Mrs K McGuire and Miss T Skitt v ADL plc and others: 1801731/2019 and 1801734/2019
EMPLOYMENT TRIBUNALS
Case No 1801731/2019, 1801734/2019
Between
Mrs K McGuire and Miss T SkittClaimantMrs Jackson (second respondent and director)Respondent
Before
Employment Judge RogersonDate 11 December 2019
JUDGMENT
[1]Mrs McGuire’s complaints of protected disclosure detriment, made pursuant to section 47B Employment Rights Act 1996, against the first and third respondent, that succeed are:1.1 Carer B: refusing to work with her and accusing her of telling tales in later December 2018: Carer B “squaring up to her” in December 2018: Carer B telling Miss Hopkinson that the claimant had bullied her.1.2 Carer P refusing to work with her and giving her dirty looks in January 2019.1.3 Carers refusing to work with her, not talking to her and accusing her of telling tales in December 2018. 10.5 Reserved judgment with reasons – rule 61 1 March 20171.4 Miss Hopkinson moving her to work downstairs after Christmas 2018: Miss Hopkinson providing a negative reference for her after she left her employment.[2]Mrs McGuire’s complaints of protected disclosure detriment, made pursuant to section 47B Employment Rights Act 1996, against the first second and third respondent, that succeed are: 2.1 Mrs Jackson writing to the claimant on 10 January 2019 in an intimidating and threatening manner: Mr Taylor’s intimidating and threatening telephone call on 10 January 2019 made on the instruction of Mrs Jackson.[3]Mrs McGuire was automatically unfairly dismissed, by reason of her protected disclosures, her complaint made against the first and third respondent, pursuant to section 103A Employment Rights Act 1996, succeeds.[4]Miss Skitt’s complaints of protected disclosure detriment made pursuant to section 47B Employment Rights Act 1996, against the first and third respondent that succeed are:4.1 Other carers making her feel uncomfortable, isolating her and refusing to work with her.4.2 Miss Hopkinson not investigating her concerns from December 2018 onwards.4.3 Miss Hopkinson providing her with a negative reference after she left her employment.[5]Miss Skitt was automatically unfairly dismissed, by reason of her protected disclosures, her complaint made against the first and third respondent pursuant to section 103A Employment Rights Act 1996, succeeds.[6]All other complaints fail and are dismissed.[7]A remedy hearing will be listed to determine remedy in relation to successful complaints. Separate case management orders will be made in relation to that hearing.
REASONS
Background
[1]Mrs Jackson represents ‘ADL Plc’ and ‘Charlton Court Care Home Ltd’, both companies identified as the claimants’ employer in these proceedings. She also represents herself to defend the detriment complaints made against her by Mrs McGuire. The 2 claimants were carers who had been employed by either ADL Plc or Charlton Court Care Home Limited. They allege they made protected disclosures raising concerns about alleged neglect of residents at the home. As a result, they say they were victimised by the other carers and managers, which resulted in them both leaving their 10.5 Reserved judgment with reasons – rule 61 2 March 2017 employment. They bring complaints of protected disclosure detriment and constructive dismissal.
The Issues
[2]Unfortunately, the Tribunal were unable at this hearing, based on the information provided by Mrs Jackson, to ‘identity’ which respondent was the correct ‘employer’. Both companies appear to be identified as the ‘employer’ in some of the documents produced or in witness evidence. Mrs Jackson was unable to clarify the position, to our satisfaction, at this hearing so we have not removed either company as respondent at this stage. In our findings of fact, we will refer to ‘the home’ as the ‘employer’ in that context. If further evidence is provided, to identify the correct employer at the relevant time, those parts of the judgment affected can be reconsidered.[3]Mrs Jackson was asked at the beginning of the hearing to explain why none of the respondents had arranged for legal representation given the serious nature of the claims made. She said it was agreed she would represent all 3 respondents because of the cost of legal representation. She confirmed that whilst the respondents could afford to pay for legal representation they had elected not to do so.[4]Prior to cross examination, whenever an issue arose about the respondent’s failure to comply with any order made or to address issues raised (disclosure/witness statements), Mrs Jackson would attribute that failure to her lack of knowledge, understanding or experience of the Tribunal process. She gave the Tribunal the clear impression in her answers that she had never been involved in the process before. However, during her cross examination, Mrs Jackson admitted she had represented the company in a previous Tribunal claim at a hearing. She could not explain why she had not simply told us of her involvement (whatever it was) instead she deliberately mislead the Tribunal, in our view, to avoid any censure for her failures.[5]Another concern was the position adopted by Mrs Jackson in defending these claims on behalf of all the respondents. Her first approach was that no disclosures had been made by the claimants and there were no detriments. The claimants were telling lies because the home had been ‘exonerated’ in subsequent external inspections. It was explained to Mrs Jackson that the question was not one of truth or accuracy of the disclosures made but whether the claimants had disclosed information which they reasonably believed tended to show a relevant failure and was made in the public interest. It followed that where a worker is subjected to a detriment for having made a false allegation, but that allegation is held to amount to a protected disclosure, (because the necessary reasonable belief in its accuracy/public interest was present) then the detriment will fall foul of section 47B Employment Rights Act 1996.[6]The list of issues (see paragraph 12 below) very clearly identifies the requirements for a disclosure of information to qualify as a ‘protected disclosure’. The parties knew in advance of this hearing what the focus of the Tribunal’s enquiry would be. The list identifies each detriment relied upon and the decision makers so that those witnesses could be called by the respondent to answer the complaints made and their witness 10.5 Reserved judgment with reasons – rule 61 3 March 2017 statements could be prepared accordingly. The claim forms were very detailed and the relevant paragraphs of the claim form were highlighted in the list of issues so the respondent could prepare for, and be ready to answer the claims made.[7]Mrs Jackson’s second approach was to allege that the claimants were the ‘wrongdoers’ in relation to any allegations made. They were disclosing information about their own failures as carers and not the failures of others. Logically this would mean they had brought these complaints to expose and complain about their own wrongdoing. The position adopted by Mrs Jackson made no sense whatsoever, but she still insisted on maintaining it.[8]The approaches adopted by Mrs Jackson at this hearing and her lack of preparation in circumstances when a conscious decision was made not to have any legal representation, were the choices made by the respondents in defending these claims. Although the choices made were surprising, when ‘funding’ was not an issue, it is the function of the Tribunal to decide the claimant’s claims based on the issues identified the evidence presented, the arguments advanced by the parties and the applicable law. Issues[9]The issues in this case were clarified and agreed at a preliminary hearing before Employment Judge Davies on 4 June 2019. The same representatives appeared and confirmed those were the issues to be determined.