Mrs T Brown v Rotherham, Doncaster and South Humber NHS Foundation Trust: 1801050/2016
EMPLOYMENT TRIBUNALS
Case No 1801050/2016
Between
Mrs T BrownClaimantRotherham, Doncaster and South Humber NHS Foundation TrustRespondent
Before
Employment Judge Little
Members
Mrs E M BurgessMr K SmithMr R Carter (instructed by Counsel (instructed by Gosschalks)) for claimantMs K Nowell (instructed by Counsel (instructed by Hempsons) for respondentDate 23 February 2017
REASONS
[1]These reasons are given at the request of the Respondent’s solicitor by their letter of 24 January 2017.[2]The complaints In a claim form presented on 6 July 2016 Mrs Brown brought the following complaints:- Unfair dismissal (on ordinary principles and/or contrary to Employment Rights Act 1996 section 103A (Protected Disclosure)) Disability discrimination by alleged failure to make reasonable adjustments. Detriment on the ground of a protected disclosure (Employment Rights Act 1996 section 47B).
complaints:-
[3]The issues Case No: 1801050/2016 10.8 Reasons – rule 62(3) 2 At the beginning of the hearing it was confirmed with the parties that the following issues were for determination by the Tribunal:- Protected disclosure detriment 3.1. Was the Claimant suspended and subjected to a disciplinary process on the ground that she had made a protected disclosure? (The Respondent conceded that the Claimant had made a protected disclosure on 13 February 2015). Disability discrimination – reasonable adjustments 3.2. At the material time, was the Claimant a person with a disability by reason of the mental impairment of depression? 3.3. If so did the Respondent know that or should it reasonably have been expected to know that at the material time? 3.4. If so did the Respondent’s disciplinary procedure place the Claimant at a substantial disadvantage in comparison to persons who are not disabled? 3.5. If so did the Respondent know of that disadvantage or should it reasonably have been expected to know at the material time? 3.6. If so, should the Respondent have taken steps to avoid the disadvantage in the way that it evaluated evidence during the disciplinary process. Unfair dismissal – section 103A 3.7. Was the reason (or the principal reason) for the Claimant’s dismissal that she had made the protected disclosure? Unfair dismissal (ordinary) 3.8. If not, can the Respondent show a potentially fair reason to dismiss? The Respondent seeks to show some other substantial reason – an alleged breakdown of trust. 3.9. If so was that actually fair having regard to the test in the Employment Rights Act 1996 section 98(4) and in particular:- Because the Respondent allegedly failed to carry out a proper or full investigation – only interviewing a sample number of witnesses. Because the Respondent failed to consider that the allegations against the Claimant were a reprisal for the protected disclosure she had made. Whether or not a duty to make a reasonable adjustment applied, by failing to take into account the Claimant’s health particularly after this had been raised by her at the appeal. Was the decision to dismiss within the reasonable band? Was the sanction of dismissal excessive as subsequently no action was taken by the Nursing and Midwifery Council? Case No: 1801050/2016 10.8 Reasons – rule 62(3) 3 3.10. If the dismissal was procedurally unfair, would a fair procedure have made any difference and if so what? 3.11. If the Claimant was unfairly dismissed (on ordinary principles) did the Claimant contribute to her dismissal and if so to what extent and how should that be reflected?[4]Evidence The Claimant gave evidence having prepared an impact statement (found at pages 83 to 86 in the bundle) and a further statement in respect of the substantive case. The Respondent’s evidence was given by Ms K A Singh (chief executive); Ms B L Symonds (specialist nurse and clinical director) who conducted the disciplinary investigation; Ms W A Joseph (acting deputy director of nursing and quality) who conducted the disciplinary hearing and was the dismissing officer and Dr D J Wildgoose (director of nursing and quality) who chaired the appeal hearing.[5]Documents The Tribunal had before them a two volume trial bundle running to 774 pages.[6]The Tribunal’s primary findings of fact 6.1. The Claimant is a nurse and has been employed by the Respondent since 19 August 2002 – initially she was a nursing assistant but completed her nurse training in May 2007. 6.2. On 28 October 2013 the Claimant was seconded to work at an adult in-patient unit of the Respondents called Sapphire Lodge. At that time the Claimant’s permanent position was as a Band 5 staff nurse but with effect from November 2014 the Claimant worked 15 hours a week as a Band 6 senior sister/senior charge nurse and for the remaining part of the week in her normal role as a Band 5. 6.3. Following the secondment and with effect from 1 April 2014 the Claimant’s substantive position became that at Sapphire Lodge. 6.4. Adjacent to Sapphire Lodge was a separate unit called Bungalow 2. At the material time Bungalow 2 had one occupant, a patient classed as high dependency and identified for the purposes of these proceedings as AW. 6.5. In the period prior to March 2014 the Claimant worked approximately eight shifts at Bungalow 2. She did not work any further shifts at Bungalow 2 after March 2014. The Claimant continued to work at Sapphire Lodge. 6.6. On 14 January 2015 the Claimant began a period of absence from work which was related to a family bereavement. 6.7. During the course of that absence – on 13 February 2015 - the Claimant telephoned the Care Quality Commission (CQC) and reported various concerns she had about the treatment of AW the Bungalow 2 resident. She believed that restraints were being applied unnecessarily and with excessive force, that towels were being placed over the patient’s face when he was in restraint and Case No: 1801050/2016 10.8 Reasons – rule 62(3) 4 he was being held on his back lying on the floor. The care plan was not being followed. The CQC call record is at pages 78 to 81. The Claimant had asked for her identity to be kept confidential. 6.8. On 27 February 2015 the Claimant returned to work but only completed two shifts. She was then absent for a further period from 2 March 2015 to 17 March 2015. By March the Claimant had been referred to occupational health. 6.9. During March 2015 the Respondent began to suspend various members of staff who had worked in Bungalow 2 as part of an investigation instigated once the Respondent became aware of the complaint made to the CQC. 6.10. On 7 April 2015 Julie Kay a support worker raised a written concern about the Claimant’s practice. A copy appears at page 270 in the bundle. She alleged that the Claimant whilst carrying out a restraint had placed her knees on the patient’s arm. She went on to write: “I feel Tracy Brown can be quite intimidating and also think she is a member of staff that could make my work life very difficult if she knew it was me that had reported her”. 