In the Tribunal’s words: References to the Chief Officer of AVOW
These are extracts from the Tribunal’s written reasons, with original paragraph numbers. They are the sections of the Tribunal’s judgment which contain references to AVOW’s Chief Officer, John Gallanders. At the time of writing (October 2011), John Gallanders remains at the helm of AVOW.
The Tribunal’s findings:
1. The claimant, Genevieve Bove (known as Genny Bove), claims disability discrimination and unfair (constructive) dismissal. The respondent is the Association of Voluntary Organisations in Wrexham (known by its acronym AVOW); it is a charity and a company limited by guarantee that is run by a combination of unpaid trustees and salaried officers. Its chief officer since June 2000 has been Mr John Gallanders. The case arises from a relatively short period of time – seven months – during which the claimant worked for the respondent.
13. The respondent supplied statements for nine witnesses: John Gallanders (chief officer), Rachel Ross (former deputy chief officer) and seven current or former trustees: Margaret Bryden, Moira Jones, Brian Neale, Gail Thomas, John Davies, Peter Webber and Mervyn Rosenberg. The respondent did not call Peter Webber in the end. For reasons set out later in this judgment, we rejected an application to adjourn the Hearing part-heard so that Dr Rosenberg could give oral evidence.
14. The prolixity of the claimant’s witness statement was, however, as nothing compared to the brevity of the statements supplied on behalf of the respondent. They were singularly unhelpful. None exceeded four short sentences in length; most did not exceed two. None were ready by the directed date for exchange (10 January 2011); indeed, one of the respondent’s principal witnesses, its chair of trustees at the time, told us he had no idea that the claimant had even brought Tribunal proceedings until 17 January 2011. The respondent’s statements were limited to an assertion that certain minutes of meetings were true and accurate, accompanied by a request that we look at specific pages of the bundle but with no attempt to provide a factual context or commentary. They told us almost nothing about the position of the respondent’s witnesses on the matters in dispute. They barely complied with the letter, let alone the spirit, of the requirement to disclose evidence in chief by the provision of statements. We found this particularly surprising given that the respondent has been professionally represented throughout the matter. The effect was that the claimant attended the Hearing having given (very) full disclosure of her own evidence in chief but knowing almost nothing about the evidence in chief of the respondent’s witnesses beyond what could be inferred from the documentation.
Third preliminary matter: admissibility of allegedly privileged documents
24. The respondent applied for a ruling that the seven documents in bundle C1 were privileged and that the claimant could not rely on them. They comprised correspondence passing between the respondent and RBS Mentor Services, the organisation that employs Ms Bibi and which has acted as both insurer and representative to the respondent. This was a more complex point and it required careful consideration, since these documents were central to the claimant’s contention that Mr Gallander had acted with discriminatory motives.
Circumstances of the disclosure and the later assertion of privilege
27. There is no factual dispute over the circumstances in which the documents in bundle C1 came into the claimant’s possession. The respondent sent them to her as part of its disclosure on two occasions, in September 2008 and May 2009, in response to subject access requests she had made under the Data Protection Act 1998. Mr Gallanders, the respondent’s chief officer, told us that Rachel Ross (his deputy) collated the first disclosure in September 2008 while he personally collated the second disclosure in May 2009 with the assistance of Gail Thomas (a trustee).
28. The first disclosure included the document at C1(1). The claimant acted promptly in bringing her possession of it to the respondent’s attention. She handed a copy of it to two trustees, Gail Thomas and Brian Neale, at a meeting on 16 October 2008. Ms Thomas then gave it to Mr Gallanders. Despite knowing the claimant was in possession of it, however, Mr Gallanders did not ask for it back.
29. Having disclosed such material to the claimant once, the respondent did it again with the documents at pages C1(2) to C1(10). They were sent under cover of a letter dated 13 May 2009 (C2, page 9). On 16 May 2009, the claimant wrote to the respondent to contend that it had waived privilege and, among other things, asked for full disclosure of all correspondence with its legal advisers (C2, page 10). Once again, the respondent did not ask for the return of these documents. Instead, on 29 May 2009, Mr Gallanders wrote to the claimant in these terms: “any additional items that have not been disclosed are being retained under professional privilege” (C2, page 12). He did not assert privilege over the documents that had already been disclosed. In another letter dated 23 June 2009, he again passed up the opportunity to assert privilege over the documents already disclosed (C2, page 15).
30. Ordinarily, we would have much sympathy for the reluctance of a small charity to incur the legal costs associated with an application to restrain a claimant from using potentially privileged documents or seeking their “delivery up”. However, it is clear that the trustees and managers of the respondent simply did not apply their minds to the question of seeking their return. Mr Gallanders did not, for example, write to the claimant to ask for the documents back; we emphasise that he simply asserted privilege over documents that the claimant had not yet seen. The first occasion on which the respondent asserted privilege over the documents already disclosed to the claimant was at the CMD before Employment Judge Harris on 13 October 2009: this was, by now, about 13 months after the first disclosure and five months after the second disclosure. In the meantime, some of these documents had become central to the developing factual narrative of the case: for example, negative comments made by Mr Gallanders about the claimant in the document at C1(1) had become the subject of a further internal grievance by her and the respondent’s alleged failure to deal with that grievance turned into one of her stated reasons for resigning (pages 575 to 582).
The content of the documents
31.1 The document at C1(1) was a note written by Mr Gallanders to RBS Mentor Services. He has accepted that he was the author of the document and that, despite being undated, it was written on 29 July 2008. It contained a section headed “Confirmation of Mentor Advice” and dealt with the matter of the potential application of TUPE to the claimant. As stated above, it contained some negative remarks about the claimant.