[10]Both complainants bring complaints of protected disclosure detriment and constructive automatic unfair dismissal for making a protected disclosure. Mrs K McGuire[11]Mrs McGuire alleges that she made seven protected disclosures. Six disclosures were made internally and one disclosure was made externally to the Care Quality Commission (CQC) on 9 January 2019.[12]The issues identify the questions for the Tribunal to decide if a qualifying protected disclosure had been made: 1. Did the claimants make the report? 2. Did they disclose information? 3. In their reasonable belief was it in the public interest? 4. In their reasonable belief did it tend to show commission of a criminal offence/danger to health and safety/breach of a legal obligation or that one of these things was likely to be concealed within the meaning of section 43(b)(1) Employment Rights Act 1996? 5. In the case of the reports to the CQC was the CQC a prescribed person, did the claimants believe that the failures fell within the CQC’s area and did they believe that the information or allegations were substantially true? 10.5 Reserved judgment with reasons – rule 61 4 March 2017[13]We will deal with the 6 internal disclosures first in our findings as those disclosures are relied upon for all the alleged detriments complaints. Mrs McGuire alleges the following disclosures were made to her employer: 1. Telling Miss Lewis that a resident had been left unattended and that carers were not around in November 2018 (claim form paragraph 10). 2. Telling Miss Metcalfe that Carer B was taking photos in resident’s rooms on 27 December 2018 (claim form paragraph 12). 3. Telling Miss Lewis that a Carer P, had thrown porridge on a resident in late November/early December 2018. 4. Telling Miss Metcalfe that a resident had been left with soiled pads and only changed when he went to bed in late November/early 2018 (claim form paragraph 14). 5. Telling Miss Metcalfe that a resident had been taken outside wearing very little and raising more general concerns about neglect on 5 December 2018 (claim form paragraph 16). 6. Repeating those matters to Miss Metcalfe later in December 2018 (claim form paragraph 17).[14]Mrs McGuire alleges she was subjected to 10 detriments on the grounds of her protected disclosures: 1. Carer B refusing to work with her and accusing her of telling tales in late December 2018. 2. Other Carers refusing to work with her, not talking to her and accusing her of telling tales in December 2018. 3. Carer B “squaring up to her” as described at paragraph 22 with the particulars of claim just before Christmas 2018. 4. Carer B telling Miss Hopkinson that the claimant had bullied her just before Christmas 2018. 5. Miss Hopkinson moving her to work downstairs after Christmas 2018. 6. Carer P refusing to work with her and giving her dirty looks in 7. Mrs Jackson writing to her on or about 15 January 2019 making spurious allegations, threats and generally using an intimidating tone. 8. Mrs Jackson instructing Mr Taylor to approach her and question her, purporting to be from the CQC, accusing her of theft, insisting she had to attend a meeting with him and texting her (the events described in paragraphs 44 to 47 of the claim form). 9. Mrs Jackson and/or Miss Hopkinson not paying her wages on time in January/February 2019. 10. Mrs Jackson and/or Miss Hopkinson providing a negative reference for her after she left. 10.5 Reserved judgment with reasons – rule 61 5 March 2017[15]The claimant also alleges that she was constructively dismissed because the employer fundamentally breached the implied term of mutual trust and confidence, by virtue of the matters set out above and that she resigned in response to and without affirming the contract. She asserts that the reason for her dismissal (or the principal reason for her dismissal) was that she made a protected disclosure. Evidence[16]We heard evidence from the 2 claimants and for the respondent from Mrs Val Lewis (registered nurse) Ms Yasmeen Akhtar (registered nurse), Bob Taylor (investigator) Ms Sophie Goulding(carer), Ms Brandy Rumsey (carer B) Ms Kelly Hopkinson (Home Manager) Mrs Pearl Jackson (Director). We also saw documents from a bundle of documents containing some disputed documents.[17]Dealing firstly with the documents. Mrs Jackson, selectively and deliberately chose to disclose only the parts of documents that supported the respondents case that subsequent inspections had ‘completely exonerated’ the home. She only disclosed parts of a Leeds City Council Inspection Report following a visit to the home on 14 February 2019 and part of an Infection Prevention and Control Report, following an audit on 18 April 2019.[18]In an email of 2 October 2019, Ms Almzedi had raised with Mrs Jackson her request for full disclosure of documents, when it became clear to her that some pages were missing. She also requested that the original reports rotas and time sheets were produced at the hearing because she queried their authenticity. She had good grounds to believe the duty rota had been altered between exchange and the version produced in the bundle, because Mrs Jackson accepted that is what had happened. Despite being forewarned of this issue the original documents were only produced very late on in the hearing.[19]Mrs Jackson said she did not understand/was unfamiliar with the process. However, the email request did not require any explaining. It clearly set out what was required and why. Mrs Jackson could easily have addressed the issues, properly raised with her, in advance of the hearing, if she had wanted to. She was not being open and transparent with the claimant’s representative or with the Tribunal and her conduct of these proceedings, does not go to her credit. There were other examples in our findings of fact that informed our view that Mrs Jackson was not a reliable witness. She was evasive and was not presenting evidence openly and honestly to the Tribunal.[20]This was a difficult hearing because of the open hostility felt between the parties that spilled into the hearing, unnecessarily. It was clear that the claimants’ view of the respondent based on their perceived experience was a very negative one and on occasion those views were evident when evidence given by the respondent’s witnesses was disputed (shaking of heads/facial gestures). Some witnesses for the respondent clearly felt anger and hostility towards the claimants not only when they had worked 10.5 Reserved judgment with reasons – rule 61 6 March 2017 together but also at this hearing. While that anger from more junior members of staff in non-management roles might be expected given the views they held about the claimants, we did not expect that Miss Hopkinson (Registered Home Manager) or the Director, Mrs Jackson would present in the way they did during these proceedings.[21]Although they disagreed with the claimant’s case, Mrs Jackson and Ms Hopkinson were attending the hearing to give evidence and answer the complaints made about alleged whistleblowing, as the most senior representatives of the home. In the home care setting these types of complaints are expected to be taken seriously because of the vulnerability of the residents the home cares for. They should have expected, questions about their whistle blowing policies and procedures, and to be challenged about the events relied upon in cross examination. In answering questions, they did not try to hold back from demonstrating the anger and hostility, they clearly felt towards these 2 claimants for bringing these claims. Miss Hopkinson’s blamed the claimants for “wasting two weeks of her life”. Mrs Jacksons angry response to a question about the alleged threatening letter sent to Mrs McGuire, to try to prevent her from bringing this claim was “well it did not work did it”. These were only 2 of the many occasions the Tribunal observed open anger directed at the claimants during this hearing.