6.11. In the period from 17 June 2015 to 22 June 2015 various other complaints about the Claimant were received from her colleagues. Nicola Helliwell a support worker had approached the deputy assistant director Louise Metali and Ms Metali’s note of Ms Helliwell’s complaints are at pages 267 to268. Ms Helliwell said that the Claimant was intimidating and threatening to staff and that people were scared of doing things other than Tracy’s way. The Claimant put on a false face it was alleged and was devious and unprofessional. It was also alleged that the Claimant had told a group of students that Ms Helliwell was referred to as Russian shot putter because she looked like one. Ms Helliwell also complained that the Claimant made personal and inappropriate comments about Ms Helliwell’s sexuality and had said that she should not be wearing frilly socks if she was gay. Ms Helliwell also said that the Claimant did not dispense PRN (psycho tropic medication) properly as she waited too long before administering it. 6.12. On 19 June 2015 Samantha Lawson a staff nurse sent an email to a Sandra Grinnell which she copied to Claire Reed a deputy modern matron. A copy of the email is at page269. She alleged that the Claimant had said that she would “rather be on the dole than work in this shithole, this place needs burning to the ground”. She also said that the Claimant had said in robust terms that she was not going to carry out an instruction to induct a new ward sister (Mrs Tess Shepherd) who had been appointed after the Claimant’s secondment ended. She went on to give an example of the Claimant taking a rather petulant approach to the issue of where staff were to store their bags, saying that if it was alright for Mrs Shepherd to lock her bag in the nurses’ station drawer than that is what the Claimant was going to do as well. Case No: 1801050/2016 10.8 Reasons – rule 62(3) 5 6.13. On 17 June 2015 Amanda Simmonite, an occupational therapist, submitted a complaint about the Claimant to Miss Reed. A copy is on page 272. There had been a discussion about requisitioning new bean bags for the patient AW and it was alleged that the Claimant had been very dismissive of equipment recommended by Ms Simmonite and had then allegedly told her that AW “needs some new activity stuff and needs it quick”. Ms Simmonite felt that this was both abrupt and rude. She did not feel that the Claimant had communicated in a professional manner. Ms Simmonite found her intimidating and she believed that other staff were intimidated as well. 6.14. On 19 June 2015 Geraldine Roe a specialist speech and language therapist submitted a written complaint about the Claimant to Ms Reed. A copy is on page 271. Ms Roe referred to a discussion with the Claimant during the course of which the Claimant had found fault in the care plan. Ms Roe considered that the Claimant had voiced that concern in an unsuitable way and that her tone was quite abrupt. The Claimant had made derogatory comments about other professional’s involvement in AW’s care and had said that professionals “come and go”. At a further meeting with the Claimant Ms Roe had felt quite undermined. She accepted that she only had limited experience of working with the Claimant but felt that those experiences had been less than positive. 6.15. On 25 June 2015 the Claimant was suspended during the course of a telephone conversation. The suspension was confirmed in a letter written by Chris Williams assistant director Learning Disability Services. A copy appears at pages 279 to 280. The letter included the following: “Your suspension has resulted from concerns being raised about your professional practice that if proven could mean that you would be in breach of your professional code of conduct. I explained that I was unable to share the details of concerns at this stage as the police are still leading the investigation into the care of the patient on Bungalow 2 and in accordance with that process any concerns that we have become aware of are passed to the police to determine if they will include (them) within their investigation or returned (sic) to the Trust to investigate”. The Claimant was also instructed not to contact work colleagues during the suspension without the previous agreement of HR or the investigating officer. 6.16. It was not until 17 August 2015 that the police indicated to the Respondent that they could now begin their internal investigation. 6.17. On 18 August 2015 Chris Williams wrote to the Claimant setting out the allegations against the Claimant. A copy of that letter (incorrectly dated 2014) is at pages 121 to 122 in the bundle. The summary of the allegations was set out in these terms: Case No: 1801050/2016 10.8 Reasons – rule 62(3) 6 “ Threatening and intimidating behaviour/communication, which undermines your colleagues and the services delivery. Comments which are personal and inappropriate about fellow colleagues. Creating atmosphere of unease within the team. Not administering prescribed PRN in accordance with the agreed care plan. Inappropriate comments about the service and your employment. If proven, a breach of your professional code of conduct. If proven, an irretrievable breakdown in the trust and confidence which we must hold in you as an employee” 6.18. On 11 September 2015 Barbara Symonds, who had been appointed as the investigating officer, wrote to the Claimant. A copy of that letter is at pages 125A to 125B in the bundle. The allegations contained in the August 2015 letter were reiterated but a further allegation was added in relation to what was described as inappropriate use of Facebook. It would transpire that this was an exchange the Claimant had had through that medium on 21 March 2014 about resigning from the position she had held prior to Sapphire Lodge. Among the colleagues participating in those exchanges was Yvonne Moss who at the material time was a ward manager or modern matron. The Claimant had written that she had tried to have a sincere face when handing in her resignation but had had a huge smile on her face and that she had liked the look on the face of the doctor to whom she had given her resignation. Ms Symonds’ letter went on to invite the Claimant to an investigatory meeting on 16 September 2015. 6.19. The meeting duly took place and the Claimant was accompanied by Mr John Baston a senior officer with the RCN. The minutes of that meeting are at pages 179 to 186. The Claimant explained the concerns that she had when she moved over to Bungalow 2 in March 2015. There had been several forms of bad practice. She had raised those concerns with others including Ms Matali. She had attempted to change the way that the staff approached the patient AW but the staff had not liked that as they had been used to their own pattern and didn’t want it interfering with. She alleged that the staff in Bungalow 2 bullied other staff they did not like – “if they don’t want you in the team they will get you out. They believe that they are untouchable”. The Claimant said that she felt that she was subject to a witch hunt and she believed that this had occurred “as they think I’m the whistle-blower.” The Claimant was concerned that someone had scrolled through her Facebook to try to find something incriminating. 