31.3 The document at C1(3) was an unredacted email dated 19 September 2008 from Mr Gallanders to Ms Egan about medical issues and CRB checks.
32. The content of the disputed documents related in the main to three matters: (a) the TUPE claim; (b) issues arising from the claimant’s migraines and her continuing employment; and (c) questions of settlement. The claimant had redacted all references to settlement figures. The principal reason she sought to rely on them was because their content was said to cast light on the underlying motives of Mr Gallanders in his dealings with the claimant, in which regard the documents at C1(1) and C1(3) were the most important.
73. Two days later, the claimant attended a meeting with Mr Gallanders and Ms Ross where they discussed the respondent’s dress code and the lighting arrangements for the office. During this meeting, Mr Gallanders said “But what did you expect in an office? All offices have fluorescent lights. I don’t see how we can ensure that you don’t get exposed to them”. The claimant was not challenged about her recollection of this remark and indeed Mr Gallanders accepted saying something along those lines. It was an insensitive thing to say and it demonstrated a lack of understanding of the claimant’s condition.
76. The claimant replied the following day and resigned with immediate effect (pages 243-245). It would be fair to describe the claimant as someone who prefers to make her points in correspondence: her letters are intelligent and articulate but often very long. This was the first of many such letters in the bundle. Her reply dealt with both the dress code and, at greater length, the lighting issue. There are two points in particular we drew from this letter: first, the claimant repeated that only incandescent or low energy bulbs would offer a “guaranteed solution which would totally solve the problem in the office and meet everyone’s need for light”; secondly, she would have been prepared to look at daylight tubes as an “interim solution” but not in circumstances where only the ones above her desk were changed. She made clear that one of the reasons for her resignation was the lack of “any commitment by senior management to take responsibility for resolving the lighting issue” and in particular Mr Gallanders’ insensitive remark.
77. Ms Ross wished to treat the claimant’s resignation letter as a formal grievance (page 247). This was followed by protracted correspondence, the thrust of which was that the claimant did not wish to pursue a grievance or an Employment Tribunal claim but wanted the respondent to “understand its responsibilities under the Disability Discrimination Act”. Eventually, Mr Peter Webber (then chair of trustees) said that he had “closed the matter” in view of the claimant’s desire not to pursue a grievance (page 262). We have included the incident in our judgment by way of background; it tells us quite a bit about the characters of both the claimant and Mr Gallanders and offers an explanation for why, as we shall see, Mr Gallanders took against the claimant at an early stage.
Confusion over claimant’s status (and first example of bad faith)
81. Mr Gallanders was unhappy about the claimant transferring to the respondent’s employment. Irrespective of the shifting advice over whether or not her employment was protected by TUPE, he simply did not want to take her on. This is shown most clearly in his note to his advisers on 29 July 2008 (document C1(1), which we found not to be covered by litigation privilege):
Having had difficulties with employing Genevieve Bove in the past, and having received complaints about poor performance in her current role from Carers accessing the service, we do not feel that she has the skills and qualification to effectively carry out a Carer Support Worker role. Through an open recruitment process it is unlikely that she would be offered an interview.
82. Mr Gallanders accepted that he wrote this note at the time and he gave evidence to us on what he meant by it. His evidence was unsatisfactory. He was unable to give a single example of a complaint about the claimant’s “poor performance”. He could not recollect whether the complaints to which he had referred came from carers or the Council. When pressed by the claimant to specify the skills she lacked, he was vague. He could offer no criticism of her qualifications. He at first suggested that his remarks reflected a “subjective assessment done at the time, based on comments in the general context of Wrexham Council”. When asked to clarify his remark, he said it was “more to do with interpersonal skills. I can’t say precisely why it was written in that way”.
83. We find as a fact that the real issue playing on Mr Gallanders’ mind – and his real reason for not wanting to work with the claimant – was his previous experience of “difficulties” in employing her. We are clear that this is a reference to her previous grievance, which was in large measure about alleged disability discrimination. The reference to her lack of skills and qualifications was a smokescreen.
84. It is tempting to construct, at this stage at least, a narrative sympathetic to Mr Gallanders. His last experience of the claimant had involved a few days’ work, in return for which he faced a complaint about discriminatory lighting and quite a bit of hassle. And here she was again: her name had appeared as a transferring employee and she had not even joined his workforce before bringing another grievance. However, such a narrative would be unfair and overlook the point that both of the claimant’s grievances had been brought in good faith and were legitimate: the respondent had failed to make proper adjustments in July 2007 and, more recently, it had caused her unnecessary confusion over the application of TUPE.
85. In any event, upon advice, Mr Gallanders accepted that the claimant’s employment did have to transfer to the respondent under TUPE. We are clear that he took her on only because he was advised that he had to do so, despite his preferences to the contrary. We are also clear that, from this point on, he acted towards the claimant in bad faith.
86. On 12 July 2008, around the same time, Mr Gallanders conducted a risk assessment (pages 274 to 275), due to be reviewed in September 2008. The person(s) at risk were said to be “General Staff”. Mr Gallanders had not discussed the claimant’s needs with her directly. On the subject of lighting, he wrote: “All fluorescent light tubes have been replaced with a daylight colour to create a more natural colour. All tubes are operational with no noticeable flicker”.
87. On the face of it, this might have seemed an appropriate adjustment to make. Our industrial experience is that, in many offices up and down the country, fluorescent light tubes have been replaced with a “friendlier” variety that better simulates natural light and neither “flickers” nor emits the “hum” of old.
88. However, that would overlook the point that it was not an appropriate adjustment for the claimant. As we noted above, her particular experience was that these modern “daylight” tubes could still trigger a migraine… Despite dealing with a condition that was poorly understood, Mr Gallanders did not consult the claimant about the matter and did not seek expert input. Instead, he became entrenched in his view that the installation of daylight tubes was all that was needed and that his assessment of risk was therefore suitable and sufficient.