Findings of Fact
[22]Mrs McGuire worked at Charlton Court, a care home for the elderly in Pudsey, Leeds, from 16 September 2018 until her resignation on 9[23]Mrs McGuire had not worked for 17 years while she had a career break to care for her children. This was her first job back to work in a care home setting. She had set herself high standards for the care she expected of the residents at the home. She was confirmed in ‘post’. No complaints were made about her work. She was considered, to be a good carer and received an award as “Carer of the Month” in December 2018.[24]In late September 2018, Mrs McGuire became concerned about the care of some service users not being changed/left in soiled clothing/bedding and the lack of support she felt from fellow carers to assist with work which required 2 carers. She said she had not been provided with the relevant procedures for raising concerns which the home says were in place at the time, so she just reported her concerns to her managers. Relevant procedures/codes of conduct Code of Conduct[25]The respondent has an undated ‘Code of Conduct for Carers’, an undated “Adult Protection, Abuse and Safeguarding Policy”, and a Whistleblowing Policy, drafted by Mrs Jackson in June 2017.[26]The ‘code of conduct’ provides that care workers “must safeguard and promote the interests of service users and carers”, and “protect them as far as possible from danger or harm”. They must “respect and maintain 10.5 Reserved judgment with reasons – rule 61 7 March 2017 the dignity and privacy of service users and carers”. They must be “honest and trustworthy” and they “must challenge dangerous abusive discriminatory or exploitative behaviour using established processes and procedures to report it”. The home must “take complaints seriously and respond to them or pass them to the appropriate person to respond”. Adult Protection Abuse and Safeguarding Policy[27]This policy is intended “to prevent, reduce and identify the risk of possible abuse to any vulnerable adult within our care as well as to ensure that protective measures are in place to prevent reoccurrence, learning from the experience in order to improve”.[28]The policy provides that it is the responsibility of all staff to alert others to any potential or suspected abuse. It is the responsibility of the management “to ensure that effective robust systems are in place to ensure the maximum protection exists for the clients who live in the home. It is the responsibility of the manager and senior staff to ensure that systems are adhered to and monitored to ensure their effectiveness”. (all highlighted text our emphasis)[29]It provides that ‘on suspecting abuse’ employees should:(a) Raise the alarm through the manager or senior person on duty as soon as practicably possible;(b) The manager will complete the referral to the local adult safeguarding team either by telephone or follow up with a written alert. It may well be necessary to refer to the police dependent on the nature of the allegation;(c) The home will complete a detailed alert form and record all the evidence and keep to a minimum in order to protect the client saving a copy to the home’s relevant file;(d) Dependant on the nature of the alert immediate steps will be taken to protect the client and avoid reoccurrence. This may include suspension of staff, restricting visitors etc. It may also be necessary to share information with others to include other staff;(e) The client will need to be informed of the action taken subject to capacity. The next of kin will be notified of the alert and steps taken in order to protect;(f) If an investigation is required by the home a nominated external home company representative will be involved. This is usually to avoid any claims of bias or discrimination. The investigation will be undertaken as soon as possible and sensitivity will be acknowledged. A comprehensive report will follow and detail the methodology adopted, statements from interviews and a conclusion. The lessons learnt will also be added to the report regardless of the outcome or indeed if proven or not. Confidentiality will be maintained and a reference used to identify the client.[30]The policy highlights the importance of encouraging the disclosure of information of suspected abuse regardless of the outcome whether 10.5 Reserved judgment with reasons – rule 61 8 March 2017 it is proven or not it will be treated seriously to encourage staff to report any suspected abuse.[31]Neglect is identified in the policy as a type of abuse which includes “failing to take the right steps and care appropriately for any individual” which includes: “not changing someone after incontinence knowing they are wet and need help, ignoring the person or failure to ensure privacy and dignity, inappropriate or inadequate clothing”. Whistleblowing Policy[32]The policy produced by the respondent in the bundle is headed “ADL/Woodlands Whistleblowing” The objective of the policy is “to give clear guidance to all members of staff regarding the correct procedure for bringing to attention any wrong doing or suspected wrong doing which they feel could affect the representation of the home, other members of staff, visitors, residents or any other organisation or persons, in connection with the home”.[33]The policy states that it has been written “with the Public Interest Disclosure Act 1998 in mind which was introduced to protect employees who blow the whistle about any wrong doings”. It states: “we wish to encourage staff at all levels to keep their eyes open and to raise such concerns in a sound way to demonstrate and ensure good practice in all our activities”. Examples of potential malpractice in the workplace include “stealing, corruption, breach of contract, negligence, danger to health and safety, abuse of those in care, breach of food safety/hygiene regulations, discrimination, pollution, unethical conduct and the cover up of any of these”.[34]The section headed “raising concerns with the workplace” provides that “an employee who has a concern should raise it whoever they feel comfortable with. This may be external of the home and not their own line manager. Employees should be assured that management will support all those who have an honest and reasonable suspicion that malpractice or wrong doing has occurred, is occurring or is likely to occur. They will be promised confidentiality if they so request and protected from reprisals. They are entitled to protection under employment legislation”.[35]It also deals with malicious allegations and says the home will “be firm with those employees who make false or spurious allegations of a malicious nature. It warns that those staff could be open to disciplinary action and even dismissal depending on the circumstances. It assures staff that those making allegations genuinely and who act reasonably and responsibly should have no fear or arbitrary decisions by the home[36]The policy ends with the following statement: “We therefore need to know your concerns and we promise to:(1) Respect confidentiality.(2) Investigate thoroughly. 10.5 Reserved judgment with reasons – rule 61 9 March 2017(3) Provide support and protection if necessary through alternative(4) Agree to report back on the outcome of investigations.(5) Take the action proposed”.[37]Contact details are provided in the policy for Head Office, for Pearl Jackson (Operations Director), Jeremy Davies (Managing Director) and the CQC.[38]The claimants were not made aware of or referred to the policy during their employment. Ms Jackson was familiar with it (having drafted it) and Ms Hopkinson was familiar with it and understood its importance. As the ‘Registered Care Home Manager’ she had overall responsibility for running the home and was accountable to the CQC. It was clear that on paper the home, were encouraging and promoting the reporting of concerns promising those who did so, confidentiality and protection from any reprisals.