6.20. The Respondent’s view at this stage was that the Claimant had not made a protected disclosure but that she believed other members Case No: 1801050/2016 10.8 Reasons – rule 62(3) 7 of staff believed she had. The Claimant did not accept that she had been rude and abrupt to Ms Simmonite and did not recollect the alleged conversation with Ms Roe about professionals. She also denied making the frilly socks comment. In relation to the allegation about referring Ms Helliwell as a Russian shot putter, the Claimant said that that had been taken out of context. The Claimant accepted that when Ms Helliwell started the unit the Claimant had said that she looked like a particular Russian shot putter whom she named and that somebody else had started calling Ms Helliwell “Olga”. Further the Claimant said that she had discussed this with Ms Helliwell and told her that if she had upset she hadn’t meant to. The Claimant denied that she had voiced negative comments about other professionals in relation to AW’s care. She described the allegation that she had said that she was not “f**king going to help induct Tess Shepherd” as “a load of crap”. The Claimant denied that she had said that she was after Tess because she took the job which the Claimant wanted. In relation to the Facebook entries the Claimant pointed out that no one had told her this was inappropriate at the time including Ms Moss the ward manager who was participating in the Facebook exchange. The Claimant went on to state as follows: “I have worked here for 13 years and I have never been told off. Nobody has ever come to me or challenged me on my behaviour or attitude. Why didn’t they do that in a one to one if there was a problem. I can’t say that I’m the happiest person in a team but I am motivated. The team think I’m the biggest bitch ever. They think that I’m the whistle-blower; they think that I wrote a letter to Helen Dabbs about AW’s care. They don’t like it that I changed practice and made things better for AW. It is all because all the little friends have been suspended. I could tell you the names of the staff who have said this about me and who will be their witnesses. This is a witch hunt.”. 6.21. During the course of October 2015 Ms Symonds interviewed 19 other staff with regard to the allegations against the Claimant. Notes of these interviews appear from pages 194 to 265. 6.22. On 4 November 2015 the Claimant was again interviewed by Ms Symonds. This time the Claimant was accompanied by Sue Panther (regional RCN officer). The notes of that meeting are at pages 187 to 193. Ms Symonds during the course of this meeting asked the Claimant if she could remember a training discussion where it was alleged that in answer to a question of how a particular situation might be managed the Claimant had replied that she would isolate the individual concerned and make them feel uncomfortable until they went along with the change. The Claimant remembered the discussion but denied that she had said that she would make the individual feel uncomfortable. She had been talking about a specific member of staff who had been extremely down at the time and the Claimant said that she would have said that the protocol for one to one supervisions would have been followed. A further allegation was put by Ms Symonds that the Case No: 1801050/2016 10.8 Reasons – rule 62(3) 8 Claimant used hand gestures to ‘close people down’ when they were talking. The Claimant said that that would be rude and she had never done that. The Claimant also denied using body language which was perceived to be threatening. A further allegation was put to the Claimant that when speaking to a consultant she had said “you tell me, you are the consultant”. The Claimant remembered that exchange which had been with a Dr Ahmed who had asked the Claimant what medication she would suggest. The Claimant accepted that she should not have responded in that way. There was a further allegation that contrary to the instruction given on suspension the Claimant had met up with a colleague, Mandy Elsworth, at Doncaster Racecourse. This had led to a photograph appearing on Facebook. The Claimant accepted that there had been a meeting but it was coincidental and not prearranged. In relation to the bean bag conversation with Ms Simmonite there was some confusion as to whether there had been a discussion about bean bags or other equipment. Towards the end of the interview the Claimant pointed out that she had never had supervision or PDR’s “so surely if any of this was an issue, it should have been raised before now at some point”. 6.23. In December 2015 Ms Symonds completed the management investigation report in respect of the allegations against the Claimant. A copy appears at pages 156 to 179 in the bundle. Having reviewed and summarised the evidence which had been obtained from the various interviews Ms Symonds set out her conclusions (see pages 174 to 176). She began by stating: “There is clear evidence of the cultural issues within Bungalow 2 and staffing dynamics. It is evidence that there were two separate “clicks” (cliques) whose experiences of Mrs Brown’s manner and behaviour differ”. Ms Symonds described the number of concerns in relation to the Claimant’s behaviour and the examples provided by the witnesses as being substantial. Three witnesses (individuals who were believed to be in the Claimant’s clique) had said that they could no longer work for the Trust due to the impact of some of the staff behaviours (as opposed to the Claimant’s alleged behaviour). However that was, as Ms Symonds put it, counterbalanced by the reports made that those witnesses were part of the Claimant’s clique and therefore it was unclear to whether that was due to the issues with staffing dynamics within Bungalow 2. Ms Symonds accepted that there was little evidence that any formal action had been taken by the senior management team and there was no written evidence that the Claimant had received any form of supervision or PDR’s whilst in post at the unit. In respect of the allegation that the Claimant had been guilty of threatening and intimidating behaviour Ms Symonds found that staff Case No: 1801050/2016 10.8 Reasons – rule 62(3) 9 members within Bungalow 2 felt threatened and intimidated by the Claimant but that she had been challenged about this and so should have been aware. In respect of the allegation that comments had been made which were personal and inappropriate about fellow colleagues Ms Symonds referred in particular to the Russian shot putter comment which she believed the Claimant had instigated and continued. As it was one person’s word against another Ms Symonds was not able to make a finding with regard to the alleged comments about Ms Helliwell’s sexuality (frilly socks). In respect of the allegation that an atmosphere of unease had been created, Ms Symonds concluded that it was reasonable to believe that the atmosphere and working environment was affected by the Claimant’s behaviour. The allegation of failing to administer PRN in accordance with the agreed care plan was not upheld. In relation to the allegation of inappropriate comments being made about this service and the Claimant’s own employment within it, Ms Symonds noted that the Claimant denied this and that Ms Lawson was the only witness and so it was not possible to substantiate whether or not that occurred. In relation to the Facebook allegation it was concluded the Claimant had acted inappropriately and in breach of the Respondent’s policy on the use of social media. Although it never seems to have been formally put as an allegation, Ms Symonds’ report treated the meeting between the Claimant and colleague at Doncaster races as a further allegation, being a breach of the terms of suspension. Ms Symonds could not decide whether the meeting had been pre-planned but concluded that the Claimant should have acted more responsibly, presumably by not allowing her photograph to be taken by the colleagues’ daughter. The next two allegations as had been set out in the charge letters are not really allegations but rather suggested consequences if the other allegations were proved, namely that there would be a breach of the Claimant’s professional code and an irretrievable breakdown in trust and confidence. Ms Symonds found that there was evidence to suggest that the Claimant had acted in breach of the code of conduct and that it was clear that she had acted inappropriately towards her colleagues. There was evidence to suggest that that may have been with intent. The Claimant was seen as the leader of the team and was expected to set an example. Ms Symonds’ recommendation was that there was sufficient evidence for the case to be considered at a disciplinary hearing. 