100. On behalf of the respondent, Mr Gallanders replied to the [DDA] questionnaire (pages 106 to 115). His reply underlined the respondent’s position that it already had made a reasonable adjustment after installing “daylight” tubes following the experience of employing her in July 2007.
101. In parts, Mr Gallanders’ reading of the medical evidence (as set out in the reply to the questionnaire) revealed a rather pernickety approach. For example, in his letter to the respondent dated 1 August 2008, Dr Willis had observed that the claimant’s migraines were “at times … triggered by fluorescent lighting”. Mr Gallanders’ observation was that “it does not say at all times” (page 113); this reply spoke volumes of his lack of understanding of migraines, seeing it wrongly as an “all or nothing” condition.
Disclosure of the C1(1) document
104. On 18 September 2008, the claimant received a bundle of documents from the respondent in response to her subject access request. So, for the first time, she became aware that Mr Gallanders was of the opinion that he had experienced “difficulties” in the past when employing her and that she lacked the skills and qualifications for the role. The claimant described this, understandably, as a huge blow to her self-confidence. She was initially uncertain about what to do with the disclosed document.
The CRB check (and second example of bad faith)
108. A parallel concern in this case was why, in due course, the respondent sought an enhanced CRB disclosure for the claimant in circumstances where (a) her previous employer in the same job, DVSC, had only sought standard disclosure and (b) contrary to the Code of Practice, she had not been told in advance such disclosure would be required. The claimant was confused by this approach and wondered, to put it bluntly, if the respondent was looking for dirt on her. She did not work directly with vulnerable adults and children, only for those individuals who cared for them. In recognition that some of the carers might themselves be vulnerable persons, she accepted that a standard disclosure might be appropriate. She did not accept, however, that an enhanced disclosure was appropriate.
109. The respondent’s position at the Hearing was that it was required by Wrexham Borough Council under its bid documentation to make sure that all staff underwent enhanced CRB disclosure. This was not correct: the documentation contained in the “AD” bundle showed clearly that, while the Council expected the employees of agencies with whom it worked to undergo CRB checks where appropriate, it was ultimately the responsibility of the chief officer (in this case, Mr Gallanders) to define which jobs required CRB disclosure and at which level (standard or enhanced). On this point, the respondent’s tender said no more than that staff would receive “appropriate” CRB checks. It did not require disclosure for all employees and it certainly did not require enhanced disclosure for a person doing the claimant’s job.
110. We have introduced this issue at this stage because the true explanation for the respondent’s actions is revealed by an email that Mr Gallanders sent his adviser at RBS Mentor, Ms Egan, on 19 September 2008 (and copied to Ms Ross). The email was at page C1(3) of the C1 bundle; this, it may be recalled, was a document we found not to be covered by litigation privilege (or, alternatively, a document for which any such privilege had been waived). In this email, Mr Gallanders wrote (with our emphasis):
Following on from your discussion re [the claimant] and access to her medical records – if her issue about migraines – she says it is lighting but there has never been any indication that this could actually be to do with the use of a computer. We have a policy here that anyone working on a computer is offered eye testing. If we are trying to now be awkward to her by asking for the medical reports can we actually insist on her going for a VDU workplace eye test whilst she is still on the sick.
We would also require a CRB for the position she is supposed to be doing. – are we ok to start this process of getting the correct id etc from her. It might be a long shot but there may be something that shows up in this which may indicate she is unstable for the job.
111. When questioned by the claimant, Mr Gallanders confirmed that the “we” in this email was not a reference to him personally but to the respondent organisation as a whole. He also accepted that, as chief officer, he wrote the email with the inferred authority of all the trustees. As to the content of the email, his evidence was, again, unsatisfactory. He said that the phrase “if we are trying now to be awkward” in fact meant that he was trying not to be awkward. He said that the request for a CRB check was simply to check whether the claimant was “unsuitable” for the job and that his computer had likely changed the word to “unstable” through the spell check mechanism.
112. We reject his evidence. The reality, we find, was simply that Mr Gallanders was fed up of the claimant and wanted to find a reason to get rid of her, whether that came through medical reports casting doubt upon the truth of her migraines or, worse, by trying to dig up dirt with a belated enhanced CRB check. We know that the respondent categorised the claimant in its pleadings as something of an “eco-warrior” (its term, not ours, at page 85); local police cautions and so on arising from her protest activity would only have shown up in an enhanced CRB check. That is the material the respondent was looking for and it had nothing to do with the claimant’s ability to do her job. If we had not concluded earlier that he was acting towards the claimant in bad faith, we would have concluded it from this point. In frank terms, this email lets the cat out of the bag; it demonstrates that, from this point, Mr Gallanders was not looking for a solution to the problem that involved retaining the claimant as an employee, but was instead looking for a solution that involved losing her as an employee.
The TUPE grievance: further letter (and third example of bad faith)
114. On 26 September 2008, a letter was sent to the claimant in the name of John Davies; he had now taken over as chair of the respondent’s board of trustees (pages 334 to 336). The ostensible purpose of the letter was to respond to her appeal against the rejection of her TUPE grievance. There had been no further appeal meeting as such; Mr Davies wrote that he was answering questions that Ms Ross had not answered in her earlier letter. He then gave the claimant an opportunity to request an appeal hearing if she chose. It was certainly a fuller response and Mr Davies repeated the apology Ms Ross had given, although he added: “we are at a loss to [know] what you are now looking for”. In the same letter, he sought permission to contact the claimant’s GP in order to obtain medical information relevant to what was now being described as “the DDA grievance”.