[39]Miss Hopkinson said she or Ms Metcalf (her deputy) would induct all staff on the policy which was kept in the office. The other carers and registered nurses that gave evidence to the Tribunal said they were all aware of the policy and understood that it applied. It was the respondents position therefore that the policy was in place and applicable irrespective of the claimants’ position in these proceedings. First alleged protected disclosure[40]Mrs McGuire alleges she made her first ‘protected disclosure’ in November 2018, to Mrs Lewis. She told Mrs Lewis (senior registered nurse) that a resident (J) had been left unattended and that carers were not around to help residents. She “was concerned that residents were being left to wait to be changed and washed as a matter of course due to the fact that carers were often not around to help as they had gone for cigarettes or had gone to the shops. The claimant expressed her shock at the lack of pads and the length of time that many residents were having to wait to be changed and she said that she felt that this was neglect and she thought that something should be done about it. The claimant thought that Val Lewis would take her concerns further and felt better for speaking up. The claimant considers that what she reported is a relevant disclosure under section 43B of the Employment Rights Act 1996”.[41]Mrs Lewis denies any such report was made to her and that during the period the claimants were employed she was never approached with any “whistleblowing or allegations of neglect”.[42]Although Mrs Lewis denies any report at all was made, for the reasons we consider in more detail for the third alleged disclosure, we preferred and accepted the claimant’s account of the disclosure of information made to Mrs Lewis as set out above. Mrs McGuire’s account was also consistent with the evidence of other carers who perceived her at the time as someone who was complaining to the seniors that carers were not doing their jobs and was making allegations of neglect. This was why the other carers viewed the claimants as trouble makers. Contrary to Mrs Lewis’s position of having no knowledge of ‘any allegations of neglect’ something 10.5 Reserved judgment with reasons – rule 61 10 March 2017 must have been said to the seniors by other carers, for this view to be held by them.[43]Mrs Lewis was a ‘senior’ a part of the management and someone the claimant identified as a person she should report her concerns to. Mrs Lewis’s did not demonstrate any understanding of or familiarity with the respondent’s policies about raising ‘suspected concerns of neglect’ as part of the whistleblowing policy. The claimant was alerting the claimant to her concern of suspected neglect because she believed based on what she saw and experienced at work that there was a lack of pads/residents waiting too long to be changed/carers not doing their jobs.[44]The issues for the Tribunal to decide if a qualifying protected disclosure was made were: Did the claimants make the report? 38.1. Did they disclose information? 38.2. In their reasonable belief was it in the public interest? 38.3. In their reasonable belief did it tend to show danger to health and safety/breach of a legal obligation or that one of these things was likely to be concealed within the meaning of section 43(b)(1) Employment Rights Act 1996?[45]We found a verbal report was made by the claimant telling Mrs Lewis her concerns of the neglect of residents waiting to be changed for too long/lack of pads/carers not doing their jobs. This falls within the definition of neglect used by the home of “failing to take the right steps and care appropriately for any individual” The claimant reasonably believed her disclosure was made in the public interest because she was concerned as a carer about the residents’ care. She wanted to protect them from harm and to respect their dignity and privacy. She disclosed information which tends to show a relevant failure in relation to health and safety and a breach of the legal obligation she believed she had as a ‘carer’ to the residents. 2nd Alleged Protected Disclosure[46]Mrs McGuire alleges she told Miss Metcalfe that carer B was taking photos in the resident’s room on 27 December 2018. Miss Metcalfe did not attend to give evidence but in her witness statement says that other than disclosure 5, she was unaware of any suspected abuse or neglect.[47]In cross-examination the claimant was asked about the photograph and she confirmed that at the time there was no resident in the room and she thought that carer B was taking photographs of ‘broken things’. She felt that was inappropriate because it invaded the resident’s privacy. She could not explain how she believed that was information tending to show a relevant failure and she accepted the photo might be taken to report the broken thing in the room.[48]The claimant might have thought that it was ‘inappropriate’ but the information she disclosed did not in our view tend to show she had a reasonable belief of a relevant failure of either a legal obligation/health and safety or that it was made in the public interest. It was not a protected disclosure. 10.5 Reserved judgment with reasons – rule 61 11 March 2017 3rd Alleged Protected Disclosure[49]The third protected disclosure Mrs McGuire relies on is telling Mrs Lewis that Carer P had thrown porridge on a resident(M) in late November/early December.[50]The claimant reported concerns about an incident where a vulnerable resident had reported to her that Carer P had thrown porridge over the resident and caused a mark to her chest. The claimant had been told by the resident that Carer P had thrown the porridge at her ‘in a mood’. The claimant reported this incident and advised Mrs Lewis that she was worried about this carer’s suitability to look after vulnerable residents.[51]We saw an incident/accident form in relation to this incident at page 110 in the bundle. Mrs Lewis very briefly deals with this incident at paragraph 3 of her statement and says: “On 20 November 2018, an incident occurred involving a client named M. MG was found by myself and the visiting GP and Practice Matron Isabel Vickers during the ward round to have spilt porridge on herself by accident.…. there was no other person involved or any abuse other than the fact that the porridge was hotter than usual and M lacked the capacity to recognise this”.[52]In the incident form it records that M ‘complained’ hot porridge had fallen on her chest causing a red mark on her chest. At the bottom of the sheet, sometime after it had been completed by Mrs Lewis and Ms Metcalfe, Ms Hopkinson added the comment “Supervision with Staff, in regards to, sitting resident up/serving at appropriate temperatures”.[53]Mrs Lewis explained that breakfast would be served to residents anytime from 8am and a ward round would have taken place about 9.30am. She knew carer P had served M breakfast on that day but did not question her about the incident. She did not undertake any investigation to try to understand how it might have happened. It was put to her in cross examination that her account did not appear to treat this incident as a cause for concern. She appeared to blame the resident for lacking the capacity to recognise the porridge was too hot, rather than focusing on how the porridge had been served and who the carer was that had been involved in serving the porridge, to see if any issues of concern arose.[54]Mrs Lewis denies any report was made by to her by the claimant. She says there was no issue of concern that required investigation. She cannot explain the comment made of the resident ‘complaining’ to her, or why Miss Hopkinson would make the comment suggesting supervision was required as a ‘corrective’ action, if no other person was involved and there was no cause for concern for her at the time. She says Miss Hopkinson’s comment was not on the report when she completed it and she was unaware of it.[55]The claimant says she reported what the resident had reported to her. Regardless of whether that report (based on what the resident had told the claimant) was right or wrong it had resulted in an injury to the resident. After that injury, no investigation was undertaken to establish the cause, leaving questions unanswered. 10.5 Reserved judgment with reasons – rule 61 12 March 2017[56]Another aspect of the evidence given by Mrs Lewis that caused us to doubt her evidence was in the inspection report carried out by Leeds City Council in February 2018. This same resident was observed eating lunch lying down, and it was noted as a ‘concern’. This was a part of the report that had not been disclosed by Mrs Jackson until this hearing.[57]It was a ‘noted’ concern because it identified the danger to this resident observed as being unable to eat safely or properly in a lying down position. When Mrs Lewis was cross-examined about this, she said that the resident had a ‘tendency to play with the controls of the bed’ which is why she might have been found eating lying down on the date of the visit.