6.24. On 12 January 2016 Wendy Joseph wrote to the Claimant. A copy of that letter is at pages 421 to 422. The letter enclosed a copy of Ms Symonds’ investigation report. The Claimant was now being invited to attend a disciplinary hearing on 2 February 2016 which Case No: 1801050/2016 10.8 Reasons – rule 62(3) 10 Ms Joseph would conduct and she would be accompanied by a Mrs Karen Middlemass a senior human resources advisor. The allegations against the Claimant were reiterated – and breaching the terms of suspension was now included. In this iteration it was realised that the pre-penultimate and ultimate allegations were in fact the potential consequences of the other allegations being found proven. Ms Joseph went on to inform the Claimant of the witnesses she intended to call. 6.25. The Claimant with the assistance of Sue Panther the RCN officer prepared a written statement of case for that hearing and a copy is at pages 320 to 327. 6.26. The Claimant’s disciplinary hearing duly commenced on 2 February 2016. The Claimant was again accompanied by Sue Panther of the RCN. Handwritten notes of that hearing appear at pages 332 to 364. There is also an account of this hearing (and the resumed hearing on 25 February) in the lengthy dismissal letter written by Ms Joseph on 26 February 2016 (see pages 544 to 564). The hearing began with the Claimant and her representative asking why various individuals had not been interviewed by the Respondent during its investigation process. The hearing then heard evidence from Ms Helliwell and the Claimant had the opportunity to ask Ms Helliwell questions. Ms Helliwell repeated her allegation that the Claimant had told her that she had had a PE teacher who wore frilly socks and she was a lesbian. She also criticised the Claimant’s body language. She accused the Claimant of being abrupt. The Claimant contended that Ms Helliwell had confided in her personal information regarding her ill son. Yvonne Moss was then called to give evidence by management. She said that after telling the Claimant she was not ready to be a Band 7 the dynamics of their relationship changed and the Claimant had been very upset with Ms Moss. There was some nastiness. Ms Moss accepted that this has not been followed up in supervision. Ms Joseph asked Ms Moss about the Facebook postings and that she was in them. As a manager at the time did she not recognise that as inappropriate? Ms Moss suggested that she had not read all the comments before joining in – her comments including “just smile and wave Tracy just smile and wave” and a reference to “no dwarfs on my ward”. Commenting on the Claimant’s own comments about the reaction of the person she gave her resignation letter to Ms Moss had written - “Lady, your comments astound me and I am most disappointed that you didn’t rig your phone up to capture that moment” (see page 278). Mrs Shepherd was then interviewed. She referred to a discussion between herself and the Claimant which became heated and that the Claimant’s tone of voice had been aggressive and increased in volume. Her position had been confrontational, intimidating not allowing staff members to finish their discussion. This was in the context of a team meeting on 3 June 2015 where it transpired that notes had been taken but Ms Shepherd had not typed them up. In answer to a question by the Claimant, Ms Shepherd accepted that Case No: 1801050/2016 10.8 Reasons – rule 62(3) 11 she had not spoken to the Claimant about the matter at the time as she didn’t think it was severe enough, but supervision was being planned. Once the management witnesses had concluded the Claimant presented her statement of case and answered questions from the panel. The Claimant contended that she had not referred to Ms Helliwell as a shot putter but that she looked like a particular shot putter. It was pointed out that the Claimant had not challenged Ms Helliwell about this when she had been giving evidence earlier that day. The Claimant said that she had not wanted to appear to be trying to trip her up. The Claimant denied that she had made the comment about isolating a person during the course of a training session. If she had been asked such a question she would have answered it correctly. The Claimant also contended that a conversation with Ms Moss about a Band 7 position had not happened. In relation to the complaints made by Ms Simmonite, the Claimant contended that she had not spoken to her about bean bags, only about a weighted blanket. Asked whether Ms Simmonite was making up the allegation that the Claimant had been rude the Claimant said that she did not know and she might be mistaking her for somebody else. 6.27. The hearing which had commenced on 2 February continued on 25 February and notes of that (again handwritten) are at pages 365 to 384. On this occasion Ms Simmonite gave evidence. She reiterated that she felt that the Claimant had not been professional or friendly in their exchanges and that Ms Simmonite had felt intimidated. She described the Claimant as being rude to her and abrupt. The Claimant denied that she had had the conversation with Ms Simmonite that the latter alleged. There was discussion as to when the Claimant and Ms Simmonite might have had a discussion either face to face or on the telephone. In the latter part of the 25 February meeting the Claimant was asked further questions by the panel and then both sides had an opportunity to summarise their positions. The hearing then adjourned. Ms Joseph’s evidence was that during that adjournment she typed a note summarising her findings. That note is at pages 385 to 392. When the hearing resumed Ms Joseph read out those notes. Her decision was that the Claimant was to be dismissed from the Trust with immediate effect “for some other substantial reason due to the irrevocable breakdown in relationships and the breakdown in the trust and confidence in you as an employee”. 6.28. As mentioned above, the letter of dismissal was written on 26 February 2016 (pages 544 to 564) and within that letter is included the content of the rationale that was given to the Claimant on the day. Ms Joseph had not considered allegation 4 regarding the administration of prescribed PRN; nor was the allegation regarding breach of the terms of the suspension considered. Moreover the allegation that the Claimant had made inappropriate comments in relation to the service and her employment (the ‘shithole’ comment) was not considered either. Case No: 1801050/2016 10.8 Reasons – rule 62(3) 12 6.29. The allegation in relation to inappropriate comments on Facebook was upheld. The three separate allegations about the Claimant’s use of intimidating behaviour, making comments which were personal and inappropriate and creating an atmosphere of unease within the team were taken together. Ms Joseph noted that whilst the Claimant had disputed evidence provided by staff she had not challenged the account provided by witnesses who attended to give evidence at the disciplinary hearing and had not called witnesses herself. Ms Joseph also commented that the “level of inconsistency in how you have responded to the allegations and the fact that you have failed to recognise the impact you have had on your colleagues is of concern”. Ms Joseph concluded that the Claimant had breached the professional code because “you have not acted with honesty and integrity at all times treating people fairly and without discrimination, bullying or harassment” – which appears to be a quote from the code. Ms Joseph towards the end of the dismissal letter wrote in these terms: “Whilst your behaviour is not felt to constitute gross misconduct there is (sic) a number of staff who have raised concern and despite this you have demonstrated a lack of insight into the impact of your behaviour. Additionally I have heard no evidence that you can learn from these issues and modify your behaviour appropriately. I considered the option of moving you into an alternative post but felt that this was unsustainable given your lack of insight into your behaviour and emotional intelligence and your failure to adapt your emotions for different situations”. Accordingly as we have already noted the reason for dismissal was described as “some other substantial reason due to the irrevocable breakdown in relationships and the breakdown in the trust and confidence in you as an employee”. The dismissal was on the basis that the Claimant would receive 12 weeks pay in lieu of notice. 