115. However, there was a major problem with this letter. Mr Davies had not written it. He had not even seen it. He told us so himself at the Hearing and we accept his evidence. He explained that the first time he had seen this letter was when it was shown to him on 17 January 2011. This was when he learned for the first time that the claimant had brought Tribunal proceedings. He was asked to sign a witness statement referring to this letter and he refused, signing an amended version instead. The true author of the letter is revealed by the signature it bears: Mr Gallanders.
116. We regret to say that this demonstrates the extent to which Mr Gallanders was manipulating the organisation of which he was the chief officer. The role of the trustees of a charity is to take ultimate responsibility for its management and administration. The respondent was also incorporated (as a company limited by guarantee) and so, presumably, its trustees held office as directors and had fiduciary duties to the respondent. A chair of trustees such as Mr Davies would have great authority to speak on its behalf. The members of the Tribunal, who have all had personal experience as trustees of charitable organisations, think it was reprehensible for Mr Gallanders (who was not himself a trustee) to write a letter in Mr Davies’ name, without his consent, giving the deliberate impression that the chair of trustees was “at a loss” to know what the claimant was looking for. It was a further act of bad faith on his part and reflected his desire that the claimant should not work for the respondent. It was also an abuse of his position as chief officer.
117. In a reply dated 28 September 2008, addressed to both Mr Davies and Mr Gallanders, the claimant pointed out that she had already exercised her right to an appeal against the rejection of her TUPE grievance and could not understand why she was being offered a further choice about whether she wished to appeal (pages 337 to 338). She sought clarity over whether it was Mr Davies or Mr Gallanders who was communicating with her; she did not herself learn until the Tribunal Hearing that Mr Davies had no knowledge at the time of the letter sent in his name. She also pointed out that the correspondence thus far had failed to deal with her complaint about the lack of information and consultation about the TUPE transfer. (This was the letter where the claimant mentioned for the first time the possibility of Tribunal proceedings, to which we referred above in the context of the respondent’s assertion of privilege.)
118. The bundle contained two undated letters described as having been sent “jointly on behalf” of Mr Gallanders and Mr Davies (pages 339 and 345). Mr Davies told us that he had been shown neither the claimant’s letter addressed to him nor the further letters also sent in his name. The second of these letters, sent on 1 October 2008, asked the claimant to complete an enhanced CRB disclosure application form.
The DDA grievance: first meeting (and fourth example of bad faith)
120. There is a document in the bundle bearing the print date of 27 April 2009 but which the parties agree was created on 1 October 2008. It is a briefing note from Mr Gallanders to Ms Barbara Roxburgh and Mr Ken Jones, two further trustees selected to hear the claimant’s DDA grievance on the respondent’s premises in a week’s time (pages 349 to 350). The claimant had not (at this stage) brought a grievance directly against Mr Gallanders, so there was nothing wrong in principle with his preparation of a briefing note to Ms Roxburgh and Mr Jones.
121. Since his last experience with the claimant in 2007, Mr Gallanders had arranged for the respondent’s office to use “daylight” fluorescent tubes rather than the older variety about which the claimant had previously complained. He had also arranged for the tubes directly above the claimant’s desk to be removed. As we discussed above in the context of his reply to the claimant’s DDA questionnaire, he held the view that the respondent had made a reasonable adjustment. He had not appreciated, however, that the claimant also had a problem with the “daylight” variety. Indeed, he became rather fixated on the fact that the claimant had not even tried out the “daylight” tubes before going off sick, entirely missing the point that she had fully discussed her problems with this alternative form of fluorescent lighting at her meeting with Ms Ross on 3 September 2008. In his briefing note to Ms Roxburgh and Mr Jones, Mr Gallanders told them that the claimant “would not have been aware that we had made the ‘reasonable adjustments’ re the lighting in the room” until having received his reply to her questionnaire a few days earlier.
122. Mr Gallanders’ next step was to set up a little experiment: without the claimant’s consent, he decided to use the forthcoming DDA grievance meeting as a test of how she would react to the “daylight” tubes. In the fourth paragraph of his briefing note to Ms Roxburgh and Mr Jones, he wrote:
Can I suggest that the meeting is conduced [sic] in the Carers room with Barbara and Ken sitting behind the table, which is located in the area where the fluorescent lights have been turned off? This will mean that [the claimant] is facing the wall, which is likely to be her working space. This is to give her adequate time to actually ‘experience’ the adjusted lighting in the room. If she requests that the meeting is stopped due to the lighting she should be asked ‘How long will it be before she feels she can resume?’ if she cannot resume could you clarify with her what additional information she would like to provide before the meeting is terminated. (This will be a vital bit of information for us to log precisely what time the meeting started and what time it ended as we are aware that she does go into various meetings which are lit only be [sic] fluorescent lighting).
123. The note ended with a specific request to a colleague “to vacate the office” and for Darren Tomkins, another employee, “to move the tables and chairs to arrange as appropriate”. We should also point out that the carers’ room had no external window; its only window was in the door leading to the internal corridor.
124. To underline the point: Mr Gallanders deliberately decided to hold the DDA grievance meeting in circumstances that the claimant had previously said would risk triggering a migraine, and he did not tell her that he was doing so. All three members of the Tribunal found this shocking, not a word we use lightly. As we repeat in our conclusions, it was an experiment carried out without the claimant’s knowledge or consent and which exposed her to the risk of pain. When asked by the Tribunal why he took this step, he told us that it was “a chance to assess the lighting in the room”. We firmly reject this explanation. If that were his intention, he could easily have discussed it in advance with the claimant. But instead of being upfront about it, he went about it in a way designed to catch her by surprise. What, then, was his motivation? We have already concluded that, by this stage, Mr Gallanders was looking for an opportunity to get rid of the claimant; also, in his own words, he was “trying to be awkward”. Against that background, we consider that the likeliest explanation is that he was trying to engineer a situation where he could say that the claimant had acted unreasonably by refusing even to try out the new lighting arrangements. We reject the even less generous interpretation that he was deliberately trying to cause injury to the claimant, but we still consider it a further example of his bad faith.
