THE INDUSTRIAL TRIBUNALS

 

CASE REF:  2063/20

 

CLAIMANT:                          Eimear Berwick

 

RESPONDENTS:                1. National Westminster Bank Plc

                                                2. Mark Crimmins

 

 

JUDGMENT

 

The unanimous judgment of the tribunal is that:-

 

(1)       The claimant’s claim against the second-named respondent are dismissed upon withdrawal.

 

(2)       The claimant’s claim of detriment on the grounds of having made protected disclosures against the first-named respondent is dismissed.

 

 

 

CONSTITUTION OF TRIBUNAL

 

Employment Judge:                                  Employment Judge Orr

                       

Members:                                                     Mr I Atcheson

                                                                        Mr E Grant

 

 

APPEARANCES:

 

The claimant appeared and was self-representing.

 

The respondents were represented by Mr T Warnock, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.

 

 

THE CLAIM

 

1.         The claimant lodged proceedings in the tribunal office on 19 January 2020 in which she claimed detriment on the grounds of having made protected disclosures.

 

2.         The respondents’ response was lodged in the tribunal office on 4 March 2020.  The respondents denied the claimant’s claims in their entirety.  The respondents contended that the claimant did not make any protected disclosures and further denied she was subjected to detrimental treatment on the grounds of having done so.

AMENDMENT OF TITLE/ REMOVAL OF RESPONDENT

 

3.         The title of the first-named respondent was amended with the agreement of the parties on the first day of the hearing to “National Westminster Bank Plc”.

 

4.         During the course of the hearing the claimant withdrew her claim against the second-named respondent and he was dismissed as a respondent to these proceedings.

 

AGREED ACRONYMS

 

            RM - Relationship Manager

 

            RMP - Respondent’s On-Line Credit System

 

            MOS - Member of Staff

 

            FCA - Financial Conduct Authority

           

            FRL - Fixed Rate Loan

           

            FOI - Freedom of Information

           

            HR - Human Resources

 

ISSUES

 

5.         The legal and factual issues in this case were agreed between the parties and were contained within the trial bundle.  These narrowed at hearing and are as follows:-  

 

            (a)       Did the claimant make protected disclosures pursuant to Article 67(B) of the Employment Rights (Northern Ireland) Order 1996?

 

            (b)       Was the claimant subjected to detriment by the respondent on foot of having made protected disclosures, contrary to Article 70(B) of the Employment Rights (Northern Ireland) Order 1996, by reason of:-

 

                        (i)         Being subject to an unfounded allegation of bullying by a Relationship Manager, which the claimant alleges was (a) unfounded and (b) as a result of the Relationship Manager as an employee being fearful of her disclosures.

 

                        (ii)        Being allegedly subjected to bullying and harassment by Senior Management in an attempt to get the claimant to agree customer loans or not follow the internal appeals procedure on policy.

 

                        (iii)       The timing of the claimant being advised of the grievance/complaint being made against her by the Relationship Manager.

 

                        (iv)       The conduct of the claimant’s grievance process and investigation.

 

                        (v)        Being subjected to disciplinary proceedings.

 

                        (vi)       The conduct of the disciplinary proceedings.

 

                        (vii)      The imposition of a final written warning.

 

6.         The claimant relies on three identified categories of alleged protected disclosures:-

 

            A.        A named member of staff breached rules set out by the Financial Conduct Authority by way of giving deliberately misleading information in the context of approval for loans for two named customers;

 

            B.        That senior managers were misrepresenting to customers, in the context of selling fixed rate loans, the financial responsibilities that the customers would be undertaking in purchasing the loans;  

 

            C.        The Bank were not following the published procedures that are provided to the Financial Conduct Authority with regard to loan appeals procedures.

 

For ease of reference, these are referred to throughout this judgment as “Category A” (Mr Magennis providing misleading information), “Category B” (fixed rate loan issue) and “Category C” (loan appeals procedures) disclosures.

 

7.         The relevant failure identified in this claim is breach of the Financial Conduct Authority rules and the respondent’s Code of Conduct pursuant to these.

 

SOURCES OF EVIDENCE

 

8.         The tribunal was provided with written statements on behalf of each witness.

 

9.         The claimant gave evidence on her own behalf. 

 

10.       The tribunal heard evidence on behalf of the respondent from the following witnesses:-

 

            (a)       Mr Ruairi Magennis, Senior Relationship Manager (Commercial Banking), at the relevant time.

 

            (b)       Mr Robin Gray, Regional Head of Commercial Credit, Scotland and Northern Ireland (Credit Department) at the relevant time.

 

            (c)        Mr Philip Parker, Team Leader - Wholesale Credit Risk.

 

            (d)       Mr Chris McVeigh, Director of Business Banking, North (at the relevant time).

 

            (e)       Mr Girvan Gault, Director of Commercial Banking (Commercial Banking).

 

            (f)        Mr Ian Roberts, Group Chief Credit Officer (London based) (at the relevant time).

 

            (g)       Mr Mark Crimmins, Regional Managing Director for Business Banking in Scotland and Northern Ireland (at the relevant time). 

 

11.       It was agreed between the parties that the witness statement of Mr Michael Wollacott, Head of Portfolio Management - London East (Natwest) would be tendered in evidence without the need for formal proof.

 

12.       The tribunal considered the claim form, response form, the pleadings and all documents in the agreed trial bundle to which it was referred during the hearing, together with the written and oral submissions of the parties.

 

RELEVANT LAW

 

13.       The respondent’s representative referred the tribunal to the following cases, although not all were opened by him in submissions:

 

            (a)       Easwaran v Saint George’s University of London [2010] UKEAT/0167/10.

 

            (b)       Cavendish Munroe Professional Risks Management Limited v Geduld [2009] UKEAT/0195/19].

 

            (c)       Smith v London Metropolitan University [2011] IRLR 884.

 

            (d)       Learning Trust and Others v Marshall [2012] UKEAT/0107/11.

 

            (e)       Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436.

 

            (f)        Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601.

 

            (g)       Korashi v Abertawe Bro Morgannwg University Local Area Health Board (EAT/0424/09).

 

            (h)       Bolton School v Evans [2006] EWCA Civ 1653.

 

            (i)        Norbrook Laboratories (GB) Limited v Shaw [2014] ICR 540.

 

            (j)         Darnton v University of Surrey [2003] IRLR 133.

 

            (k)       Babula v Waltham Forest College [2007] EWCA Civ 174.

 

            (l)        Kraus v Penna plc & another [2004] IRLR 260 EAT

 

            (m)      Twist DX Limited v Armes UKEAT/0030/20 - [2020].

 

            (n)       Chesterton Global Limited v Nurmohamed [2017] EWCA Civ 979.

 

            (o)       Parsons v Airbus International Limited UKEAT/0111/17 (13 October 2017).

 

            (p)       Dobbie v Felton t/a Felton Solicitors [2021] IRLR 679.

 

            (q)       Eiger Securities LLP v Korshunova [2017] IRLR 115 EAT.

 

            (r)        Fincham v HM Prison Service UKEAT/0991/01.

 

            (s)       Blackbay Ventures Limited v Gahir [2014] IRLR 416.

 

            (t)        Arjomand - Sissan v East Sussex Health Care NHS Trust UKEAT/0122/17.

 

            (u)       Boulding v Land Securities Trillium (Media Services) Limited UKEAT/0023/06.

 

            (v)       Street v Derbyshire Unemployed Workers’ Centre [2004] EWCA Civ 964.

 

            (w)      Lucas v Chester Diocean Housing Association Limited [2005] ALL ER (D) 92.

 

            (x)       Jesudason v Alder Hey Children’s NHS Foundation Trust [2020] EWCA Civ 73.

 

            (y)       Harrow London Borough v Knight [2003] IRLR 140 EAT.

 

            (z)       Fecitt v NHS Manchester [2011] EWCA Civ 119.

 

            (aa)     Kuzel v Roche Products Limited [2008] EWCA Civ 308.    

 

            (ab)     Royal Mail Group v Jhuti [2019] UKSC 55.

 

            (ac)     University Hospital North Tees and Hartlepool NHS Foundation Trust v Fair Hall [2021] UKEAT.

 

            (ad)     Kong v Golf International Bank [UK] EAT EA/2020/000357.

 

            (ae)     The Co-Operative Group Limited v Baddeley [2014] EWCA Civ 658.

 

14.       Article 67A-67L of the Employment Rights (Northern Ireland) Order 1996 (as amended) provides that an employee is protected from detrimental treatment on the grounds of having made a protected disclosure. 

 

15.       Disclosures which qualify for protection under the legislation are contained in Article 67B as follows:-

 

                        “67B Disclosures qualifying for protection.

 

                        (1)       In this part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following:-

 

                                    (a)       that a criminal offence has been committed, is being committed or is likely to be committed,

 

                                    (b)       that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

 

                                    (c)        that a miscarriage of justice has occurred, is occurring or is likely to occur

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

 

                                    (e)       that the environment has been, is being or is likely to be damaged, or

 

                                    (f)         that information tending to show any matter falling within any of the above preceding paragraphs has been, is being or is likely to be deliberately”.

 

            The relevant failure relied on in this claim is Section 67B1(b) that a person - has failed, is failing or is likely to fail to comply with a legal obligation.

 

16.       Article 67C provides:-

 

                        “A qualifying disclosure is made in accordance with this Article if the worker makes the disclosure to his employer.”

 

17.       The approach to be taken to the question of whether there has been a protected disclosure was summarised by Judge Auerbach in the case of Williams v Michelle Brown AM, UKEAT 0044/19 as follows:-

 

                        “(9)      It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements.  First, there must be a disclosure of information.  Secondly, the worker must believe that the disclosure is made in the public interest.  Thirdly, if the worker does hold such a belief, it must be reasonably held.  Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f).  Fifthly, if the worker does hold such a belief, it must be reasonably held.”

 

18.       The words “in the public interest” were introduced by amendment with effect from October 2017 in Northern Ireland by the Employment Act (NI) 2016.  In this claim the alleged disclosures and alleged detriments span the previous legislation and the amended legislation.

 

Disclosure of Information

 

19.      In Cavendish Munroe Professional Risks Management Ltd v Geduld [2010] IRLR 38 the EAT held that “the ordinary meaning of giving ‘information’ is ‘conveying facts’”; not simply the making of an accusation or statement of opinion.

 

20.      In Kilraine v London Borough of Wandsworth [2018] ICR 1850 CA the Court of Appeal in GB confirmed as follows:-

 

                        “[35]    the question in each case in relation to Section 43B(1) (as it stood prior to amendment in 2013) is whether a particular statement or disclosure is a “”disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the [matters set out in sub paragraphs (a) to (f)].  Grammatically, the word “information” has to be read with the qualifying phrase “which tends to show [etc]” (as, for example, in the present case, information which tends to show “that a person has failed or is likely to fail to comply with any legal obligation to which he is subject”).  In order for a statement or disclosure to be a qualifying disclosure, according to this language, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in subsection (1). 

 

                        [36]     Whether an identified statement or disclosure in any particular case does meet that standard will be a matter for evaluative judgment by a tribunal in the light of all the facts of the case.  It is a question which is likely to be closely aligned with the other requirement set out in Section 43(B)(1), namely that the worker making the disclosure should have the reasonable belief that the information he discloses does tend to show one of the listed matters.  As explained by Underhill LJ in Chesterton Global at [8], this has both a subjective and objective element.  If the worker subjectively believes that the information he discloses does tend to show one of the listed matters and the statement or disclosure he makes has a sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that his belief will be a reasonable belief”.

 

21.       In Simpson v Cantor Fitzgerald Europe [2020] EWCA Civ 1601/18 (27 November 2020) LJ Bean stated:

           

                        “20      As to what amounts to a “disclosure of information”, this has been the subject of some controversy since the decision of the EAT in Cavendish Munro Professional Risks Management Limited v Geduld [2010] IRLR 38 in which it appeared that a strict distinction was drawn between the provision of information on the one hand and the making of an allegation on the other, with only the provision of information being capable of amount to a protected disclosure.  This Court, in Kilraine v Wandsworth London Borough Council [2018], confirmed that there is no such rigid distinction. 

 

                        …

 

                        52.      Sales LJ said:-

 

                                      30.     I agree with the fundamental point made by Mr Milsom, that the concept of “information” as used in Section 43B(1) is capable of covering statements which might also be characterised as allegations …

 

                                      …

 

                                                Section 43B(1) should not be glossed to introduce into it a rigid dichotomy between “information” on the one hand and “allegations” on the other.

 

                                      31.     On the other hand, although sometimes a statement which can be characterised as an allegation will also constitute “information” and amount to a qualifying disclosure within Section 43B(1), not every statement involving an allegation will do so.  Whether a particular allegation amounts to a qualifying disclosure under Section 43(B)(1) will depend on whether it falls within the language used in that provision.”

