Claimant v National Education Union

The tribunal found the reason or principal reason for dismissal was not the claimant's whistleblowing complaint of 22 May 2022 but rather her refusal to work. Discussions regarding possible dismissal for refusing to work had begun before the whistleblowing complaint was made.

The tribunal found the claimant did not make a qualifying disclosure. Although the 'I am not covered' disclosure was information, the claimant did not believe it tended to show a breach of a legal obligation (she believed it was only a regulatory issue), and even if she had, that belief was not reasonable given the reassurances provided.

Given the tribunal found no qualifying disclosure, the detriment claim did not arise. In any event, the alleged detriment (that the whistleblowing complaint was ignored) was not made out on the facts. Ms Brown acknowledged and passed on the complaint appropriately and Ms Curley was appointed to investigate.

All three allegations failed on the facts. The respondent only required one OH assessment (the rescheduling was not its fault), there was no deliberate delay of the DWP appointment, and Ms Fawcett did not tell the claimant to submit and then refuse a flexible working request. The OH assessment was not less favourable treatment as a hypothetical comparator would have been treated the same.

The tribunal found the decision to dismiss was not significantly influenced by the claimant's alleged inability to work without adjustments. The issue was with the claimant's refusal to work, not any inability to work. The claim failed on causation.

The first PCP (working hours) was not made out on the facts as informal adjustments were agreed. The second PCP (boardroom tables) was not evidenced. On auxiliary aids, the respondent took reasonable steps to provide the specialist chair and assistive technology, but delays were caused by supplier issues and the claimant's refusal to release final reports. Crucially, the lack of these aids did not put the claimant at substantial disadvantage as she was refusing to perform her role.

The first allegation (referring to all non-white staff as 'black') was admitted as policy but could not amount to less favourable treatment of the claimant. The second allegation (that Ms Fawcett said the claimant had no say on 'black' issues) was not made out on the facts; what was said was the claimant's view did not outweigh the majority view of black staff, which was not less favourable treatment.

Associative race discrimination claim based on having a half-Pakistani son. The tribunal found the decision to dismiss was not significantly influenced by the claimant's association with the race of her son. The claim failed on causation.

Associative transgender discrimination claim based on having a transgender son. The tribunal found the decision to dismiss was not significantly influenced by the claimant's association with her transgender son. The claim failed on causation.

The allegations (multiple OH assessments and refusal of flexible working) failed on the facts. The OH assessment was not unwanted conduct having the proscribed purpose or effect - it was for the legitimate purpose of identifying appropriate adjustments and it was not reasonable for it to have had the alleged effect.

The tribunal found the decision to dismiss was not significantly influenced by the claimant's protected acts (raising concerns about the use of 'black' terminology on 9 May 2022 and raising transgender parents' rights on 10 May 2022). The claim failed on causation.