125. On 3 October 2008, Mr Gallanders wrote to Dr Willis, the claimant’s GP (pages 354 to 355). His letter sought information on adjustments that might be made and, in circumstances where we had not already concluded that he was acting in bad faith, its contents would have otherwise appeared perfectly reasonable (although his question “What is wrong with Genevieve Bove?” might have benefited from more sensitive drafting).
127. The minutes record that, “[o]n entering the office, it became apparent that the only available lighting was the overhead fluorescent lights which [the claimant] had already made clear were problematic for her and which were, in fact, the subject of this grievance meeting” (page 368). We accept the claimant’s evidence, corroborated by Ms Webster, that she asked Ms Roxburgh and Mr Jones if there was another meeting room available with different lighting and was told that there was none. We also accept her evidence that she then explained that she had brought some desk lamps with her and could plug these in so that the meeting could go ahead with the fluorescent lights switched off. Finally, we accept her evidence that Ms Roxburgh and Mr Jones then told her, without checking, that another room was available after all. They then moved to an adjacent meeting room with the lights turned off. Neither Ms Roxburgh nor Mr Jones attended the Tribunal to give evidence, but we consider that the likeliest explanation for their initial reluctance to change the lighting environment for the meeting was that they were seeking to comply with Mr Gallanders’ instructions.
129. On 8 October 2008, the claimant sent an email to Ms Ross and Mr Gallanders in which she complained about the unsuitable room chosen for the grievance meeting (page 375). She wrote:
You had not consulted me before making the adjustment (of removing two of the six fluorescent strips in the room) to see if this would be suitable. Fluorescent strips, even the ‘daylight’ ones, are not suitable. This is even more of a problem where there is no, or hardly any, natural light available in the room …
There was no additional lighting available in that room yesterday, but even if there had been, to plan a grievance meeting in a room lit in a manner which you know causes me problems and which is the subject of the same unresolved grievance, is totally unacceptable. It is akin to holding a meeting for a mobility impaired person, who has been having trouble with stairs at work, in an upstairs room with no lift access.
For our part, we consider that the claimant’s analogy is accurate.
The DDA grievance: the response and the claimant’s appeal
131. On 14 October 2008, the claimant received a response to her DDA grievance (pages 381 to 382). Once again, it is noteworthy that the letter did not bear the name of the two trustees who ostensibly heard her grievance. It was written and signed by Ms Ross in the first person. She had not even been at the grievance meeting. It further supports our interpretation that Mr Gallanders and Ms Ross were usurping the role of the trustees. It is also noteworthy that the letter was composed before the respondent had heard back from Dr Willis.
133. On the claimant’s specific request for incandescent lighting, Ms Ross wrote: “you have suggested that use of ordinary light fittings with energy saving light bulbs, however, due to the unknown success of this, we do not consider it reasonable at this stage”. This answer made little sense. Ms Ross did not explain in her letter why she had decided that such alternative lighting arrangements would have “unknown success”. She did not explain why such lighting could not at least be tried; after all, in our industrial experience, “reasonable adjustments” often involve an element of trial and error. In our view, the true position was that Mr Gallanders and Ms Ross had become fixated on the adjustments already made and they stubbornly refused to adjust further, despite the fact that it would meet the claimant’s needs and be both cheap and straightforward.
140. The more important point arising from this meeting is that the claimant asked the respondent’s minute-taker (Ms Kate Davies) to leave the room and then presented Ms Thomas and Mr Neale with a copy of the C1(1) document. We accept the claimant’s evidence, corroborated by Ms Webster, that she explained to Ms Thomas and Ms Neale that this document made clear that, all along, Mr Gallanders had never wanted her to work for the respondent. We accept that she told them that she had only felt strong enough to show them the document after discussing it first with her GP and counsellor. The claimant told us that Ms Thomas replied that all personal information had been “stripped” from the applications and that it was wrong for Mr Gallanders to say that the claimant would not have been offered an interview.
141. Ms Thomas and Mr Neale also gave evidence about this meeting. Ms Thomas confirmed that the claimant showed them the C1(1) document and agreed that she might have made a comment about the recruitment process. She said she was taken aback by the document and gave it to Ms Ross. She also told us, although she could not give specifics, that she expressed her concern about the document directly to Mr Gallanders. We accept her evidence. Mr Neale’s own evidence did not take the issue much further: he could not directly recall the C1(1) document.
142. On 21 October 2008, the claimant wrote directly to Ms Thomas and Mr Neale (page 399). On this occasion, she stated explicitly that, in having provided them with a copy of the C1(1) document, she was making a disclosure under the respondent’s whistleblowing policy. She stated that the disclosure amounted to either “unethical conduct”, “improper conduct” or conduct that fell “below established standards or practice” (as defined by that policy) on the part of Mr Gallanders.
143. Two days later, Mr Gallanders wrote to the claimant withdrawing the whistleblowing policy with immediate effect (pages 410 to 411). He stated that he was doing so in order to seek clarification on the points she had made. It was in direct response to her disclosure. He also wrote the following:
In the meantime we will continue to provide an open environment were [sic] if staff have any problems there is a structure in which they can report issues. The initial stage would be to report issues to their respective line manager or direct to the Chief Officer. If there were an issue with the Chief Officer a staff member would be able to approach the Chairman or any of the trustees. Staff members are encouraged to raise issues of concern at an early stage either informally or more formal manner [with] any of the senior Management or Trustees. In both instances the disclosure of any information would be confidential and only discussed with the other with the agreement of the staff member.
