. Ms Little’s evidence did include that the claimant had made a comment that
she (the claimant) was beginning to question the culture of the team overall.
That fact being common to both witness’ accounts, we find that this did
happen.
137. Other content of this call was in dispute, however. Ms Little did not recall
many of the things that the claimant says were said. Whilst the claimant has
her own notes, they are to a degree retrospective, given how the are written,
and were clearly on their face written up after the event because they begin
by talking about the background and things that happened after the call.
They also do not match with Ms Little’s notes. For example, Ms Little’s notes
clearly record the claimant giving crude information about who slept with
who. This does not feature in the claimant’s notes and are unlikely to have
been invented by Ms Little given the context. The claimant’s notes therefore
cannot be considered comprehensive and, overall, we do not feel that the
claimant’s recollection with hindsight of a call that Ms Little credibly
describes as extremely emotional and erratic can be taken as sufficiently
reliable to find that her notes are such that they can be preferred in the
context of a disputed conversation.
138. In those circumstances, we do not find that the claimant has adduced
sufficient evidence about this contested call for us to find that, as a matter
of fact, she conveyed the information she says she did to Ms Little. We do
not find that we can properly find in the circumstances the exact words used
(or words to any given effect with sufficient certainty) such that the
claimant’s position on this call is determined in her favour. This includes the
extent to which she read out her notes of the 4 November 2022 call she had
with Mr Bush. We therefore do not find as a matter of fact, in these
circumstances, that the claimant conveyed factual information about alleged
retaliation by Mr Bush against the claimant. This is in part because of the
dispute about the call, and this conclusion is also supported by the fact that
Ms Little did not record any such allegations of retaliation in her own notes.
37
We consider that if any such allegation was made then this would have been
recorded in Ms Little’s notes and there would have been likely next steps
from her if such an allegation was made. In the absence of them we
consider it more likely than not that no such allegations were made during
that call. We acknowledge that the claimant’s notes include that she stated
that she wanted to flag some concerns about retaliation. However, this is
not necessarily the same as stating that there was retaliation, or disclosing
enough information such that it was tending to show that retaliation for
making a protected disclosure was likely.
139. We also do not find, as a matter of fact, that any of this disclosure was made
with a belief that it was made, in whole or in part, in the public interest. This
is because although some of the claimant’s other disclosures were
accepted by the respondent to have at least in part been made with a
reasonably held belief that they were in the public interest, we do not find
that this call was the same. This is because the content of this call was
about the claimant’s private interests given its context as a whole. Whilst
the claimant’s other disclosures about sexual harassment of a client plainly
did engage public interest concerns, this call was about the claimant’s own
personal interest in the investigation, and we reject the suggestion that she
provided any information in this call (even in part) with the belief that the
public interest was engaged. The amount of people affected and nature of
the interests engaged was insufficient, in all the circumstances.
PD/PA6
140. This was not relied on by the claimant as a protected act or disclosure.
However, a transcript of a call between the claimant and Mr Ullastres
establishes that she raised concerns of alleged retaliation by Mr Bush
during that call. The list of issues puts this at 25 November 2022. However,
the transcript suggests that this was on 24 November 2022. Nothing turns
on that date. The claimant also alleged to Mr Ullastres by email dated 25
November that Mr Bush was retaliating against her through the support
check in and by email dated 28 November with follow up commentary by
message about the support check in on 30 November 2022.
38
PD/PA7
141. PD/PA7 was that the claimant had reported to Mr Ullastres that Mr Bush
had scheduled a support check in which she considered to be retaliatory
given a perceived lack of legitimate basis, relying on an email to Mr Ullastres
and subsequent messages on 30 November 2022. The status of this
disclosure was disputed. The content of the email was at p822 of the
hearing bundle. Given the content of the message, considered in full, we
find that in this communication the claimant provided information, and this
was articulating alleged retaliation by Mr Bush and consequential treatment
in the form of the first support check in. However, the subsequent messages
on 30 November 2022 take this information no further. We also find that the
claimant held a belief that she was disclosing information which tended to
show a likely failure to comply with a legal obligation. This is because we
accept her broad evidence that she was making a disclosure and there is
insufficient good reason to doubt that particular part of her evidence.
142. However, we do not find, as a matter of fact, that the claimant believed that
she was disclosing this information in whole or in part in the public interest.
This is because we find that the claimant’s belief here was limited to her
own private interests in so far as she felt that Mr Bush was retaliating against
her interests through the support check in process. In making this specific
disclosure, we find that she was seeking to protect herself rather than
making any wider disclosure that she believed was in the public interest.
There was no good evidence, in our judgment, to suggest otherwise, and
the content of the disclosure suggests to us that this was the limit of her
belief. What the claimant may later assert to be in the public interest with
hindsight is insufficient.
PD/PA8
39
143. This PD/PA is as follows. On 20 February 2023 the claimant emailed Ms
Evans stating that she would like to have a few things on the record about
‘disparities’. On 21 March 2023 the claimant told Maxin Kohn, Global Head
of Culture, of her concerns (allegations) regarding the discriminatory culture
of the Agency team and retaliation she was suffering. The claimant made
these concerns to Ms Evans on 20 March 2023. The respondent accepted
that this was a protected disclosure and a protected act, on the basis that
the conversation with Ms Kohn was on 21 rather than 20 March 2023 as
originally alleged by the claimant. The only issue in dispute was whether or
not a conversation between the claimant and Ms Kohn was on 20 March
2023 or 21 March 2023. Given that this was recorded in the agreed
chronology as on 21 March 2023, we find that this forms part of PD9 rather
than PD8. The claimant also included the date of 21 March 2023 in her
witness statement.
PD/PA9
144. This was that on 21 March 2023 the claimant repeated and gave more detail
of her concerns regarding retaliation. The respondent accepted that the
claimant spoke to Ms Kohn on or around 21 March 2023 and reported
concerns about the culture in the Agency such that this amounted to a
protected act and disclosure.
PD/PA10
145. The respondent admitted that the claimant, during her second investigatory
meeting with Mr Ullastres, discussed a new allegation about Mr O’s conduct,
and that the claimant provided more detail about what she perceived to be
a discriminatory culture in the Agency team. The respondent admitted that
this was both a protected act and disclosure.
40
PD/PA11
146. The respondent admitted that the claimant met with Ms McDermott on 15
and 17 May 2023 and that during these interviews the claimant raised
concerns about a discriminatory culture in the LSC Agency team and
allegations of retaliation by Mr Bush. The respondent admitted that this was
both a protected act and disclosure.
PD/PA12
147. This was said by the claimant to be that on 18 May 2023 the claimant
repeated her concerns of discrimination and retaliation to Debbie Weinstein
during a lunch meeting. The fact of the meeting was accepted by the
respondent but not the content. Ms Weinstein did not give evidence to the
Tribunal. The fact that she did not give evidence is relevant to understanding
our findings below, particularly when compared with other disputed
conversations when we did hear from the contesting witness.
148. There was a dispute about exactly what the claimant said to Ms Weinstein
during lunch on 18 May 2023. Although the claimant referred in her
statement to her in statement to a call on 23 May 2023 as this protected
disclosure, the agreed list of issues and chronology placed it on 18 May
2023 and there was no application to amend claim nor was this corrected
by anyone. We did not have Ms Weinstein’s account of this conversation.
However, the following day Ms Weinstein refers in ping messages to the
claimant’s concerns about how the Dinmore expenses issue was handled.
We consider it more likely than not therefore that during lunch the claimant
at least raised concerns which prompted Ms Weinstein to think that more
investigation into the culture of the team needed to be done, and she
expressly references that there should be a speak up culture. The
claimant’s own notes of what was discussed appear to have been sent to
Ms McDermott and Mr Green, to the extent that she asked for protection
from whistleblowing detriment, and discussed the culture in the team, and
referencing sexism in the context of microaggressions. The claimant also
raises these same issues, at least to a degree, in a later call with Ms
41
Weinstein, some of which was recorded on 23 May 2023, and the content
of that call does not suggest that Ms Weinstein is hearing these things for
the first time.
149. Accordingly, we accept the claimant’s evidence that during that lunch she
provided information to Ms Weinstein to the extent that the claimant was
stating that she was suffering from retaliation by Mr Bush, the claimant
having made her original protected disclosure/protected act, and that this
included allegations that the Mr Bush had ruined the claimant’s reputation,
and was undermining her (as referenced in the claimant’s notes), and, given
the wider context, Ms Weinstein would understand how this fitted into the
other ongoing processes. We also find, given that the claimant’s notes of
what she reported included microaggressions, this would have been
understood by Ms Weinstein to have been in the context of discrimination
on grounds of sex. We also find, as a matter of fact, that the claimant
believed that this information tended to show retaliation (ie. including
victimisation), and that she was reporting this to Ms Weinstein not just
because of her own concerns, but concerns more widely in the team.
Accordingly, we find that for this disclosure, the claimant did (as a matter of
fact) believe that it was made at least in part in the public interest.
(iii) Specific findings of fact - detriments
Detriment A
150. Detriment A is said to be that that in September 2022 Mr Bush gave the
claimant little to no choice but to take on the client B account.
151. The respondent admits that the claimant took on the client B account.
152. The factual issue is whether this was effectively forced on the claimant by
Mr Bush or whether it was accepted by her as a matter of free choice. We
find this detriment not proven as a matter of fact. The burden is on the
claimant to prove this as a fact. There is a clear dispute between her
42
account of the decision making and Mr Bush’s. However, we do not feel that
there is any clear and cogent independent evidence to find that it’s more
likely than not that this issue was effectively forced by Mr Bush, as opposed
to his account that the claimant had a free choice in the matter. We accept
his credible evidence that, if the claimant had said no, he would have
accepted that and it was a genuine choice. We consider that the claimant’s
recorded call with Mr Bush about client B on 22 September 2022 is more
consistent with Mr Bush’s account than the claimant’s. For example, the
claimant stated ‘what Max and I talked about is for Max, it’s a fresh start;
you want me to recreate what we did on client A on client B, so that’s what
the switch is about…for me it’s switching what we did on client A from a bad
base to a good place….we each get a positive.’ Whilst the claimant is keen
to put on record her reservations about client B should it impact how Mr
Bush saw her performance, this does not establish that she was given little
to no choice on the matter. Also, the claimant’s evidence on the decision
making around moving onto client B was limited in detail, and the exact
conversation between her and Mr Bush when she says it was effectively
forced on her was not recorded or accounted in sufficient detail in her
evidence such that we would prefer her account.
153. We also accept Mr Bush’s evidence that he had decided to switch someone
new onto client B in the summer of 2022, before the claimant’s first
disclosure. This is because there was insufficient evidence to undermine his
account of this. Also, it made sense as a matter of logic: it was common
ground between the parties that there were serious difficulties in both
directions with client B and therefore as a matter of logic it followed that a
change of leadership was likely to be a good idea. This is consistent with
and supported by the claimant’s reflection in the recording above that it was
a fresh start. Client B also involved significantly more revenue than client A.
154. Also, the claimant did not dispute Mr Bush’s evidence that Mr MacIntosh
had ‘run out of steam’ on client B. This is consistent with there being a case
for change.
43
155. We consider that fact that the claimant put on record, in a conversation with
Mr Bush, the difficulties that client B had was not indicative of it being forced
on her. Rather, this was simply a reflection the challenge that it was.
156. In any event, we find (as a matter of fact, applying the correct burden above)
that this treatment, even if we are wrong about the above, was not in any
way influenced by or because of any disclosures made by the claimant. It
played no part whatsoever in the treatment. This is because there is
insufficient evidence from which we could make such a finding. We are
satisfied that it was done because of business decisions by Mr Bush alone
and they were not influenced at all by the claimant’s disclosure.
157. We reject the claimant’s contention that issues being raised by Ms Dinmore
to Mr MacIntosh on 6 December 2022 advances the claimant’s case. This
is because it is not a proper inference from the email exchanges relied on
that Mr Bush was doing anything to give him a flexible way to protect Mr
MacIntosh or punish the claimant. Those events are well after the decision
to allocate the client accounts was made and do not illustrate the
consequences of that decision as the claimant suggests: it simply does not
flow as a matter of proper inference.
158. We also consider that the extent of the recorded conversation between the
claimant and Mr Bush on 22 September 2022 was helpful to our
determinations as set out above.
Detriment B
159. Detriment B is said to be that in September 2022 Mr Bush demoted the
claimant to a subordinate role supporting her male colleague Jehan Shah
on the Social Pillar of Project Brittanicus.
160. The respondent admitted that the claimant was to assist Mr Shah on the
Social Pillar on Project Brittanicus.
44
161. We find that, as of 19 July 2022, the claimant’s allocation in this project was
that she ‘would do social’, consistent with Mr Bush’s email of that date.
However, the language used suggests that this is provisional. We accept
and find that by 5 September 2025 the claimant was not going to do the
Social pillar on her own, rather she would support Mr Shah (her peer and
also a level 7) instead. That change happened as a matter of fact. However,
we do not feel that the email of 19 July 2022 shows that the claimant was
in fact assigned Social and it was later taken away from her. A subsequent
email from Mr Bush saying to the effect that his team knew what to do and
to just get on with it is not sufficient to show that the earlier email was more
than provisional. We accept Mr Bush’s credible explanation that this email
was only sent as he was away and was not final confirmation of Pillar
allocation as the claimant contends. We also do not find, as a matter of fact,
that this amounted to a demotion. This is because the previous possible
allocation to the claimant was provisional. Also, supporting a colleague is
not in of itself a demotion. This is because the claimant also had her own
equivalent work in another area, namely sustainability. We also accept Mr
Bush’s credible evidence (consistent with the wider circumstances) that the
reason for allocation, as a matter of fact, was because the claimant’s
existing sustainability work, and her client B work, was sufficient and he did
not want to overload her.
162. In any event, we find that this treatment (to the extent it was proven, or even
if we are wrong about that) was not in any way influenced by or because of
any disclosures made by the claimant. This is because there is insufficient
evidence from which we could make such a finding. It played no part
whatsoever in the treatment. The claimant’s feelings about this, particularly
with hindsight, are insufficient for us to make such a finding. These are also
not facts which otherwise call out for an explanation such that the inference
the claimant asks us to infer that her disclosures played a role in the
treatment.
163. Also, we note that the claimant was not the only IH to not have her own
Project Britannicus channel, as a matter of fact. She was not singled out.
45
Detriment C
164. This detriment is said to be that, during calls on 4 and 15 November 2022,
Mr Bush minimised the gravity of the conduct reported by the claimant,
expressed sympathy for Mr O, and threatened the claimant not to disclose
to the Employee Relations her concerns about culture in the Agency team.
165. The respondent admitted that the claimant and Mr Bush had calls on or
around 4 and 15 November 2022.
