Mr M Jackson (Counsel) For the v Respondent — 2022

Following the EAT’s remittal, the tribunal heard submissions only and decided three issues: whether the grievance/appeal treatment identified at paragraph 340 of the earlier reasons was done on the ground of protected disclosures, whether that and the earlier proven detriments formed a series of similar acts under s.48(3)(a) ERA 1996, and, if not, whether time should be extended under s.48(3)(b). The grievance/appeal reference was treated as a reference to the claimant’s grievance and appeal against dismissal, which Ms Anita Madden handled.

The tribunal held that the delay from early May 2015 until 5 August 2015 in progressing the grievance/appeal was a deliberate failure to act and a detriment. It found that the respondent had instructed the investigation to be put on hold for reasons connected to TMIs, that the respondent had not explained whose decision it was or why, and that the burden under s.48(2) ERA 1996 had not been discharged. On that basis, the tribunal concluded that the delay was on the ground of the claimant’s protected disclosures about TMIs, including her grievance of 13 October 2014 and earlier proven disclosures.

The tribunal rejected causation for the other grievance-handling failures identified in paragraph 340, including the failure to interview several witnesses and earlier delays in circulating interview notes, finding those were due to inadvertence or a wrong judgment rather than protected disclosures. Applying Arthur v London Eastern Railway Ltd and s.48(3)(a), it held that the proven grievance-delay detriment formed part of a series with the earlier proven PID detriments and that all of those complaints were in time. It added that, if that were wrong, the earlier complaints would still have been out of time under s.48(3)(b) because the claimant could reasonably have presented them by August or September 2014; no remedies were assessed in this decision and the parties were directed to write in about a possible remedies hearing.