The TUPE grievance: respondent’s rejection of appeal
144. On 22 October 2008, the claimant received a letter dismissing her appeal against the rejection of her TUPE grievance (pages 401 to 402). Neither Ms Thomas nor Mr Neale wrote the letter; indeed, in their evidence to us, they confirmed that they had not seen it at the time. Mr Neale said that the first time he had seen it was at the Tribunal Hearing.
145. Following a pattern that had by now become well established, the letter was in fact from Mr Gallanders. He wrote it in the first person (e.g. “I do not find in your favour”) even though he had not been present at the appeal. Mr Gallanders was not simply manipulating the body of trustees to achieve the outcome he wanted, he was usurping their role by reaching their decisions for them.
146. In his letter, Mr Gallanders once again explained that the confusion over the TUPE transfer arose from an error on the respondent’s part; an error it had since rectified and for which it had also apologised. However, when questioned by the Tribunal, Mr Gallanders accepted that the respondent’s approach to the claimant’s TUPE grievance was incomplete. Throughout, he had focused on the confusion over whether she should transfer under TUPE or not. This neglected an important part of her grievance, which was why she had not been properly consulted even after the respondent accepted that her employment would be transferring under TUPE. It also neglected an important point that had emerged during the grievance process, namely whether Mr Gallanders had been personally motivated to avoid taking on the claimant under TUPE because of his previous unhappy dealings with her in 2007. Ms Thomas also accepted under cross-examination that Mr Gallanders’ letter did not deal with all the points that had been discussed at the meeting on 16 October 2008.
147. Neither Mr Neale nor Ms Thomas responded to the claimant’s disclosure about Mr Gallanders’ behaviour. As noted above, Ms Thomas passed the C(1) document directly to Ms Ross and discussed its content with Mr Gallanders. When Mr Gallanders wrote to the claimant on 23 October 2008 withdrawing the whistleblowing policy and making a guarantee of confidentiality, he must have known that Ms Thomas had acted contrary to that guarantee by discussing the claimant’s concerns directly with him (and without her agreement).
150.2 …the claimant again sought a private discussion with Ms Uche and Ms Brydon with Ms Davies, as minute-taker, absent. This was to address her concerns that Mr Gallanders had taken against her from the start, as shown by the C1(1) document. In particular, she wanted to know how the trustees would deal with her complaint that Mr Gallanders had acted unethically now that he had withdrawn the whistleblowing policy. We accept the claimant’s evidence that this discussion took place. Ms Tyrell corroborated it. Ms Uche did not give evidence but Ms Brydon confirmed to us that she recalled the claimant raising the issue. The claimant received no answer at the time. When questioned by the claimant at the Tribunal Hearing, Ms Brydon told us that the claimant’s concerns about Mr Gallanders were to be resolved “by discussion with the trustees”. When asked if any such discussion between the trustees ever took place, she could not recall if it had.
The DDA grievance: occupational health referral
151. Mr Gallanders was not present at the meeting. Nonetheless, on 31 October 2008, he wrote to the claimant to say that he would be referring her for an “Occupational Health Assessment carried out by an Ophthalmic specialist to assess what practical options may be available to assist you with your condition” (page 426). The claimant in due course provided her consent (page 450).
152. In isolation, this was a reasonable step for the respondent to take. However, we cannot look at it in isolation in circumstances where we have already concluded that Mr Gallanders was acting in bad faith towards the claimant. Put another way: we do not think that this incident demonstrates that he was acting in good faith, since we have concluded that he was looking for a way to get rid of the claimant.
154. Mr Gallanders in fact referred the claimant to Mr Seys Llewellyn, who was an optometrist (i.e. an ophthalmic optician). We mean no disrespect to the profession of optometry when we say that we were surprised that the respondent referred the claimant to such a person. We would not ordinarily have expected an optometrist to be in a position to provide the sort of expert guidance on the relationship between migraines and visual triggers that an employer, acting reasonably, would have needed in this situation. That said, it is an inconsequential matter and we will not dwell on the point.
155. The claimant was continuing to express concerns as to whether it was appropriate of the respondent to ask her to undergo an enhanced CRB check and as to what was happening with the C1(1) document (see, for example, pages 467 to 470). As we have seen, in view of her allegations about Mr Gallanders, the claimant had raised these concerns directly with the trustees. However, at a meeting between Mr Gallanders and the trustees on 11 November 2008, it was resolved that all her future correspondence would have to come directly to the chair of trustees or to Mr Gallanders (page 439). Mr Gallanders had already demonstrated his willingness to write letters in the name of the chair of trustees and without his consent; this resolution was, in our judgment, an attempt on his part to remain in control of the allegations being levelled against him and to obstruct their independent scrutiny by the trustees.
157. In any case, as instructed, the claimant now wrote to Mr Davies. By letter dated 21 November 2008, among other matters, she again asked what was happening regarding her complaint against Mr Gallanders for the comments he had made about her prior to the TUPE transfer, for the manner in which the DDA grievance meeting had been held, for the withdrawal of the whistleblowing policy and for his request that she undergo an enhanced CRB check.
158. On 30 November 2008, the claimant presented her second ET1 claim form to the Tribunal, alleging disability discrimination. Shortly afterwards, the respondent filed its ET3 response form with the Tribunal, in which it resisted the claim on its merits and, as a preliminary point, resisted the contention that the claimant was a disabled person under the DDA. A series of letters exchanged in early December 2008 revealed that the parties were getting nowhere: the claimant wrote at length about her concerns and Mr Davies replied with letters based on advice from Mr Gallanders.