166. We do not find that Mr Bush minimised the gravity of the conduct reported
by the claimant in the 4 November 2022 call. This is because, at best, the
words relied on by the claimant do not establish this. Even if it was accurate
that Mr Bush stated words, or words to the effect, of whose to say it warrants
this, so what if he’s a swinger, but I do appreciate people have different
levels of what makes them anxious or feel uncomfortable: this is insufficient,
in our judgment. This is because the alleged quote in her notes of that call
shows him understanding both sides, and this does not minimise the alleged
conduct, even on the claimant’s own account. This is also consistent with
him repeatedly stating that speculation about the investigation and outcome
was unhelpful. The fact that he stated words to that effect was not in dispute.
The claimant did not appear to assert that Mr Bush expressed sympathy for
Mr O on this particular call, consistent with her notes and witness statement.
167. We also do not find that the claimant’s notes of the 4 November 2022 call
are fully accurate. This is because the claimant accepted in cross-
examination that they were not in fact contemporaneous but rather were
typed versions of handwritten notes that were no longer available. She also
accepted in her statement that they were not verbatim. They also include
some commentary. We were therefore cautious about finding that they were
wholly accurate. Even through the claimant does make later reference in
correspondence and recorded calls to what she believes was said at that
meeting, we find that there was a real risk of her memory being inaccurate
or distorted in those circumstances. Also, when certain comments were put
to Mr Bush in later recorded calls, even if he did not expressly deny having
46
made certain comments, he did not always get a full opportunity to do so,
and he was very clear that the claimant had taken remarks out of context
and that the meaning of his words was distorted. He also denied in evidence
recalling having made many of the things alleged to have been said. There
are also some details such as ‘people’s lives are at risk’ the claimant alleges
in her statement to have been said which do not feature in her direct quotes
or notes. This suggests that those notes cannot simply be taken at face
value.
168. On the issue of whether in this call Mr Bush made the alleged threat, taking
into account the above, and all the evidence, we find that Mr Bush did use
words to the effect that the claimant must not speculate in unevidenced
allegations about the wider team. He effectively accepted having gone that
far. However, we find, as a fact, this has been misconstrued by the claimant
as a threat not to disclose issues about the culture to the ER team. We note
that in the claimant’s statement she refers to a threat to her personal
standing in the team which is subtly but sufficiently different to the alleged
detriment.
169. We have therefore found that Mr Bush did not, as a fact, minimise Mr O’s
behaviour, express sympathy for Mr O, or threaten the claimant, in the 4
November 2025 call.
170. We also note that the claimant during the internal proceedings described Mr
O as a good guy with a good heart and she was conscious that raising a
concern might have a detrimental impact on his career. We consider that
any expression by Mr Bush, on the evidence taken as a whole, went no
further than the claimant’s own expressions of sympathy for Mr O.
171. It did not appear from the claimant’s witness statement or notes of the
conversation with Mr Bush on 15 November 2022 that it was alleged that
he had minimised Mr O’s conduct or had made a threat during that call. We
do find that on 15 November 2022 Mr Bush expressed sympathy for Mr O.
However, we do not find that he used the exact words alleged, namely ‘Poor
old Joe’. This is because, although this is a phrase that the claimant brought
47
up many times subsequently, we consider that this is more likely to reflect
her view on what Mr Bush was saying as opposed to being a verbatim
quote, given the lack of objective evidence about the exact words used and
the fact that Mr Bush denies having used that phrase. Overall, however, we
consider that there is sufficient evidence from the claimant’s notes to find
that he did express some sympathy.
172. The claimant’s closing submissions did indicate that it was alleged that the
15 November 2022 call notes suggested that Mr Bush was minimising the
conduct because it states that some people were just in proximity and not
in earshot. We reject that any such comments were Mr Bush minimising the
conduct. This is not a proper inference from the words used. Rather, it in
fact accurately records that for at least some of the alleged sexual
harassment Mr Shah and or Mr MacIntosh were simply present at the event
rather than direct witnesses. Mr Ullastres did in fact ultimately make quite
fact specific findings about the extent of their culpability including that for at
least one incident Mr MacIntosh did not know about it at the time but was
told about it later.
173. In any event, we find as a matter of fact that this treatment, even if we are
wrong about the above, was not in any way influenced by or because of any
disclosures made by the claimant. This is because there is insufficient
evidence from which we could make such a finding. It played no part
whatsoever in the treatment. Rather, we find that is more likely to be nothing
more than a natural reaction to what a colleague was going through given
the obvious stress that an allegation of this nature would have on someone.
Importantly, Mr Bush was rightly recognising that at that stage nothing had
been found proven and it was at the allegation stage. He was not expressing
sympathy for someone to have been found to have done something wrong.
Although a decision about Mr O was made on the same date of this meeting
– and the time of the meeting and time Mr Bush found out about the
outcome for Mr O were not directly evidenced – we consider it to be more
likely than not that at the time of the meeting Mr Bush did not know the
outcome. This is because the claimant’s notes suggest that Mr Bush wanted
48
a decision soon for Mr O, which is more consistent with the investigation
outcome being unknown.
174. We did not consider that any of the established facts on this issue were such
that they called out for an explanation such that we could infer that any of
the claimants disclosures had played a role in the treatment of the claimant.
175. We also consider that the claimant’s submissions on this point demonstrate
leaps of reasoning which are unsustainable by reference to the evidence.
Whilst there are times when a Tribunal can make proper inferences from
indirect facts, if the circumstantial evidence is sufficiently strong, this is not
one of those times. The claimant, it appears, seeks to suggest that Mr Bush
minimised the conduct of Mr Shah and MacIntosh during these calls
because he is alleged to have improperly influenced Mr Ullastres’ decision
making in respect of them. We reject that as a matter of fact. This is because
there is no cogent evidence that this happened. Mr Bush denied that this
was the case and there is no good reason to doubt that.
176. It was the case that Mr Ullastres appears to have indicated to Mr Bush and
others in an email dated 15 November that both Mr Shah and MacIntosh
would proceed to disciplinary hearings, when in fact they were not to receive
disciplinary sanctions according to Mr Ullastres’ report. The cause of this
apparent change in outcome for them is unclear. However, there is no
cogent evidence that it came about because of anything to do with Mr Bush.
This is speculation and it is not the case that it simply must have been as a
result of his lobbying, as asserted (but not evidenced) by the claimant. We
did hear evidence that Mr Ullastres would have calibrated his results with
his line manager and we consider that this is a potential explanation for the
change. Given that there is another reasonable explanation for the change,
we do not find that it was as a result of Mr Bush’s influence. We also do not
consider a safe inference from the lack of specific documented coaching of
Mr Macintosh or Mr Shah is that Mr Bush had been influenced by any of the
claimant’s disclosures in his treatment of the claimant, in all the
circumstances.
49
177. Also, Mr Bush told us that he did not believe that he had in fact received Mr
Ullastes’ report. We accept that evidence. There is little to discredit that
evidence and it is consistent with his other evidence about the content that
report which was not entirely accurate when compared with the actual
report: this is consistent with him not being fully familiar with the exact
details of the report, and it not having been sent to him.
178. We reject the claimant’s contention that the use of the words ‘I can confirm’
in the 15 November 2022 email from Mr Ullastres to Mr Bush indicates that
there had been prior lobbying by Mr Bush. This is because it does not follow
as a proper or likely inference. Neither do we consider that a reference in
that email to ‘senior leaders’ and how it is used, by reference to an earlier
email from Mr Bush, is sufficient for us to infer any kind of attempt at
influence by Mr Bush. It appeared likely that Mr Bush had sent a prior email
to Mr Ullastres, but this was not in evidence and there is no proper inference
that this was him seeking to minimise their conduct.
Detriment D
179. Detriment D was said to be that, on 28 November 2022 at an LSC all hands
meeting, hosted by the UK MD, Mr Bush chose not to invite the claimant to
present on a piece of work for a client within her agency group (client D)
that the claimant had initiated and led, but instead invited a L6 colleague,
Adel Elabd, to present. In addition, Mr Bush congratulated a L6 male
colleague, Carsten Tomkins, who had also presented at the meeting (on
another matter), without acknowledging the claimant or her team’s
contribution.
180. The respondent accepted that there was a presentation on 22 November
2022. It was not denied that Mr Bush made decisions about who got to
present at that meeting. It was also clear from the evidence that Mr Elabd
did present on a topic and it was not clearly denied that he presented on a
piece of work for a client that the claimant had worked on, and therefore
may well have initiated and led.
50
181. However, it is also correct that the claimant and her team were credited in
the accompanying slide because their faces were included on the slide. We
accept Mr Bush’s credible evidence that it was in fact that practice for this
to be an opportunity for more junior people to present: there was no good
reason to doubt this. We equally accept that Mr Bendix, the claimant’s direct
report, was disappointed about this element of the presentation because he
expressed this at the time in a ping message.
182. However, and in any event, we find as a matter of fact that this treatment,
even if we are wrong about any the above, was not in any way influenced
by or because of any disclosures made by the claimant. We find that they
played no part whatsoever in the treatment. This is because there is
insufficient evidence from which we could make such a finding and the
respondent has shown the reason for the treatment. On the evidence taken
as a whole, this was nothing more than a day-to-day decision by Mr Bush
about who would present what and there is no good reason to believe that
it was influenced by the claimant’s disclosures. Also, the fact that it was not
the claimant presenting is more consistent with the level of employee who
would normally present as opposed to being anything to do with the
disclosures.
183. In addition, it is speculative to suggest that Mr Bush would seek to penalise
the claimant’s team, ie. not have Mr Bendix do the presentation, in any way
because of her disclosures. There was no other clear and evidenced
example of Mr Bush retaliating against the claimant’s team as opposed to
her. Rather, we accept Mr Bush’s evidence that in a competitive
environment there were always people who were disappointed that they
didn’t get an opportunity to present on a particular topic and this amounts to
nothing more than that. Also, we find, on the basis of Mr Bendix’s
acceptance in cross-examination, that the client could also be considered
to have been Elabd’s. This is an equally convincing reason why he would
present as opposed to the agency team.
51
184. We did not consider that any of the established facts on this issue were such
that they called out for an explanation such that we could infer that any of
the claimants disclosures had played a role in the treatment of the claimant.
185. We also do not find that there is sufficient evidence to find that Mr Bush
congratulated Mr Tomkins without acknowledging the claimant or her
team’s contribution. This is because there is a paucity of evidence that this
in fact happened, it not being admitted by the respondent and the lack of
clear evidence in the claimant’s statement about that allegation.
Detriment E
186. Detriment E was said to be that on 25 November 2022 Mr Bush scheduled
a support check in with the claimant to discuss alleged concerns relating to
the claimant’s performance, which the claimant believes to have been
without a genuine basis.
187. The respondent admitted that a call took place on 25 November 2022.
188. Although there was a dispute between the parties as to exactly which calls
amounted to the support check in, the reality was that this was a new tool
being used and the way it worked for this claimant’s support check in was
that it was more fluid than a simple single event, taking the evidence as a
whole. On 25 November 2022 Mr Bush clearly raises performance concerns
with the claimant. He says that he wanted to give her time to think over
them. On 6 December 2025 the process continues with a further call, in
which he describes the tool being used, and he wanted to make sure
everything was covered. The support check in also involved Mr Bush writing
notes of concerns in the support check in online tool on 29 November 2022,
these arising from the 25 November 2022 call, and the claimant wrote her
part of the online notes, on 29 December 2022. The reality was that, in those
circumstances, the support check in was a more fluid process than
something that can be always allocated to a single date.
52
189. We find as a matter of fact that it was not done without genuine basis. This
is because we accept Mr Bush’s credible evidence that he was raising
points about the claimant that did have a clear factual basis. The claimant
herself referred to the process as a productive conversation and she
appreciated potential outcomes being flagged as something for her to
consider in the future. This is consistent with Mr Bush’s evidence.
190. We also find, accepting Mr Bush’s credible evidence, that the support check
in did not take place without the support of the People Ops team and after
discussion with the leadership team, which included the country manager
and sector leads and Ms Little. There was no good reason to doubt that
evidence and it supported his wider account on this issue.
191. We reject the claimant’s suggestion that she had been told by Mr Bush on
22 September 2022 that she was not getting a support check in. We find
that she has taken an extract of a recorded conversation and extrapolated
from it something that is not there. We do not agree that it is the natural
meaning of the words used by Mr Bush.
192. We also agree with Mr Bush that the transcripts show him providing
feedback to the claimant in an objective and supportive manner, including
identifying her strengths, which is clear from the words used by him.
193. We also find that the feedback from Mr Bush was consistent with what was
documented. For example, the write up of the support check in included
three examples about communication. These were framed as ‘We have
spoken about a few moments where communication could have been
better’. This is important for understanding the nature and degree of the
support check in.
194. Although the claimant finds the chronology of events suspicious, ie. the use
of a support check in after PD/PA1, the fact that support check ins were not
introduced until after PD/PA1 mitigates this point considerably.
53
195. Overall, the feedback was on the theme of communication and where it
could be improved. Given the feedback used and Mr Bush’s credible
evidence of the same, we are satisfied that there was a genuine basis for
this support check in.
196. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant. We
find that they played no part whatsoever in the treatment. This is because
there is insufficient evidence from which we could make such a finding.
Rather, this treatment took place because of the concerns held by Mr Bush
about the claimant’s communication which was on a genuine basis.
197. We do find as a matter of fact that there could be a negative connotation to
a support check in. This is because an employee could not receive a
moderate impact (ie. a lower) performance rating, at least to begin with,
unless a support check in had been used. The wider evidence about them
suggested that this was the case. However, we equally find that their
purpose, consistent with the documentation about their purpose and the
respondent witness’ consistent evidence, was that it was primarily a
coaching tool. We also find that claimant never did in fact receive a
moderate impact rating in whole or in part because a support check in had
been made.
198. The claimant relies on the fact that Kally Little expected the documented
coaching recommended by Mr Ullastres for Mr Jehan and Shah to take the
form of support check ins. However, this did not ultimately happen. The
claimant says that this is evidence of support check ins being used for
conduct rather than performance feedback. However, ultimately this is not
what happened, so it more illustrates a potential misunderstanding by Ms
Little than the proper use of the tool. The documentation about the tool is
also more consistent with feedback than it being a conduct sanction. Also,
they were new at the time and therefore a degree of confusion about their
purpose and use this is entirely understandable such that the claimant’s
inferences about this cannot be safely drawn.
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199. It was clear from the oral evidence that Mr Bush originally did want to
ultimately give the claimant a moderate impact rating for the 2022 year.
However, this was also agreed in the respondent’s calibration process by
the other members of the leadership team and we reject it as at all likely
that they would have sought to treat the claimant adversely because of her
disclosures. There is no real evidence to support that contention. Rather we
find that this reflected Mr Bush’s genuinely held view. It is relevant also that,
on the advice of the HR team, this was upgraded to significant impact
effectively to treat the claimant more favourably given her whistleblower
status. However, the fact that moderate impact was Mr Bush’s view and that
was held across the leadership team suggests that it was held on
reasonable grounds and was not retaliation to the claimant. It is right that
Ms Stringer, an earlier Employee Relations individual involved with the
claimant had some reservations about the support check ins used.