6.30. On 21 March 2016 the Claimant wrote a letter of appeal against her dismissal and a copy is at pages 565 to 566. The Claimant contended that evidence had been obtained from some staff but not others and she wanted the appeal process to fill the gaps by making proper attempts to speak to everybody involved. The appeal letter was addressed to Ms Singh the chief executive of the Trust and the Claimant referred to a conversation she said that she had had with Ms Singh in October 2015 when Ms Singh had allegedly told her that she could “make the disciplinary go away”. The Claimant went on to suggest that this suggested that Ms Singh had concerns about the process. In fact Ms Singh’s evidence to us was that the Claimant had referred to possibly resigning to take up a new job and all Ms Singh had said was that the Trust might not be in a position to complete the disciplinary process if the Claimant left before it had the chance to do so. She denied that she had said Case No: 1801050/2016 10.8 Reasons – rule 62(3) 13 that she could make the disciplinary go away in return for the Claimant resigning. In her appeal letter the Claimant complained about the length of time she had been suspended. She accepted that she could be a hard task masker when she needed to be but this was with a due to striving for excellence. She also referred to the depression which she had been suffering from for some years following five family bereavements in a short period. She contended that the process should have taken account of that. 6.31. A management report was prepared in respect of the appeal case. That document was prepared by Ms Joseph in June 2016 and a copy is in the bundle at pages 405 to 420. 6.32. The appeal hearing took place on 22 June 2016 and the appeal panel comprised Dr Deborah Wildgoose, Mr J Marr (non executive director) and Ms S Schofield (a service director). Typed notes of that hearing appear at pages 691 to 701. On this occasion the Claimant was accompanied by a work colleague rather than an RCN rep. When presenting the management case Ms Joseph referred to what she described as the level of inconsistency from the Claimant in her accounts which raised concerns about her reliability and honesty. She referred to various contradictions between what the Claimant had said at the various stages in the disciplinary process. In terms of sanction Ms Joseph said that she had considered a final written warning with a performance plan or moving the Claimant to work in another team as the current team had lost confidence in her. However because the Claimant had “denied everything that was presented to her and was inconsistent in her denial this did not demonstrate personal reflection and made it difficult to make a recommendation to advise a performance plan (be put) in place”. 6.33. The Claimant was given the opportunity to question Ms Joseph in relation to the management case. At this stage the notes record that the Claimant said that she felt she was fighting a losing battle and did not know what questions to ask and was getting visibly upset. However after an adjournment the Claimant did ask some questions. Among those was whether Ms Joseph had considered the occupational health report that had been prepared in respect of the Claimant. Ms Joseph said that it was up to the investigators to submit the information they wished to be considered. Ms Joseph described the people who had been interviewed as a representative sample. Ms Schofield asked whether the Claimant had raised her health as a mitigating factor at the disciplinary hearing and Ms Joseph explained that in her closing statement, whilst the Claimant mentioned a number of bereavements, she did not suggest that that had impacted on her behaviour. Mr Marr asked about the fact that there had been no complaints about the Claimant previously. Ms Joseph replied that the absence of previous concerns did not mitigate the Claimant’s current behaviour and there was an absolute denial from the Claimant that she had acted wrongly in any way. Case No: 1801050/2016 10.8 Reasons – rule 62(3) 14 6.34. The Claimant then presented her case during which she said that whilst she had provided an occupational health report she had not believed that her behaviour was ‘impacted’. When asked why she had not submitted the occupational health report as evidence during the disciplinary hearing the Claimant said that she had given it to the investigators but she did not wish to re-live everything. She went on to say that she personally did not feel that her personal life was impacting on work but if it had done why didn’t someone tell her. Ms Middlemass present at the meeting in her senior HR advisor capacity commented that “we can only consider things that we were presented with”. The Claimant implicitly blamed her RCN rep for not referring to the Claimant’s health issues in her written statement of case. The appeal was not upheld and the notes of the meeting record Dr Wildgoose explaining that a representative number of staff had been interviewed. Allegations had been made as a consequence of a staff group being ‘in distress and disenfranchised’. The Claimant had had an opportunity to challenge the evidence during the hearing and Dr Wildgoose believed that the Respondent had complied with its whistle blowing policy. The decision was that the dismissal had been within the band of reasonable responses. 6.35. On 22 June 2016 Dr Wildgoose wrote to the Claimant confirming the appeal decision and a copy of that letter is at pages 702 to 703. She reiterated the rationale which we have just referred to.