[58]We agreed with Miss Almzedi’s assessment that Mrs Lewis was trying to deflect any responsibility onto the resident to support her own failure to respond to what had happened in the way that she was required to under the respondent’s policy. She did not recognise any need to investigate it further or to treat this incident seriously because she thought there was no cause for concern.[59]We found the claimant’s account was more credible and were satisfied that she had made a verbal disclosure to Mrs Lewis reporting the resident ‘complaining’ about Carer P who had served her with porridge at breakfast that morning. If the incident was not of any concern why was it necessary for a subsequent note to be added to the accident record by Ms Hopkinson after it had been completed by Ms Lewis and Ms Metcalfe on 20.11.2018.[60]We accepted a report was made by the claimant to Mrs Lewis based on what the resident had reported to her involving Carer P. The resident suffered an injury. The claimant reasonably believed what she reported was information of suspected abuse or neglect and she was concerned about this carer’s suitability to look after vulnerable residents. She was making an allegation of neglect against another carer. She made that report in the public interest. The information she disclosed to Mrs Lewis tends to show a relevant failure of the legal obligations of a carer and of an injury to a resident that had occurred in circumstances that required further investigation. It was reported as such by the claimant and was a protected disclosure. 4th Alleged Protected Disclosure[61]The next disclosure that the claimant relies upon is in late November/early December 2018 when she told Miss Metcalfe that a resident had been left with soiled pads and only changed when he went to bed.[62]At paragraph 14 of the claim form the claimant states that she reported issues concerning resident A who the claimant found in a very poor state sitting in soiled pants and garments. The claimant asked why he had not been changed and was advised that he was not being changed because he was going to bed after tea. The claimant raised this incident with Miss Metcalfe and advised her she was concerned at the state the resident was in effectively left with one pad on for hours and only changed when he went to bed. The claimant noted that Miss Metcalfe did not seem to be particularly interested and she felt uneasy at the lack of interest in what she felt was neglect of vulnerable elderly people. She considers that what 10.5 Reserved judgment with reasons – rule 61 13 March 2017 she reported was a relevant disclosure under section 43B of the ERA 1996.[63]We did not hear any evidence from Emma Metcalfe. She makes a general denial of “any reporting of any concerns by either of the claimants”. She does however refer to this particular resident at paragraph 8 of her witness statement and she states “I’m familiar with a client named A and have never been approached by anyone regarding continence issues. The pads that we use are intended to hold up to 2 litres of urine and more frequent changing of pads may place the client at risk of skin damage due to the moisture extraction that occurs when changing pads. We were advised with this by the expert advisor during training completed at the end of October 2018”.[64]Her statement therefore appears to defend a practice of not changing clients for a longer period based on the capacity of the pads to hold urine. We found it odd that she makes any reference at all to this client and the frequency of changing pads to try to justify the length of time that residents might wear the incontinence pads. That aspect of her evidence could have been explored further with her and her understanding of a ‘concern’ if she had attended the hearing to give evidence but she did not attend.[65]We accepted and preferred the claimant’s evidence. The claimant raised the matter with Miss Metcalfe because she was concerned this resident was being neglected in his personal hygiene care and she believed he was being left in that condition for an unreasonably long time. The claimant reasonably believed what she reported was information of suspected neglect. She made that report in the public interest and it did tend to show a relevant failure with regards to her legal obligations as a carer/ health and safety in relation to the neglect in this resident’s personal hygiene care. 5th Alleged Protected Disclosure[66]The claimant alleges that she told Miss Metcalfe on or around 1 December 2018, that when she passed carer B taking one resident D out to the front of the building for a cigarette, he was inappropriately dressed to go outside. The claimant was ‘astonished’ to see that resident D was just wearing a robe that was flapping loose and had no pants on. Instead his pad was visible and he had socks on and a little T shirt that was not covering his belly. The claimant could not believe that resident D was heading outside so the claimant stopped carer B and asked why resident D was going outside dressed as he was. She said: “don’t take him out like that please get him dressed”. The claimant then took resident D back to his room and dressed him properly with the assistance of another carer Meghan. When she was dressing D, she asked him why he did not ask to be dressed properly. He told her he did ask Carer B to get him dressed but she had ignored him. The claimant told Ms Metcalfe this had all been witnessed by Meghan.[67]In relation to this incident we know that the claimant sent a text to Miss Metcalfe on the 4 December 2018 and reported this verbally to her on 5 December 2018. Miss Metcalfe in her witness statement states: “KM approached me on just one occasion. I was sent a text (4/12/18) to raise an issue that had allegedly occurred on 1 December 2018. I did see her 10.5 Reserved judgment with reasons – rule 61 14 March 2017 later at work near the end of the shift on 5 December and logged her grievance against another member of staff. This issue was about B another carer. It was alleged by KM that Carer B was noted by her to be taking a client outside for a cigarette. She told me he had very little clothing on. She told me that he only had clothing thrown across the bottom half over his legs. KM went to tell me that she had intercepted this incident by stopping Carer B from taking him outside and then made sure that he was properly dressed. I documented this and referred the matter to Kelly on her return from holiday as there was no evidence of abuse and it was an alleged near miss and not actually an occurrence so the manager would deal with it on her return. In addition, I didn’t believe that anyone had been placed at risk. I was pleased to hear that the safeguarding team also upheld the decision that the concerns were unfounded and closed the case.”[68]In relation to the final comment there is no reference to this incident in the safeguarding team report or of upholding any decision. What is clear from Miss Metcalfe’s evidence is that she appears to corroborate the claimant’s account that a ‘near-miss’ was reported because resident D was prevented from going outside by the claimant’s interception.[69]Although there was a discrepancy in the claimant’s witness account about where the ‘interception’ took place and much was made of that at the hearing, it was clear the claimant had reported this accurately at the time to Ms Metcalfe. It was described as a near miss because of the claimant’s interception.[70]Miss Hopkinson’s record of the interview with the claimant on 28 December 2018 (page 74 in the bundle) also corroborates the claimant’s account.[71]The open question Miss Hopkinson asked the claimant is “can you tell me what happened on 2 December 2018, in regards to resident D”. The claimant replies: “B was walking towards the lift with resident D and I asked where he was going. D said he was going for a cigarette. I said he could not go outside dressed like that”.[72]Miss Hopkinson asks: “Why? How was he dressed?”. The claimant replies: “He had only a T shirt on his upper body and a pad on his lower half with his dressing gown thrown over his legs. It was freezing outside and I did not feel he was appropriately dressed. I asked B to change him and she completely ignored me so I took DH and got him ready myself. I asked D why he had not said anything to B. He said he had said something and she had ignored him and said no”. Miss Hopkinson: “Can you tell me why this upset you?”