 

22.      In Parsons v Airbus International Limited UKEAT/0111/17 (October 2017) the EAT confirmed that a tribunal was entitled to find that the claimant did not convey information when she asked whether company meetings at which decisions were taken were minuted.  This was an enquiry rather than a disclosure of information. 

 

23.      In Norbrook Laboratories (GB) v Shaw [2014] ICR, the EAT confirmed that two or more communications taken together can amount to a qualifying disclosure even if, taken on their own, each communication would not.

 

Reasonable Belief

 

24.       In Darnton v University of Surrey [2003] IRLR 133 the EAT held that:-

 

            “We agree that … that for there to be a 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.”  (Paragraph 32).

 

25.       In Babula v Waltham Forest College [2007] EWCA Civ 174 the Court of Appeal confirmed that the test “involves both a subjective test of the worker’s belief and an objective assessment whether the belief could reasonably have been held”.  In this claim - did the claimant believe that the information she was disclosing tended to show that a person has failed to comply with a legal obligation and was her belief reasonably held?

 

Good Faith

 

26.       In this claim, the requirement that a qualifying disclosure will only be a protected disclosure if it is made in good faith, applies only to those alleged disclosures made prior to October 2017 (ie before the changes to the legislation were introduced by the Employment Act (NI) 2016).  Since the changes, the requirement that a disclosure is made in good faith is relevant only to remedy.  If a disclosure is found not to be made in good faith compensation can be reduced by up to 25 percent.

 

27.       The leading case on good faith is Street v Derbyshire Unemployed Workers’ Centre [2004] EWCA Civ 964, which confirmed that good faith is not simply to be equated with honestly, it requires a consideration of the motive of the person making the disclosure.  A qualifying disclosure may be deprived of protection if it is found that the worker’s:

 

                        “predominant motivation for disclosing information was not directed to remedying the wrongs identified in Section 43B but was an ulterior motive unrelated to the statutory objective”

 

28.       The burden of proving a disclosure was not made in good faith rests with the respondent.

 

Public Interest

 

29.       In Chesterton Global Limited v Nurmohamed [2017] EWCA the Court of Appeal held as follows:-

 

                        “36 … The statutory criterion of what is “in the public interest” does not lend itself to absolute Rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably believed to be.  I am not prepared to rule out the possibility that the disclosure of a breach of a worker’s contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest.  I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of Section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers - even, as I have held, where more than one worker is  involved.  But I am not prepared to say never.  In practice, however, the question may not often arise in that stark form.  The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest.

 

                        37 … In a whistleblower case where the disclosure relates to a breach of the worker’s own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in nature), there may nevertheless be features of the case that will make it reasonable to regard the disclosure as being in the public interest as well in the personal interests of the worker …  The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but [counsel for the employees] fourfold classification of relevant factors which I have reproduced above may be a useful tool.  As he says, the number of employees whose interests the matter disclosed affects may be relevant, that is subject to the strong note of caution which I have sounded in the previous paragraph.”

 

30.       The Court of Appeal identified four key factors as relevant to the assessment of whether a disclosure is in the public interest:  (at paragraph 34)

 

                        “(a)      the numbers in the group whose interests the disclosure served;

 

                        (b)        the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed - a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrong doing affecting the same number of people, and all the more so if the effect is marginal or indirect;

 

                        (c)        the nature of the wrongdoing disclosed - disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;

                        (d)        The identity of the alleged wrongdoer - as [counsel for the employee] put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, ie staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” - though he goes on to say that this should not be taken too far”. 

 

Detriment

 

31.       Article 70B of the Employment Rights Order 1996 (as amended) provides:-

 

                        “A worker has the right not to be subjected to any detriment by any act, or a deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”

 

32.       There must be a causal connection or link between the protected disclosure(s) and the respondent’s acts or deliberate failures to act which result in the detriment; and the detriment must be “on the ground that” the claimant had made the protected disclosure(s).  As per the Court of Appeal in NHS Manchester v Fecitt and Others [2011] EWCA Civ 1190:-

 

                        “Liability arises if the protected disclosure is a material factor in the employer’s decision to subject the claimant to a detrimental act …   Section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.”

 

 

 

                        “Detriment

 

                        “27.     In order to bring a claim under Section 47B (the English equivalent of 67B), the worker must have suffered a detriment.  It is now well established that the concept of detriment is very broad and must be judged from the view point of the worker.  There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment.  The concept is well established in discrimination law and has the same meaning in whistleblowing cases.  In Derbyshire v St Helen’s MBC [2007] UKHL 17 paras. 67 68 Lord Neuberger described the position thus:-

 

                                                “67 … In that connection Brightman LJ said in Ministry of Defence v Jeremiah [1980] ICR 13 at 31A that ‘a detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment’.

 

                                                68  That observation was cited with apparent approval by Lord Hoffmann in Khan [2001] ICR 1065, para 53.  More recently it has been cited with approval in your Lordships’ house in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337.  At para 35, my noble and learned friend Lord Hope of Craighead, after referring to the observation describing the test as being one of ‘materiality’, also said that an ‘unjustified sense of grievance cannot amount to “detriment”’.  In the same case, at para 105 Lord Scott of Foscote, after quoting Brightman LJ’s observation added: ‘If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice.”

 

                        28.      Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way.  But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment.  The test is not, therefore, wholly subjective.

 

                        “On the ground that”

 

                        29.      There must be a link between the protected disclosure or disclosures and the act, or failure to act, which results in the detriment.  Section 47B requires that the acts should be “on the ground that” the worker has made the protected disclosure.  The leading authority is the decision of the Court of Appeal in Manchester NHS Trust v Fecitt [2011] EWCA 1190: where the meaning of this phrase was considered by Elias LJ (with whose judgment Mummery and Davis LJJ agreed).  There was a debate whether the test for detriments short of a dismissal should be the same as the test where the alleged victimisation took the form of a dismissal, when a question is whether the protected disclosure is the reason or the principal reason why the action was taken; or whether the test should reflect the much looser link adopted in the discrimination law field.  Elias LJ preferred the latter approach and summarised it as follows (para 45):

 

                                                “In my judgment, the better view is that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower”.

 

                        30.      As Lord Nicholls pointed out in Chief Constable of West Yorkshire v Khan [2001] UKHL para 28, in the similar context of discrimination on racial grounds, this is not strictly a causation test within the usual meaning of that term; it can more aptly be described as a “reason why” test:-

 

                                                “Contrary to views sometimes stated, the third ingredient (‘by reason that’) does not raise a question of causation as that expression is usually understood.  Causation is a slippery word, but normally it is used to describe a legal exercise.  From the many events leading up to the crucial happening, the Court selects one or more of them which the law regards as causative of the happening.  Sometimes the Court may look for the ‘operative’ cause, or the ‘effective’ cause.  Sometimes it may apply a ‘but for’ approach.  For the reasons I sought to explain in Nagarajan v London Regional Transport [2001] 1AC 502, a causation exercise of this type is not required either by section 1(1)(a) or section 2.  The phrases ‘on racial grounds’ and ‘by reason that’ denote a different exercise: why did the alleged discriminator act as he did?  What, consciously or unconsciously, was his reason?  Unlike causation, this is a subjective test.  Causation is a legal conclusion.  The reason why a person acted as he did is a question of fact.

 

                                                Liability is not, therefore, established by the claimant showing that but for the protected disclosure, the employer would not have committed the relevant act which gives rise to a detriment.  If the employer can show that the reason he took the action which caused the detriment had nothing to do with the making of the protected disclosures, or that this was only a trivial factor in his reasoning, he will not be liable under Section 47B.”

 

BURDEN OF PROOF

 

34.      Article 71(2) of the Employment Rights Order 1996 (as amended) provides as follows:-

 

                        “On a complaint under Article 70A it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

 

35.      As per IDS Employment Law Hand Book on “Whistleblowing at Work” (December 2018):-

 

                        “It means that once all the other necessary elements of the claim have been proved on the balance of probabilities by the claimant - i.e. that there was a protected disclosure, that there was a detriment, and the respondents subjected the claimant to that detriment - the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that he or she has made the protected disclosure.”

 

FINDINGS OF FACT AND CONCLUSIONS

 

36.      The tribunal considered all the evidence presented to it, both oral and documentary together with the written and oral submissions of the claimant and the respondent’s representative.   The tribunal made the following findings of fact on the balance of probabilities and reached the following conclusions after applying the relevant legal principles to the findings of fact.   This judgment does not record all the competing evidence heard over the 11 day hearing, it records the principal findings of fact relevant to the issues to be determined.

 

Background

 

37.      The claimant has been an employee of the respondent since 1988 and remains an employee.  She is currently absent due to ill health and has been since October 2019.  Since 2007 she has been employed as a credit sanctioner in the Credit Risk Department. 

 

38.      The claimant is one of a number of credit sanctioners in the Credit Risk Department and she has authority to sanction loans for business customers up to £5,000,000.00. 

 

39.      The claimant’s role of credit sanctioner involved approving or declining loan applications/credit facilities that had been approved by the Relationship Manager (RM) for their business customers.  The process of sanctioning credit applications is a “four eyed approach” in compliance with the respondent’s risk management procedures.  As described by the respondent’s witnesses, those in the credit department are the second line of defence in respect of managing the credit risk.           

 

40.      Loans/credit applications for business customers are initially approved by their Relationship Manager and are then submitted electronically to the credit sanctioners on the respondent’s RM platform (RMP) for approval.  The credit sanctioners ‘pick up’ the loan applications from a list or ‘stack’ on the respondent’s computer system known as the ‘RM platform’ and they respond to the relevant RM via this platform.  The applications contain the submissions and report of the RM and include confirmation of their approval and that of their line manager.  A report typically contains detailed financial information on the lending proposition including the purpose of the loan, the customer’s ability to pay, customer income and expenditure, security information and loan to value percentages along with the RM’s recommendations and any additional information relevant to the application to allow the credit sanctioner to approve or decline the lending proposition.  Credit sanctioners can approve, decline or request further information from the RM as part of this process. 

 

41.      All credit sanctioners (in the Credit Risk Department) and RMs (in Commercial Banking) are bound by the Financial Conduct Authority (FCA) rules and the respondent’s internal ‘Conduct Rules’.  Both provide as follows:-

 

                        “(a)      You must act with integrity.

 

                        (b)       You must act with due skill, care and diligence.

 

                        (c)        You must be open and cooperative with the Financial Conduct Authority (FCA), the Prudential Regulation Authority (PRA) and other Regulators.  

 

                        (d)       You must pay due regard to the interests of customers and treat them fairly.

 

                        (e)       You must observe proper standards of market conduct”.

 

42.      It is common case that those in the Credit Risk Department and Commercial Banking have joint credit authority.  The Ulster Bank Group Credit Risk Policy Document provides:-

 

                        ‘Credit Authorities in Ulster Bank are applied using a “four eyes” approach consisting of a Business Approver and a Credit Approver sharing the accountability and responsibility of the credit risk decision making process’.

 

43.      The respondent also has a whistleblowing policy entitled ‘Speak Up’ - Guidance for Employees Policy and Guidance for Line Managers Policy.  These policies state that they aim “to help any employee safely raise concerns about wrongdoing at an early stage, in the right way”.  This includes breaches of RBS policies, procedures or customer treatment standards and breaches of regulatory or legal requirements. The Employee policy provides a dedicated whistleblowing service with a confidential 24/7 telephone and web based service for all employees, which the policy indicates is operated on behalf of the respondent by an independent supplier.

 

44.      The tribunal finds that the claimant at all times was fully aware of the FCA Rules and the respondent’s Code of Conduct on accountability and credit risk management.  The tribunal also finds the claimant was fully aware of the existence of the respondent’s whistleblowing policy.

 

45.      The claimant claims she made disclosures under Categories A, B and C to a number of different individuals within the respondent from February 2016 until July 2019 and that she repeated these disclosures on a number of occasions during her grievance process and disciplinary process.

 

46.      At hearing, the claimant’s claims narrowed considerably in respect of what she alleged were protected disclosures and when she allegedly made the disclosures.  In cross-examination the claimant accepted that she did not make a number of the protected disclosures that she had originally alleged in her witness statement and these are addressed further in this judgment.

 

47.      The tribunal finds that the initial incident which triggered the events pertaining to these proceedings was the grievance of Mr Ruari Magennis, a Senior Relationship Manager in Commercial Banking on 29 March 2017.  This was a grievance in relation to the claimant’s alleged treatment of him during the period February 2016 - March 2017 specifically in the sanctioning of a number of loan applications/credit facilities for a business customer - Customer M. 