[7]The parties’ submissions 7.1. The Claimant’s submissions Mr Carter had prepared written submissions and addressed us orally. Although no reference was made within the written submissions to the complaint under section 103A, Mr Carter confirmed that this was being pursued. Nevertheless the Claimant’s case was essentially that her dismissal had been because of alleged misconduct and not for some other substantial reason based on loss of trust and confidence. We were referred to the EAT’s Judgment in the case of McFarlane v Relate Avon Ltd which had been critical of the use of the concept of trust and confidence in the context of a some other substantial reason dismissal. In nearly all cases where an employee had been dismissed for something they had done their employer would have lost trust and confidence in them. In those circumstances it was more helpful to focus on the specific conduct rather than resort to the general language of trust and confidence. In the case of Leach v Ofcom [2012] ICR 1269 we were referred to a passage in the Judgment of Lord Justice Mummery where he said: “The mutual duty of trust and confidence, as developed in the case law of recent years, is an obligation at the heart of the employment relationship. I would not wish to say anything to diminish it’s significance. It should however, be said that it is not a convenient label to stick on any situation in which the employer feels let down by an employee or which the employer can use as a valid reason Case No: 1801050/2016 10.8 Reasons – rule 62(3) 15 for dismissal whenever a conduct reason is not available or appropriate”. In the case of Governing Body of Tubbenden Primary School v Sylvester [2012] ICR Digest D29 the Employment Appeal Tribunal had held that it was open for a Tribunal to look beyond the mere fact of the breakdown of trust and confidence and consider the surrounding circumstances when assessing reasonableness. It was necessary to look at the immediate history which led to the dismissal. Whilst it now appeared that the Respondent was saying that the reasons for dismissal were a combination of conduct or some other substantial reason, Mr Carter contended that it had to be one or the other. In fact the allegations against the Claimant were misconduct. Whilst there had been findings of misconduct those had not been of gross misconduct. The actual reason for dismissal was described as “an irrevocable breakdown in relationships” and “the breakdown in the trust and confidence in you as an employee”. Mr Carter went on to review the evidence upon which the dismissing officer had relied. He contended that the alleged inconsistencies in the Claimant’s accounts were in fact simply situations where the Claimant had disagreed with the accounts given by other witnesses. Moreover the allegations against the Claimant were in respect of a relatively short period. The Claimant had never been disciplined previously for such matters. The Respondent had not taken proper account of the Claimant’s medical condition which, despite the Claimant’s own perception, could have influenced her behaviour. The complaints made by colleagues in respect of the Claimant’s behaviour arose shortly after the Claimant’s identify as a whistle blower would have come to the attention of colleagues who had been interviewed by the police. Ms Joseph had discounted evidence given in support of the Claimant and instead concentrated on negative comments made by the “anti” witnesses. The Claimant had never been asked how she might amend her behaviour and the Respondent had failed to consider alternative posts. The Respondent had not given proper consideration to the Claimant’s previous record. The appeal had been superficial. Summing up the position on substantive fairness, Mr Carter contended that there had been no misconduct; the Respondent’s policy provided that there could not be dismissal for a first disciplinary offence unless it was gross misconduct and so the Respondent had sought to dress up it’s decision as some other substantial reason. In terms of procedural fairness the Claimant had been suspended longer than she should have been. She had not been provided with sufficient details of the allegations prior to the first interview. Whilst further details were put to the Claimant at the second interview the Claimant was not given notice of them. In terms of the disability discrimination complaint we were reminded of the definition of disability set out in section 6 of the Equality Act Case No: 1801050/2016 10.8 Reasons – rule 62(3) 16 2010. It was contended that the Respondent had knowledge of the disability because it was in receipt of occupational health reports. In relation to protected disclosures, Mr Carter described the detriment as being the Claimant’s suspension and the dismissal. The issue between the parties was causation. On the authority of Western Union Payment Services Ltd v Anastasiou it was not necessary for the decision maker to have personal knowledge of the protected disclosure if that disclosure had materially influenced the treatment of the whistle blower. In the context of the Claimant’s case, what Mr Carter described as the Respondent’s decision to accept complaints made where the complainants were materially influenced by the protected disclosure, meant that the dismissal was also influenced by it. It would not be appropriate for the Tribunal to determine that the Claimant had contributed to her dismissal. There had not been gross misconduct and so there could not be contribution. The issue of lack of insight had not been investigated by the Respondent. 7.2. The Respondent’s submissions Ms Nowell had also prepared written submissions and she also addressed us orally. In terms of unfair dismissal the Respondent was contending that the reason was either conduct or some other substantial reason namely a breakdown in the relationship of mutual trust and confidence. A number of allegations of misconduct had been proven. Referring to the precise reasons given by Ms Joseph in her conclusion document we were invited to accept Ms Joseph’s evidence as being credible and that the summary of her reasons for dismissal were honest. Therefore whilst she had not found the Claimant guilty of gross misconduct she had found her guilty of a number of counts of misconduct which when taken together resulted in a clear breakdown in the Claimant’s relationships with others and of trust in her. The Tribunal were therefore invited to accept that it was a combination of conduct and some other substantial reason. In terms of unfair dismissal in the context of protected disclosure we were referred to the burden of proof and the decision of the Court of Appeal in Kuzel v Roche Products Ltd [2008] IRLR 530. The dismissal had not been influenced by the protected disclosure and the issue had not been raised during the disciplinary process. Nevertheless Ms Joseph had given evidence to the effect that she had considered the potential for the protected disclosure influencing witnesses. In any event there was no suggestion that Ms Joseph’s decision to dismiss had been motivated by the protected disclosure. Returning to the issue of substantive fairness of the dismissal, Ms Nowell said that there had been a reasonable investigation when a cross section of the Claimant’s colleagues had been interviewed. Ms Nowell then went on to review how the Respondent had investigated various allegations against the Claimant. The Respondent had been entitled to give little consideration to the Claimant’s health at the material time because Case No: 1801050/2016 10.8 Reasons – rule 62(3) 17 the Claimant had been adamant throughout that her work was not being affected by her illness. The Respondent had been entitled to conclude that the Claimant did not have any insight into her behaviour and had not displayed willingness to correct her failings. In relation to contributory fault, if the Tribunal concluded that there had been unfair dismissal we should also conclude that the Claimant had contributed to that because of her misconduct particularly the comments made about Ms Helliwell and the way in which she had dealt with Amanda Simmonite. With regard to the public interest disclosure detriment complaint, whilst the Respondent accepted that the Claimant had made a protected disclosure, the sole reason for the Claimant’s suspension had been the complaints raised by her colleagues in April and June 2015. There was no evidence that those involved in the Claimant’s suspension either knew or ought to have known that the complaints against the Claimant could have been motivated by the protected disclosure. With regard to the disability discrimination complaint Ms Nowell contended that the Claimant had not demonstrated what she was required to show in order to establish that she was a person with a disability. In any event that complaint should fail on its merits.