. Claimant: “I would not be happy if that was my family. It was freezing outside. D is very thin anyway”.[73]It is clear therefore that although the witness statement is inaccurate in part, the contemporaneous account provided by the claimant to Miss Metcalfe and to Miss Hopkinson supports the account the claimant relies upon. 10.5 Reserved judgment with reasons – rule 61 15 March 2017[74]The respondent’s position on this alleged disclosure of information is that there was no protected disclosure because ‘nothing happened’. In closing submissions, Mrs Jackson’s advanced a different position she said there was no protected disclosure because it was the claimant who was going to take resident D outside inappropriately dressed, not Carer B. Neither position assists the respondent to answer the relevant questions as to whether a protected disclosure of information was made by the claimant to Ms Metcalfe on 5 December 2018.[75]There was a disclosure of information made by the claimant to Ms Metcalfe on 5 December 2018 and to Ms Hopkinson on 28 December 2018. Ms Metcalfe at the time records it as a ‘near-miss’ because of the claimant’s intervention. Contrary to the respondent’s procedures she treated that ‘near miss’ as a ‘grievance against Carer B’. Ms Metcalfe was treating concerns properly raised of alleged neglect as a personal grievance about the carer. Her approach was shared by other carers who viewed allegations in the same way creating division and bad feeling towards the claimants for making these allegations. Ms Hopkinson elected to ‘investigate’ it and deemed that “no abuse had occurred”. Ms Metcalfe did not interview Meghan (the carer the claimant identified as having witnessed the event) and said that by the time she investigated this that carer had been sacked and she made no attempt to interview her.[76]Neither- managers’ responses to reports of a suspected concern of neglect were consistent with the homes whistleblowing policy. Whether they agreed or not with the claimant’s account of events, the information the claimant was disclosing to them did tend to show that resident D was being neglected at the time of interception. The respondent’s own definition of ‘neglect’ would include resident D’s state of alleged inappropriate dress at the time the claimant became involved.[77]Miss Metcalfe’s identification of report of a ‘near miss’ was accurate and as the Home Manager in the absence of Ms Hopkinson she should have investigated it promptly when it was reported rather than leaving it and labelling it as a grievance against Carer B. Miss Hopkinson also failed to follow the whistleblowing policy. When giving her evidence she showed no concern about her failure which was surprising given her role as the Registered Home Manager.[78]The promises made to whistle blowers are contained in that policy and when Ms Hopkinson was taken to the policies she accepted neither the Whistleblowing/Safeguarding policy had been followed in the way required and she could not explain that failure.[79]There was a delay from 5 December to 28 December 2018 when the claimant was interviewed about this allegation of neglect. Miss Hopkinson’s explanation for this was that she only returned to work on 17 December 2018 and the first opportunity she had to speak to the claimant about it was on the 28 December and Carer B on 29 December 2018. She accepts however that when she is away Miss Metcalfe steps in as her deputy and is the person that could have dealt with the investigation in her absence to avoid any delay. The safeguarding policy requires “A comprehensive report will follow and detail the methodology adopted, statements from interviews and a conclusion. The lessons learnt will also 10.5 Reserved judgment with reasons – rule 61 16 March 2017 be added to the report regardless of the outcome or indeed if proven or not”.[80]The claimant was cross-examined by Mrs Jackson about why it had been such an issue for her at the time in relation to this particular resident. She said it was because of her close relationship with resident D and because she cared about him and it was his interests that prompted her to raise this disclosure.[81]It was clear to the Tribunal that the claimant had a very close relationship to the residents at the home. Examples are her attachment to resident D and another resident that she took home with her on Christmas Day so that she could spend the day with the claimant and her family. She was making these disclosures because she was unhappy at the standard of care she saw the residents receiving at the Home based on the standards of care she believed they were entitled to receive and she was obliged to give them as a carer.[82]Even if the claimant was more sensitive to issues in the care home than others were, she reasonably believed that residents were being neglected or were potentially put at risk of harm. The claimant reasonably believed what she had reported was information about suspected neglect of resident D. She reasonably believed it was made in the public interest and it did tend to show a relevant failure with regards to her legal obligations as a carer, and for resident D’s health and safety. The disclosure was protected. 6th Alleged Protected Disclosure[83]The sixth disclosure was not a new disclosure of information it was relied upon as the repeating to Miss Hopkinson of earlier disclosures and was not a separate disclosure of any new information.[84]Our conclusions are that five of the disclosures made by the claimant to her employer are protected disclosures and one was not. Detriments alleged by Mrs McGuire: Detriments involving Carer B[85]Dealing with the 3 detriments involving Carer B together: which are that she refused to work with the claimant and accused her of telling tales in late December 2018: she squared up to her: and she told Miss Hopkinson that the claimant had bullied her just before Christmas 2018.[86]This alleged treatment can be categorised more generally as alleged reprisals from a colleague against a whistle-blower. The respondent’s policy envisages this type of treatment may occur and assures whistle blowers that they “will be promised confidentiality if they so request and protected from reprisals. They are entitled to protection under employment legislation”. It also provides protection from those making allegations genuinely and who act reasonably and responsibly should have no fear or arbitrary decisions by the home management.[87]Val Lewis and Yasmin Akhtar (another registered nurse) part of the home management team refer to decisions they made because Carer B had made complaints to them about the claimant. Carer B told them she did 10.5 Reserved judgment with reasons – rule 61 17 March 2017 not want to work with the claimant and when she was asked to work with the claimant she complained to them so they moved her away. The claimant knew they had done that.[88]Ms Lewis understood that the reason why Carer B was unhappy was because of an altercation that had taken place between Carer B and the claimant on 21 December regarding an allegation the claimant had made about Carer B’s care of resident D. She made her decision to move Carer B solely based on what Carer B had told her about the altercation without investigating the issue or checking if this had been reported to Ms Metcalfe and investigated.[89]Ms Akhtar provided evidence of another occasion when a decision was made by her to move the claimant based on what Carer B had told her about the claimant. She considered she needed to split the parties up to avoid any reoccurrence and to protect all parties given the previous allegations made by Carer B. She was aware of the allegations made against Carer B by the claimant involving resident D. She says she was unaware of any kind of work cliques that existed between staff, the only staff problem she was aware of was between Carer B and the claimant.[90]From both those accounts it was clear that it was Carer B’s reporting of matters to the nurses that had influenced the decision they made and both nurses were aware of the disclosure the claimant had made relating to resident D at the time they moved her away. They were in effect taking Carer B’s side against the claimant without investigating the matter further, making the sort of arbitrary decisions by managers the policy was designed to prevent.