 

The tribunal carefully considered the claimant’s evidence at hearing and find that the claimant viewed Mr Magennis’ grievance as bullying because she considered it unfounded and unsubstantiated.  From this point onwards the claimant’s perception of the respondent and its employees was tainted by her belief that she was ‘in the right’ and that Mr Magennis was “in the wrong”.   Mr Magennis’ grievance was not upheld however the outcome of the grievance made reference to how the claimant was perceived as “difficult” by those in Commercial Banking.  This was something which the claimant did not accept and clearly could not move on from.   It was clear from all the evidence that the claimant wanted the respondent to take action against Mr Magennis for raising the grievance and also take action against others who she believed (incorrectly in the tribunal’s view) had supported him, including her line manager Mr Parker.  The tribunal finds that the claimant harboured an unjustified sense of grievance against Mr Magennis and Mr Parker and this coloured her view of them and of other managers who she believed supported them or who she viewed had not supported her.

 

Credibility

 

48.      The tribunal found many instances when the claimant’s evidence at hearing contradicted the evidence contained in her witness statement.  During the course of cross-examination the claimant accepted, that the various documents and emails she had identified and relied on in her witness statement did not contain what she asserted in her witness statement.  In addition, the tribunal finds that the claimant unreasonably misinterpreted documents and correspondence.  This cast doubt on the reliability of the claimant’s evidence in general. Consequently where there was a dispute between the evidence of the claimant and the respondent’s witnesses, the tribunal preferred the evidence of the respondent’s witnesses. 

 

49.      The tribunal has not recorded all instances of when the claimant misinterpreted documents or where her evidence at hearing was contradictory and/or inconsistent with her witness statement and/or the documentation.  The following are examples in addition to those set out elsewhere in this judgment:

 

            Ÿ          In her witness statement, at paragraph 4, the claimant gave evidence that she emailed Philip Parker on 29 February 2016 to request that the ‘Customer M’ loan application be dealt with under the appeal procedure.  The tribunal was provided with a copy of the email.  It consisted of three sentences, it did not contain or allude to a request from the claimant that the customer be dealt with under the appeal procedure.  The tribunal rejects the claimant’s interpretation of this email and finds it to be unreasonable.

 

            Ÿ          The claimant identified and relied on a number of documents as containing her alleged protected disclosures, however at hearing the claimant in cross‑examination accepted, under questioning, that the documents did not contain any information tending to show Category A-C disclosures.  The specific documents are referenced at paragraphs 64-66 of this judgment. 

 

            Ÿ          At paragraph 14 of the claimant’s witness statement she alleged that she emailed Mr Gray on 8 March 2017 and informed him that “information had been deliberately withheld to force through the application”.  At hearing, the claimant was referred to the email and she accepted that she had not made this statement in the email.  The tribunal finds there is no reference whatsoever to information having been withheld to force through the application.  The claimant’s evidence on this was entirely incorrect.

 

            Ÿ          At paragraph 18 of the claimant’s witness statement, the claimant stated that Mr Magennis had claimed that a number of Senior Management “had encouraged him to take action against me”.  At hearing the claimant relied on the following statement within the minutes of the grievance meeting between Mr Magennis and Ms Dunlop to support this:

 

                                    “RM discussed the request with TM and she agreed that some of the requests were over the top.” 

 

                        The tribunal rejects the claimant’s interpretation of this sentence.  This sentence states that the relationship manager discussed the request for information from the claimant with a fellow colleague (TM) who agreed with him that the requests were “over the top” - it does not state either expressly or impliedly, that Senior Managers were encouraging him to take action against the claimant.  The tribunal finds this to be a wholly unreasonable interpretation of the minutes of the grievance meeting.

 

            Ÿ          In her witness statement, at paragraph 28, the claimant stated that her line manager Mr Parker ‘contacted Human Resources to request my transfer for capability reasons’. The claimant relied on the following sentence in the HR notes dated 17 October 2017 as evidence of this: 

 

                        “LM (line manager) queried if capability redeployment was an option, confirmed it wasn’t as it wasn’t a capability issue”. 

 

                        The tribunal considered the HR notes and find that Mr Parker made no such request.   The HR notes record Mr Parker’s discussions with HR in relation to the claimant’s ongoing sickness absence and related line management issues.  The tribunal finds that Mr Parker did not contact the Human Resources Department to request the claimant be transferred for capabilities and rejects the claimant’s characterisation of these notes. 

 

Relevant Chronology

 

            5 February 2016             Initial loan approval request for “Customer M”

 

            8 March 2017                  Claimant approved Customer M loan facility

 

            29 March 2017               Grievance lodged by Mr Magennis

 

            5 June 2017                    Mr Philip Parker interview with Ms Donna Dunlop

 

            12 June 2017                  Claimant interview with Ms Donna Dunlop

 

            30 June 2017                  Outcome of Mr Magennis’ grievance

 

            24 July 2017                   Claimant’s meeting with Ms Donna Dunlop regarding outcome of Mr Magennis’ Grievance

 

            July 2017                         The claimant on sick leave (3 weeks)

 

            29 August 2017              The claimant commenced a period of sick leave until 25 October 2017

 

            17 January 2018            The claimant commenced a period of sick leave until 25 May 2018

 

            5 April 2018                     Claimant’s grievance

 

            18 May 2018                   Grievance Hearing re Claimant’s grievance (Chris McVeigh)

 

            30 July 2018                   Outcome to claimant’s grievance

 

            17 August 2018              Claimant grievance appeal letter

 

            August 2018                   Claimant transferred to CMR team

 

            2 & 7 October 2018       Appeal Hearing (Stephen Masterson)

 

            14 December 2018        Appeal Outcome

 

            23 February 2019          Appeal Hearing with Mr Harry McConnell

 

            30 July 2019                   Claimant’s disciplinary Hearing

 

            29 October 2019            Claimant’s commenced a period of sick leave

 

            17 November 2019        Claimant’s letter of appeal

 

            6 January 2020              Outcome of disciplinary appeal

           

‘Customer M’

 

50.      Customer M was a business customer of the respondent and Mr Magennis was his Relationship Manager (RM).  During the period February 2016 - March 2017 Mr Magennis submitted a number of loan requests/credit applications to the credit department for sanctioning.  It is common case that the claimant was the main sanctioner in respect of these applications.  

 

51.      The first request/application was on 5 February 2016.  This was declined by the claimant and Mr Magennis resubmitted it to the claimant on 29 February 2016 and she again declined to approve on 7 March 2016.  In the claimant’s responses she outlined a number of reasons for her declinature and listed a number of specific requests for further information in respect of the application. 

 

52.      The application was resubmitted and approved by the claimant on 9 March 2016. 

 

53.      On 21 March 2016 a further lending proposal for this customer was submitted by Mr Magennis which the claimant declined. 

 

54.      It is common case that during the period February 2016 until 8 March 2017
Mr Magennis submitted a number of different loan approvals/credit applications in respect of Customer M in which the claimant was the main sanctioner.  On 28 February 2017, the claimant declined a further resubmission of a loan application/credit application and it is common case this was the third occasion she had declined an application for this customer during this period, albeit that she had approved a number of different loan applications for the customer during the same period.  The claimant in her witness statement alleged that this decline was an appeal however the tribunal finds that this was a resubmission as accepted by the claimant in cross‑examination at hearing. 

 

55.      A central allegation in the claimant’s case was that the respondent was not following its appeal procedures in respect of loan application appeals.  This, the claimant alleges she raised as her “Category C” protected disclosure - the tribunal’s determinations on this are set out later in this judgment.  However it is necessary at this juncture to record the tribunal’s findings of fact on this issue.  The claimant’s argument appears to be that the applications/reapplications for approval for Customer M throughout the period February 2016 to March 2017 ought to have been treated as ‘appeals’ rather than ‘resubmissions’.  She contrasts how the Commercial Department submitted these to her in comparison to another customer - ‘Customer B’.  The tribunal finds from all the evidence that there was in fact, no dispute between the parties as to the difference in an ‘appeal’ and a ‘resubmission’ of a loan application/credit facility.  It is the tribunal’s finding that a ‘resubmission’ is a reapplication submitted to the same credit sanctioner in circumstances were the loan application has been altered in some way, for example, its amount or additional security tendered.  An ‘appeal’, on the other hand is a ‘reapplication’ to a different sanctioner in circumstances where the loan application/credit facilities are unchanged. 

 

56.      The tribunal finds that in practice, whether a reapplication is ‘an appeal’ or ‘a resubmission’ can, on occasion, be a grey area, and when this occurs it is resolved between the credit sanctioner and his/her line manager, as accepted by the claimant in cross-examination.  The tribunal finds there was no conflict of evidence on this issue at hearing, nonetheless the claimant continued to assert that what occurred in practice was different.  The tribunal rejects the claimant’s argument on this and finds that the respondent was following its appeals procedures and further finds that there was no evidence that the respondent was in breach of its appeal procedures or in breach any FCA rules in respect of these.  Moreover, the tribunal finds there was no evidence that the respondent was deliberately not following its appeal procedures as a means of bullying the claimant into approving loan applications.

 

57.      It is common case that in early March 2017 Mr Girvan Gault (Ruairi Magennis’ line manager) contacted Mr Phillip Parker (the claimant’s line manager) in respect of Customer M.  Concerns had arisen within Commercial Banking in respect of the claimant’s declinature of the loan application on 28 February 2017.   Commercial Banking were clearly under pressure to have the loan application approved as the customer had begun to incur costs and expenditure in his business on the basis of this loan application/facility.  It was common case that the concerns related to client relationship issues and/or potential risk of reputational damage in respect of Customer M. The claimant accepted at hearing that this was a “bad customer experience” due to the delays.

 

58.      The tribunal finds that the delays had occurred as the claimant had requested further information, a number of times, from Mr Magennis (the RM) and had declined to approve the loan facilities as she had issues and concerns regarding the information contained in the RM’s submissions.

 

59.      It is common case that Mr Parker had a conversation with the claimant on 6 March 2017 in relation to Customer M.  The claimant disputes Mr Parker’s account of this conversation.  Mr Parker’s evidence was that he confirmed to the claimant that he had reviewed Customer M’s application and the level of borrowing and would approve the application if the claimant did not wish to. He also gave evidence that the claimant indicated she would approve the loan application.   The claimant does not accept that she stated she would approve the loan application and she disputes that Mr Parker ever stated that he had reviewed the application or that he would approve it.  The claimant’s witness statement contained no evidence of or reference to this conversation, however in cross-examination the claimant accepted that a conversation had taken place but her evidence was that she had stated only that she would look at Customer M’s resubmission again.  The tribunal accepts Mr Parker’s unchallenged evidence that he was about to commence a period of annual leave on 7 March 2027 and therefore specifically recalls this conversation.  Furthermore the tribunal finds as a fact that he left, on the understanding that the claimant was prepared to approve the loan request, given that this customer was now a concern for the respondent.  This was consistent with his statement to Ms Dunlop at the grievance meeting on 5 June 2017. 

 

60.      It is common case that the claimant approved Customer M’s loan application on 8 March 2017.  The claimant’s case is that she felt pressurised into doing so because Mr Gray had emailed her directly which, she alleged was unusual in itself given his seniority in the bank.  The tribunal rejects the claimant’s case that she was pressurised into approving the loan.  The tribunal finds that Mr Gray emailed the claimant, as her immediate line manager, Mr Parker was on annual leave and he was Mr Parker’s line manager.  The tribunal carefully considered the email correspondence between the claimant and Mr Gray and find that Mr Gray clearly stated that he was happy to take a decision on the application if the claimant did not want to.  His email dated 8 March 2017 was as follows:

 

                        “Just to be clear, I do not want to press you into approving something that you don’t think should be approved. 

 

                        If you honestly think it is not a supportable transaction, I am more than happy to prioritise it today and make a decision.” 

 

Disclosures to Mr Parker and Mr Magennis

 

61.      It is the claimant’s case that she made “Category A” protected disclosures to:-

 

            (a)       Mr Ruairi Magennis in writing on the respondent’s electronic RM platform in the context of various loan applications for Customer M during the period February 2016 - March 2017;and

 

            (b)       Mr Philip Parker, her Line Manager, verbally between the period
March 2016 until February 2017.

 

62.      The claimant had initially claimed she made Category A protected disclosures in respect of two named customers - Customer M and Customer B. However at hearing, the claimant accepted that she did not make any Category A disclosures in respect of Customer B.

 

63.      It is the claimant’s case (as per her witness statement) that she conveyed the following information (i) to (x) to Mr Magennis on the RM Platform.

 

                        “(i)       The RM had deliberately included 22K of RHI income in the customer’s affordability assessment despite knowing the scheme was closed.

 

                        (ii)        The RM deliberately excluded any element of drawings in his assessment.

 

                        (iii)       The RM accepted auto approval (AA) to keep the customer’s overdraft at an unapproved increased level.

 

                        (iv)       The RM had admitted that the land we had been offered was security pledged to another Financial Institution, falsely improving the LTV.

 

                        (v)        The RM had deliberately omitted repayments to another Financial Institution from their affordability assessment.