However, she had those reservations only having heard from the claimant
– and her concerns about retaliation – and these are expressly before she
has spoken to Mr Bush about whether they were warranted. Mr Ullastres
also did not agree with Ms Stringer in his reply to that communication, and
on the issue of support checks. Also, Ms Stringer expressly stated in an
email that she thinks the feedback was valid, and which the claimant agreed
with. This does not show that the support check in was without basis. Also,
Ms Stringer’s email dated 1 December 2022 suggested that she also had a
degree of confusion about the process because she states in the email that
the next step taken by Mr Bush would ‘seem to me the step that happens
after a support check in meeting’ rather than being more definitive.
200. We reject the claimant’s submissions that the performance concerns were
trumped up. This is because the claimant’s submissions more reflect a
difference subjective view about how the actions could be considered than
clearly establishing from the evidence that they were trumped up.
Detriment F
201. Detriment F is said to be that on 29 November 2022 Mr Bush formalised his
notes from the support check in on 25 November 2022 by submitting his
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three stated concerns on the GRAD platform. The fact of this is admitted by
the respondent. However, our conclusion is the same as above for the
reasons why this took place, for the same reasons. It was nothing to do with
the claimant’s disclosures.
202. We reject the claimant’s contention, on this detriment and others, as a
matter of fact, that these concerns effectively came out of the blue and
reflect a marked change in approach by Mr Bush such that we can infer that
the change was as a result of her disclosures. This is because we accept
the respondent’s position that in fact there were concerns raised about the
claimant even if these were not reflected in her performance ratings. For
example, peer feedback for Q1 2020 included from Carl Read that ‘Vicki
can get overwhelmed in some meeting scenarios and has found ways that
work for her in managing…Remembering just what an effective
communicator she is will hold her in good stead and then focussing on the
2-3 salient points and slowing down the delivery’. Also, Tim Collier identified
that ‘Vicky will need to get under the skin of the cross site team that is there
to support her….Importantly set the vision and plan for what we are trying
to achieve…’. Performance notes also identify that the claimant had noted
that she had to be realistic about her current capability as she had more
than pushed it the prior 9 months, and she should encourage feedback on
herself from others and for her to actually hear when people say good
things. For the claimant’s PERF Q4/Q1 2020/21 Summary, on ‘Why not
higher’ it states that claimant should ‘Focus Focus Focus’. Equally, whilst
the claimant’s results for one period were ‘exceptional, and the way she
goes about it brings energy to her team and the wider Agency org’, this was
also in the context of the comment ‘Vicky’s business metrics are excellent
and despite working only 70% of the quarter has started to build ways of
working that can be valuable to the resty [sic] of the team, such as AAR and
CW/MMs – my scaling initiatives like that Vicky can score higher than CME.
This is taking her backwards from the last round and I have taken into
account her reduced hours, but at L7 I need to see more impact across
Agency/Google/Industry in order to score higher and we’ll work on this next.’
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203. Also, we accept the respondent’s evidence – namely from Mr Bush - that
the reason why the previous concerns were not documented was because
the respondent wanted to be soft and lenient on her following her return
from long term sick leave on account of family issues. This is because that
evidence was credible and reflected the documented position. The
documented performance concerns prior to the disclosures clearly reflected
the respondent being kind but still alluding to the claimant certainly falling
short of being exceptional. For example, documentary evidence in support
of this was that that in notes about the claimant for the UK Talent review
(April 2020) the claimant ‘ - Back full time – found it harder to return than
expected – Team and Google have supported as much as they can. Time
needed to build confidence. – Aks [sic] – if there is an opportunity to praise
or support please do.’ This is consistent with his later reflection that the
claimant had struggled with her return to work after a significant period of
time off. We accept that although Mr Bush made the decision to be lenient
on her in terms of performance (something which is consistent with the
comments referenced above) this was something he regretted when later
performance issues arose.
204. To be clear, our findings are not that the claimant was a bad performer.
Rather, the overall picture and evidence on performance was simply not
such that she was always exceptional in a way that any negative feedback
from Mr Bush after PD/PA1 could be considered suspicious and
unwarranted.
205. We also accept Mr Bush’s credible witness evidence that in later 2022 there
were performance concerns arising from her interactions with three people
who reported to her in one way or another. This, on the evidence, informed
Mr Bush’s actions and places them in the proper context and formed the
basis for later documented performance issues.
Detriment G
206. Detriment G is said to be that on 14 December 2022 Mr Bush and Max
Macintosh failed to invite the claimant to an event known as the Chairmans
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Lunch which was a male-only annual event which had taken place over the
last ten years.
207. The respondent admitted that a Chairman’s Lunch took place on 14
December 2022 and the claimant was not invited.
208. However, we find that there was not failure to invite the claimant, as a matter
of fact. This is because there was no duty for the claimant to be invited to it.
We accept Mr Bush’s evidence that he did not decide who attended. Also,
it was not deliberately a male-only event. This was simply something that
happened to be the case, as in all of the attendees were male, the attendees
being chair or equivalent in the industry (ie. the CEOs of the Independent
Agencies).
209. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant. We
find that they played no part whatsoever in the treatment. This is because
there is no clear or cogent evidence that this was the case. Also, the
evidence suggested that it was Mr Macintosh who organised the event with
the external person, not Mr Bush, and there is no good reason to believe
that Mr Macintosh was aware of the claimant’s disclosures at that time, them
having only been made to Mr Bush or others as set out above. There is no
clear and sufficient evidence that Mr Bush or anyone else informed Mr
Macintosh of the fact of the claimant’s disclosures at that time.
210. We also find that, even if one of the claimant’s clients was present, as she
alleged, the overall aim of the event was (accepting Mr Bush’s evidence)
was at the independent agencies, which were not the focus of the claimant’s
area of business. Therefore the fact that she was not present was not
inherently suspicious.
211. We reject the claimant’s submission that we can make a proper inference
about Mr Bush’s evidence that he only went to one Chairman’s Lunch event
contrary to his apparent account during internal interview that he had been
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to two or three, Mr Bush stating that the notes of his internal interview should
have read that he had been invited to two or three before rather than him
having attended. We consider this to be a minor discrepancy that does not
reveal anything more substantial about his evidence.
212. Also, the claimant was not invited to the lunch in 2021, before any
disclosures were made, so there was no demonstrable change of position
that could be explained by virtue of her disclosures. Also the IH who was
head of the independent agencies also wasn’t invited, so little can be
inferred the fact that the claimant was not also invited.
Detriment H
213. Detriment H is said to be that on 21 February 2023 Mr Bush failed to
acknowledge the claimant’s birthday but congratulated Jehan Shah on his
wedding anniversary the same day.
214. It is admitted by the respondent that Mr Bush congratulated Mr Shah on his
wedding anniversary on 21 February 2023. The respondent also admitted
that the claimant’s birthday was 21 February 2023 and that Mr Bush had
signed a birthday card that was provided by a colleague for the claimant
sometime prior to 21 February 2023. It was also not in dispute that Mr Shah
and Mr Bush shared the same wedding anniversary.
215. We find as a matter of fact that this treatment was not in any way influenced
by or because of any disclosures made by the claimant. We find that they
played no part whatsoever in the treatment. This is because there is no clear
or cogent evidence that this was the case. Rather, it is more likely that Mr
Bush congratulated Mr Shah on the wedding anniversary because it
coincided with his own as opposed to it being any kind of snub to the
claimant. This is more likely to be the case as a matter of common sense.
Also, it appears that Mr Bush did in fact acknowledge the claimant’s birthday
through the card. Also, there was no clear evidence that Mr Bush
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acknowledged other people’s birthdays and not the claimant’s such that she
could properly claim to have been singled out.
216. We also find that this is a clear example of the claimant reading something
into events which reflects not a safe inference from the facts, rather it more
reflects her own clouded judgment with hindsight to suit the narrative of
retaliatory action from Mr Bush.
Detriment I
217. Detriment I is said to be that in or around March 2023 Mr Bush personally
invited Mr Shah and Mr Carl Read to the IAB conference which took place
on 9 and 10 March 2023 whilst making no personal attempt to invite the
claimant.
218. The respondent admits that on 21 February 2023 Yves Schwarzbart sent
an email to the Agency team (which we note included the claimant) stating
that there might be two tickets for the upcoming IAB conference available
on a first come first serviced basis. It was also admitted by the respondent
that Mr Bush contacted Mr Read about the IAB conference by WhatsApp.
219. We do not find that Mr Shah was personally invited. This is because there
is no clear evidence that this is the case: this is the claimant’s speculation
only. Whilst Mr Read was contacted directly and personally, we accept Mr
Bush’s evidence (consistent with the text on the WhatsApp) that this was
only because Mr Read was away on holiday, and so it was just ensuring
that he was aware of the opportunity. There was no reason to do so
specifically for the claimant, and it was also specifically relevant to Mr
Read’s professional development area as stated by Mr Bush in that
WhatsApp message.
220. We also find as a matter of fact that this treatment was not in any way
influenced by or because of any disclosures made by the claimant. We find
that they played no part whatsoever in the treatment. This is because there
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is no clear or cogent evidence that this was the case. Rather, it was because
of Mr Read being away and the conference matching his specific area for
development. Also, the claimant had an equal opportunity to ask for a ticket,
on a first come first serve basis, and she in fact got one. In cross-
examination the claimant also accepted that Mr Read had been invited as
a professional courtesy, and that as he was away, he would not necessarily
have read the original email.
Detriment J
221. Detriment J is said to be that on 9 or 10 March 2023 Mr Bush deliberately
excluded the claimant from a conversation he was having with Jehan Shah
in the open plan refreshments area at the IAB conference.
222. The respondent admitted that Mr Bush, Mr Shah and the claimant attended
the IAB conference. Also, it was not disputed that Mr Bush had saved the
claimant a seat at the conference as she arrived late, and also he interacted
with her throughout the day.
223. We prefer the evidence of Mr Bush that in fact Mr Shah had asked to have
a personal conversation at the conference which the claimant had joined,
stopping the personal conversation, and when the claimant turned to speak
to someone else, they continued that personal conversation in a private
area. This is because the claimant’s account is more based on her
speculation as to why they turned away than objective fact, and Mr Bush’s
explanation is entirely credible. The claimant in cross-examination stated
that this was when she felt she was going mad and was in a spiral of
paranoia. We consider that the claimant’s reaction to this is more likely to
be misinterpreting things and speculating, viewing all events through the
prism of her asserted whistleblowing and retaliation narrative, as opposed
to accurate memories, in all the circumstances.
224. However, in any event, we find as a matter of fact that this treatment was
not in any way influenced by or because of any disclosures made by the
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claimant. We find that they played no part whatsoever in the treatment. This
is because there is no clear or cogent evidence that this was the case. We
accept the explanation of the respondent on this issue, there being no good
reason to doubt it.
225. The claimant expressed in a recorded conversation between her and Matt
Bush about this incident that perhaps she was overthinking everything now.
We find that this was the case.
Detriment K
226. Detriment K is said to be that in March 2023, during the claimant’s 2022
performance review, Mr Bush failed to give her any credit for the increase
in business she had generated on the client A client account or her work on
the client B account instead focussing on the feedback.
227. The respondent admitted that the claimant’s performance review in 2022
concluded in March 2023 and Mr Bush was present for it.
228. We find this allegation not proven. This is because the documented position
included that the claimant exceeded all revenue targets and specifically,
client A’s growth was expressly recognised in the notes of the performance
rating. It also expressly acknowledged that that she took on client B in
quarter 4 for 2022.
229. Accepting Mr Bush’s evidence on this topic, no individual had the ability to
attribute performance ratings to someone without a consensus from a large
number of others due to the detailed calibration system in place, and the
leadership team calibration process being particularly detailed.
230. The claimant received a significant impact rating for the relevant time.
231. We did not consider that the evidence showed that the claimant’s
contributions to client A and B were such that it must follow that she should
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have scored a higher rating. This is because of a lack of cogent evidence
that this was the case.
232. In any event, we find (this being a question of fact) that the claimant’s
disclosures played no part whatsoever in the treatment above. This is
because of an absence of cogent evidence that this was the case. The
respondent has shown that the claimant’s performance ratings were for
other reasons.
233. We also include here a finding that comments about the claimant’s
performance were not solely coming from Mr Bush. This undermines the
claimant’s case on this detriment and elsewhere about where performance
concerns were coming from. In an email dated 6 December 2022 Ms
Dinmore emailed Mr MacIntosh (notably, well before the issue between Ms
Dinmore and the claimant over expenses had arisen) stated ‘Hi Max, As my
current manager I felt like I needed your support and advice and I wanted
to say thank you for taking the time today to chat after my 121 with Vicki. As
you know I haven’t worked with Vicki before and I do not know her on a
personal level. Today I felt attacked, judged and labelled as a non
collaborative individual. I felt her feedback on Cognitive Behavioural
Therapy advice was unnecessary and it was the second occasion she has
said this to me…This is very abnormal behaviour for me to be distraught
and upset in a work environment and to feel so vulnerable….I wanted to
make sure this was heard. I’m anxious of what is to come with Vicki being
the new IH…’
Detriment L
234. Detriment L was said to be that on 28 March 2023 Mr Bush gave the
claimant unwarranted negative feedback following a presentation she gave.
235. The respondent admitted that Mr Bush gave feedback about a presentation
the claimant gave to client B on 28 March 2023.
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236. We find this allegation not proven. This is because the feedback as
evidenced was partly positive and partly negative. Also, as a matter of fact,
it was not unwarranted. This is because on the claimant’s on account she
was thrown by a request by Mr Bush to removal a particular reference the
night before. However, the feedback, which is captured in a transcript,
included that it was a great meeting, the claimant had done a phenomenal
job setting it up, and he was incredibly happy with what had been actually
delivered. However, the claimant was a little erratic and a little nervous and
as a result ‘there’s still work’ to be done. Also, similar feedback was give to
the claimant about this exact meeting by Caz Daies on 12 January 2023.
Whilst the claimant seeks to draw an inference from the timing of the
feedback, we reject this: the delay in giving feedback was explicable given
she was off work for some of the period, and it was raised at the claimant’s
next 121 with Mr Bush.
237. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant. We
find that they played no part whatsoever in the treatment. This is because
there is no clear or cogent evidence that this was the case. This feedback
was given because of the claimant’s performance and had nothing to do
with her disclosures, as a matter of fact. There is no good reason to find
otherwise, nor were any of the established facts such that this was treatment
which called out for an explanation.
Detriment M
238. Detriment M was said to be that on 3 March 2023, Mr MacIntosh gaslighted
the claimant by unreasonably querying the claimant’s input and emailing to
say that she ‘must be confused’ and only accepting her input when another
male colleague confirmed it.