[91]The claimant and Carer B refer to the incident on 21 December 2018 in their witness statements. Both were interviewed. Carer B was interviewed by Miss Hopkinson on 29 December 2018. The claimant was interviewed by Miss Hopkinson on 28 December2018.[92]In the notes of the interview with the claimant, Ms Hopkinson asked the claimant to tell her what happened on 21 December 2018. The claimant’s response was: “I was stood in the kitchen preparing a resident’s meal when Carer B came straight up to me in my face and asked me if we’re ok. I said we’re not ok you upset me the other day. I tried to walk away but Carer B came after me. I felt she was goading me like she wanted an argument. She asked me why aren’t we good and I said because of resident D and the incident you really upset me. Carer B then put her hand up really close to my face. She was smirking and then turned to walk away”. Ms Hopkinson asked the claimant if there any further incidents that day. The claimant replied: “no, but the next day 22 December 2018 I was aware that B was allocated to work upstairs and didn’t, a new starter TM came upstairs and told me that the girl downstairs is refusing to work up here because of you.” The claimant ended the interview saying: “I just want to come to work to do my job and care for the residents”.[93]The claimant was never shown the notes of her interview with Miss Hopkinson until these proceedings. She confirmed the record above was 10.5 Reserved judgment with reasons – rule 61 18 March 2017 accurate except for the reference to the word ‘ok’ which should have said ‘good’.[94]The interview Miss Hopkinson had with Carer B on 29 December 2019 was at page 70 in the bundle. Miss Hopkinson asked Carer B to tell her about what happened on 22 December 2018 when she was allocated to work upstairs. Carer B replied: “Yes. YA nurse changed the allocation as she was aware of the upset from the day before. I did not refuse to work upstairs. It was the nurse’s decision”.[95]In that interview Miss Hopkinson also asked Carer B if she recalled an incident on 2/12/19 involving resident D identifying the claimant as the staff member that had complained about her. Carer B’s initial response was that she did not recall any incident. She did however then go on to recall the claimant putting trousers on resident D saying “D if your daughter was here she would be kicking off”. Carer B gives no context in her interview to explain why the claimant would have made such a comment or what it was that would have made the resident D’s daughter ‘kick off’.[96]It was clear therefore that on 29/12/2018, Carer B was made aware by Miss Hopkinson that an allegation of neglect had been made against her by the claimant, and in response she complained to Ms Hopkinson that the claimant was ‘bullying her’. Carer B told Miss Hopkinson she could not work with the claimant.[97]Oddly, despite Carer B’s complete inability to recall what had happened at the time, she was able to provide a very detailed account of that incident in her witness statement. When Miss Almzedi questioned Carer B she was unable to explain how her recollection had improved so much with the passage of time. She now recalls “resident D was sat in a wheelchair on her arrival wearing an incontinence wrap (like a nappy pad) and an open dressing gown. As I left the bedroom I noted Meghan followed me and pushed DH just outside the bedroom door. I returned to find KM(claimant) in the bedroom as well as Meghan with the client. I dropped off the sheets thinking that three was a crowd and the bedroom is not particularly big which would have hampered efforts to offer personal care. I went on to complete my own allocated work. I did take note that KM was stating that D’s family would not appreciate him going out as he was”.[98]Carer B’s did ‘take note’ the claimant was raising a concern about resident D ‘not going out’ which was consistent with the claimant account. The difference is that, at this hearing, for the first time, the respondent is suggesting it was the claimant who was going to take resident D out inappropriately dressed. She was the one neglecting resident D, not Carer B.[99]After 2 December 2018, Carer B was absent from work until 21 December 2018. The claimant having reported this matter to Ms Metcalf on 5 December, had not expected to see Carer B at work. Carer B in her statement refers to the claimant being angry. She recalls ‘smirking’ at the claimant. She recalls the claimant saying to her: “you took D out naked” and her response was “are you joking, no I can’t recall”. Carer B recalls putting her hands up in ‘surrender’ and that she then reported this incident to Emma Metcalf and Val Lewis. Ms Lewis allowed her to remain 10.5 Reserved judgment with reasons – rule 61 19 March 2017 downstairs for the rest of the shift, so she did not have to work with the claimant.[100]Another Carer, Carer R witnessed this exchange between the claimant and Carer B and told Ms Hopkinson in her interview on 29/12/2018, that the claimant had said to Carer B “No. No. No. I know what you did you neglected a resident”. Carer R specifically identifies the claimant’s issue was ‘neglect’ by Carer B.[101]The claimant had raised ‘neglect’ concerns on 5 December 2018, to Ms Metcalf and on 29 December 2018 she tells Miss Hopkinson why she was concerned about resident D. Carer R and Carer B when interviewed at the time refer to it as an allegation of neglect made against Carer B by the claimant. Until these proceedings no-one has identified it as an allegation that the claimant was the one neglecting resident D by taking him out inappropriately dressed. This makes the respondent’s case as put at this hearing completely implausible.[102]The claimant’s subsequent actions were also consistent with her reporting her concerns and continuing to express concerns about resident D thereafter. She was clearly upset and angry about his treatment because she cared about him. We preferred the claimant’s account of the events, to that of Carer B. We did not find Carer B to be a credible witness. Her account simply did not make any sense. Her recollection of events was self-serving, intended to deflect blame onto the claimant to support the case advanced by the respondent at this hearing.[103]The detriments against Carer B were made out. The claimant was aware Carer B had refused to work with her on 21 December 2019 that she had been moved by the nurses because of that refusal. Carer B did view the claimant as telling tales and had complained about the claimant to the nurses to Miss Metcalfe and to Ms Hopkinson. Carer B had squared up to the claimant on 21 December, using her hands and smirking when the claimant confronted her, about what she believed carer B had done to resident D. Carer B also told Ms Hopkinson she could not work with the claimant on 29 December 2018 and had accused the claimant of bullying her. The claimant reasonably believed she was being disadvantaged by the behaviour not only of Carer B towards her but by management siding with Carer B against her. Detriment of Miss Hopkinson moving the claimant.[104]Dealing next with the alleged detriment that Miss Hopkinson moved the claimant to work downstairs after Christmas 2018. What was clear from the evidence that the management team Mrs Lewis and Ms Akhtar and Miss Metcalfe had all taken Carer B’s side at a very early stage. The claimant did not return to work upstairs after 29 December 2018. Miss Hopkinson’s explanation is that carers were due to be moved around so that they could get experience in different areas of the home and that was the reason why the claimant was moved. The claimant says no one else was moved and no evidence was provided of any other carers moved at the same time as the claimant. We did not accept Miss Hopkinson’s explanation that the claimant was moved downstairs as part of a general move of staff to other locations. The claimant was subjected to this detriment by Ms Hopkinson. 10.5 Reserved judgment with reasons – rule 61 20 March 2017 Detriment of treatment by other carers and carer P[105]Dealing then with the other named carers (Sophie Goulding, Jazz Acktar, Michelle Webb and Sandeep Kaur) and Carer P and the allegations they subjected her to detriments by giving her the ‘cold shoulder’. The other carers refused to work with her, did not talk to her and accusing her of telling tales in December 2018. Carer P refused to work with her and gave the claimant dirty looks in January 2019.