 

                        (vi)       The RM was advising the customer was having cash flow issues and was obliged to sell asserts, information which was deliberately withheld when the loan was sanctioned.

 

                        (vii)      I was coming under significant pressure to approve the loan and did not know what the RM telling either the customer or Senior Manager, Girvan Gault.

 

                        (viii)     The RM had falsified customer records by erroneously marking loan conditions (professional valuation and invoiced costings) as met, in a deliberate attempt to draw down the loan without proper authorisation.

 

                        (ix)       The valuation was deliberately withheld from Credit for four months because it did not meet the loan conditions.

 

                        (x)        The RM had sought exceptional sign-off on the loan from his Senior Manager, Girvan Gault by providing incorrect information.

 

64.      The claimant specifically identified the following pages of the trial bundle as containing the information set out above (i) to (x):

 

                        135, 148, 154, 157, 169, 170, 177, 183, 187, 188

 

            These pages contained the claimant’s responses on the RM Platform to Mr Magennis in respect of the various loan applications/credit facilities submitted in respect of Customer M. 

 

65.      At hearing the claimant accepted that pages 154 and 177 did not contain any of the information set out at (i) to (x) above or contained any information relating to any of her Category A protected disclosure.  

 

66.      The tribunal carefully considered each document and the specific paragraphs the claimant identified in cross-examination as conveying the information set out in paragraph 64  (i) - (x) and unanimously find that the claimant’s responses do not, either individually or collectively, convey information tending to show that Mr Magennis was breaching or likely to breach Financial Conduct Authority rules or regulations by deliberately providing false information in the context of approval for loans.  Furthermore the tribunal specifically finds that none of the allegations or information set out in (i) to (x) above are contained within the claimant’s responses on the RM Platform.  In reaching these conclusions the tribunal took into consideration the following:-

 

            (a)       In cross-examination the claimant readily accepted that the contents of her responses did not expressly state that Mr Magennis was deliberately providing misleading or false information to obtain a loan;  

 

            (b)       The tribunal finds as a fact that the responses in the RM platform contain no reference to the Financial Conduct Authority, any legal obligations or any breach of any regulations or rules;

 

            (c)        The tribunal unanimously determines from its consideration of the entirety of the responses and specifically those paragraphs identified by the claimant, that the claimant was raising legitimate queries regarding the loan applications in her role as credit sanctioner. 

 

            (d)       The claimant’s case at hearing was that it was both “obvious” and ‘implicit’ from the content of her responses that she was informing Mr Magennis that he was deliberately providing false information.  The claimant argued that Mr Magennis knew, as an experienced person with specialist credit knowledge, that she was conveying information that he was breaching Financial Conduct Authority rules by deliberately giving misleading information to seek approval of loans.   The tribunal finds that the information within the claimant’s responses do not either expressly or impliedly convey facts tending to show breach of Financial Conduct Authority rules.  In addition, the tribunal accepts the consistent evidence of Mr Gray, Mr Magennis and Mr Parker that they understood the claimant to be raising legitimate queries in respect of the loan applications for Customer M and that at no time understood from the claimant’s queries that she was raising concerns tending to show breach of FCA rules.  It is the tribunal’s finding that in the context of the loan applications, the claimant’s responses were part of the normal interaction between credit sanctioners and Relationship Managers in the sanctioning of loan applications.

 

            (e)        The responses on the respondent’s RPM platform considered on their own or taken together, on any plain reading do not disclose information tending to show Mr Magennis was providing deliberately misleading information to seek approval in breach of FCA rules. 

 

67.       The tribunal further finds that the claimant held no genuine belief at the time that the information she alleges she disclosed tended to show what she now alleges to be information that Mr Magennis was providing deliberately misleading information to obtain approval of loans.  This was reflected in her statement to the investigator Ms Dunlop in June 2017 that

 

                        “there were a couple of stewardship breaches and I highlighted them to RM in my responses but never took it any further”. 

 

            The tribunal concludes that had the claimant genuinely believed that false information was being deliberately provided to her or that Mr Magennis was being dishonest, the claimant would have escalated such serious matters openly and unambiguously in writing to either her line manager, senior management or via the respondent’s ‘Speak Up’ policy.

 

 

68.      The tribunal finds that the claimant was raising legitimate queries in respect of the loan applications and after receiving responses ultimately approved the loan facility.  Had the claimant genuinely believed that she was deliberately being provided with false information or that the RM was being dishonest she would not have approved the loan as this would have been in breach of FCA rules.  It was clear to the tribunal that as a credit sanctioner with many years of banking experience, the claimant fully understood her obligations under the FCA and those of the bank and the tribunal finds that she would not have approved a loan facility in circumstances where she genuinely believed that Mr Magennis had deliberately provided misleading, false or dishonest information.  The tribunal finds, as per the claimant’s own evidence, that she was raising normal “stewardship issues”.

 

69.      At hearing the claimant appeared to resile from her position that Mr Magennis was deliberately providing false or dishonest information.  At various times during cross‑examination the claimant’s stated that Mr Magennis was ‘making mistakes’ or that he was incompetent.  This was contrary to the case contained in her pleadings and her witness statement.  The tribunal accepts the consistent evidence of Mr Parker and Mr Gray, as supported by the contemporaneous documents, that Mr Magennis did not deliberately provide misleading information to the claimant in respect of any of the loan applications of Customer M.    The tribunal is satisfied that all credit sanctioners were ‘the second line of defence’ and their role was ‘oversight and challenge’.  The tribunal finds that the claimant was raising legitimate questions and requests relating to the loan applications of Customer M and although she had stated to Mr Parker on one occasion that she believed Mr Magennis was lying to her, the tribunal accepts his evidence that he did not agree with the claimant.  The tribunal accepts Mr Parker’s unchallenged evidence that he had reviewed the RM platform records and was fully satisfied they contained nothing improper, dishonest or fraudulent on the part of Mr Magennis.  The tribunal finds there was no evidence that Mr Magennis was deliberately providing misleading or false information and further finds that the claimant did not reasonably believe this to be the case at the time.  The tribunal finds that had the claimant genuinely believed that Mr Magennis was in breach of FCA rules she would not have continued to approve loans or credit facilities from him.  Accordingly the tribunal concludes that the claimant has failed to discharge the burden of showing any genuine belief that the information disclosed tended to show breach of the relevant legal obligation.

 

70.      The tribunal had considerable difficulty reconciling the claimant’s case that she believed Mr Magennis acted dishonestly, fraudulently and/or had deliberately lied to her in the context of business loan applications, whilst simultaneously maintaining that she was prepared to ‘be professional’ and work with him to approve loan applications submitted by him on behalf of other business customers.  The tribunal does not view this as credible. Dishonesty and fraud are extremely serious allegations in a large national bank in circumstances where both the claimant and the relationship manager are bound by the Financial Conduct Authority Rules.  The tribunal finds that the claimant clearly understood her obligations and accordingly, if she genuinely believed there was dishonestly and fraud she would not have continued to consider loan applications or credit facilities from this RM never mind approve them; and she would have escalated these serious concerns either under the respondent’s Whistleblowing policy or in writing to her line manager or another senior manager. 

 

71.      It is the tribunal’s finding, from both the documentary evidence and the claimant’s evidence at hearing that at all times the claimant understood she was raising queries and requesting information in accordance with the respondent’s normal credit risk procedures.  The tribunal finds she did not convey any information tending to show the relevant failures relied on in her claim, nor did the claimant reasonably believe this at the time.

 

72.      The above alleged disclosures pre-dated October 2017 and therefore it was not necessary for the tribunal to determine whether the alleged disclosures were in the ‘public interest’ as required under the amended legislation.

 

73.      The claimant has not discharged the burden of proving that she disclosed information tending to show a relevant failure or that she held a reasonable belief that the information tended to show the relevant failure, accordingly the tribunal determines it is not necessary to consider good faith in circumstances where it has found there has been no disclosure of information.

 

Category A Disclosures to Mr Parker

 

74.      The claimant alleges she verbally made “Category A” protected disclosures to
Mr Parker, on a number of occasions between February 2016 and March 2017.  The claimant adduced no evidence of what she allegedly communicated to Mr Parker on any given date.  The extent of the claimant’s evidence’s is that “At all stages, I kept Philip Parker advised.  We had several conversations about this application”.  The onus is on the claimant to show what, if anything was disclosed.  The claimant has failed to do so.  The tribunal finds that Mr Parker had conversations with the claimant, as her line manager during this time in respect of Customer M’s loan applications.  The tribunal accepts Mr Parker’s evidence that the queries and requests raised by the claimant in her response to the approval applications were entirely normal interaction in respect of approving a loan as part of the respondent’s credit procedures.  This reflects exactly what he stated to Ms Dunlop at the grievance meeting in June 2017 namely - “if the claimant doesn’t have the right information or trust the information she has been given she is quite entitled to ask for further information and clarity.”  There was no evidence before the tribunal that the claimant at any time conveyed information to Mr Parker tending to show that Mr Magennis was deliberately providing misleading information to obtain approval for a loan for Customer M.    

 

75.      As per the tribunal’s findings at paragraph 69 above, the tribunal accepts Mr Parker’s evidence that at one point, the claimant had stated that she believed Mr Magennis had lied to her.  However he did not accept this and was satisfied that Mr Magennis had not been providing misleading or false information to obtain loan approval.  The tribunal finds there is no evidence of Mr Magennis deliberately providing false or misleading information to obtain approval for the loan applications of Customer M.

 

76.      The claimant in her witness statement relied on two documents as evidence of conveying information in respect of protected disclosure Category A verbally to Mr Parker.  One was the minutes of the half year review on 8 July 2016 and the other was an email exchange dated 14 June 2016.  In cross-examination the claimant fully accepted that neither of these documents contained information or facts that make reference to Mr Magennis deliberately providing misleading information in breach of FCA Regulations.

 

77.      The tribunal finds that had the claimant genuinely believed that a Senior Relationship Manager was deliberately providing her with misleading information for the purposes of obtaining a loan this would have been raised by her at her half year review with Mr Parker in July 2016.  She did not do so.  Moreover, as a credit sanctioner with the claimant’s knowledge, experience and understanding of her legal obligations in respect of credit approval, if she had held a genuine belief that she was being lied to by a relationship manager she would not have approved the loan applications that she did and she would have escalated her concerns.  The claimant did not report these serious issues under the respondent’s whistleblowing policy - ‘Speak Up’ or with anyone else in the respondent organisation which the tribunal finds fundamentally undermines her argument that she held a reasonable belief that the information tended to show a relevant failure.   

 

78.      The claimant has not discharged the burden of proving that she disclosed information tending to show the relevant failure or that she held a reasonable belief that the information tended to show the relevant failure.   Accordingly the tribunal determines it is not necessary for it to consider good faith in circumstances where it has found there has been no disclosure of information.

 

Category B Protected Disclosures (Fixed Rate Loan)

 

79.      The claimant claims that she made her ‘Category B’ disclosure - that senior managers were misrepresenting to customers their liabilities in relation to Fixed Rate Loans - to Mr Parker (her line manager) in an email dated 19 January 2017.  

 

80.      The tribunal carefully considered the email exchange between the claimant and Mr Parker.  It is common case that this email is a response to an email from Mr Parker in which he refers to having ‘run into’ another manager, Mr Walsh, who mentioned a case that the claimant was ‘looking into’ where the claimant was seeking to increase a personal guarantee by £40,000.00 to cover break costs in a fixed rate loan.

 

81.       The claimant’s email dated 19 January 2017 was as follows:-

 

                        “Thanks - yes this one came in to me asking not to include the limit for the Fixed Rate Loan on the PG as it was “internal”.  I went around to Recoveries to check as I can recall including the FRL costs on the customers liabilities.  Malcolm did not know much about FRLs but confirmed that the break costs/fees are included so I declined the request.

 

                        Post your email, I thought I would check with Markets to make sure I am not losing the plot!  They confirmed that a loan say £600K fixed for 10 years would require a limit in RMP of c.50K.  This limit is a calculation of the break costs and fees that the customer is potentially liable for if they pay off the loan early/default etc.  Markets confirm the customer gets both a generic example and a specific one at the time of the fix as part of their process is to ensure the customer is totally aware that this is a potential liability for them.  I have no idea why Noel/Nigel are saying the customer isn’t liable and isn’t aware - I would be concerned if the customer wasn’t been [sic] told this …”.

 

82.      At hearing the claimant relied on the following words of this email as her protected disclosure;-

 

“I would be concerned if the customer wasn’t being told this …”.