239. The respondent admitted that an email was sent by Mr MacIntosh on 3
March 2023 which states ‘so I assume she [the claimant] was confused’.
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240. We find that the alleged communications happened: this was plain on the
documents. We do not find that this was gaslighting as a matter of fact. This
is because there is no reason to make such a finding. Rather, on the
evidence, it was nothing more than mutual confusion. This is a natural
reading of the correspondence. In fact, the correspondence states that Mr
MacIntosh stated that he assumes that the claimant was confused. There
was a lengthy explanation provided and he then accepted that he was
wrong. Also, there is no evidence from which we can properly infer that Mr
MacIntosh was aware of the claimant’s disclosures. The claimant’s
contention that Mr Bush ‘must’ have told him is nothing more than
speculation. The claimant also accepted during the internal investigation
that she had no proof that Mr MacIntosh was aware of her disclosure, and
Mr Bush denied in evidence that he had told Mr MacIntosh.
241. We equally find as a matter of fact that this treatment was not in any way
influenced by or because of any disclosures made by the claimant. This is
because the treatment was on its face simply reacting to events as they
were at that time. We find that the disclosures played no part whatsoever in
the treatment.
Detriment N
242. Detriment N is said to be that on or around 29 March 2023 Mr MacIntosh
intentionally ignored the claimant when she tried to reach out to him
following his selection for redundancy because Mr McIntosh had been
informed that the claimant and raised a complaint against Mr O and ignored
her after she came to greet him at the Ham Yard Hotel.
243. The respondent admitted that Mr MacIntosh was made redundant and that
his employment ended on or around 29 March 2023.
244. We find that this is not proven as a matter of fact. The claimant’s evidence
was that she called him on that day but he did not pick up her call. We
accept that this is the case. However, nothing can be read into this. Although
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the claimant feels that she is the only person he didn’t speak to that day
because she thought from messages within the team that others had
spoken to him, her being ignored was based on speculation rather than
anything else. The claimant didn’t know how others might have been in
touch with him or whether he had called them or the other way around. The
claimant only had memories about some but not all of the other IHs’ contact
with him. Although the claimant alleges that she was blanked by Mr
MacIntosh that day when she saw him, this was at 23:00 on the day he had
been made redundant. What is described is equally consistent with him not
seeing her or being in a mood to talk rather than deliberate blanking.
245. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant.
There is insufficient evidence that Mr MacIntosh had any knowledge of the
claimant’s disclosures. Accordingly, we find that they played no part
whatsoever in the treatment.
Detriment O
246. Detriment O is said to be that on or around 24 April 2023 Mr Bush went
behind the claimant’s back to allocate the client A account to a male
member of the agency team.
247. The respondent admitted that the client A account was assigned to Mr
Read. This assignment was after Mr MacIntosh had been made redundant.
248. It was not disputed that this client allocation was Mr Bush’s decision to
make. The claimant expressly recognised by email that Mr Bush may have
other plans, such as to allocate the client to someone other than her, even
though client A was requesting her back. We accept Mr Bush’s credible
explanation that the reason he did not reassign the claimant to client A was
because client B required her work, focus and energy, and he didn’t want to
overload her as he explained in a recorded call (the claimant having taken
some time off for anxiety around that time). Also, allocating it to Mr Read
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would give his level 6’s an opportunity to step up and he was already familiar
with the accounts.
249. We consider that the claimant’s case on this is unduly influenced by the fact
that the client wanted the claimant back. However, this would not have been
Mr Bush’s only relevant concern. The decision was also supported by
clearly documented analysis by Ms Jarzemsky of the different options, as
to who to allocate the client to. It was well-established that there was an
imbalance in client allocation. We do not consider that any changes to the
analysis document by Ms Jarzemsky are sufficient for us to infer anything
nefarious about Mr Bush’s decision making. The fact that changes were
made after the decision was made does look odd, we accept, but equally it
was not Mr Bush’s document and he was clear in his evidence that there
were lots of factors at play and the analysis by Ms Jarzemsky was just one
of the things he took into account. We’re not satisfied in all the
circumstances that it was suspicious enough to amount to documenting the
decision only as a cover up given that the decision made had obvious logic,
regardless of the analysis carried out.
250. The claimant submits that an analysis made by Jo Baker demonstrated that
Ms Baker thought that it was unfair allocating the client not to the claimant,
however this is only the claimant's interpretation of the spreadsheet relied
on: Ms Baker makes no such clear commentary, on the evidence.
251. In any event, there is no sufficient evidence that Mr Bush went behind the
claimant’s back in this decision making process: the claimant’ expressly
identified from the outset that Mr Bush may have plans to give it to someone
else other than her.
252. Equally, we find as a matter of fact that this treatment was not in any way
influenced by or because of any disclosures made by the claimant. This is
because it was, on the evidence, nothing more than a simple business
decision. We find that the disclosures played no part whatsoever in the
treatment. There is no good and evidenced reason for us to find otherwise.
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Detriment P
253. Detriment P is said to be that on or around 24 April 2023 Mr Bush tried to
humiliate the claimant by announcing his decision regarding the new head
of the client A account without giving her advance warning.
254. The respondent admitted that Mr Bush announced this update during a
weekly team meeting on 24 April 2023 and Mr Bush did not give the claimant
notice of this announcement until the claimant messaged him towards the
end of the meeting, when Mr Bush told the claimant that client A was being
allocated to Mr Read and that he would be announcing this shortly.
255. We find this proven to that extent only. We do not find it proven that Mr
Bush’s communication was in any way an attempt to humiliate the claimant.
This is because there is no cogent evidence that this was his intention. The
claimant herself only referred to it as a surprise in the immediate aftermath
of finding out and she expresses disappointment rather than humiliation.
256. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant. This
is nothing more than Mr Bush’s own communication style, on the evidence.
Also, he was not under any real duty to inform the claimant in advance: we
accept that this was his business decision to make and that mentioning it
more in advance would only have been a courtesy. We find that the
disclosures played no part whatsoever in the treatment and the respondent
has shown the reason for the treatment in all the circumstances. There is
no good evidenced reason to find otherwise.
Detriment Q
257. Detriment Q was said to be that on or around 24 April 2023 when the
claimant asked Mr Bush to confirm when the level 5s currently working on
client A would be told of the change of lead, so that she could tell her own
direct reports of the change, Mr Bush gaslighted her by pretending that he
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had said in the meeting that the team would be told in 24 hours and implied
that the claimant had not been listening, had forgotten or was confused.
258. The respondent admitted that Mr Bush replied to the claimant that the team
would be told in the next 24 hours and this was said in the meeting. It
transpired that this was an error on his part. However, we do not find that
this was in any way gaslighting or implying that the claimant had not been
listening or was confused. This allegation is simply not supported by the
evidence as demonstrated in the documents. We accept Mr Bush’s
evidence that his communications only reflected his honest belief, namely
that he thought he had said what he had told the claimant he had said, and
nothing more. The claimant has extrapolated from a few words in a
message meanings and implications that were not, in our judgment, there.
259. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant. This
was nothing more than a communication error. We find that the disclosures
played no part whatsoever in the treatment and the respondent has shown
the reason for the treatment. There is no good evidenced reason to find
otherwise.
Detriment R
260. Detriment R was said to be that on or around 25 April 2023 Mr Bush
undermined the claimant by telling Mr MacIntosh about his plans for the
client A account notwithstanding the fact that Mr MacIntosh was on garden
leave at that time, allowing Mr MacIntosh to break the bad news to the
claimant’s direct reports before she had been given permission to.
261. The respondent admitted that Mr MacIntosh was on garden leave on 25
April 2023 and that he told Alexina Vallint-Riggs about the allocation of client
A to Mr Read on or around that time.
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262. We do not find that Mr Bush told Mr MacIntosh about the client A plans. This
is because of a lack of cogent evidence that this was the case, Mr Bush
denying that this happened in his evidence. He also denied it in a
conversation between him and the claimant recorded by the claimant. Mr
Bush expressly stated in that conversation that Mr MacIntosh should not
have told Ms Vallint-Riggs what he did. Mr Bush also in that conversation
suggested others who might have told Ms Vallint-Riggs, and therefore we
accept that there were others who might have told Mr MacIntosh other than
Mr Bush.
263. We find, in any event, that (as a matter of fact) this treatment, was not in
any way influenced by or because of any disclosures made by the claimant.
There is no good evidenced reason for us to make such a finding. Also, the
fact that Mr Bush is expressly, to the claimant, not condoning the information
being passed on in this way suggests that this was not part of a plan to
undermine the claimant. We find that the disclosures played no part
whatsoever in the treatment and the respondent has shown the reason for
the treatment which took place, given all of the evidence on this issue.
Detriment S
264. Detriment S was said to be that in May 2023 Mr Bush handled allegations
raised in the claimant regarding Judy Dinmore in a way which undermined
the claimant and demonstrated to Ms Dinmore that he did not have
confidence in her.
265. The respondent admitted that the claimant raised allegations about an
expenses claim made by Ms Dinmore in her April 2023 expenses form and
that on 30 May 2023, when the claimant was on annual leave, Mr Bush dealt
with the issue.
266. We find that the claimant had rejected Ms Dinmore’s expenses for April
2023 and required further information from Ms Dinmore on 25 April 2023.
The claimant was concerned because she thought that Ms Dinmore was
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expensing a meal with clients when no such client meal had taken place.
The claimant sought to verify the position directly with the client before
seeking an explanation from Ms Dinmore. The claimant was advised on 28
May by Annette Evans to speak to Ms Dinmore given that there may be a
reasonable explanation for the expenses claim. Ms Evans also told the
claimant that the concerns would not be taken further on the advice of the
audit team because there was no egregious misconduct or pattern of
repeated misuse amounting to fraud. The claimant started annual leave on
30 May 2023. On the same day the claimant had a virtual meeting with Ms
Dinmore and Ms Dinmore emailed the claimant on the same day at 14:01
stating that she had resubmitted the expenses and put the expense in issue
as unauthorised so that it no longer was an issue. The claimant told Ms
Dinmore that she still needed to provide an explanation and it would not
take long to confirm with the clients. At this point Ms Dinmore went straight
to Mr Bush because she did not want to involve the clients and Ms Dinmore
told the claimant that she had done that. Mr Bush allowed Ms Dinmore to
put the expense through as unauthorised by email to Ms Little on 12 June
2023 and he provided his explanation for that. Mr Bush’s email at that time
established that he felt that the claimant having contacted the client to check
was enormously embarrassing. We also note that at this time Ms Dinmore
and the claimant’s relationship was strained and they were looking for
mediation. We find that Mr Bush was only involved in this because Ms
Dinmore went to him and also that he was involved because the claimant
was on annual leave.
267. Taking the events on this issue as a whole, we do not find (as an issue of
fact) that Mr Bush handled the Dinmore expense issue in a way that
undermined the claimant or demonstrated to Ms Dinmore that Mr Bush did
not have confidence in the claimant. We consider that Mr Bush only handled
the manner in the way he did because the claimant was on leave and to
avoid involving the clients further: this is plain from the circumstances. On
that basis it had nothing to do with the claimant’s disclosures. We find that
the disclosures played no part whatsoever in the treatment and the
respondent has shown the reason for the treatment given the established
matters above.
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268. We also find that Ms Dinmore raised concerns about the claimant before
this issue even happened (such as 6 December 2022, above). Also, on 30
March 2023 Ms Dinmore emailed Sinead McClintok stating ‘I’d like to
officially raise my concerns to Matt Bush on Vicki Woodall’s managerial
skills.’
Detriment T
269. Detriment T is said to be that in May 2023 Mr Bush held one to one meetings
with the claimant’s direct reports to try and elicit negative feedback which
he could use against the claimant.
270. The respondent admitted that during April and May 2023 Mr Bush undertook
skip level meetings with four named direct reports, including Ms Vallint-
Riggs and Ms Dinmore.
271. We do not find this allegation proven as a matter of fact. We find that the
evidence suggests that the meetings were for other reasons, namely Ms
Vallint-Riggs had recently returned from maternity leave, Mr Cumisky and
specifically requested a one to one, and Ms Cecio was new to the team.
Also, there were plainly existing tensions between Ms Dinmore and the
claimant. We accept Mr Bush’s evidence that this was the case, there being
no good reason to doubt it.
272. More specifically, the documentary evidence suggested that Ms Dinmore
had said to a People Consultant that she officially wanted to raise her
concerns to Mr Bush about the claimant’s managerial skills, and she was
told that she should contact Mr Bush directly to do that. This skip level
meeting took place on 27 April 2023. Following this Ms Dinmore emailed
the people consultant stating that she would propose a 121 session with the
claimant to focus on a better working relationship, potentially with a
mediator. Ms Dinmore also emailed Mr Bush on 12 May 2023 to the effect
that others on the client B team were also concerned about the claimant’s
management style and behaviour. We accept that this reflected a genuine
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concern held by Ms Dinmore, it being reflected in the contemporaneous
documents and is consistent with her concerns which arose before the
expenses issue.
273. The documentary evidence also establishes that the skip level meetings
with Mc Cumisky were on 9 February 2023 and 9 May 2023. One was at Mr
Bush’s request and one was at his own request as he was returning after a
period of leave, accepting Mr Cumisky’s account of this during the internal
investigation. We accept that Mr Cumisky’s account included that the
claimant had been excellent in ensuring that he had not taking on too much
but he had concerns about external-facing behaviours, such as career
structure and weekly reviews had been lip service and had not been
meaningful. Specifically, when Mr Cumisky was asked whether Mr Bush
had got the team together to talk about the claimant, he did not agree: he
said that the conversation had not been about the claimant, rather it had
been about the dimension of the team and changes that had taken place.
Mr Cumisky’s account was also that in Q3 2022 his management had
changed to the claimant and that had not inspired him or filled him with
confidence because he had been aware that the claimant would allow him
far less independent work and he would be significantly more
micromanaged.
274. It was not in dispute that Ms Alexina Vallint-Riggs had come back from
maternity leave without a job description and we are satisfied that her
account during the internal investigation accounts for the nature of her
meeting with Mr Bush, namely that whilst others may have had meetings
with Mr Bush about team culture, hers was focussed on herself and it had
been more to apologise for the lack of job description. Ms Vallint-Riggs was
clear in her account that Mr Bush was not derogatory about the claimant in
their meeting.
275. In respect of Ms Cecio, this meeting was on 16 May 2023, and we accept
her account given to the internal investigation, consistent with Mr Bush, that
it was because she was new to the team. Ms Cecio’s account in the internal
investigation was also relevant: she describes the claimant has trying to
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change things but not getting on well with Ms Dinmore or Ms Vallint-Riggs,
she describes the claimant as being very intense and wanting to review
important emails prior to sending, and attend the more senior meetings held
with clients. Ms Cecio was also aware of complaints by others who reported
to the claimant about the claimant. Ms Cecio had also described the
claimant’s team as a car crash.