161. Nothing specific was decided about the issues with which we are concerned; the thrust of the trustees’ position was either “We are where we are” or “We will get back to you”. Mr Gallanders did not attend but he annotated the minutes afterwards in a manner that shows he was still directing the process. In relation to the claimant’s proposed amendments to the minutes, which emphasised the lack of response from the trustees to her complaints about him, Mr Gallanders refused to accept them even though he had not been present. He told the claimant that “the notes … [did] not reflect accurately all of the issues and it is AVOW’s intention that these will be dealt with thoroughly through the Employment Tribunal legal process” (page 562). Beyond this letter from Mr Gallanders, the claimant received no further outcome to the meeting on 21 January 2009.
The optometrist’s report
164. On 11 February 2009, the claimant wrote to Mr Llewellyn to seek changes to aspects of his report (pages 560 to 561). In particular, she pointed out that there was a wealth of scientific data showing a connection between migraines and fluorescent lighting and that she was yet to find any type that did not act as a migraine trigger. He replied simply to confirm that his “instructions were to examine your eyes and provide an impartial professional opinion” (page 565). The fact that Mr Llewellyn thought he was merely carrying out an eye examination further demonstrates that his report was not fit for the purpose of being the “Occupational Health Assessment carried out by an Ophthalmic specialist” that Mr Gallanders had promised in response to the claimant’s worries about the lighting in the respondent’s office.
The third and final grievance
165. On 6 February 2009, Dr Mervyn Rosenberg wrote to the claimant to inform her that he had taken over from Mr Davies as chair of trustees (page 554). In a striking sentence in his letter, Dr Rosenberg also wrote:
In view of the intermeshing nature of the points that you are raising and the link these have to the two Employment Tribunal cases you have lodged against AVOW no further correspondence will be entered into issues that you have raised previously to which you have had various responses.
166. It is inconceivable that Mr Gallanders was unaware of the contents of this letter. Indeed, as Mr Gallanders told us, Dr Rosenberg took the view that all the claimant’s issues were “operational” and “strategic” and so should “come through the chief officer”, especially as he was the “route into RBS Mentor Services”.
167. We can understand, to an extent, why the respondent wanted to draw a line under the claimant’s concerns or else defer them to the Tribunal for consideration. However, this would overlook two points. First, the claimant was still an employee and was entitled to be treated in a manner consistent with mutual trust and confidence. Secondly, she had still received no answer to her various complaints against Mr Gallanders that she had been raising, repeatedly and in good faith, since October 2008, and particularly in respect of the comments he had made about her prior to the TUPE transfer in the C1(1) document, the consequent withdrawal of the whistleblowing policy and the requirement that she undergo an enhanced CRB check. It was not enough for the respondent simply to arrange for meetings where the trustees would say, in effect, “we’ll get back to you” and then not do so. The effect of Dr Rosenberg’s letter was to erect a stone wall between the claimant and the trustees on these other issues.
168. Many employees might well have given up at this point. But the claimant was nothing if not persistent. In a letter of reply dated 11 February 2009, she expressed concern at this “closing [of] correspondence” (pages 558 to 559). She said that, as a result, she had “no other option” but to convert these additional concerns into a third formal grievance. In our view, she was entirely justified in doing so. She also made the point that she would want to correspond over the grievance directly with the trustees, and not Mr Gallanders; this was hardly surprising given that the focus of this new grievance was against him personally.
The DDA grievance: respondent’s rejection of appeal
170. We would have expected the respondent to reconvene the appeal so that the claimant could discuss Dr Llewellyn’s report with the trustees. That did not happen. Instead, on 24 February 2009, Mr Gallanders simply wrote to the claimant to say that her appeal had been rejected (pages 569 to 570). We accept Ms Brydon’s evidence that she did not see the letter before it was sent. Once again, Mr Gallanders was usurping the role of the trustees.
171. In his letter, Mr Gallanders said that Mr Llewellyn had “carried out research into the issues surrounding migraines which were induced due to fluorescent lighting”; if so, this research was reflected nowhere in his report. Mr Gallanders indicated that the claimant’s second meeting with Mr Llewellyn had been arranged to enable his research to be conducted when, in reality, the first consultation had led nowhere only because Mr Llewellyn was unsure that he would be paid. Mr Gallanders placed his own gloss on what had happened with the tinted spectacles. He concluded that the respondent had “fully researched the issue over fluorescent induced migraine”, that reasonable adjustments had been made and had “no case to answer”.
172. We found his reply to be disingenuous: in our view, it was clear to us that, all along, Mr Gallanders had wanted the claimant’s appeal to fail and had been looking for a basis on which to reject it. This explains why he wrote his decision without the input of the trustees who had been chosen to hear the appeal. His conclusion was also perverse: the only solid medical evidence before him (from the claimant’s GP and hospital orthoptist) supported the claimant’s contention that the “friendlier” variety of fluorescent lighting did not give complete relief from her symptoms, yet he ignored it in favour of a report from an optician which did not mention the word “migraine” and upon which he put his own gloss.
173. On 25 February 2009, Mr Gallanders responded to the claimant’s third formal grievance with a proposal to hold a recorded meeting on 9 March 2009 “in line with our statutory responsibility” (page 573). His final paragraph to that letter is important, where he wrote (with original capitalisation):
Please note that in respect to any communication between AVOW and yourself all correspondence must be via the Chief Officer. Following advice from our legal advisors we wish to make it clear that all communication between ourselves must be conducted in writing or at meetings when appropriate arrangements have been made to record any discussion. NO officer of Trustee from AVOW will engage in any telephone or face to face conversations with you on any matter related to your employment with AVOW.