[8]The Tribunal’s conclusions 8.1. Public interest disclosure detriment We observe that the essential detriment complained of is the Claimant’s disciplinary suspension – and the subsequent disciplinary process. Was the Claimant suspended on the ground that she had made a protected disclosure? We find not. The reason for the suspension was the multiple complaints about the Claimant’s alleged behaviour at work which had been lodged mid-June 2015. We have not heard from those complainants but we acknowledge that there is a possibility that their complaints could have been motivated by their suspicion or knowledge that the Claimant had made a protected disclosure. However we find that the Respondent was not aware, when it suspended the Claimant on 25 June 2015 that she had – on 13 February 2015 – made what they would subsequently (within these proceedings) accept to be a qualifying protected disclosure. In fact, as late as the disciplinary investigation meeting on 16 September 2015 the Claimant was suggesting that she had not blown the whistle but that colleagues thought she had. In these circumstances we do not find the Claimant’s case to come within the type of case envisaged in Western Union Payment Services Ltd v Anastasiou – to which we have been referred by Mr Carter. There was not an organisational culture or chain of command so as to make it irrelevant as to the personal knowledge of the final actor. Instead, insofar as there was a ‘culture’ that was outside the management of the Respondent and instead was at “grass roots” level. We therefore reiterate that we find the grounds for the Claimant’s suspension and the disciplinary process that followed were the serious allegations made against her by others. It is clear that the Respondent Case No: 1801050/2016 10.8 Reasons – rule 62(3) 18 was duty bound to investigate those complaints. Insofar as the complainants against the Claimant had a bad motive, it was not they who subjected the Claimant to the detriment of suspension. Accordingly we find that the complaint of public interest disclosure detriment fails. 8.2. Disability discrimination – was the Claimant a person with a disability? We remind ourselves of the statutory definition of disability as set out in the Equality Act 2010 at Section 6 and Schedule 1. We are also mindful of the Statutory Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011). In the case before us we have limited medical evidence. We have considered the GP notes at pages 66 to 77 in the bundle. We note that on 14 March 2016 the Claimant’s doctor had reported that the Claimant was feeling extremely stressed but went on to note “appears quite logical and sensible”. Going further back, in August 2015 there is a reference to anxiety with depression and mention of the bereavements the Claimant had suffered. In March 2015 there is a reference to stress and in April and May 2014 references to family bereavements. We have also considered the fit notes. A note given on 16 January 2015 (page 763) refers to a diagnosis of bereavement reaction and one issued on 5 March 2015 (page 760) refers to stress. We have also considered the occupational health reports. The one done on 27 May 2014 (page 707) contains no diagnosis but refers to the Claimant’s father’s death in April of that year. The report made on 6 March 2015 (page 708) refers to the further family bereavements the Claimant had suffered and describes the Claimant as very emotional and tearful and that she was overwhelmed with emotion. Based upon this medical evidence the Claimant relies upon a mental impairment of stress and depression. However we find that the medical evidence is insufficient. We observe that in the case of Morgan v Staffordshire University the EAT gave a certain guidance in respect of cases of mental impairment. Whilst we appreciate that there is no longer the need for the mental impairment to be a clinically well recognised illness, Lindsay J in Morgan stated that Tribunals were unlikely to be satisfied of the existence of a mental impairment in the absence of suitable expert evidence. In terms of the Claimant’s day to day activities and her ability to undertake them, the Claimant has given some information about that in paragraphs 51 to 63 of her substantive witness statement. There she refers to limitations on her social life and not eating and drinking properly. We have also considered what is in effect an impact statement found in the bundle at pages 83 to 86. However this deals more with the external events in the Claimant’s life – the various bereavements she suffered - rather than how her impairment affected her ability to carry out normal day to day activities. We have therefore quite a bit on the question of cause but not very much on effect. On the evidence before us we accept clearly that the Claimant sadly suffered the loss of five close relatives over a short period of time. Naturally that had a significant impact on the Claimant emotionally, however we find that there was not the substantial effect on the Claimant’s ability to carry out normal day to day activities which the statutory Case No: 1801050/2016 10.8 Reasons – rule 62(3) 19 definition requires. Nor are we satisfied in respect of the medical evidence. In these circumstances we conclude that that Claimant was not at the material time a person with a disability. For that reason we have no jurisdiction to consider the merits of the disability discrimination complaint, which must fail. However we will return to the issue of the Claimant’s health as a factor to be considered when assessing the fairness of her dismissal. 8.3. Automatically unfair dismissal – section 103A Employment Rights Act 1996 At some stages of this hearing we had assumed that this complaint had all but been abandoned. As Ms Nowell points out, this part of the Claimant’s case was not put to her witnesses. In any event we find that this complaint is not made out. The dismissal stemmed from the allegations made against the Claimant. As we have observed above, those allegations might have in part been motivated by the Claimant making her protected disclosure. However, per Kuzel the Claimant must produce some evidence to support her positive case that the true reason for her dismissal was making the protected disclosure. We find that she has failed to do that and accordingly the complaint pursuant to section 103A fails. 8.4. Ordinary unfair dismissal 8.4.1. Has the Respondent shown a potentially fair reason to dismiss? In it’s grounds of resistance (paragraph 18) the Respondent seeks to show one of two reasons – either conduct or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held (SOSR). We agree with Mr Carter that the Respondent cannot offer a composite reason. We find that the Respondent has not shown a conduct reason. We find however that they have shown the potentially SOSR reason namely “irrevocable breakdown in relationships and the breakdown in trust and confidence in you as an employee” – as Ms Joseph put it in her conclusion document (page 392). We accept that the Respondent seeks to show that the Claimant’s conduct led to those breakdowns. 