276. We also accepted Mr Bush’s evidence in cross-examination that he was
holding skip level meetings because of changes in the team (including
merged teams) and to engage with new members of staff, including with the
Dublin teams. There is no good reason to doubt that evidence.
277. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant.
There is no good evidenced reason for us to make such a finding. The
evidence taken as a whole, suggests that it is more likely than not that this
was nothing more than Mr Bush undertaking normal management activities
in respect of team changes and concerns being raised with him. We find
that the disclosures played no part whatsoever in the treatment and the
respondent has shown the reason for the treatment which did take place.
Detriment U
278. Detriment U was said to be that on 16 May 2023 during a call with other IHs
in preparation for a face to face meeting with Debbie Weinstein the
leadership team organisational chart (on a slide) described the male IHs as
senior IHs whereas it erroneously omitted to describe the claimant and Jo
Baker’s job titles as senior.
279. The respondent admitted that a call took place on 16 May 2023 and that
this meeting was a preparation call prior to meeting Debbie Weinstein who
had recently joined as Managing Director for Google UKI. The respondent
also admitted that the claimant and Ms Baker’s role were not described as
senior on the chart.
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280. However, we accept Mr Bush’s credible evidence that there were also other
errors on this slide in relation to other people and things and the claimant
accepted in cross-examination that there were other errors on the slide.
Also, we accepted Mr Bush’s credible evidence that he did not produce the
slide and that it was created by a different team. The claimant was clearly
not singled out here for a mistake on this evidence.
281. We are satisfied that in those circumstances this was nothing more than an
error, applied to more people than just the claimant, and it had nothing to
do with the claimant’s disclosures. We also note, for context, that the
claimant used the word ‘industry head’ in her email sign off.
282. We therefore find that the disclosures played no part whatsoever in the
treatment and the respondent has shown the reason for the treatment: it
was a simple error by others.
Detriment V
283. Detriment V was said to be that on 26 May 2023 Mr Bush instigated a
second support check in with the claimant to address further alleged
concerns about her performance which the claimant believes to have been
pretextual.
284. The respondent admitted that Mr Bush held a second support check in on
or around 26 May 2023 in which he addressed concerns about the
claimant’s with her. It appears to us that in fact it was on 25 May 2023 from
the transcript of the recording.
285. We accept and find that the reason for the second support check in was the
genuinely held concerns that Mr Bush had about the claimant’s
performance. In any event, we find as a matter of fact that this treatment,
even if we are among the above, was not in any way influenced by or
because of any disclosures made by the claimant. We accept his evidence
as to the reason for the second support check in because it is credible and
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also consistent with and supported by the evidence about the claimant’s
performance, and concerns of her direct reports, as set out above and in
their accounts in the internal investigation. It is not necessary for us to find
that those concerns were necessarily completely accurate, only that they
reflected the genuinely held views of those who commented on the
claimant. We also did not consider that there was good and evidenced
reason to doubt that their accounts as given internally as to what they were
concerned about.
286. We consider the claimant’s submissions on this matter to be flawed. For
example, the claimant’s submission is that Mr Bush must have known that
he and his team would be under scrutiny because of the claimant’s
disclosures and that they effectively had something to hide. However, to the
extent that the claimant relies on Mr Bush being interviewed on 8 June 2023
as part of the culture review, the claimant assumes that Mr Bush was, or
may have been aware of others being interviewed before him. However,
this is just speculation. It is also after the second support check in and the
meetings above which in part gave rise to the performance concerns. Also
the fact that on 19 May 2023 Mr Bush had a 121 with Ms Weinstein does
not establish that he must have known that he would be under scrutiny.
Rather, it was well-known that Ms Weinstein had an interest in team culture
and also by this point Mr O had been dismissed. Given that a member of
the team had been dismissed, it made sense that the respondent would
want to address the question of culture. However, that does not mean that
Mr Bush would have felt at risk. This assumes that he had something to
hide, which is speculative at best.
287. We are satisfied that this check in took place not because of the claimant’s
disclosures, in any way, but simply as part of normal management by Mr
Bush. We find that the disclosures played no part whatsoever in the
treatment and the respondent has shown the reason for the treatment in the
circumstances as we have found them to be.
Detriment W
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288. Detriment W was said to be that between 30 May and 23 June 2023 the
claimant felt forced to take annual leave to protect her mental health from
Mr Bush’s retaliation. She also felt forced to use up annual leave instead of
taking sick leave to protect herself from Mr Bush’s criticism and blame
arising from the false narrative he was creating about her.
289. The respondent admitted that the claimant took annual leave rather than
sick leave as she told Ms Little, Ms Evans, Ms McDermott and Ms Weinstein
that she couldn’t be in a ‘toxic environment’ that she claimed Mr Bush was
‘cultivating as part of his retaliation’. Also, the respondent admitted that the
claimant had said she was emotionally distressed and she did not want to
play into Mr Bush’s ‘hands / narrative’.
290. We find, on the basis of the transcript, that for the period 30 March 2023 Mr
Bush was supportive of the claimant taking time off for anxiety and also that
the claimant was aware of the need to liaise with him about time off,
particularly at short notice. We also find that the claimant was aware of the
need to plan annual lave and have a process for handover etc.
291. We do not find that the claimant, as a matter of fact, felt forced to take annual
leave to protect her mental health from Mr Bush’s retaliation. Her witness
evidence was that her doctor was urging her to take sick leave, but she did
not want to give Mr Bush an opportunity to capitalise on an alleged
perceived weakness, and therefore the claimant’s own words were that she
refused to take sick leave. In cross-examination she stated that she did not
want to take sick leave or annual leave, as she’d taken a three year career
break previously. Also, the claimant agreed in cross-examination that she
had disengaged with what was happening around her. In those
circumstances, the evidence suggests that in fact this was her choice (to
take annual leave rather than sick leave) and she was neither forced nor did
she feel forced to take that type of leave. It was also the case the case that
the claimant did some work during that period, which is more consistent with
her choosing to take annual leave as opposed to sick leave being
appropriate.
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292. In any event, we find as a matter of fact that this treatment was not in any
way influenced by or because of any disclosures made by the claimant. We
find that the disclosures played no part whatsoever in the treatment and the
respondent has shown the reason for the treatment given the circumstances
as we have found them to be, above.
Detriment X
293. Detriment X is said to be that on 8 June 2023 Mr Bush and Ms Little wrote
to the claimant as set out in paragraph 54 of the claimant’s particulars of
claim regarding her further request for leave and the support check in notes.
294. The respondent admitted that Mr Bush wrote to the claimant on 8 June 2023
and in the email it included that ‘you were in agreement with the
conversation’ regarding the support check in and that Ms Little emailed the
claimant on the same day as alleged in paragraph 54 ie. ‘to take the holiday
and leave that [she] needs’ and she would ‘manage with Matt, so no need
for you to send further emails to him on this.’
295. Focussing on the words in paragraph 54, the thrust of this detriment is firstly
that Mr Bush raised a concern about the claimant’s request for further
annual leave. This is plainly the case: the email makes express reference
to a concern about the short notice. Secondly, the complaint is about him
allegedly falsely stating that the claimant was ‘in agreement with the
conversation’. We find this element of the detriment not proven. We have
carefully considered the transcript of the conversation and it does not clearly
indicate that the claimant was in disagreement about what was discussed,
only adding context. Also, it included that the claimant accepted that in
respect of Ms Dinmore the claimant needed to learn from it. Given the words
used in the conversation, there is nothing which clearly indicates that when
Mr Bush in his email that the claimant was in agreement with the
conversation this was either wrong or he knew or must have known that it
was wrong. If the claimant privately had other feelings about that
conversation then there were not known or obvious to Mr Bush.
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296. In any event, we find as a matter of fact that there is nothing cogent to
suggest that this treatment was in any way related to the claimant’s
disclosures. It is also correct that Mr Bush ran his draft 8 June 2023 past
Ms Little first, again suggesting less that he was seeking to cause the
claimant distress or present a misleading narrative, and instead was
seeking to be sensitive to her needs.
Detriment Y
297. Detriment Y was said to be that on 26 June 2023 Mr Bush emailed the
claimant to put her on a performance expectation plan for taking annual
leave that had been approved by HR.
298. The respondent admitted that Mr Bush emailed the claimant on 26 June
2023 to explain that he was placing her on a formal performance
expectation plan (‘PEP’).
299. To summarise detailed evidence about the holiday issue, the holiday
extension appeared to Mr Bush to be unauthorised (on all the evidence),
and we find accordingly. This is because the authorisation for the holiday
came from Ms Little. This authorisation was not expressly communicated to
Mr Bush at the time and the claimant reasonably assumed, her having been
told by Ms Little that she would manage it with Mr Bush, that she didn’t need
to do anything further. We find therefore that the holiday issue arose not
because of anything to do with the claimant’s disclosures, but poor
communication.
300. We also find that the reason in any event for the PEP going forward was
because of the context as follows. Mr Bush emailed the claimant on 8 June
being concerned about the short notice of the holiday. The claimant
responded with a long email also on 8 June 2023 which included some
information about holiday, and also lots of other issues including those
about Alexina’s proposed role, and she felt that Mr Bush’s feedback was
skewed and not reflective of her team’s views and issues with Ms Dinmore.
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The email evidence shows that Mr Bush seeks advice from Ms Little, asking
what options there were, then on 12 June 2023 Ms Little replied stating that,
having spoken to the people consultant team for advice and support, there
was a clear case to explore performance management. Mr Bush felt, his
email at the time being reflective of his state of mind, that the situation with
the claimant was spiralling down and it was having a detrimental impact on
others. We accept Mr Bush’s evidence that in his mind at the time, he was
not seeing any improvement in the claimant’s performance, in particular her
communication style which had been an issue raised for some time by that
point from multiple source. Also, according to an email dated 26 June 2023,
Mr Bush was clearly under the impression that Annete Evans had approved
the claimant moving into a PEP. We acknowledge that under cross-
examination Ms Evans suggested otherwise, however, the emails suggest
that in any event, that was Mr Bush’s impression, and that impression is not
corrected by Ms Evans in the relevant email chain.
301. We find that the holiday issue did play a role in Mr Bush emailing the
claimant stating that he would be progressing it to a PEP. This is because
he sent emails at the same time criticising her for the way the holiday
arrangements had been done as also putting her on the PEP. The email
about the holiday issue also echoed the criticisms of communication which
formed part of the reasoning behind the PEP. However, we equally find that
the claimant was put on the PEP because of genuinely held concerns about
her performance, and, with hindsight, erroneously held concerns about the
holiday issue. However, it was not Mr Bush’s fault that everyone kept him
in the dark about Ms Little having approved the holiday at that point.
302. We record and find that at this point the claimant was off sick and has never
returned. Accordingly, she never progressed to a PEP.
303. Overall, we find that the disclosures played no part whatsoever in the
treatment and the respondent has shown the reason for the treatment. This
is because of the circumstances outlined above which establish what
happened and why. We did not consider that there was sufficient cogent
evidence to suggest otherwise.
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Detriment EE
304. Detriment EE is that on 6 March 2024 the claimant was notified that her role
was confirmed as redundant.
305. The respondent admitted that the claimant was notified that her role was
redundant on 6 March 2024.
306. We find as a matter of fact that the claimant’s notification of redundancy had
nothing to do whatsoever with the fact that she had made disclosures. We
find that, taking the evidence on this issues as a whole, the disclosures
played no part whatsoever in the treatment and the respondent has shown
the reason for the treatment.
307. The best source of evidence about the redundancy process was from Mr
Read and Ms Najdi. We accept their evidence as credible and consistent
with the documents. Specifically, Ms Weinstein restructured the
respondent’s sales operation when she took on her role in 2022. This
started with her leadership team and Mr Bush’s role was made redundant,
with two newly created roles. Mr Read took on one of them at L8. Shortly
after he started, the Large Customer Sales (‘LSC’) organisation started
Project Neptune. This was a proposed new operating model for the
respondent. It affected every part of the UK LSC organisation. Mr Read led
the design of the Agency structure and made decisions with oversight from
Ms Najdi. The rationale included centralisation and reduction of headcount.
The Agency team, which included the claimant, had five teams each led by
an L7 IH. However, it was imbalanced in terms of direct reports, revenue
and complexity. This resulted in a reduction of two IHs roles. After
consideration, the final pool for the Agency team was the claimant and four
others, including Mr Shah. A scoring matrix was used which included
performance, weighted at 40% calculated on the individual’s average GRAD
ratings for the previous two performance cycles; competency and
demonstrable leadership in role, weighted at 30%, and role-related,
weighted at 30%. Each individual was scored 1-5 on each criteria. We
accept that Mr Read did not know from the outset who would score the
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lowest. There was no cogent and persuasive evidence to suggest
otherwise.
308. We also find and accept that to the extent there were data gaps for the
claimant due to her sickness absence, Mr Read, following advice, gave her
a N/A rating for 2023 which would ensure that the claimant was not
negatively affected. Similarly, the claimant was defaulted to a score of 3
where there were other data gaps to have the same effect.
309. It is right to note that claimant took particular issue with the use of one type
of performance measurement, namely suggesting that the respondent
should have used the CAGR measurement as opposed to SSG. However,
we do not find that this supports her case. It is possible in any redundancy
exercise to seek to use slightly different measurements or data to support
any particular outcome. However, there was no evidence from which we
could properly infer that the use of SSG was in any way intended to
disadvantage the claimant. It was used across the board. Nor was it
established in evidence that this measure in any sense had been adopted
to target the claimant. We accepted Mr Read’s clear evidence about the
difficulties with the claimant’s preferred metric. Whilst we accept that there
are always different ways in which individuals can be scored in a
redundancy exercise, we find that there is nothing in the claimant’s
criticisms that establishes as a matter of fact that the outcome was in any
way predetermined or that it had in fact targeted her. Rather, we find that
the evidence of Mr Read and Ms Najdi established a thorough, objective
and well-documented scoring exercise for a restructure that had an
evidences rationale. These had nothing, as a matter of fact, with the
claimant’s disclosures. Also, we accepted Mr Read’s clear evidence that the
SSG metric was only one of many pieces of evidence used in the scoring,
and that the small points that the claimant made about certain clients would
not have been enough to change the overall result in her favour even if she
was right about them.
310. We also record that we accept Ms Nadji’s evidence that each pool had both
a scorer and a reviewer, and that there was also higher level checks on the
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scoring. Mr Read did the scoring for Agency and Ms Najdi was the reviewer.
Whilst Ms Weinstein ultimately signed off on those selected for redundancy
after the scoring, we find that there was no cogent evidence of her having a
malign influence on the scoring of the claimant’s selection and scoring.
311. We also reject the claimant’s suggestion that the fact that her team was
originally the smallest predisposed her specifically to being made
redundant: the respondent witnesses evidence was clear, credible and
consistent that this was not the case, and we accepted that evidence.
