Thread by @hannahsbee

THREAD: DAY 8 (FINAL DAY) – Sonia Appleby v Tavistock and Portman Trust employment Tribunal

SA - Sonia Appleby
YG - Yvette Genn, Tavi counsel
AP - Anya Palmer, SA counsel
EJG - employment judge Goodman

This morning both sides' counsel have made written submissions and will be giving their oral submissions before the tribunal

EJG seeks some clarification from YG - Are you arguing that time runs from when disclosure is made or when the detriment occurs?
YG – it’s the protected disclosure is what we’ve pleaded
EJG – and not the detriment?

YG – no. but rereading I can see that we’ve got a mixture, and it may be hard to say that all are incorrect… but actually on the timeline they’re all out of date… so I don’t think there is an inconsistency there…
EJG confirms then that this is not a typing error

YG – I’ve put a lot down in writing, so don’t want to spend too long talking about it this morning… I suppose the real difference between myself and AP is in what we’ve highlighted.
YG raises several cases which are discussed in detail in her written submission

YG mentions a case that separates out behaviour from disclosures…mentions the Martin and Devonshires case and says there are parallels here:

YG - You will see from the respondent’s perspective that this was not about the claimant’s disclosures; if anything there was an issue with behaviour in that SA was going about her work in an uncollegiate way...

...and such reaction as there may have been to that is entirely understandable in the context of a service which already had a huge amount of diverse opinion – I think I describe it as a 'highly politicised environment'...-

...in which what they were seeking was to have this support and a collegiate approach, all of which found in SA’s job description which wld have created an environment where the relationships wld have worked better.

So you will have seen in the list off issues that the respondent relies on a list of issues why the claimant may well have felt she was suffering adverse treatment, but not one of those to do with any disclosure she has made or the detriments she relied on.

And when you look across the totality of the evidence in this case… you will see that rather than helping and providing support, advice, monitoring – all those things in job description - there seems to be an accusatory approach highlighted at particular points:

She didn’t go and consult with PC; she took an approach that kept her in the dark and Mr Richardson in the dark, even to the extent of writing to Mr Lowe to raise concerns, albeit copying Mr R into that...

...so if there was wariness or concern, it was bec of the rather combative approach the claimant took, and really from rather out of the blue, her evidence was that she’s had v little to do with gids until 2017;

and albeit she started with PC and GR to set up a new relationship there isn’t much after that meeting in June 2018 that she does to help.

EJG – on issue of severability (?) – I suppose it might be said for the claimant that she was turning up the volume bec she was frustrated that she had not had a resposne to her concerns from dr senior, and didn’t get a response from Dr Carmichael in February...

(Judge explains that there may be a questions as to whether behaviour arises from increasing frustration, and we must exercise care there when it comes to whistleblowers)

YG – when one looks at the evidence... what I wld submit is that SA is a senior member of staff, she has a statutory position, she’s the named professional for s/g;

its not comparable with a much lower member of staff who thinks I haven’t had a reply back its all v frustrating and difficult.
She doesn’t then make it her business to go and speak Dr C until feb and even at that point there isn’t really anything constructive that happens

The nature of the employee and her position I think is really important – in relation to severability.
I think there’s a mischief in there as well; in writing to Mr Lowe saying she has escalated this; it gives the impression that something quite sig is happening...

...whereas she’s taken it to her line manager and nothing has happened; she could have taken it up the food chain as well and doesn’t, so to say it’s all rather frustrating is not a good answer.

...So to say I was frustrated and that's why I was rather cool and unhelpful is not a good answer in my respectful submission

EJG – On timepoints…
AP – I was surprised to hear YG say that all the detriments were out of time, bec I thought it was agreed that Savile detriments were not out of time
(goes through dates)
EJG – yes that does sound in time

AP – The others are more complicated and there are things I’d like to say about it… will depend on what detriments, if any, the tribunal accepts.

AP - With respect to the red line detriments [I believe these are amended parts of SA’s original claim], the first time the claimant had legally sufficient notice of these was 30th Jan 2020 (application was 19th Feb 2020) ...

when she received an email from Mr Spiliadis (529) telling her that he had been directly told by Dr C not to take cases to her – before that we say anything is hearsay or double hearsay

AP - Dr Bristow’s email to claimant Jan 2019 – problem was that was hearsay and told her to make own enquiries; she didn’t have enough to go on to make a clam – she did that [make enquiries] but proved inconclusive (493). At that stage she didn’t have any direct evidence

(47a PoC) – only became aware of blue line detriment – detriment 8 – Mr Richardson being wary of her and discouraging of others from (taking cases) bec of her connection to DB and his report; she only found out about that when she got the Hodge report – dated 7th Feb 2020.