 

83.      The tribunal unanimously finds that the claimant’s email to Mr Parker on 19 January 2017 does not contain any information (explicitly or impliedly) tending to show that Senior Managers are misrepresenting to customers their financial responsibilities in the context of fixed term loans.  The tribunal rejects entirely the claimant’s interpretation of this email.  On any reasonable reading of the email it is clear that the claimant does not convey any information tending to show the relevant failure relied on by the claimant in her Category B disclosure.  There is no reference to senior managers misrepresenting to customers.  In cross‑examination the claimant accepted that she did not expressly state that senior managers were deliberately misrepresenting to customers.   The tribunal finds, as accepted by the claimant in cross-examination, that customers were fully informed of their liabilities regarding break costs in the facility letters and brochures issued to customers and that these provided information on both the extent and amount of break costs.

 

84.       The tribunal finds that the claimant did not hold a reasonable belief, at the time, that the information contained in the email tended to show that senior managers were misrepresenting to customers as to their financial liabilities on fixed term loans.  On any straightforward reading of the email, it is clear that this is not the claimant’s belief, nor could it reasonably be implied as such.  The tribunal concludes that had the claimant genuinely believed that senior managers within the respondent bank were misrepresenting to customers as to their financial liabilities,  this is something she would have escalated clearly and unambiguously beyond her line manager or elsewhere, for example under the Whistleblowing Policy, or to senior management within the respondent organisation.  Moreover, the claimant accepts that customers were fully aware of their liabilities.

 

85.      The claimant has not discharged the burden of proving that she disclosed information tending to show a relevant failure or that she held a reasonable belief that the information tended to show the relevant failure.  The tribunal determines it is not necessary for it to consider good faith in circumstances where it has found there has been no disclosure of information.

 

Disclosures to Mr Robin Gray

 

            8 March 2017

 

86.      The claimant alleged in her witness statement that her email dated 8 March 2017 contained protected disclosures.   However, the claimant accepted in cross‑examination that the email to Mr Gray on 8 March 2017 did not contain information or concerns tending to show any of the matters or relevant failures set out in Categories A, B or C disclosures.  The tribunal accepts the claimant’s evidence and finds from any reasonable interpretation of the document that it does not contain sufficient factual information tending to show the relevant breaches in respect of any of the three categories of protected disclosures relied on by the claimant in this case. 

 

            29 October 2017

 

87.      The tribunal accepts the claimant’s evidence in cross-examination that her letter dated 29 October 2017 to Mr Gray did not contain any information or raise any of the issues identified in Category A or Category B disclosures.

 

88.      The claimant’s case at hearing was that the final paragraph of this letter contained a Category C protected disclosure.  The tribunal rejects this for the following reasons:-

 

            (a)       The claimant accepted in cross examination that within the identified paragraph there is no statement or reference to a breach of the Financial Conduct Authority rules in respect of the respondent’s loan appeal procedures. 

 

            (b)       On any reasonable interpretation of this paragraph it is clear that its contents do not contain sufficient factual content or specificity tending to show that the bank were not following published procedures that had been provided to the FCA with regard to loan appeals procedures.  The tribunal finds that this is not a reasonable interpretation of the email.

 

            (c)       The claimant argues that Mr Gray, as an employee of the bank, with his particular specialist knowledge, fully understood that the final paragraph of the letter dated 29 October 2017 contained a ‘Category C’ disclosure.  The tribunal rejects this for the reasons set out above at (a) and (b) above and moreover accepts Mr Gray’s consistent evidence that all times he understood the letter to be a personal grievance from the claimant in respect of her alleged mistreatment in the workplace and not concerns regarding breaches of FCA Rules or the bank’s Code of Conduct and he responded accordingly.

 

            (d)       The tribunal is not satisfied that the claimant reasonably believed she was disclosing information tending to show a breach of a legal or regulatory obligation in this letter.  The tribunal finds from the claimant’s evidence that she drafted the letter dated 29 October 2017 during a period of sick leave after she had received a response to her FOI request, when she was angry because she believed that staff outside her team had information about Mr Magennis’ grievance against her.  This is what had motivated her to send her letter dated 29 October 2017.  The tribunal unanimously finds that the letter of 29 October 2017 was a personal grievance relating to allegations of mistreatment of the claimant under two very clear and specific headings:

 

                        (i)         failure to be supported by her line manager; and

 

                        (ii)        being prevented from carry out her role because of the behaviour of Senior Managers in the Business.  

 

                        The claimant has not discharged the burden of proving that she conveyed information tending to show the relevant failure or that she held a reasonable belief that the information tended to show the relevant failure.

 

            (e)       Furthermore, the tribunal finds that the claimant’s reference to the loan appeals procedure is in the context of her grievance in relation to the treatment she alleged she was being subjected to by fellow employees.  The tribunal finds this to be a matter entirely personal to the claimant and therefore not the raising of concerns relating to breaches of legal obligations ‘in the public interest’.

 

            16 November 2017

 

89.      The tribunal finds that the claimant did not convey any information to Mr Gray tending to show any of the relevant failures identified in Categories A, B or C in her telephone conversation with him on 16 November 2017.  This was accepted by the claimant in cross-examination although the tribunal notes that this is contrary to the contents of her witness statement.  After this conversation Mr Gray forwarded an email to the claimant summarising their discussion, the contents of which the claimant did not dispute either at the time or at the hearing.  The email makes no reference to any of the information or issues relating to alleged disclosures the claimant now raises.   The claimant has therefore not discharged the burden of proof that she conveyed information tending to show a relevant failure or that she held a reasonable belief that the information tended to show relevant failure.

 

            24 November 2017

 

90.      In cross-examination the claimant accepted that she did not disclose any information to Mr Gray at the meeting on 24 November 2017 tending to show a breach of the relevant failure identified in her Category B or Category C disclosures.  Again this is contrary to the evidence contained in her witness statement.  At hearing the claimant claimed that she made only Category A disclosures at this meeting.  The height of the claimant’s case in respect of the information that she disclosed is that she stated to Mr Gray that she ‘knew exactly why Mr Magennis raised the grievance against her’.  The claimant presented no evidence as to what information she allegedly communicated to him in relation to her Category A disclosure or evidence of what she believed she was conveying at the time.

 

91.      The tribunal accepts the evidence of Mr Gray that the claimant did not communicate to him that Mr Magennis was making false or misleading statements to obtain loan approval at the meeting on 24 November 2017.  The tribunal is satisfied that what was discussed at the meeting was fully reflected in Mr Gray’s email dated 29 November 2017 to HR, the contents of which the claimant does not dispute. This email makes no reference to the matters contained in the claimant’s Category A disclosure namely that Mr Magennis was deliberately providing misleading information to obtain approval for a loan in breach of FCA rules.    The claimant has not discharged the burden of proving that she conveyed information tending to show a relevant failure or that she held a reasonable belief that the information tended to show a relevant failure.   

 

            Grievance dated 5 April 2018

 

92.      At hearing the claimant’s case was that she made Category A and C disclosures in her grievance letter dated 5 April 2018.  She accepted in cross-examination that she conveyed no information relating to fixed term loans (Category B disclosures) in this correspondence.     

 

93.      The claimant’s written grievance contains three heads of complaint:-

 

“1.     Failure of legal duty of care under The Health and Safety at Work (Northern Ireland) Order 1978 and The Protection from Harassment (Northern Ireland) Order 1997.

 

2.        Examinations and appraisals are subject to Collective Bargaining agreements that the Bank has signed up to.  This agreement confirms “every aspect of the Appraisal process is voluntary”.

 

3.        Breach of Data Protection Act 1998 (Northern Ireland).”

 

94.      In her grievance the claimant stated:-

 

                        “I have been subject [sic] of an ongoing campaign of abusive behaviour by Senior Management in the Business, culminating in unfounded serious allegations made against me in March 2017.  I have requested assistance from my Line Manager Philip Parker throughout this period and each time he has refused despite the obvious detriment to my health and well-being.”

 

95.      The tribunal finds as a fact that the grievance letter does not contain any information tending to show the respondent was not following its published appeal procedures (Category C disclosure) in breach of FCA Rules.  There is no reference to FCA rules or breaches of the appeal procedures anywhere in the grievance letter.

 

96.      The claimant at hearing identified and relied on one paragraph of her grievance letter as evidence of conveying information in relation to her Category A protected disclosure:-

 

                        “As part of the investigation, I was obliged to highlight a large number of incidences where the RM provided false and misleading information about the customer’s circumstances in order to get the loan approved.  It is disappointing that despite our stated commitment to treating customers fairly that no action has been taken.”

 

97.      The tribunal finds that this paragraph is a reference to what the claimant alleges she stated to Ms Dunlop at the grievance investigation meeting she attended in respect of Mr Magennis’ grievance in June 2017.  However, this statement is inaccurate, as she did not ‘highlight a large number of incidents where the RM provided false and misleading information about the customer’s circumstances’ at the grievance meeting with Ms Dunlop.  It is clear from the minutes of the investigation meeting and the claimant’s evidence at hearing that the extent of what the claimant stated to Ms Dunlop was that she raised “stewardship breaches”.  The tribunal unanimously determines that the above paragraph, is a misrepresentation of what was stated at the grievance meeting in June 2017 and was a reference in the context of the claimant’s personal grievance that she had been subjected to a campaign of abusive behaviour.   In this context, the tribunal finds that the information lacks specific factual content and specificity such as is capable of tending to show that Mr Magennis was providing false information in breach of FCA rules.

 

98.      The tribunal does not accept that the claimant reasonably believed at this time that what she was conveying tended to show that false information was being deliberately provided to obtain loans contrary to FCA rules. In evidence to the tribunal the claimant specifically stated “at this point I don’t think I knew what a PID was”.   Had the claimant genuinely believed that what she was disclosing tended to show a breach of the Financial Conduct Authority or bank regulations, this would have been clearly stated at the time and moreover she would have raised such a serious allegation under the respondent’s Whistleblowing policy.   

 

99.      The tribunal finds as a fact that the issues in the claimant’s grievance were personal to her namely (i) the behaviour of Mr Magennis and his colleagues, including her line manager’s treatment of her and a failure to address this; (ii) the respondent’s requirement for her to undertake exams and (iii) a request that her HR records be corrected.  As stated by the claimant in cross‑examination it is their “behaviour being unaddressed” that was the focus of her grievance.  In cross examination the claimant stated “I was saying I couldn’t do my job because of these things”.  The tribunal unanimously determines that this does not satisfy the public interest test as these matters are entirely personal to the claimant.  The tribunal concludes from this that the claimant did not reasonably believe at the time that she was disclosing information in the public interest.

 

            Grievance Meeting - 18 May 2018

 

100.    The claimant’s witness statement provided no evidence as to what information she alleges she disclosed at the grievance meeting - the extent of the claimant’s evidence was “at each stage, I repeated my disclosures”.

 

101.    The tribunal does not accept that the claimant repeated her disclosures at the grievance meeting on 18 May 2018 and finds as follows:-

 

            (a)       The claimant accepted in cross examination that she did not convey any information on the issues contained within her Category B or Category C disclosures at the grievance meeting.  The tribunal accepts the claimant’s evidence and upon consideration of the minutes of the grievance meeting finds there is no reference to any information tending to show the relevant failures identified in the claimant’s alleged Category B or Category C disclosures. 

 

            (b)       The tribunal carefully considered the minutes of the claimant’s grievance meeting with Mr McVeigh and noted the following:

 

                                    “I would like it acknowledged that this happened, that it is a breach of policy as well as a number of pieces of legislation.  She considers the behaviour of all senior management to have been unacceptable and that disciplinary action is taken against anyone who has breached the policy/legislation.  She advises that despite evidence being provided that the original RM made false claims to get an approved as well as false accusations against her personally, that no action has been taken by the bank.  She further advises that she will not be making any false statement in order to protect the bank.”

 

                        The tribunal finds that whilst the claimant refers to a breach of policy and legislation, it is the tribunal’s finding that she is referring to these in the context of her allegations of unacceptable behaviour of senior management towards her and the respondent’s failure to take action in respect of same.  The tribunal concludes that she does not convey information of sufficient factual content and specificity tending to show what she now alleges to be a Category A disclosure - namely that a named member of staff breached rules set out by the Financial Conduct Authority by way of giving deliberately misleading information in the context of approval for loans.  Additionally as per the tribunal’s findings set out above, the tribunal does not find that the claimant reasonably believed at this time or ever that the relationship manager had deliberately withheld information or deliberately provided misleading information for the purposes of obtaining loans, there was no evidence to support this and the tribunal does not find that the relationship manager had deliberately withheld information or was being dishonest.

 

            (c)        The tribunal considered the minutes of the grievance meeting, and unanimously concludes that the claimant was raising personal employment issues about the treatment she alleged she was subject to by other managers.  The tribunal therefore finds that the claimant did not hold a reasonable belief that was she was raising was in the public interest as per Chesterton.  The tribunal accepts the claimant’s evidence that she raised her grievance because in her words she “couldn’t do her job and wasn’t being let do her job and this was making her ill”.  The tribunal concludes that all times the claimant’s grievance related to what she believed was the respondent’s failure to address Mr Magennis’ behaviour and to take action against him.  The tribunal finds that this is not ‘in the public interest’ nor does the tribunal find, based on the claimant’s evidence, that she reasonably believed this to be in the public interest. 