312. We also do not find that Mr Read or Ms Najdi were aware of the claimant’s
disclosures, or if they did that they played any role in the scoring. The
claimant’s position that they must have known is based on speculation
rather than cogent evidence. A vague and high level inference of something
‘in to that direction’ accepted by Mr Read in cross-examination in relation to
the claimant’s disclosures about the culture of the agency team (from when
he was interviewed as part of the claimant’s grievance investigation) was
insufficient to amount to clear or sufficient knowledge of the claimant’s
disclosures, in our judgment. It went no further than as explained in his
witness evidence, namely that he was aware that the claimant had
previously raised concerns about the culture in the Agency team because
he had been interviewed as part of the grievance process, but at the time
he had no knowledge of the grievance beyond what he could infer from his
interview. He denied it played any part in his thinking, and we accept that
evidence as credible and not meaningfully undermined by anything.
313. We also accepted Mr Read’s credible evidence about his role not being
backfilled such that there was nothing suspicious about this. It made sense
as a matter of logic that the respondent would not hire someone to replace
him on his promotion at the same time as seeking to make redundancies
from that same level and group of employees.
314. We also find that the claimant was in no way singled out in this process.
Rather, we accepted Ms Najdi’s evidence that around 26 people in the
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relevant group were made redundant. This considerably weakens the
claimant’s case that she was treated differently because of her disclosures.
315. One part of the evidence relied on by the claimant was chats between
Dyana Najdi and Kally Little. For example, on 14 November 2022 Ms Nadji
stated words to the effect that she was with Carl (Read), and asking does
he need to decide by Thursday on whether there was 1 or 2 people in
agency: one is a given but he is unsure on two. Ms Little replied to the effect
that by the end of the week they should ‘lock numbers’. We accept Mr
Read’s clear and credible evidence that this exchange was only a reference
to looking at overall structure and a need to reduce headcount by two, and
not in any way a predetermined outcome for the claimant. We did not
consider that we could safely infer anything more sinister about this.
316. We also accept Mr Read’s credible evidence that to the extent that he was
careful in his conversations with the claimant, this was because of the
sensitivities around her being off sick as opposed to this having anything to
do with her disclosures.
317. The claimant also suggests that chats between Mr Read and Ms Little on 9
February 2024 were suspicious in so far as they referred to data and the
claimant. However, taking the words used by them and accepting Mr Read’s
clear and credible evidence about that exchange, we find that this was
nothing more than him trying to get the correct data.
318. We also note that Mr Read did not take into account the claimant’s support
check ins with the redundancy scoring. This was potentially to her benefit,
given Mr Read’s evidence under cross-examination on this issue.
319. The claimant also relies on messages between Ms Nadji and Ms Weinstein
on 13 November 2023. These included Ms Najdi stating ‘V is the problem
blocking the change’. Ms Weinstein replies ‘I know’. Ms Nadji then states
‘will keep brainstorming with Kaly.´ Ms Weinstein replies: ‘keep pushing kaly
for solution on how you can run a process including agency’. Ms Nadji states
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‘in the meantime, Carl has already kicked off backfill so we are ready’. Ms
Weinstein then says ‘gotta use this as a chance to exit people’. Although
there was a reference slightly later to someone’s role going away entirely,
this appeared on the evidence to be referring to someone else. Slightly later
on, Ms Weinstein states ‘maybe if you get the agency roles in the pool, we
could exit more folks’ and Ms Nadji replies ‘Other than the V issue’ which
Ms Weinstein acknowledged.
320. We accept Ms Najdi’s credible evidence that the context behind the
exchange above was that they were sufficiently worried about the claimant
being on long term sick that they considered taking her team out of the
redundancies altogether, but this was out of sensitivity to that fact rather
than suggesting that the claimant should be exited because she was a
whistleblower. We consider that this explanation is consistent with the
words used, in particular the fact that Ms Weinstein suggests that she was
seeking for a process ‘including agency’, indicative of the possibility that
agency could be excluded and later discussion about getting the agency
roles into the pool. Given that we have Ms Nadji’s evidence and the
transcript, we were satisfied that we could make proper findings about the
meaning of this conversation. We did not consider that the only sensible
inference about ‘the V issue’ was a reference to the claimant being a
whistleblower, in the circumstances.
321. Ms Najdi also gave credible evidence that to the extent when it was
suggested to that the process was being used to specifically exit the
claimant, this was confusing two things. She stated that Ms Weinstein was
referring to the overall Project Neptune goal which was that the business
had a headcount reduction target. We consider that the overall goal of
having a headcount reduction target made sense given that a redundancy
exercise was being undertaken, and this provided a credible explanation for
the comments made given the wider circumstances in which they took
place.
322. We also considered that a reference to ‘optics’ in the chats was because of
the overall context namely, a fragile culture it being the second year of
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redundancies, given Ms Nadji’s credible answers about that word in cross-
examination.
323. We did not consider that any particularly helpful inferences could properly
be drawn from the content of the chats on 20 February 2024 between Ms
Najdi and Carl Read. We accepted Ms Nadji’s explanation in cross-
examination that seeking to be sensitive to communications was not unique
to the claimant and that for everyone impacted by Project Neptune a script
might be used to share the correct information.
324. The claimant also relies on her having been identified in chats between Ms
Najdi and Mr Read on 13 March 2024 about why a particular role being
‘cover’ (ie. that being because of ‘V’). However, we accepted Ms Nadji’s
credible explanation in cross-examination about this passage, namely that
they weren’t scared of the claimant, but rather were being thoughtful given
her leave status, and at that point they were uncertain about her return to
work, and they remained committed to help redeploy her should she be
ready to return to work, and they did not think that it was appropriate to hire
officially whilst that her return was uncertain, hence why they were
discussing whether to hire a cover.
325. The claimant also relied on chats between Marc Geraghty and Ms Little on
8 November 2023. However, we accept that the content of these messages
in fact simply indicated a difficulty on whether or not to backfill Mr Read’s
role and the fact that hiring someone to backfill and then immediately
including the newly hired role in a redundancy process would be
problematic: there is nothing suspicious about that. Equally, those chats are
consistent, accepting Ms Nadji’s evidence on this point, with there being
concern about the claimant’s leave status (the chats expressly referring to
her leave status) as opposed to anything to do with whistleblowing. Ms Nadji
denied in cross-examination that at this point Ms Weinstein was seeking to
find a way to exit the claimant, and we accept this denial as credible in all
the circumstances: this was a speculative point, on the part of the claimant.
The fact that Ms Nadji is conscious of sensitivities with the IH pool at that
point – and the likely difficulties if Mr Read’s role was backfilled - is not
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enough for us to properly infer that the claimant’s protected disclosures had
anything to do with the redundancy at this point, given the other sensitivities
identified.
326. We also reject the claimant’s submission that Ms Najdi and Mr Read must,
as a matter of fact, have known about the claimant’s disclosures, specifically
PD 11. PD11 was the claimant’s reports to Ms McDermott in the culture
review. Mr Read accepted in his evidence that he knew that the claimant
had previously raised concerns about culture in the Agency because he was
interviewed as part of that grievance process, but he had no knowledge
beyond what he could infer from that interview.
327. There is also insufficient evidence that Ms Najdi was aware of the claimant’s
disclosures. She appeared to dispute knowledge of these in her evidence.
328. We also consider that, in terms of the claimant’s redundancy, on the facts
Ms Weinstein was not really the decision maker. On the evidence we heard
she simply confirmed the selections which came about from Mr Read’s
scoring. There was insufficient to establish any kind of wider influence by
Ms Weinstein given our findings above.
329. We also did not consider that there was cogent evidence that the
respondent had any real motivation to seek to remove the claimant. The Mr
O investigation had taken place, the Culture Review took place, and the
claimant’s grievance and appeal took their course. We did not consider that
there was cogent evidence that the claimant’s continued disclosures in fact
were causing sufficient harm to the respondent that it was motivated to exit
her. The respondent appeared to be content to leave the claimant’s
concerns to internal processes. The respondent’s internal processes fully
investigated the concerns and did not amount to cover up, in our judgment.
In fact, the claimant’s disclosures resulted in Mr O being dismissed, which
the relevant people consistently gave credible evidence (which we accept)
that they had said to the claimant was the right outcome and that she was
right to raise it. When the claimant raised cultural issues they were
investigated and wider recommendations were made. The Chairmans
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Lunch was stopped. This is the opposite behaviour of an employer trying to
silence or ignore a whistleblower, in our judgment.
(iv) Thematic allegations
330. It is appropriate to address under this heading some of the more general
points made by the claimant. These are advanced by the claimant in respect
of some or all of the alleged detriments above.
331. We reject the suggestion that Jo Baker’s email suggesting a fear of
retaliation (dated 12 September 2023) supports the claimant’s case. This is
because although Ms Baker did contact Jo McDermott stating ‘I don’t know
if its appropriate to share now but there’s definitely some things I could have
shared and didn’t and weirdly in hindsight I haven’t because of fear of
retaliation which I told you I didn’t feel – turns out I do.’ However, she was
equally concerned about her meeting notes with Ms McDermott being
shared with the claimant as well as with Mr Bush. Also, following this email,
she provided addendum material to Ms McDermott which was limited to
someone 18 months before making a comment that a new hire was a pretty
little blond thing, and she felt that Mr Bush had shown favouritism to Mr
Shah because he gave him a bottle of whisky at a milestone when he did
not do this for her. These examples suggest that Ms Baker had only omitted
two minor incidents and therefore any issues relating to retaliation were not
about anything particularly significant.
332. Dealing with the claimant’s wider themes, we have found as a matter of fact
(above) that the claimant’s disclosures played no part whatsoever in
relevant treatment. This undermines the claimant’s thematic suggestion that
the respondent had failed to protect her from ‘retaliation’. We also note that
the alleged retaliation did not in fact deter the claimant from making further
disclosures to increasingly senior people or raising grievance or challenging
the grievance outcome. Moreover, the claimant’s concerns about retaliation
were demonstrably taken seriously by the respondent, even if the claimant
disagrees with the outcome of those efforts. For example, the respondent
repeatedly stated to individuals that retaliation was not tolerated: this was a
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clear theme of many of the investigatory interviews, on the documents. Her
concerns of retaliation were considered by Mr Ullastres and formed part of
her grievance. The fact that the claimant disagrees with the outcomes of the
various processes that took does not establish that there was in any way a
‘failure to protect’.
333. We also disagree that anything can be inferred from the respondent’s
response to the claimant’s allegations, such as how the grievance and
grievance appeal were handled. The fact that the claimant disagrees with
elements of those processes, not pursued as detriments, is not enough to
establish evidence of a cover up. Also, we find that the claimant’s criticisms
of those processes is misplaced: the respondent clearly and properly
addressed those matters as they arose, as is documented. In fact, we find
that the respondent’s investigations which rejected the claimant’s criticisms
were particularly thorough and timely, drawing upon our industrial
experience.
334. We also decline to draw adverse inferences, generally, against the
respondent for not having called certain witnesses. This is because we
accept that the respondent had reasons for not calling those witnesses and
those reasons did not establish, for example, that the respondent had
something to hide and would seek to do this by not calling relevant
witnesses. However, as outlined above, the fact that we had only the
claimant’s evidence about the lunch with Ms Weinstein played a part in our
reasoning (in the claimant’s favour) about what was said at that lunch, as
set out above.
335. More specifically, we accept the respondent’s submission that this was not
a case where there were no witnesses or other evidence that could speak
to why the claimant was treated as she was. We find that it was the opposite:
the respondent has relied on oral and documentary evidence to explain
each of the alleged detriments. The vast majority of the detriments were
said to be by Mr Bush and he was a witness. As to the redundancy, the
respondent relied on the two principal individuals responsible for the
process and the claimant’s scoring, namely Ms Nadji and Mr Read. The fact
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that Ms Weinstein had overall authority to approve the final list does not
mean that we can sensibly draw an adverse inference from her absence
given that the individuals involved in the claimant’s redundancy, from a
hands on perspective, did give evidence. There was also ample
documentary evidence about the redundancy process. Also, it is relevant
that the exact way in which the claimant suggests that Ms Weinstein was
involved in the redundancy process has evolved over time. She was not
identified as the relevant decision maker, said to have been influenced by
the claimant’s disclosures, in the claimant’s pleaded case. The claimant first
mentions Ms Weinstein’s alleged role in her supplementary witness
statement, permission for which was not given until shortly into the hearing
process. In those circumstances the respondent cannot be fairly criticised
for not calling her as a witness. We also had Ms Nadji’s explanations, as
outlined above, for some of the chat messages which the claimant sought
to rely on.
336. Also, to the extent that Mr MacIntosh could have been called, it was not in
dispute that he was no longer an employee of the respondent and had not
been for some time. In those circumstances we did not consider it
appropriate, as a matter of common sense, to hold that fact against the
respondent, particularly when there was an absence of evidence that he
was aware of the claimant’s disclosures – that part of the claimant’s case
being pure speculation – and there was also other evidence about the
relevant treatment and why it happened.
337. We also reject the claimant’s contention that the respondent has failed in its
disclosure obligations. To the extent that the respondent was ordered to
provide further disclosure, on the claimant’s application before EJ Brown, it
has done so. The fact that the claimant was granted permission to rely on a
supplemental bundle 3 did not establish disclosure failures. It is correct that
during the hearing the respondent disclosed a single further document.
However, there is nothing suspicious about this. That document did not take
the claimant’s case any further and it is routine in litigation that as a case
continues that documents are disclosed pursuant to the ongoing duties on
the parties. For example, it was only during the claimant’s evidence that it
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transpired that her typed notes of at least one call with Mr Bush in fact were
her typed up version of handwritten notes which either had not been
retained or could not be located. Also, given the extensive documents that
have been disclosed and are relied on by the claimant (such as Ping chats),
this was not indicative of there being a disclosure failure by the respondent.
338. We also reject the claimant’s suggestion that the evidence about the
respondent witnesses being aware that documents that they created might
be disclosable in the litigation was in any way a smoking gun that was
indicative of a cover up. We accept Ms Little’s clear and credible evidence
which suggested that the relevant people did not include the claimant’s
name in documents because they would be potentially disclosable, after the
claimant’s claim had started (such as in the redundancy process).
Specifically, this was in the context of the claimant’s ET1 having been filed
and the respondent was undergoing a large restructure. Overall, we
consider in all the circumstances that this was nothing more than the
respondent being cautious and aware that documents could be disclosable.
That in of itself was not sufficiently suspicious in the context of the case as
a whole, particularly where we have accepted that there were evidenced
reasons for the claimant’s treatment that were not related to her disclosures,
and the treatment did not otherwise appear suspicious.