And 11th Feb 2020 becase that’s when report is sent to her (856)
So if you take even the earlier date of 30th Jan of email from Mr Spiliadis, in presenting her red line and blue line she is within time

AP - We say that you should be counting time from 8th January – because that’s when she receives the transcripts of Dr Sinha’s interviews with Dr Hutchinson and Mr Spiliadis in a form that she can read them. Those are the dates and none of it comes to three months

We say that she acted as quickly as she could; she took steps to make sure that people who had sent the information were happy for her to use it and then passed on to solicitor.

In any event, we say there are continuing detriments as well – the state of affairs whereby she is viewed with mistrust and it's clearly articulated by Mr R in his comments to Dr Sinha and also Dr Carmichael.

She (SA)is still only finding out about this – in extensive disclosure battles in the course of these proceedings; she’s only just found out about the meeting of all senior staff in GIDS to discuss the bell report;

Mr R volunteered that he himself had complained about the claimant in that meeting although says he doesn’t name her; we have no notes from it but it seems likely that people were able to vent freely about the bell report...

...and we know that people did view her with suspicion because of her perceived involvement in the bell report; even now has key colleagues she has to work with – and it's not in their witness statements or evidence – but then you see what Dr Carmichael says to Dr Sinha and...

Mr Hodge. SA cannot nec prove that Dr C is actively denigrating her or saying don’t go to her, but she knows that she has to work with people who have accused her of going on a fishing expedition to cause trouble for the respondent and gids in particular.

So wld ask you to consider that there are continuing detriments; so even those that you may find out of time, are still relevant – reasonable practicability (?)

AP - And we say that the unwritten rule continues and that she is still not getting referrals in anywhere i.e. the volume she would expect..
That’s all on subject of time.

AP - What I’ve tried to do is give you brief factual statements, but given you a detailed page numbers and a chronology

AP - In response to a couple of things that YG said on Martins and Devonshire – broadly we don’t disagree on the law – but I can’t agree with reliance on this case bec we say it’s not possible to separate out the disclosures from what she did/behaviour…

...there was no concession at all that that was Dr Senior’s failing for sitting on these disclosures for months and not getting back to the claimant. She is off sick.

When returns months later and is approached again, the very next day she goes to sally hodges bec she’s given up on Dr Senior
We had half a day of cross examination to say ‘poor Dr Carmichael’ and to suggest that is the claimant’s fault, rather than the respondents….

If anything it’s the respondent who should have taken much more care in how they managed this situation.

But it seems that Dr Carmichael is free to say whatever she wants to people inside gids about people outside gids… even if she is – and this should have been plain to Dr C from Feb – a whisteblower

YG questions the truth of when it was that claimant came across these [gids review] transcripts (40/41)
YG - I think it’s absolutely plain that they couldn’t have pleaded in that way unless she’d had access to transcripts in December 2019.

What she said at the start of this hearing is that she couldn’t access them until January and so couldn’t make the amendments to the claim… pleadings suggest that she was aware of the transcripts in December 2019 – she should have taken steps to plead as soon as she should.

YG - Forgive me wrt the Savile comments, I did misspeak because that manifestly is in time

YG – we both have our interpretations of how you and your colleagues should consider the evidence – and that is where the chips will fall.

In terms of the particular points AP raised, there is significant dispute about the allegations that are made against Dr C; she was absolutely adamant that she'd never lobbied against the claimant and in terms of continuing acts and unwritten rule that she not receive referrals..

....the claimant herself conceded that it was Dr Senior then Dr McKenna that tended to receive referrals in the first instance (from GIDS); there isn’t any evidence to suggest she had a high level of referrals at one stage and then it petered out to nothing.

AP – (responding to documents being sent in December) ...It's not difficult to understand that the email without attachments wld be put on file of counsel, it doesn’t occur to the claimant that she needs to refer details....

Counsel drafting sees that email was received on 15th December, assumes attachment was received with it, and mistake on their part… the real issue is do you accept the claimant’s evidence that is what happened and it’s for you to decide whether you accept that or not.

EJG – thank you for your submissions. Formally judgement is reserved, will be sent in writing to both parties and will endeavour to deal with it as quickly as we can.
“That concludes the hearing.”

END

(That's it folks. Off to ice my hands)

(Thank you for the kind messages of thanks. Much appreciated)