           

            Letter of Appeal - 17 August 2018

 

102.    The tribunal was not provided with any evidence from the claimant as to what specific information she conveyed which she believed tended to show a relevant failure in respect of her identified categories of disclosure A, B or C.  The tribunal considered the claimant’s letter of appeal dated 17 August 2018 and find that it does not contain any information or facts tending to show any of the relevant failures in respect of Categories A, B or C disclosures.  The letter of appeal contains three headings: (1) failure of duty of care; (2) examinations and appraisals; and (3) data protection.  The extent of any express reference to any of the alleged disclosures is in the penultimate paragraph of her letter which states:

 

                        “That despite my disclosure of dishonesty in an employee, first against a customer to get loan approval and then against myself to distract from the deceit, this did not warrant any further investigation or commentary”.

 

103.    The tribunal unanimously finds that this does not convey information tending to show the relationship manager deliberately provided misleading information to obtain a loan contrary to FCA rules.  There is no reference to a legal obligation or breach of a legal obligation or regulatory requirement.  The tribunal concludes this refers to an allegation of dishonesty against an employee.  The tribunal finds that it does not convey sufficient factual content capable of showing the relevant failure relied on.    Furthermore, as per the findings of fact set out above, the tribunal does not find that the claimant genuinely believed Mr Magennis was dishonest or providing misleading information at any time.  There was no evidence upon which the tribunal could conclude that the claimant reasonably believed that she was disclosing information tending to show a relevant breach in respect of Categories A, B or C. 

 

104.    Furthermore the tribunal unanimously determines this to be a personal grievance and any references, express or implied, to the claimant’s alleged disclosures or the dishonesty of an employee are in the context of her personal grievance and are therefore not ‘in the public interest’.  As per the claimant’s letter of appeal the “crux” of her grievance was the failure of the respondent to challenge in any effective way what she believed were ‘groundless complaints’ against her by a colleague.

 

            Appeal Hearing - Stage 2 - 2 October 2018

 

105.    The claimant provided no evidence of what information she allegedly conveyed to Mr Masterson at the appeal hearing on 2 October 2018.  The tribunal was not referred to any wording within the minutes of the grievance appeal meeting as evidence of having conveyed information and there was no evidence in the claimant’s witness statement of what disclosures the claimant allegedly made at this meeting.  The onus is on the claimant to prove that she made a protected disclosure and in the absence of any evidence, the claimant has not discharged the burden of proof that she disclosed information tending to show a relevant failure in respect of Categories A, B or C protected disclosures.

 

             Appeal Letter– 2 January 2019 (final stage of appeal)

 

106.    It is not clear, from the claimant’s witness statement or from her evidence at hearing, if the claimant is making an allegation that she conveyed information tending to show a relevant failure in her letter of appeal to Mr McConnell.   The tribunal was not provided with any evidence of any protected disclosures contained within her letter of appeal dated 2 January 2019.  In any event, the tribunal considered the contents of the letter and find no evidence of the conveying of information in respect of any of the matters contained within the claimant’s identified disclosures Categories A, B or C.

 

            17 April 2019

 

107.    The claimant made no case in her claim form, her replies or witness statement that she raised any of the concerns or conveyed any of the information she now relies on as Categories A, B or C disclosures in her email to Mr Gray on 17 April 2019. At hearing the claimant stated that it was clear from this email that she intending to contact the Regulator in relation to her Category A, B and C disclosures and not the examinations issue.  The tribunal considered the document and find that it does not contain any information tending to show breach of the legal obligation relied on in the claimant’s Categories A, B or C disclosures.  The email is entitled “Chartered Banking Institute - Accreditation” and in it the claimant sets out her position in relation to the completion of examinations.  It ends as follows:

 

                        “Your point that examinations are not a Regulatory requirement appears at variance to the numerous conversations where I was advised that Ian Roberts had given the Regulator assurances we would complete same.  As the internal process is now exhausted and in order to finally close off this examination issue, I propose contacting Ian Roberts directly to ascertain who in the Regulators Office has been dealing with this as I would like to speak to them directly”.

 

108.    The tribunal rejects the claimant’s case that this email relates to Category A, B or C disclosures and finds this is not credible given the clear and unambiguous content of the email.  The tribunal finds that the claimant was proposing to contact Mr Roberts - the person who had, on 21 March 2017 sent an email to all Credit Risk employees informing them of the requirement to undertake the relevant qualifications.  The purpose of which was to obtain information on the requirement to undertake exams/accreditation. 

 

            Furthermore the tribunal finds that the claimant did not reasonably believe she was conveying information tending to show any of the relevant failings in her Categories A, B or C disclosures.  The tribunal finds that the meaning of the email is clear and explicit and rejects entirely the interpretation the claimant now places on this document.    

 

            It is the tribunal’s finding that the claimant is corresponding with Mr Gray on the requirement to undertake examinations and accreditations which the tribunal finds was entirely personal to the claimant and clearly not a matter ‘in the public interest’. 

 

Disciplinary Hearing

 

109.    In her claim form the claimant alleged she made disclosures to Mr Crimmins at the disciplinary hearing on 30 July 2019.  It is common case that the claimant submitted a written statement to the disciplinary hearing within which she refers to an email she had sent to Mr Roberts containing the following statements:

 

                        “A Relationship Manager gave a number of deliberately false and misleading statements about a customer’s circumstances in order to get a loan approved and drawn. …

 

                        - I refused to be complicit in Senior Managers’ decision not to advise the customer of their obligations under a Fixed Rate loan

 

                        - Bullying of Credit staff by Senior Management to get loan conditions removed.

 

                        …”

 

110.    The tribunal accepts that claimant conveyed sufficient factual information that a RM had been deliberately providing false information and that senior managers were not advising customers of their obligations under fixed term loans.  However, the tribunal concludes that the claimant did not hold a reasonable belief that this tended to show the relevant failure.   As per the findings of fact set out above, it is the tribunal’s conclusion that the claimant never genuinely believed the relationship manager was providing dishonest or fraudulent information or that he was in breach of FCA Regulations or the bank’s Code of Conduct or that Senior Managers were not advising customers of their legal obligations in Fixed Rate loan application.  The tribunal’s finds that the relationship manager was not deliberately giving misleading information in the context of loans in breach of the Financial Conduct Authority rules; and further finds, as accepted by the claimant in cross-examination, that customers were made aware of their legal obligations regarding Fixed Rate loans.

 

            The tribunal determines that the claimant was raising these matters in the context of her disciplinary hearing as a means of deflecting from the disciplinary issue.  This was evidenced throughout the documentation - for example in the claimant’s email dated 17 April 2017: -

 

            “The Banks position is that there has been no wrongdoing by anyone either in the Business or in Risk.  Under those circumstances I am at a loss to understand the purpose of completing an exam if the dishonest and bullying behaviour can continue with impunity”

 

            Accordingly, the tribunal finds that the information was not conveyed ‘in the public interest’.

 

‘Category C’ Protected Disclosures - Appeal Procedures

 

111.    It was not clear to the tribunal whether the alleged breach of the respondent’s loan appeal procedures was a breach of a legal obligation under the Financial Conduct Authority rules or the bank’s Code of Conduct.  The respondent did not dispute this to be breach of a legal obligation, accordingly the tribunal proceeded on the basis that there was a legal obligation to ensure compliance with loan appeal procedures either under the Financial Conduct Authority rules and/or the respondent’s Code of Conduct.

 

112.    The claimant’s case in respect of Category C disclosures, as far as the tribunal understands, is that she disclosed that the bank were not following its published procedures with regard to its loan appeal procedures.  The tribunal finds as fact that the bank were not in breach of their loan appeal procedures (see the tribunal’s findings in paragraphs 55 and 56 above).

 

113.    Paragraph 6 of the claimant’s witness statement appeared to relate to her Category C disclosure.  However did not identify when and to whom the claimant allegedly conveyed information tending to show breach of the respondent’s loan appeal procedures identified as her Category C disclosure.  There is no evidence within this paragraph that the claimant provided information in relation to the respondent’s loan appeal procedures.  The documents identified and relied upon by the claimant relate to a Customer B and were contained in pages 262 and 264 of the trial bundle.  The tribunal finds these emails do not make reference to any regulatory breaches or to breaches of the respondent’s loan appeal procedures.  This was accepted by the claimant in cross-examination.  The tribunal finds as a fact that these documents do not contain information or facts tending to show the relevant failure identified as Category C disclosures.   Furthermore as per the tribunal’s findings of fact set out above, the tribunal finds there was no breach of the respondent’s loan appeal procedures nor did the claimant reasonably believe at the time that the bank was in breach of its legal obligations in respect of the appeal procedures.

 

114.    Contrary to the claimant’s original case that she made Category C protected disclosures on 16 November 2017, 24 November 2017 and 18 May 2018, the claimant accepted in cross-examination that she did not convey any information or facts tending to show breach of the respondent’s legal obligation regarding its loan procedures.   As per the tribunal’s findings at paragraphs 95-99 above, the claimant did not make a Category C disclosure in her grievance letter dated 5 April 2018.

 

115.    At hearing the claimant argued that her letter of appeal dated 17 August 2018 contained her Category C disclosure.  This was the claimant’s appeal letter to Mr McVeigh on the outcome of her grievance.  The tribunal carefully considered the contents of this letter and unanimously find that this document does not contain any information tending to show that the respondent was not following its published procedures in regard to loan applications.  The letter contains no such factual information.  The tribunal finds that the claimant has not discharged the burden of proving that she disclosed information tending to show the relevant failure nor that she reasonably believed that the information she disclosed tended to show this.

 

116.    Furthermore as the per the tribunal’s findings as set out above the tribunal unanimously concludes this to be a personal grievance and therefore does not meet the test of being in the public interest.

 

Appeal Hearing - 2 October 2018

 

117.    The tribunal does not accept that the claimant repeated her Category C protected disclosures at the Stage 2 appeal hearing with Mr Stephen Masterson.  The claimant presented no evidence to the tribunal as to what information she allegedly conveyed in relation to her Category C disclosure.  The tribunal carefully considered the minutes of this meeting and find that the claimant does not convey information or any specific facts tending to show the bank were not following loan appeal procedures.  Therefore the claimant has failed to discharge the burden of proving she conveyed any information tending to show the matters referred to in Category C.

 

Alleged Detriments

 

118.    In light of the tribunal’s findings that the claimant made no protected disclosures, the claimant’s case fails.   The tribunal having heard all the evidence considered it appropriate to record its findings on the claimant’s allegations of detriment.

 

(1)          Mr Magennis’ Grievance

 

119.    Mr Magennis raised a formal grievance on 29 March 2017.  In advance of doing so, he had sent two emails to his line manager, Mr Girvan on 1 and 8 March 2017.  These emails stated that he felt the claimant had issues with him and was being difficult with him.  He stated that her approach ‘appeared unreasonable’ in comparison with other credit sanctioners and that this had resulted in a number of resubmissions and delays which he stated was impacting on his confidence and performance.  He stated that the claimant took issue with his submissions and returned applications/submissions at the last minute.  He described her behaviour as ‘a silent form of bullying or abuse of power’ and he felt that he was not being respected or treated with dignity by the claimant.  His formal grievance dated 29 March 2017 repeated these allegations and he specifically referred to his treatment during Customer M’s loan applications.  In his grievance he stated:

 

                        ‘I would like to be clear that I don’t have an issue with specifics of credit papers or decisions.  My issue is with the way in which EB (the claimant) handles my applications and the tone of her responses”.

 

120.    Ms Donna Dunlop was the appointed grievance investigator.  The claimant makes no allegations of detriment in relation to Ms Dunlop’s investigation of Mr Magennis’ grievance or its outcome.   Mr Parker was interviewed by Ms Dunlop on 5 June 2017 and the claimant was interviewed by Ms Dunlop on 12 June 2017.  The grievance outcome was communicated to Mr Magennis on 30 June 2017.

 

121.    Mr Magennis’ grievance was not upheld.  Ms Dunlop made a number of findings including the following:-

 

                                    There is a disconnect between the Commercial Banking Director and the Commercial Credit Director in terms of Eimear, one believing that she is purposively obstructive and difficult, the other believing she is completing her responsibilities to the highest standards.  They both have concerns about her behaviours and how these are perceived.  My understanding is that informal complaints have been made in the past, strengthening the perception that Eimear is being difficult but in fact, Philip has been satisfied with the specifics of the requests.  Philip has spoken to her in the past about her behaviours and some instances.  As a result of this, Eimear is not fully aware of the impact her behaviour can have on the Relationship Manager she is working with.

 

                                    There was no evidence of Eimear bullying or punishing Mr Magennis.