339. We also reject the claimant’s suggestion that an alleged relationship
between two individuals, namely P and Q, played any role whatsoever in
the facts of this case. Even on the claimant’s case it was well-known, and
accordingly it gave no one any motivation to do anything and was not, on
its face, in breach of a relevant policy. We accepted the evidence we heard
that this did not play a role in any of the relevant decision making and firmly
reject the claimant’s suggestions of this as a matter of fact. That issue was
also not raised by the claimant at an early stage as a possible explanation.
340. As a matter of fact, we also reject the claimant’s explanation for her covert
recordings that it was just to help understand or remember what was said.
This is inconsistent with her incomplete and sporadic recordings. Her
explanation, namely that she only recorded if she thought she was going to
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receive relevant information, did not make sense given that the claimant
never knew what information might come after her recordings stopped.
Also, if there was a benign reason for the recordings then there was no
reason for her for them to be done covertly. However, we note that on the
claimant’s evidence her own mental health was suffering and we are equally
not persuaded that it was done maliciously given a lack of evidence that this
was the case. We do consider, however, that the claimant’s failure to tell
people that she was making covert recordings was, to a degree, underhand.
For example, when she told Mr Bush that she was taking notes on a
document, but failed to mention that she was recording it, this was
particularly underhand (25 May 2023).
341. We also consider that there is another, more compelling, alternative to the
claimant’s overall theme of her being treated badly as a whistleblower.
There is also the narrative of there simply being an individual who was
reported to have committed sexual harassment at work. This was reported
via the claimant and Mr Bush to the respondent. The individual was
investigated, disciplined and dismissed. The claimant may well have felt that
she had been retaliated against, but those concerns was also investigated
and her concerns dismissed. We also note that those who the claimant
alleges were being protected by the respondent as part of a boys club in
fact were made redundant, as was the claimant, along with a large number
of other people in a well-documented restructuring exercise. We have
separately made our findings of fact about what occurred.
(v) Facts relevant to the disability discrimination claim
342. We find that the fact that the claimant was on sick leave did arise in
consequence of her disability. It was not really disputed that the fact that the
claimant was on sick leave was something that arose in consequence of her
disability. This sick leave started on 26 June 2023 and the reason in the
doctor’s note was stress at work. It is plain to us that the claimant’s
impairments of anxiety and depression at least in part were such that she
took that sick leave.
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343. We find that the documentary evidence alone conveys, from the claimant,
a manner and content of communications which conveyed extreme
emotions and stress, and they also demonstrated a tenacious and dogged
sense of right and wrong and a wish to be heeded by the respondent. We
equally find that these at least in part were something that arose in
consequence of the claimant’s anxiety and depression. Whilst there was no
direct evidence on this point, we felt that it was a natural consequence of
the claimant’s deteriorating mental health and it followed as a matter of logic
and common sense. It was also not clearly disputed by the respondent. We
do not, however, find that the above things arose in consequence of the
claimant’s ADHD. This is because of an absence of evidence that this was
the case, nor was it something that, as a matter of common sense, flowed
from that condition, given the wide range of ways in which ADHD can
present itself.
344. We do not find that the claimant’s selection for redundancy was (as an issue
of fact) because, in whole or in part, of the fact that she as on sick leave.
This is because there is a paucity of evidence that this was the case. The
redundancy was part of a wide ranging and large redundancy project and it
followed an objective selection scoring process. The respondent also
particularly ensured that the claimant was not disadvantaged by her sick
leave because it gave her a default score of 3 in that area based on her
historical performance ratings. There is no sufficient cogent evidence that
she would have scored any differently but for her sick leave. This is because
the claimant’s hope that she might have scored higher than three in other
circumstances is pure speculation. It is not evidenced that but for that sick
leave she was every likely to score more than a 3. This also ignored the fact
that Mr Bush had proposed putting the claimant on a performance
improvement plan, accepting Mr Read’s clear and credible evidence of this.
In order for the claimant to have been likely to score higher this would have
been away from the general trend of her performance. Also, Mr Read’s
evidence clearly established that where data was missing the multiplier
used ensured that the claimant was not penalised for missing data.
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345. Equally, we do not find that the claimant’s selection for redundancy was (as
a question of fact) because, in whole or in part, because of her
communications. This is because the claimant was clearly, on the evidence,
fairly scored alongside her peers and her performance score as applied was
consistent with previous years, accepting Mr Read’s clear evidence of this.
For 2023 the claimant was given a N/A rating which had the same score
multiplier to ensure that the claimant was not penalised for there being any
missing data. In any event, there was insufficient clear evidence that the
claimant’s actual communications which conveyed extreme emotions and
distress played any role in the redundancy exercise. Specifically, the
communications which conveyed the claimant’s anxiety, distress, and right
and wrong, were largely to the HR team. These are separate and distinct
from the communications she had with her team and others which were the
subject of performance concerns. Whilst there were clearly communication
issues, there is insufficient evidence that those, in particular, had anything
to do with her disabilities (as a question of fact). They have not been subject
to that type of analysis by a qualified professional and nor can was simply
assume that this was the case as a matter of common sense. The specific
communications in which the claimant was clearly showing signs of extreme
emotions and her sense of right and wrong were those to the HR
department including about the investigations and her grievance-type
matters. There is no evidence that these had any influence whatsoever on
her selection for redundancy, not least because the scoring was done by Mr
Read and it did not appear that he was aware of the claimant’s more
extreme communications.
346. It is also relevant that around 26 people in the same group were made
redundant: it was not just claimant.
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Conclusions
Protected disclosures/acts
347. The respondent accepted that PD/PA 1 was a protected act and a protected
disclosure. We conclude accordingly. The scope of this disclosure was as
set out in our findings of fact above.
348. The respondent accepted that PD/PA2 was a protected act and a protected
disclosure. We conclude accordingly. The scope of this disclosure was as
set out in our findings of fact above. Given that it was only the scope of the
disclosure that was in dispute (as a question of fact), it is unnecessary for
us to reach conclusions on the other elements of the test as to what
amounts to a protected disclosure or act.
349. The respondent accepted that PD/PA3 was a protected act but not a
protected disclosure. We conclude that it was a protected act accordingly.
350. Given our factual findings above about the content of this disclosure, we do
not conclude that PD/PA3 included information with sufficient factual
specificity such that it met the legal test above to amount to a protected
disclosure. Specifically, we do not find that the disclosure had sufficient
factual content and specificity such that it was capable of tending to show a
relevant wrongdoing. Taking everything into consideration, we conclude
that this was more a mere allegation or opinion than information. There were
no clear examples of a discriminatory culture beyond the existing disclosure
about Mr O. To the extent that the call included information that women
warned each other about Mr O we do not find that this had sufficient factual
specificity to amount information which was capable of tending to show a
failure to comply with a obligation (ie. has failed, is failing, or likely to failure
to comply with a legal obligation, or other relevant wrongdoing, hereafter
‘etc.’). To the extent that the claimant felt that Mr Shah was just as culpable,
this was insufficient in all the circumstances: to simply assert that someone
was just as culpable because of non-intervention is not enough, in our
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judgment. For those reasons we conclude that PD/PA3 was a protected act
but not a protected disclosure.
351. The respondent accepted that PD/PA4 was a protected act. We conclude
accordingly. The respondent did not accept that it was also a protected
disclosure. In light of our findings of fact above, we do not conclude that the
disclosure had sufficient factual content and specificity such that it was
capable of tending to show a relevant wrongdoing. This is because what
was actually disclosed fell short of what the claimant now says it amounted
to. The claimant did not reassert concerns about a discriminatory culture.
352. We conclude that PD/PA5 was a protected act. This is because we find that
the claimant had began to question the culture of the team overall. Whilst
this would often be insufficient to amount to an allegation of a breach of the
EQA, that allegation had to be understood in the wider context of the
claimant’s disclosures and what Ms Little was already aware of. We
consider that in the circumstances of this case that was sufficient to amount
to an allegation of a breach of the EQA. This is because Ms Little was aware
of the Mr O investigation and allegations, and for the claimant to start to
question of the team in that context is just enough, in our judgment, to be
taken as such an implied allegation.
353. We do not conclude that PD/PA5 was a protected disclosure. Even if the
claimant had read out her notes in full of her call on 4 November 2022 with
Mr Bush this would have not been sufficient for us to conclude that she had
conveyed information that had sufficient factual content and specificity such
that it was capable of tending to show a relevant wrongdoing. The exact
words used are important given the dispute about this call. Overall, we do
not find that the claimant disclosed factual information about alleged
retaliation by Mr Bush such that it tended to show a failure to comply with a
legal obligation (etc.), for the reasons given in our findings of fact. There
was insufficient factual information about alleged retaliation by Mr Bush
such that this could amount to a protected disclosure. The claimant’s
reference to wanting to flag concerns was insufficient in all the
circumstances and neither was the claimant’s mere allegation about the
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team culture. We also do not conclude that the information was disclosed
with a belief that the disclosure was in whole or in part in the public interest
for the reasons set out above. In the alternative, no such belief would have
been reasonable. This is because it was solely about the claimant’s
personal circumstances: the nature of the interests engaged and number
(and identity) of people involved is insufficient, in our judgment, for any such
belief to have been reasonable.
354. PD/PA6 was not relied on by the claimant as a PD/PA.
355. For PD/PA7, we conclude as follows. On the basis of our findings of fact
above, the claimant disclosed information to Mr Ullastres. We conclude that
this was information which the claimant reasonably believed tended to show
a likely failure to comply with a legal obligation, phrased by her as retaliation.
We accept that the claimant reasonably believed that the information tended
to show the relevant failure (above). This was plainly the case on her
evidence. It was a reasonable belief that she could hold in the wider
circumstances. However, given our findings of fact about the claimant’s
belief, namely that she did not believe that the disclosure was made (in
whole or in part) in the public interest, we do not conclude that this was a
protected disclosure.
356. We do, however, conclude that PD/PA7 was a protected act. This is
because there the content of the message dated 25 November 2022 was
sufficiently clear to amount to an allegation (whether express or implied) of
the EQA. The reference to ‘retaliation’ was sufficient in this particular
context, in our judgment, to imply a claim of victimisation.
357. PD/PA8 was accepted by the respondent as a protected disclosure and
protected act. We concluded accordingly, noting our findings of fact about
those matters above, and overlap with PD/PA9.
358. PD/PA9 was accepted by the respondent as a protected disclosure and
protected act. We conclude accordingly.
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359. PD/PA10 was accepted by the respondent as a protected disclosure and
protected act. We conclude accordingly.
360. PD/PA11 was accepted by the respondent as a protected disclosure and
protected act. We conclude accordingly.
361. We conclude that PD/PA12 was both a protected act and a protected
disclosure. We repeat our findings of fact above. Accordingly, we consider
that the claimant’s report about what was (in reality) an allegation of
victimisation, and microaggressions was sufficient in all the circumstances
to amount to an allegation of a breach of the Equality Act 2010 given the
fuller context that Ms Weinstein was aware of, such as with the other
processes. We have found that there was at least an implied allegation
made by the claimant of discrimination on grounds of sex.
362. We conclude that the claimant did disclose sufficient information, as set out
in our findings of fact, and that the claimant reasonably believed that these
tended to show a likely failure to comply with a breach of a legal obligation,
namely whistleblowing detriment, and equally a breach of the Equality Act
2010. This is because the claimant’s notes are such that we found that she
provided enough information about detriments such as allegations of ruining
the claimant’s reputation and being undermined, and microaggressions. In
the wider context, this is sufficient to meet the legal test. We also accept
that the claimant made the disclosures with the necessary belief that it was
at least in part in the public interest, not least because she was raising an
issue of discrimination on grounds of sex which had wider implications than
her own private interests. In all the circumstances, we accept that this was
reasonable. There is no good reason to find otherwise, and this conclusion
is reached taking into account the factual circumstances as a whole.
363. Given our other conclusions below, we do not need to determine whether
the alleged protected disclosures were made in good faith.
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364. None of our conclusions above are changed after considering the
disclosures as a whole, rather than individually.
Detriments
365. In light of our factual findings above, we have found that even where the
alleged treatment happened, or happened to a certain extent, it was not in
any way because of or materially influenced by the claimant’s disclosures
(whether protected or not). This was because there was insufficient
evidence for us to make such a finding, and, as set out above, we accepted
the respondent’s explanations for those things that did happen, those
explanations being sufficiently supported by documentary and oral
evidence.
366. We are satisfied that in all circumstances that the respondent has shown
the reason for all of the treatment proven on the facts, and that it was not
materially influenced by the claimant’s disclosures (whether protected or
not).
367. In light of our conclusions above the complaint of protected disclosure
detriment is not well-founded and is dismissed.
Victimisation
368. We repeat our factual conclusions above about whether and the extent to
which each alleged detriment happened.
369. We do accept that, in all the factual circumstances as we have found them
to be, the Tribunal could infer that the treatment was because the claimant
had made a protected act. This is because it is a possible explanation from
the narrative as a whole. In those circumstances, the burden of proof shifted
to the respondent to persuade us that the proven treatment was in no way
because of the claimant’s protected acts.
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370. However, for the reasons outlined in our findings of fact as to why the above
treatment happened, we are entirely satisfied that the respondent had
discharged the burden and that the treatment had nothing to do with the
claimant’s protected acts.
371. In light of these conclusions the complaint of victimisation is not well-
founded and is dismissed.
Unfavourable treatment because of something arising in consequence of
disability
372. In light of our factual findings above, we conclude that the claimant was on
sick leave and this did arise in consequence of her disability. We conclude
that there was a manner and content of communications which conveyed
extreme emotions and stress and also demonstrating a tenacious and
dogged sense of right and wrong and a wish to be heeded by the
respondent. We conclude that these were at least in part something that
arose in consequence of the claimant’s anxiety and depression but not her
ADHD.
373. However, we did not conclude that the claimant’s selection for redundancy
was because, in whole or in part, of the fact that she was on sick leave.
374. Even if we are wrong about the above, we find that the approach used by
the respondent was a proportionate means of achieving a legitimate aim.
This was part of a wide ranging redundancy process. The claimant was fairly
scored. It is entirely legitimate for an employer to seek to reduce the work
force for business reasons, and this approach was proportionate. The
process ensured that the claimant was not penalised where there was
missing data. The only alternative would have been to specifically either
overstate her performance or effectively give her a free pass for the
exercise. However, this would be disproportionate and highly unfair on the
others at risk of redundancy. To do otherwise would have unfairly penalised
others who were not off sick for any reason.
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375. We also did not conclude that the claimant’s selection for redundancy was
because, in whole or in part, of her communications.
376. In any event, we are satisfied that that the respondent’s scoring system was
an entirely legitimate means of achieving a proportionate aim. Nothing else
less discriminatory could have been done because to not include
consideration of performance for the claimant would have been so unfair to
the others. The least discriminatory thing is to ensure that, where
performance was in issue, the claimant was given a multiplier that didn’t
penalise her. That is what they did.
377. In light of these conclusions the claim of unfavourable treatment because of
something arising in consequence of disability is not well-founded and is
dismissed.