174. We agree with the claimant that this letter was written in a hostile tone. In particular, it added to the height of the metaphorical stone wall that was being erected between the claimant and the trustees, which was entirely inappropriate given that her outstanding complaints were all against him and there was no-one else to whom she could turn to pursue them. This was also contrary to the request that the claimant had made in her letter to Dr Rosenberg, where she had asked to correspond over her new grievance directly with the trustees.
175. By a lengthy eight-page letter to Dr Rosenberg dated 3 March 2009, the claimant resigned (pages 575 to 582). Her reasons were many and varied but related to all the matters that had occurred during her employment. They included: the respondent’s ongoing failure to adjust; the manner in which it dealt with her grievances about the TUPE and lighting issues; the alleged inappropriate request for enhanced CRB disclosure; its failure to deal with her complaint against Mr Gallanders and his adverse comments about her in the C1(1) document; his subsequent decision to withdraw the “whistleblowing” policy; and so on and so forth. The claimant did not expressly indentify a “final straw” in her letter, but the last act named in the resignation letter was the letter dated 25 February 2009 from Mr Gallanders. We accept her evidence that this was, in her mind, the last straw, since it provided final confirmation that the claimant could seek no redress from the respondent’s trustees.
181.1 First, he [Mervyn Rosenberg] was one of two trustees who heard the claimant’s TUPE grievance on 3 September 2008. However, we had already heard from the other trustee who heard that grievance, namely Moira Jones, and we knew from her that Mr Gallanders had written the response. Evidence from Dr Rosenberg would take the matter no further.
181.2 Secondly, when he was chair of trustees, Dr Rosenberg was the recipient of correspondence from the claimant in which she raised a further grievance (11 February 2009) and then chased for a response (24 February 2009). He might therefore be able to explain why he did not reply to such correspondence. However, he said nothing about this in his witness statement. We had already heard oral evidence from Mr Gallanders that all further communication from the claimant to the respondent was to be via him as the chief officer. There was a letter in the bundle confirming this approach (page 573). The other trustees from whom we heard evidence also confirmed this approach. Evidence from Dr Rosenberg would take the matter no further.
211. We also conclude that the respondent victimised the claimant for her protected act of complaining about what had happened during her very brief period of employment in July 2007. She made clear at the time that she considered that the respondent had failed to comply with its duty to make reasonable adjustments and had therefore acted in a manner that contravened the DDA. That victimisation took various forms: the initial reluctance of Mr Gallanders to accept the claimant from DVSC under TUPE; his expressed desire to be “awkward” with her on the issue of medical evidence; his stubborn refusal thereafter to make reasonable adjustments, continuing until the date of her resignation; his control of the respondent’s internal procedures so as to deprive her of a meaningful resolution to her grievances; his subsequent refusal to allow her access to the trustees for redress; his unilateral withdrawal of the whistleblowing policy once she activated it; and, worst of all, his “long shot” of trying to show her instability by seeking an unnecessary enhanced CRB disclosure about her. This last step was reprehensible (a word we do not use lightly) and an abuse of his position; it was also a manifest breach of the implied term of mutual trust and confidence.
212. The claimant has established a prima facie case that he took such steps because of her previous grievance; in particular, the C1(1) document referred to his “difficulties employing the claimant in the past”. This reverses the burden of proof. The respondent has been unable to show that the actions of Mr Gallanders were “in no sense whatsoever” to do with her previous grievance. The claim of victimisation is well-founded.
213. As we said above in our factual narrative, the members of the Tribunal were shocked (again, a word we do not use lightly) at the manner in which the respondent conducted the DDA grievance meeting on 7 October 2008. It was used as a mechanism to test the claimant’s ability to withstand the daylight tubes in the office, notwithstanding her clear assertions that such lighting was unsuitable. We note of course that the meeting was held in another room once the claimant requested it. But that is not the point; the point is that it was an experiment carried out without her knowledge or consent and which could have resulted in pain. The claimant’s analogy of a meeting being held upstairs to test whether a person has impaired mobility was a sound one. The fact that the respondent has sought to the last to defend its approach to this meeting in the Hearing before us demonstrates that it still has no appreciation of the nature of migraine and the mechanism of warning signs and delayed response. No explanation was given for why the respondent did not discuss the arrangements for the meeting in advance with the claimant. The only reason the meeting was held in this way was because the claimant suffered from migraines. The respondent would not have treated a person without migraines in this way. It was a clear act of direct disability discrimination.
214. These matters were also all capable of contributing to a breakdown in mutual trust and confidence. However, there were further matters that contributed to that breakdown:
214.1 This is a conclusion that we reach in only exceptional cases, but we have reached it in this case without hesitation: from start to finish, the grievance processes were a sham. They did not resemble a fair attempt to deal with the claimant’s concerns. The process was controlled by Mr Gallanders (and, to a lesser extent, Ms Ross). The trustees merely listened to what the claimant said and took no proper decisions in response. They deferred all such decisions to the officers. They failed in their duties to oversee the conduct of the officers. The fact that they are unpaid volunteers is no excuse.
214.2 This criticism applies equally to the DDA grievance, the TUPE grievance and the third formal grievance. There were outstanding matters in all three. The first involved a misunderstanding and stereotyping of the claimant’s condition. The second never dealt with the claimant’s concerns about why Mr Gallanders had been reluctant to accept her under TUPE. Most serious of all was the lack of any proper attempt to deal with the claimant’s grievance against Mr Gallanders. This included the highly inappropriate remarks he made about her in the C1(1) document as well as her (ultimately correct) assertion that he had sought an enhanced CRB check for improper reasons and his unilateral withdrawal of the respondent’s whistleblowing policy from the moment she sought to rely on it. In those circumstances, it was understandable that the claimant should look to the trustees for redress. The final straw was Mr Gallanders’ refusal in his letter dated 25 February 2009 to allow the claimant even to write to them, closing down for good that final avenue of redress.