 

                                    The delay on Customer M was not intentional but rather an integrity struggle for Eimear and the genuine inability to make the decision quickly.

 

                                    Although there is a wider perception that Eimear can be deliberately difficult, her actions towards you do not amount to bullying.

 

                                    There was no evidence to suggest that Eimear’s behaviour, language or tone in responses to you have been harsh or unreasonable.  There is no evidence that the perceived time delays have been intentional or purposeful.

 

122.    Ms Dunlop’s grievance outcome made a number of specific recommendations:-

 

                        “Ÿ         Eimear needs to be clearer in explaining why she needs more information and why she is requesting it.  Clearer communication and rationale for asking for the information could prevent you thinking she is purposefully delaying the application in future.

 

                        Ÿ          The commercial banking team, if they have a complaint, need to complain in writing, providing specifics in relation to what they believe is unreasonable so that the commercial credit director can fully investigate, address with Eimear if he believes this to be true and respond to the commercial banking team with his findings and actions taken.

 

                        Ÿ          If a relationship manager is unhappy about a declined decision, they should follow the appeals process to ensure that a second impartial person looks at the case to either uphold or overturn the initial decline.

 

                        Ÿ`         Sanctioning and approval is emotive for both the relationship manager and the sanctioner and there will always be differences of opinion regarding approvals and declines.  If and when a complaint is raised, Girvan and Philip should make every effort to resolve informally and feedback so that perceptions are managed rather than supported.

 

                        Ÿ          Eimear’s leader needs to work with her on a plan for escalating cases that get to this very difficult stage.  Sometimes the difficulty or the delays are due to information not being provided on time and not being provided correctly.  If the sanctioner does not call this out, then the perception can grow that the sanctioner is being difficult.

 

                        Ÿ          Every attempt should be made to mediate between you and Eimear to try to rebuild a future working relationship.

 

                        Ÿ          Philip and Girvan to host a meeting with you and Eimear to go through the M case in detail to outline a rationale for each request for information.

 

                        Ÿ          Communication could be improved amongst the team to enable better working together.”

 

123.    The tribunal accepts that the claimant viewed Mr Magennis’ grievance against her as a detriment in the sense that a reasonable worker would view it as to her disadvantage. The tribunal finds that Mr Magennis’ grievance was not raised on the grounds of or materially influenced by the claimant having made any alleged protected disclosures to Mr Magennis.  The tribunal finds that Mr Magennis genuinely viewed the claimant’s approach to him throughout Customer M’s loan applications as difficult by reason of the number of queries she raised and the consequent delays.  It was clear to the tribunal that within the commercial banking team there existed a perception that the claimant could be ‘difficult’ and this was reflected in the findings of Ms Dunlop:

 

                        “My investigations confirmed that there is a perception within the wider relationship management team and the relationship team that Eimear is unreasonable and can be difficult to deal with.

 

            There is a disconnect between the Commercial Banking Director and the Commercial Credit Director in terms of Eimear, one believing she is purposively obstructive and difficult the other believing she is completing her responsibilities to the highest of standards.”

 

124.    The tribunal unanimously concludes that Mr Magennis raised his grievance because of a genuine belief that the claimant was being difficult and unreasonable towards him by reason of her tone in correspondence and that he felt he was being bullied and was not on the ground of any alleged protected disclosures.    

 

(2)          Being subjected to bullying and harassment by Senior Management in an attempt to get the claimant to agree customer loans or not follow the internal appeals procedure on policy.

 

125.    As per the tribunal’s findings of fact set out above, the claimant was not bullied by any member of Senior Management or pressurised into approving loans.  There was no evidence to substantiate this allegation and therefore the claimant has failed to discharge the burden that she was subject to any detriment.

 

(3)          Failure to be informed of the Formal Grievance

 

126.    In cross-examination the claimant confirmed she was not alleging that she was subject to detriment by reason of any failure to be informed of the contents of
Mr Magennis’ emails dated 1 and 8 March 2017.  This was no longer part of the claimant’s case at hearing.    

 

127.    The crux of the claimant’s claim of detriment in respect of the alleged delay/failure to be informed of his grievance, was that she continued to work with Mr Magennis from the date he raised the formal grievance (29 March 2017) until Mr Parker informed her of it on 5 June 2017, during which she was, in her words, “oblivious to any allegations”, against her.  The tribunal finds, that Mr Parker only became aware of the formal grievance a few days prior to 5 June 2017, therefore there was no act or deliberate omission on the part of Mr Parker to withhold knowledge of a formal grievance as he was unaware of it.  The tribunal finds that although Mr Parker was aware of the possibility of Mr Magennis raising a formal grievance, by reason of his knowledge of the earlier emails dated 1 and 8 March 2017, he was not aware that a formal grievance had been raised until a few days prior to 5 June 2017. 

 

128.    The tribunal finds that normal industrial practice would be to inform an employee that a formal grievance had been raised against them in circumstances where they continued to work with the person who raised the grievance.  The tribunal finds this to be a detriment in the sense that a reasonable worker would or might take the view that she had been disadvantaged in these circumstances.  However, the tribunal unanimously determines that any alleged detriment was not on the ground of or materially influenced by the claimant having made protected disclosures by reason of the following:-

 

            (a)       The tribunal was not referred to any obligation on the part of Mr Parker to inform the claimant of the formal grievance against her.

 

            (b)       Mr Parker was not aware of the formal grievance until a few days prior to 5 June 2017.

 

            (c)        Mr Parker provided the claimant with an invite to the investigatory meeting from Ms Dunlop on 5 June 2017 when she instructed him to inform the claimant.

 

            (d)       The tribunal accepts Mr Parker’s unchallenged evidence that it became his responsibility to advise the claimant only when he was given authority to do so by Ms Dunlop, the investigator.  

 

            (e)       The respondent provided no explanation as to why Ms Dunlop did not inform the claimant that a formal grievance had been raised against her.  However the claimant makes no allegation of detriment by Ms Dunlop nor does she allege that she had made any protected disclosures to Ms Dunlop.  Therefore there is no causal connection between the detriment and any alleged protected disclosures.

 

(4)          The Conduct of the Grievance Process and Investigation

 

            HR Records

 

129.    The claimant alleges detriment in relation to the content of HR records dated 6 April 2018.  The HR records were notes of a conversation between Mr Gray and a HR representative the day after he received the claimant’s letter of grievance dated
5 April 2018.  The claimant was clear in cross examination that she was not alleging detriment in respect of the fact that Mr Gray contacted Human Resources to obtain advice.  The claimant’s case is that the HR notes contain inaccurate information and that this amounts to a detriment on the ground of her having made protected disclosures.

  

130.    The tribunal carefully considered the content of the HR notes and find that they do not on any reasonable analysis amount to a detriment.  The tribunal accepts the respondent’s witnesses’ unchallenged evidence that these notes were created by a member of HR staff as a summary of their conversation with Mr Gray.  They are not Mr Gray’s notes.  The tribunal finds that the HR notes record the current position in respect of the claimant’s absence, her grievance, the grievance of Mr Magennis and ongoing issues between the claimant and her line manager. 

 

131.    The tribunal further concludes in light of all the evidence that any alleged or perceived detriment was not on the ground of or materially influenced by the claimant having made protected disclosures for the following reasons:-

 

            (a)       These notes were created by a member of staff in Human Resources and the claimant does not allege, nor is there any evidence, that she made any protected disclosures to any individual in HR. There is therefore no causal connection between the content of the HR notes and any alleged protected disclosure.

 

            (b)       The tribunal accepts Mr Gray’s unchallenged evidence that what was recorded in the HR notes, although not his words, reflect factually what he understood to be the issues pertaining to the claimant at the relevant time.

 

Grievance Hearing

 

132.    The claimant claims she was subject to a detriment in respect of her grievance hearing and its outcome.  The claimant’s case at hearing was that Mr Gray and/or Mr Parker influenced Mr McVeigh’s grievance outcome.  She also claims detriment by reason of Mr McVeigh not investigating her Category A disclosure.

 

133.    The height of the claimant’s case on this was that email correspondence dated 26 July 2018 was evidence of Mr Gray and Mr Parker influencing the grievance outcome.  The tribunal considered the email exchanges and find that they contain no evidence of influencing on the part of Mr Gray.  The tribunal finds that the extent of what is communicated between Mr Parker and Mr Gray is that the grievance outcome was imminent.  The tribunal finds that this is not evidence that either individual influenced Mr McVeigh’s conduct of the grievance or its outcome.

  

134.    The claimant was clearly unhappy with the grievance outcome and she lodged an appeal.  The tribunal finds there is no causal connection between any alleged protected disclosures and Mr McVeigh’s conduct of the grievance or its outcome.

 

135.    The tribunal also finds that the claimant was not subject to a detriment by reason of Mr McVeigh’s deliberate failure to investigate her Category A disclosure.  As per the tribunal’s findings set out above, this was a personal grievance under three specific headings (i) failure of a legal duty of care under Health and Safety at Work Order; (ii) examinations and appraisals being subject to collective bargaining; and (iii) Breach of Data Protection.  The tribunal unanimously concludes that Mr McVeigh properly considered the claimant’s grievance under the respondent’s ‘Resolving Issues at Work Policy’.  There was no deliberate failure to act resulting in a detriment by reason of a failure to investigate her disclosure as this was not the basis of the claimant’s grievance.  As per the tribunal’s findings of fact set out at paragraphs 92‑99 above, the claimant’s grievance related to three specific heads of complaint and any reference to what the claimant now alleges are disclosures are entirely within this context.  The tribunal finds this to be an entirely misconceived expectation on the part of the claimant and not an act to her detriment.  Furthermore the tribunal finds this was not on the ground that the claimant made any alleged protected disclosures. 

 

            Grievance Appeal

 

136.    The claimant’s alleges detriment in the appointment of Mr Masterson to hear the grievance appeal.  The claimant was not alleging that Mr Masterson subjected her to an act or omission resulting in a detriment because she had raised protected disclosures to him or that he was aware of any of her alleged protected disclosures.  The claimant’s case was that Mr Masterson had been “selected” by Mr Gray to hear the grievance appeal and this was evidence of Mr Gray influencing its conduct and outcome.  The claimant relied on an email between Mr Gray and HR dated 24 August 2018 as evidence of Mr Masterson being influenced by him.  The email stated as follows:

 

                        “I have contacted Steve Masterson, Head of Corporate and Institutional in UBI DAC - he owes me a favour from an old grievance I heard for his team back in 2003.  I have a long memory”.

 

137.    The tribunal unanimously finds that his email makes reference to the fact that Mr Gray had previously conducted a grievance process for a member of Mr Masterson’s team in 2013 and that he was suggesting Mr Masterson as a means of him returning the favour.  The tribunal accepts the unchallenged evidence of Mr Gray that he had not spoken to Mr Masterson since September 2015.   The tribunal finds there is no evidence of Mr Gray influencing Mr Masterson in his conduct of the grievance or its outcome.  The tribunal rejects the claimant’s case on this. 

 

138.    The claimant made the following criticisms of Mr Masterson’s conduct of the hearing:-

 

            (a)       he did not have any training in disciplinary procedures;

 

            (b)       he failed to speak to witnesses;

 

            (c)       that the outcome made incorrect comments about the claimant’s behaviours and referred to unsubstantiated claims in respect of her ‘alleged behaviour” 

 

139.    The tribunal accepts that the claimant was unhappy with the outcome of grievance and she identified the above criticisms as acts causing detriment however there was no evidence of any causal link between these criticisms and any alleged protected disclosures.  The tribunal finds that any alleged detriment is not on the grounds of or materially influenced by any alleged protected disclosures made by the claimant.

 

(5)       Transfer

 

140.    The claimant did not allege in her claim form that the decision to transfer her was a detriment.  However in her witness statement the claimant stated that:-

 

                        “A Team structure chart was issued to Credit on 04 July 2018 and my position was not included.  I raised this with Robin Gray on 13 August 2018 and expressed by concern that I was being transferred because of my disclosures and the only other person being moved was one of my witnesses”.

 

141.    In cross-examination the claimant accepted that she agreed to move to the CRM team, a newly created credit team within the Credit Department, and that she was content to do so.  The tribunal finds from the claimant’s evidence that she did not view her transfer to the CRM team as an act causing detriment.  The claimant did not raise a grievance in respect of the transfer or make any complaint either formally or informally at the time   Furthermore, the tribunal finds that the decision to move the claimant was not on the ground of her having made any of the alleged disclosures or that the decision was in any way influenced by any alleged disclosures.  The tribunal finds that the decision to move the claimant and another employee into the newly formed CRM team was based on Mr Parker and Mr Gray’s assessment that she was the best fit for the type of work to be undertaken.  In addition the tribunal finds that the relationship between the claimant and her line manager - Mr Parker, had deteriorated and therefore the transfer was to the claimant’s benefit and not to her detriment, as accepted by the claimant in cross-examination. 