8.4.2. Was the SOSR reason actually fair? The starting point is the statutory test in the Employment Rights Act 1996 at section 98(4). Whilst considering that statutory test we also need to consider whether the dismissal before us comes within a reasonable band – could any reasonable employer in the circumstances have dismissed for this reason? We must not substitute what we would have done had we been the employer. We note that the Respondent is a large organisation with commensurate administrative resources. In terms of the investigation which was conducted, the test again is reasonableness. We need to assess that in context. We therefore instruct ourselves that if an employer is dealing with alleged conduct arising within what the employer itself acknowledges to be a dysfunctional workplace, Case No: 1801050/2016 10.8 Reasons – rule 62(3) 20 then the need for a robust and careful investigation is heightened. We accept that the Respondent has not gone so far as to categorise Bungalow 2 or Sapphire Lodge as dysfunctional in terms, but it did believe that there were at least two cliques operating there. It also knew that the Claimant was perceived to be in one clique and that some of her accusers were in the other. The Respondent also knew – at least by the date of the disciplinary hearing in February 2016 – that the Claimant had made a protected disclosure in February 2015. They also knew that her accusers would have been made aware of that when police involvement led to the Claimant’s name being given to those who were arrested. The flurry of complaints, as the Respondent was only too aware, followed shortly afterwards. We find that the required robustness and care were not present in the investigation which took place. The seven allegations in the 18 August 2015 charge letter (page 121) were non specific. That defect was not cured at the disciplinary investigation meeting which took place on 16 September 2015 because the Claimant was still not given the dates or approximate dates (save one) of the alleged behaviour. Nor was she given sufficient background information. In those circumstances we find that it was unfair of the Respondent to subsequently criticise the Claimant’s answers as being inconsistent. Nor was it correct to portray the Claimant’s responses as no more than “it didn’t happen”. It can be seen that whilst that may have been how the Claimant started an answer, she would then go on to give her explanation and seek to give context. We also find that there were shortcomings in the range of individuals interviewed and documents considered. For instance Mrs Symonds did not interview all those present at the meeting on 3 June 2015 – where it was alleged that the Claimant had used inappropriate body language towards Ms Helliwell. In fact we were told that the minutes of that meeting (page 704) were not considered during the investigation. We also note that not all the witnesses to the “frilly socks” incident were asked about it. Whilst the police investigation may have hampered the Respondent initially, the Respondent had been permitted by the police to proceed internally as of August 2015. However Ms Symonds took no steps to obtain the day book which Ms Moss kept. As per the interview with Ms Moss at page 248 it was suggested that that day book could have contained concerns about the Claimant. If the day book was in the possession of the police there is no evidence that Ms Symonds took steps to obtain it. We also observed generally that the supervision and review of the Claimant’s work seems to have been almost non existent. We have seen no evidence of any formal professional development reviews. We also observe that the Claimant’s answers to the allegations about her behaviour towards Amanda Simmonite (the bean bag issue) should have been viewed in the context of what was obviously the Claimant’s initial misunderstanding about what conversation or meeting (or equipment) was under consideration. Again we find that to be a consequence of the vagueness of the allegations that were put. Case No: 1801050/2016 10.8 Reasons – rule 62(3) 21 We were also concerned that the management investigation report of December 2015 (page 156 onwards) tends to focus on the evidence against the Claimant rather than endeavouring to balance that with evidence which was in her favour. Moreover some of the necessary findings of fact were lacking. Accordingly as of the dismissal stage we find that the Respondent had not met the standards of a reasonable employer. 8.4.3. Were those defects cured at the appeal stage? Although purporting to be a review, we have sympathy with Mr Carter’s description of the process as being one of ‘rubber stamping’. Moreover, rather than curing earlier defects, the appeal resulted in a further failure to meet the standards of a reasonable employer in the context of considering the issue of the Claimant’s health. Whilst the Claimant may have been down playing that because she felt it had not impacted on her conduct at work, we think a reasonable employer would have taken into account that the Claimant may not have been the best judge of that. As the Respondent had the two occupational health reports to which we have referred and was aware of the Claimant’s absence from work and the reason for it, we find that a reasonable employer would have been put on notice and would have made further enquiries which would have been likely to have led to it taking into account the Claimant’s health as a mitigating factor. 8.5. Substantive fairness We have been directed to the observations of Mummery LJ in Leach v Office of Communications – criticising an approach where breach of trust and confidence is used as a convenient label for dismissal whenever a conduct reason is not available or appropriate. We find that the Respondent has fallen into this trap. It admits that the Claimant’s alleged conduct was not gross conduct. It refers to the Claimant being responsible for the breakdown of relationships when clearly a reasonable employer must have accepted that the relationships at work had significant pre-existing damage as evidenced by the existence of two cliques. The Respondent also alleges breach of trust and confidence in the Claimant herself despite the circumstances in which the allegations against her were made; obstacles in the way of her defending herself and, not the least her previous 13 years of unimpeachable employment. The Respondent never asked itself why shortly after making her disclosure her behaviour and demeanour should change. 8.5.1. Ultimate conclusion on fairness We therefore find that the Claimant’s dismissal was both procedurally and substantively unfair. 8.5.2. Would a fair procedure have made any difference? We find that a fair procedure would have been likely to have made all the difference in that if the Respondent had taken into account that which we Case No: 1801050/2016 10.8 Reasons – rule 62(3) 22 find a reasonable employer would the matter is unlikely to have proceeded to a formal disciplinary process at all. 8.5.3. Did the Claimant contribute to her unfair dismissal? We accept that in principle contribution can apply in a SOSR case as it can in a conduct case. When assessing contribution it is for the Tribunal to make it’s own findings on the balance of probability. As the significant alleged contribution was conduct involving the Claimant’s behaviour towards others we find ourselves in the position of only having the Claimant’s evidence which denies that behaviour. We have no direct evidence from those who were allegedly mistreated by her. All we have is the hearsay within the statements which they prepared for the internal investigation. Accordingly on the balance of probabilities we accept the Claimant’s evidence and find no contribution.