378. For completeness, we did not consider that the claimant had established
sufficient facts to shift the burden of proof on this claim. This is because the
required inferences would not have been safe ones to draw in all the
circumstances. However, even if we are wrong about that, we were entirely
satisfied that the respondent had explained any case that it was required to
meet, and that it had established that the alleged unfavourable treatment
was not on the grounds alleged.
Jurisdiction
379. In respect of the alleged detriments, there were no detriments which
amounted to a series of similar acts or failures, each of them having failed
as either protected disclosure detriment or victimisation detriment.
380. We find that to the extent it was necessary it was just and equitable to extent
time on any elements the victimisation claim. This is somewhat academic
given our findings above. However, the claimant had pursued internal
processes and we consider that it was reasonable for her to do so. We also
take into account her time off sick and health. We did not consider that the
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respondent had been sufficiently prejudiced from any delay that it would be
a good reason to find it not just and equitable to extend time. There was
also no other good reason to find that it was not. In all the circumstances,
we exercised our broad discretion to extend time to the extent it was
necessary.
381. In respect of the protected disclosure detriment claim, to the extent it was
necessary for any of the detriments, we find that it was not reasonably
practicable for the claimant to have presented the claim before she did. This
is because at the earlier stages the claimant had not pursued internal
processes and we consider it reasonable for her to first have done so. We
consider that it would have been premature for her to have brought a claim
before she had at least filed a grievance, and she was also off sick for some
of the relevant period. In those circumstances, we are content to make the
necessary findings such that the protected disclosure detriment claim was
in time.
Approved by
Employment Judge B Smith
23 January 2026
SENT TO THE PARTIES ON
18 February 2026
......................................................................................
......................................................................................
FOR THE TRIBUNAL OFFICE
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Appendix A – List of Issues
A. Claims
1. The Claimant (C) brings the following claims against the Respondent (R):
a. Whistleblowing detriment - s.47B Employment Rights Act 1996 (“ERA”)
b. Victimisation - s.27 and s.39(4) Equality Act 2010 (“EqA”)
c. Discrimination arising from disability – s.15 and s.39(2) EqA
B. Jurisdiction
2. Has C complied in full with her Early Conciliation obligations in respect of each claim she
intends to bring?
3. To the extent that C seeks to rely on any alleged unlawful discrimination where the act or
omission occurred prior to 22 April 2023 (in relation to paragraphs 11a – 11y) or 4 March
2024 (in relation to paragraph 11ee):
a. Did these acts or omissions form part of a course of conduct extending over a
period which concluded on or after 22 April 2023 or 4 March 2024 (as applicable)
(s.123(3)(a) EqA)?
b. If not, the complaint is prima facie out of time. Would it be just and equitable to
extend the time limit to consider the complaint (s.123(1)(b) EqA)?
4. To the extent that C seeks to rely on any alleged act or omission giving rise to a detriment
where the act or omission occurred prior to 22 April 2023 or 4 March 2024 (as applicable):
a. Are the alleged detriments part of a series of similar acts or failures, and if so did
the last of them occur on or after 22 April 2023 or 4 March 2024 (as applicable)
(s.48(3)(a) ERA)?
b. If not, was it reasonably practicable for C to have presented a claim in respect of
any such alleged detriment within three months of the date of the relevant act or
failure (s.48(3)(b) ERA)?
c. If not, was the claim presented within such further period as the Tribunal considers
reasonable (s.48(3)(b) ERA)?
C. Detriment for making a protected disclosure (s.47B ERA)
5. C relies on the following 13 alleged protected disclosures:
a. PD1: 23 August 2022 – C raised a complaint regarding the conduct of Joe Ochera
(a Level 6 employee) and Jehan Shah (a L7 employee) and the discriminatory
culture to her manager Matt Bush.
b. PD2: 16 September 2022 – C disclosed her experience of sexist bias and
discriminatory culture during an investigation interview with Jose Ullastres (ER).
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c. PD3: 4 November 2022 – C met with Mr Bush (by phone) and informed him of a
sexist and discriminatory culture in the Agency team, of which the conduct already
reported was an example.
d. PD4: 15 November 2022 – C reasserted her concerns regarding the discriminatory
culture of the Agency team in a further meeting with Mr Bush.
e. PD5: 17 November 2022 – C reiterated her concerns to Kaly Little (HR) during a
call.
f. PD6: [not relied on as a PD]
g. PD7: 25 November 2022 – C reported to Mr Ullastres that Mr Bush had, at last
minute, scheduled a first support check in with C which she considered to be
retaliatory, given its perceived lack of legitimate basis.
h. PD8: 20 February and 20 March 2023 – C informed Annette Evans by email on
20 February 2023 that she wanted to put on record some concerning conversations
about disparities she was experiencing and then on 20 March told Maxine Kohn,
Global Head of Culture, of her concerns regarding the discriminatory culture of the
Agency team and retaliation she was suffering.
i. PD9: 21 March 2023 – C repeated and gave more detail of her concerns regarding
retaliation and the urgent need to investigate the culture of the Agency team to Ms
Kohn.
j. PD10: 31 March 2023 – C provided further detail regarding the discriminatory
culture and raised a second complaint regarding Mr O’s* conduct during a second investigation
meeting with Mr Ullastres. (*full name redacted by The Whistler here and in two other lines in
this Appendix marked with * in case removal of this judgment on 19.03.26 was linked to the
privacy orders mentioned).
k. PD11: 15 and 17 May 2023 – C repeated her concerns of discrimination and
retaliation to Jo McDermott during culture review interviews.
l. PD12: 18 May 2023 – C repeated her concerns of discrimination and retaliation
to Debbie Weinstein, VP Google Managing Director, UK&I, during a lunch meeting.
m. PD13: [not relied on as a PD]
6. R accepts that PD1, PD8, PD9, PD10 and PD11 amounted to protected disclosures. R
does not admit that the other six alleged disclosures amounted to protected disclosures.
7. In relation to PD2-7 and PD12, did C disclose “information” within the meaning of s.43B(1)
ERA?
8. If so, did C reasonably believe that the information disclosed tended to show that R was
failing to comply with its obligations under the Equality Act (GoC §64) (s.43B(1)(b) ERA)?
9. If so, did C reasonably believe that the disclosure/s were made in the public interest
(s.43B(1) ERA)?
10. If so, did C make the disclosure/s in good faith?
11. C relies on the following alleged detriments:
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a. In September 2022 Mr Bush gave C “little to no choice” but to take on the Client B
account (GoC §14-16).
b. In September 2022 Mr Bush demoted C to a subordinate role supporting her male
colleague Jehan Shah on the Social Pillar on Project Brittanicus (GoC §17-18).
c. During calls on 4 and 15 November 2022 Mr Bush minimised the gravity of the
conduct reported by C, expressed sympathy for Mr O* (*redacted) threatened C not
to disclose to Employee Relations her concerns about the culture in the Agency
team (GoC §19-22).
d. On 28 November 2022, at an “LCS all-hands” meeting, hosted by the UK MD, Mr
Bush chose not to invite C to present, on a piece of work for a client within her
agency group (NatWest) that C had initiated and led, but instead invited an L6
vertical colleague, Adel Elabd, to present. In addition, Mr Bush congratulated a L6
male colleague, Carsten Tomkins, who had also presented at the meeting (on
another matter), without acknowledging C or her team’s contribution (GoC §23).
e. On 25 November 2022 Mr Bush scheduled a support check in with C to discuss
alleged concerns relating to C’s performance, which C believes to have been
without genuine basis (GoC §24-25).
f. On 29 November 2022 Mr Bush formalised his notes from the support check in on
25 November 2022 by submitting his three stated concerns on the GRAD platform
(GoC §26).
g. On 14 December 2022 Mr Bush and Max Macintosh failed to invite C to an event
known as the “Chairman’s lunch”, which was a male-only annual event which had
taken place over the last ten years (GoC §27).
h. On 21 February 2023 Mr Bush failed to acknowledge C’s birthday but
congratulated Jehan Shah on his wedding anniversary on the same day (GoC
§28).
i. In or around March 2023 Mr Bush personally invited Mr Shah and Carl Read to the
IAB conference which took place on 9 and 10 March 2023 whilst making no
personal attempt to invite C (GoC §29).
j. On 9 or 10 March 2023 Mr Bush deliberately excluded C from a conversation he
was having with Jehan Shah in the open plan refreshments area at the IAB
conference (GoC §30-31).
k. In March 2023 during her 2022 performance review, Mr Bush failed to give C any
credit for the increase in business she had generated on the Client A account or
her work on the Client B account instead focusing on the feedback as alleged in
paragraph 32 of her Particulars of Claim (GoC §32).
l. On 28 March 2023 Mr Bush gave C unwarranted negative feedback following a
presentation she gave (GoC §33).
m. On 3 March 2023 Mr Macintosh gaslit C by unreasonably querying C’s input and
emailing to say that she “must be confused”, and only accepting her input when
another male colleague confirmed it. (GoC §34).
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n. On or around 29 March 2023 Mr Macintosh intentionally ignored C when she tried
to reach out to him following his selection for redundancy because Mr Macintosh
had been informed that C had raised a complaint against Mr O* (*redacted) and ignored
her after she came to greet him at the Ham Yard Hotel (GoC §35).
o. On or around 24 April 2023 Mr Bush went “behind [C’s] back” to allocate the Client
A account to a male member of the Agency team (GoC §36-37).
p. On or around 24 April 2023 Mr Bush tried to humiliate C by announcing his decision
regarding the new head of the CLIENT A account without giving her advance
warning (GoC §38).
q. On or around 24 April 2023 when C asked Mr Bush to confirm when the L5s
currently working on CLIENT A would be told of the change of lead, so that she
could tell her own direct reports of the change, Mr Bush gaslit her by pretending
that he had said in the meeting that the team would be told in 24 hours and implied
that C had not been listening, had forgotten or was confused (GoC §40).
r. On or around 25 April 2023 Mr Bush undermined C by telling Mr Macintosh about
his plans for the CLIENT A account notwithstanding that Mr Macintosh was on
garden leave at the time, allowing Mr Macintosh to break the bad news to C’s direct
reports before she had been given permission to. (GoC §41-42).
s. In May 2023 Mr Bush handled allegations raised by C regarding Judy Dinmore in
a way which undermined C and demonstrated to Ms Dinmore that he did not have
confidence in her (GoC §43-46).
t. In May 2023 Mr Bush held one-to-one meetings with C’s direct reports to “try and
elicit negative feedback” which he could use against C (GoC §47).
u. On 16 May 2023 during a call with other IHs in preparation for a face-to-face
meeting with Debbie Weinstein, the Leadership Team organisational chart
described the male IHs as “Snr IHs” whereas it erroneously omitted to describe C’s
and Jo Baker’s job titles as “senior” (GoC §48).
v. On 26 May 2023 Mr Bush instigated a second support check in with C to address
further alleged concerns about her performance, which C believes to have been
pretextual (GoC §49-50).
w. Between 30 May – 23 June 2023 C felt forced to take annual leave to protect her
mental health from Mr Bush’s retaliation. She also felt forced to use up annual
leave instead of taking sick leave, to protect herself from Mr Bush’s criticism and
blame arising from the false narrative he was creating about her (GoC §53).
x. On 8 June 2023 Mr Bush and Ms Little wrote to C as alleged at paragraph 54 of
C’s Particulars of Claim regarding her further request for leave and the support
check in notes (GoC §54).
y. On 26 June 2023 Mr Bush emailed C to put her on a performance expectation plan
for taking annual leave that had been approved by HR(GoC §55).
z. Withdrawn
aa. Withdrawn
bb. Withdrawn
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cc. Withdrawn
dd. Withdrawn
ee. On 6 March 2024, C was notified that her role was confirmed as redundant (GoC
§§73-79).
ff. Withdrawn
12. Did the conduct set out above occur in the manner alleged?
13. If so, did it amount to detriment?
14. If so, did R subject C to the detriment on the ground that she made the asserted protected
disclosures or any of them (s.47B(1) ERA)?
D. Victimisation (s.27 EqA)
15. C relies on PD1-5 and 7-12 as also amounting to alleged protected acts (PA1-5 and 7-12).
16. R accepts that PA1, 3, 4, 8, 9, 10 and 11 amounted to protected acts within the meaning
of s.27(2) EqA. R does not accept that the remaining acts relied upon amount to protected
acts.
17. Do PA2, PA5 and PA12, or any of them, amount to protected acts within the meaning of
s.27(2) EqA?
18. C relies on the alleged treatment set out above at paragraph 11 as incidents of
victimisation. Did that treatment occur in the manner alleged?
19. If so, by that conduct did R subject C to detriment?
20. If so, was that because C did the asserted protected acts or any of them?
E. Withdrawn
21. Withdrawn
22. Withdrawn
23. Withdrawn
24. Withdrawn
25. Withdrawn
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F. Discrimination arising from disability
26. C relies on the alleged acts or omissions set out at paragraph 11ee as an incident of
discrimination arising from disability.
27. R accepts that by virtue of suffering with anxiety, depression and attention deficit
hyperactivity disorder (ADHD), C was disabled within the meaning of s.6 EqA at the
relevant time set out at paragraph 11ee, and that R was aware of C’s disabilities at that
time.
28. Did the incident alleged in paragraph 11ee?
29. If so, did R do the conduct or omissions set out in paragraph 11ee because of something
arising in consequence of C’s disability?
30. If so, what was that “something”? C states that it was a) the fact she was on sick leave and
b) the manner and content of her communications, which conveyed extreme emotions and
stress, and demonstrated a tenacious and dogged sense of right and wrong and wish to
be heeded by the Respondent that led to each instance of unfavourable treatment alleged
in paragraph 11 dd, ee and ff.
31. If so, was the treatment a proportionate means of achieving a legitimate aim? Namely, R
says that its aims included: ensuring that the best candidates are promoted in line with
performance fairly and objectively assessed; conducting a full, fair and proper redundancy
consultation process; following a full, fair and proper process to consider grievances;
abiding by its own internal grievance policy; and ensuring the health and wellbeing of its
employees and following occupational health guidance.
32. The Tribunal will decide in particular:
a. was the treatment an appropriate and reasonably necessary way to achieve R’s
aim;
b. could something less discriminatory have been done instead; and
c. how should the needs of C and R be balanced?
An Employment Tribunal judgment https://www.gov.uk/employment-tribunal-decisions/ms-v-woodall-v-google-uk-ltd-2215140-slash-2023-and-6007261-slash-2024 was removed from the Government website on 20.03.26 so, because it is mentioned in Hall of Shame, we are making it available here, even though the formatting is not ideal, because it is important for the public to see what kind of cases and alleged "whistleblowing detriment" claims WBUK supports.
This page will focus on the harm which the bounty-hunting agenda and false claims made by WhistleblowersUK (WBUK) have done to genuine whistleblowers and to the public interest.