 

(6)       Being Subjected to Disciplinary Proceedings, the Conduct of the Disciplinary Proceedings and the Imposition of a Final Written Warning

 

142.    It was the claimant’s case that she was subjected to disciplinary proceedings and issued with a final written warning “in direct response to her request to Mr Gray to discuss her disclosures with the Regulator”  in her email dated 17 April 2019.  As per the tribunal’s findings, as set out above, the email did not contain any of the claimant’s alleged disclosures Categories A-C.

 

143.    It is common case that Mr Roberts as Group Chief Credit Risk Officer launched a compulsory strategic Credit Risk Accreditation programme in March 2017.  This was communicated via email on 21 March 2017.   This required employees in Wholesale credit (including the claimant) to achieve an appropriate level of Chartered Banker Lending Skills qualification.   Mr Roberts issued a reminder email in March 2018 stating that all accreditation was to be completed by 30 June 2018.

 

144.    It is common case that the claimant had declined to undertake qualifications as far back as 2014 and had repeated her refusal in 2016 and on a number of occasions thereafter with her line manager.   The claimant raised the requirement as part of her grievance in April 2018.    The tribunal finds that claimant on different occasions gave various different reasons as to why she did not wish to undertake accreditation/exams including:-

 

            •           failure to be appointed to a role on a previous occasion;

 

            •           that the requirement to undertake exams was a unilateral attempt to alter her terms and conditions of employment;

 

            •           that exams are voluntary;

 

            •           that it was in breach of the claimant’s human rights;

 

            •           that she failed to receive a pay increase or bonus in the past year;

 

            •           that roles in credit risk had not been advertised in contravention of Employment Legislation; and

 

            •           that the claimant had been under extreme stress for over two years and had no desire to add to it. 

 

145.    The claimant was invited to a disciplinary hearing by letter dated 22 July 2019.  The disciplinary hearing took place on 30 July 2019 and was conducted by Mr Crimmins.

 

146.    The disciplinary charge, as contained in the invite to the disciplinary hearing, was that the claimant had repeatedly refused to comply with a Senior Management instruction to “register for exams or become accredited to diploma level in line with the Risk Accreditation Programme”. 

 

147.    The tribunal finds that the claimant was prepared to go through a disciplinary process in respect of the respondent’s instruction that she undertake the accreditation, as she had stated this to Mr Gray in a conversation on 17 May 2017.

 

148.    It is common case that the requirement to take exams/obtain accreditation was part of the claimant’s grievance as she contended that exams/accreditation were voluntary in the same way as participation in performance management by reason of a local union agreement.   The respondent accepts that the performance management process was voluntary.  The tribunal finds that the claimant was conflating the voluntary performance management process with the requirement to undertake examinations/accreditation.  The tribunal finds that the voluntary performance management process was entirely distinct from the respondent’s requirement for staff to undertake examinations and finds the claimant conflation of these two issues to be wholly unreasonable.

 

149.    The tribunal finds that the claimant viewed the disciplinary process and outcome as a detriment as a reasonable employee would consider disciplinary action to be to their disadvantage.  However the tribunal finds that the decision to take disciplinary action, the disciplinary procedure and its outcome were not acts on the ground of or materially influenced by the claimant having made any alleged protected disclosures for the following reasons:

 

            (a)        On the claimant’s own case, she had consistently and repeatedly declined to undertake exams/obtain accreditation since as far back as 2014.  The tribunal finds that the claimant viewed them as ‘a pointless exercise’.  This had been her position and remained her position prior to and throughout the entire time within which the claimant asserts she made her alleged protected disclosures.   The tribunal finds that the issue of undertaking exams/obtaining accreditation was an historic one predating any alleged protected disclosures and was entirely unrelated to any alleged public interest disclosures.

 

            (b)        It is common case that during the claimant’s half year review in July 2016 she was reminded that she was expected to undertake examinations and although there would be no repercussions in that year, the Bank was making this a mandatory requirement.  

 

            (c)        The tribunal finds that Mr Roberts, head of Credit Risk issued a work instruction that all credit staff were to undertake accreditation by 30 June 2018.  The tribunal finds this was a reasonable work instruction that the claimant consistently refused on numerous occasions     

 

            (d)        The claimant was fully aware of the requirement to undertake accreditation and the repercussions of not doing so.      

 

            (e)        The tribunal finds that all Wholesale Credit Risk staff in the Ulster Bank and RBS/NatWest were required to and had undertaken the requisite accreditation.  

 

            (f)         The claimant points to the timing of the decision to initiate disciplinary action as evidence that it was motivated by her having made protected disclosures.  The tribunal rejects the claimant’s case on this point and finds that the decision to take disciplinary action was taken in 2019, well after the time limit set for the completion of the accreditation - namely 30 June 2018.  The tribunal finds that the decision to progress to a disciplinary hearing was delayed by reason of the claimant’s grievance process as the exam issue had been a part of the claimant’s grievance and also due to the claimant’s periods of sickness absence.  Furthermore, the tribunal finds that the respondent’s approach throughout was to encourage the claimant to undertake the exams/accreditation and to reconsider her position to avoid the respondent having to initiate disciplinary action.  This was evidenced throughout the contemporaneous documentation in the trial bundle.

 

 

            (g)        At the disciplinary hearing the claimant was given a further opportunity to undertake the exams to avoid disciplinary action and she maintained her refusal.

 

            (h)       The tribunal finds that it was entirely reasonable for the respondent to initiate disciplinary proceedings after the claimant had been given a number opportunities to change her mind.  Furthermore the disciplinary charge of gross misconduct was proven however Mr Crimmins chose to issue a lesser sanction of a final written warning rather than dismissal.

 

150.    The claimant alleges that Mr Crimmins was not independent and that the disciplinary outcome was predetermined by reason of email contact between him, Mr Gray and Mr Parker.  The tribunal carefully considered the email correspondence between Mr Crimmins, Mr Gray and Mr Parker find that at all times any contact was for the purposes of his investigation into the disciplinary allegations and to update Mr Gray and Mr Parker who he understood were her line managers.  The tribunal finds as a fact that the claimant was unknown to Mr Crimmins prior to the disciplinary process and that he had no interest in its outcome.

 

151.    The tribunal finds there is no evidence to support the claimant’s contention that Mr Crimmins’ conduct of the disciplinary hearing or his outcome was influenced by Mr Gray or Mr Parker.  The tribunal carefully considered the minutes of the disciplinary hearing, the email correspondence and the disciplinary outcome and is satisfied that Mr Crimmins approached the disciplinary hearing independently and thoroughly.  The tribunal finds that he undertook further investigations after the initial disciplinary meeting and he offered the claimant a further opportunity to change her mind and agree to undertake the relevant examinations.   

 

152.    The tribunal also rejects the claimant’s case that the disciplinary process was flawed by reason of the delay between the first hearing and the second hearing on 29 October 2019.  The tribunal finds that the delay in the process was by reason of Mr Crimmins’ annual leave in August 2019 after which he undertook further investigations.  In his letter to the claimant dated 15 October 2019 to arrange the second hearing the claimant responded - “I have no issue with the delay”.   The tribunal finds that in all the circumstances this was not a detriment nor did the claimant view the delay as an act of detriment.

 

153.    The tribunal is satisfied that the claimant viewed the disciplinary outcome as a detriment and that any reasonable employee would consider this to be a disadvantage.  The tribunal finds that the claimant fully understood the reason for the disciplinary as she was “quite prepared to go through a disciplinary process” and she was resolute that she would not undertake exams or accreditation.  The tribunal finds that the decision to take disciplinary action, the disciplinary procedure and the outcome were not acts on the ground that the claimant had made any alleged protected disclosures or in any way influenced by any alleged protected disclosures.  There was no evidence that Mr Crimmins was in any way influenced by any alleged protected disclosure or that he was influenced by the claimant’s indication to Mr Gray that she was approaching Mr Roberts or the Regulator. 

 

Micromanaging of the Claimant

 

154.    The claimant’s claims she was subject to ‘demeaning micromanaging’ by Mr Parker after she transferred to the CRM team in August 2018, when he was no longer her line manager.  The claimant specifically alleges the following as acts on the part of Mr Parker as causing detriment on the grounds of her having made her alleged protected disclosures:

 

            (a)        That he would report when the claimant was in the office. 

 

            (b)        That he made enquiries as to what the claimant was discussing at lunch.

 

            (c)        That he made negative comments in respect of the claimant. 

 

155.    It was common case that the claimant’s workstation was located on the same floor and in the same room as Mr Parker’s team, even though she was no longer directly part of his team.  It was also common case that the claimant was line managed by Mr Thompson and Mr Gray who were both based in Scotland. 

 

156.    The tribunal finds that because of the distance between her and her line managers, Mr Parker was requested to provide “on the ground” feedback because the claimant was physically located within Mr Parker’s team.  For example Mr Parker emailed Mr Gray to confirm that the claimant had returned from a period of sick leave on 29 September 2019.  This was in response to an email from Mr Gray.  The tribunal finds that the feedback between Mr Parker and Mr Gray was extremely limited and related only to whether or not the claimant was in the workplace or had reported for work.  The tribunal finds in all the circumstances that this was not an act causing detriment to the claimant.

 

 157.   In addition the tribunal finds that Mr Parker made enquiries from a colleague of the claimant, who had met the claimant for lunch, during a period she had been on sick leave.  The tribunal finds that this was an enquiry as to the claimant’s wellbeing and a courtesy enquiry of when she was intending to returning to work.  The tribunal finds that this does not in all the circumstances of this case amount to a detriment nor could it reasonably be considered as a disadvantage to the claimant. 

 

158.    It is common case that Mr Parker maintained a typed up personal diary which included entries of his interactions with the claimant.  The tribunal finds that the act of keeping a diary was reflective of the difficult working relationship between the claimant and Mr Parker.  As her line manager there had been ongoing issues relating to her failure to undertake one2one meetings with him and their working relationship was strained and deteriorated further after she had raised her grievance. The tribunal finds that the reason he kept the diary was that having worked with the claimant for a number of years he had, in his words ‘learned not to be caught out’.    The tribunal finds that this was not an act to the detriment of the claimant or that the claimant has proved she was disadvantaged by this.

 

159.    The claimant also alleges detriment by reason of an email from Mr Parker to Robin Gray.  This email was dated 23 October 2019 and states as follows:-

 

                        “Not to add to your woes,

 

                        This is ridiculous - I’m sitting 2 desks away, and she can’t tell me this when I return?  She could plainly see I was not here.

 

                        And frankly I think its pig ignorant the way it’s written, considering I have no prior involvement in the case and wasn’t part of the initial email.

 

                        NB I didn’t mention this on Monday when we spoke as there was enough work to talk about, but at the credit delivery monthly check-in when you were off they said back they were having issues.  Torn off responses and issues with responses not mirroring what was said/agreed on the phone by her de-ja-vouz I would say, honeymoon period in new role is possibly over.  But you may wish to pick up with them?  I think it was Stephen rather than Scott.

 

                        Philip”

 

160.    The tribunal finds that Mr Parker felt the claimant had “dumped” an email on him in respect of a case which was not within his remit without the courtesy of speaking to him beforehand.  At hearing, the claimant’s evidence was that she had sent the email to him in error.  The tribunal notes the claimant at no time emailed Mr Parker to confirm that she had sent the email in error nor was there any evidence that she had retracted the email.   The tribunal finds that Mr Parker sent the email to his line manager and not to the claimant as a means of expressing his frustration at the claimant’s conduct.  The tribunal finds this was reflective of the fact that their working relationship had been strained and further deteriorated. The tribunal finds that Mr Parker viewed the claimant’s email as short and discourteous.  The tribunal finds that the comment ‘pig ignorant’ could reasonably be viewed as a detriment however finds that it was not a detriment on the ground of the claimant having made any alleged protected disclosures nor was it in any way materially influenced by any alleged disclosures.

 

161.    The tribunal finds that the claimant has not adduced evidence that she was subject to ‘micromanaging’ by Mr Parker or that any of the incidents identified by the claimant amount to a detriment.  In addition, the tribunal concludes that there was no causal connection between any alleged protected disclosures and the above alleged detriments.  The tribunal finds that the claimant viewed Mr Parker negatively and with suspicion after Mr Magennis had raised his grievance against her and this distorted her view of him. 

 

SUMMARY

 

162.    The tribunal finds that the claimant did not make any protected disclosures.  Furthermore, had the tribunal determined the claimant to have made protected disclosures, the tribunal finds that none of the detriments were on the grounds of or materially influenced by the claimant having done so.  The tribunal therefore dismisses the claimant’s claims in their entirety.

 

Employment Judge:

 

 

Dates and place of hearing:        6-17 September and 30 September 2021, Belfast.

 

This judgment was entered in the register and issued to the parties on: