Miss J Twomey, Counsel For the v Miss I Ferber, King’s Counsel — 2023

The claimant joined Transport for London in May 2013 and later had illness-related adjustments, grievance disputes and performance-rating disagreements with managers including Mr Reed and Ms Gupta. The tribunal accepted that the claimant raised several grievances and appeals, and that the respondent's handling of her stress, grievance processes and management was at times flawed.

On unfair dismissal, the tribunal rejected the respondent's case that the dismissal was for SOSR based on an irretrievable breakdown of relations. It found that the real reason was the claimant's perceived poor performance. The dismissal was procedurally unfair because the respondent used an SOSR-style process rather than its performance procedure, did not give warnings or a structured opportunity to improve, and Mr Reed was not an impartial decision-maker. It was also substantively unfair because the respondent had failed to manage the claimant's stress properly, had not implemented earlier recommendations on objectives and monitoring, had not fully acted on later recommendations, and had not considered suitable alternative employment across the wider organisation.

The tribunal found that the claimant's conduct contributed to the dismissal and reduced both the basic and compensatory awards by 35% for contributory fault. It reserved the question of any Polkey reduction to the remedy hearing, so no compensation figure was fixed in this liability judgment.

The victimisation claim was dismissed. The tribunal accepted that the October 2018 grievance, the February 2019 appeal, the December 2019 grievance and the June 2020 grievance were protected acts, but found that the August/September 2020 performance-rating appeal was not. Even so, it concluded that the relevant managers were motivated by performance concerns and by the claimant's refusal to move on from earlier disputes, not by the protected acts themselves, so the statutory causation test was not met.