[106]Of those carers named we heard evidence from Sophie Goulding only. She refers to both claimants ‘belittling’ her by making allegations that she wasn’t doing her job properly. They were alleging neglect when it is a job that she had done for many years. She felt this was especially bad coming from the new starters who were telling tales about her and other carers to seniors alleging “we were not doing our job as carers”. She described how at work the new starters (the claimants) were separated from the rest of the carers. A ‘them and us’ culture existed which rings true with the staff surveys completed, after the claimants left in January 2019. The surveys convey a culture of gossiping and bitching where effectively there were two camps. The claimants viewed as trouble makers telling tales to the seniors about the other carers in one camp and the rest of the carers in the other camp.[107]Ms Skitt refers to one carer calling her a ‘grass’ and refusing to work with her. Ms McGuire refers to being described as someone who ‘tells tales’ because she was reporting concerns to management/senior nurses. Carers were refusing to work with them because they perceived the claimants making complaints against them, this bad feeling was spread by gossip, not helped by management. The response by the management gave the other carers permission to treat the claimants badly. This would have been divisive and allowed a workplace culture of isolation and cold shouldering of the claimants to continue.[108]In that context the claimant allegations against Carer P refusing to work with the claimant and giving her dirty looks whenever she saw her, also ring true. The claimant was earmarked as a trouble maker for making allegations of neglect against the other carers. Although we did not hear evidence from Carer P, the other evidence we heard from Sophie Goulding and Brandy Rumsey supports this allegation also. It fits in with that picture of isolation and division allowed to continue by management action.[109]We accepted the claimant’s account. The claimant had been identified by the other carers as ‘telling tales’ and making allegations of neglect. It was for the respondent as the employer to fulfil the promise made in the whistleblowing policy to protect the claimant from any reprisals for reporting such concerns. We were satisfied that the detriment alleged against the other carers and Carer P, is made out. Circumstances leading to Mrs McGuire’s resignation[110]After Christmas, the claimant was called into the office and told she would be working downstairs until further notice. She was unhappy and felt this was deliberately done because of the concerns she had raised about the residents’ care. She had been voted employee of the month on or around 10.5 Reserved judgment with reasons – rule 61 21 March 201716 December 2018 because of the work she was doing and her interaction with residents, and there was no good reason given for moving her.[111]The claimant felt that the decision not to address her concerns and to move her was done to make her workplace uncomfortable and ultimately to force her to leave her job.[112]In January 2019, she went to see Miss Hopkinson and told her that she felt the residents were vulnerable and at risk of neglect and nothing was being done. The claimant pointed to the fact that there was a witness Meghan who could corroborate her account. At this point Miss Hopkinson told the claimant that Meghan had been sacked for poor attendance.[113]Miss Hopkinson confirmed at this hearing that Meghan had been dismissed on 12 December 2018, but could not explain why she had not been interviewed straight away on or after 5 December 2018 when the allegation of neglect had first been reported to Ms Metcalfe. The claimant had not been shown any notes of any interviews and had not been provided with an investigation outcome. The claimant says that Miss Hopkinson told her that there wasn’t anything she could do about it now, that she had told Mrs Jackson and that she would sort things out. The claimant felt that she was being fobbed off and her concerns were being brushed under the carpet. She was also unhappy at being cold shouldered by her colleagues and was apprehensive about her future.[114]On 9 January 2019, the claimant spoke to Ms Metcalfe and told her she felt nothing was being done, nothing had changed. She informed Miss Metcalfe that she was going to report this matter to the CQC because nothing she had reported internally had been dealt with. She then resigned from her employment.[115]The claimant reported her concerns directly to the CQC on 9 January 2019. In a telephone call to Pearl Jackson on that day she describes telling Miss Jackson about the concerns she had about the home. After her resignation she says that she was subject to what she can only describe as “horrible and intimidating” treatment by the respondent. That treatment includes Mrs Jackson sending a letter that was intimidating and threatening, making spurious allegations against her and Mr Taylors telephone call. Post- Employment Detriments against Mrs Jackson[116]Mrs Jackson explained the letter she sent was drafted after her telephone call with the claimant on 9 January 2019. The call took place while she was in her car. She asked her secretary to type the letter that she dictated to her over the phone after the call. The next day (10/1/2019) her secretary read the letter out to her and asked her if she still wanted to send it. Mrs Jackson confirmed that she did, the secretary signed it and sent it on her behalf.[117]Mrs Jackson had the opportunity to reflect upon the letter before it was sent to the claimant. The letter dated 10 January states as follows: “Dear Karen, Further to our telephone conversation this week I note your allegations and will of course look into matters and the points that you have raised but I have to state for the record you appear to be aggrieved on your departure 10.5 Reserved judgment with reasons – rule 61 22 March 2017 from Charlton Court and evidently vindictive towards senior So far, my initial investigation reveals that you have indeed inflated many of the issues using every day occurrences to fuel what I believe to be malicious activity and the first situation that you raised with me was simply untrue. Irrespective of my thoughts the matter will be subject to an independent investigation. I also note that your continued attempts through social media and text messages to other staff are intended to lobby others to join what would appear to be vindictive and malicious activity. Our board of directors have empowered me to take whatever steps are necessary in order to protect the home as well as its management. This includes, if needs be, to seek an injunction against you which is not merely a threat. This sort of behaviour is not fitting of a care worker and I draw your attention to the code of conduct. Of course, you did abandon duty which is equally unacceptable behaviour of a care worker. Given your activity and text to our staff I have taken the liberty of informing CQC of your intended action. Yours sincerely” Mrs Jackson.[118]Mrs Jackson’s deals with the letter at paragraph 6 of her witness statement. “I was also made aware by the home manager Kelly Hopkinson that there was a raft of negative social media comments made about the home staff and the workers colluding to ensure the maximum damage to the home in complete contradiction to the carer’s code of conduct, this appeared to be fuelled by Karen McGuire some of which included upsetting relatives and breaching GDPR. I therefore wrote the letter that Mrs McGuire now suggests is bullying. I was made aware by Kelly Hopkinson who is the manager of Charlton Court that both CQC and safeguarding authorities were also investigating a number of allegations which had been made anonymously but some of the issues were clearly the same ones raised by Karen McGuire to me. A number of officers descended upon the home unannounced in order to complete their own investigations. A report followed the conclusion. Emails were sent between the parties also. Naturally we were delighted that none of the allegations were found to be substantiated by all the external investigations, further reinforcing our belief that Karen McGuire’s activity was indeed malicious and there was a campaign to discredit the home”[119]Mrs Jackson accepts she had carried out no investigation at all before sending the letter. She relied solely on information provided to her by Miss Hopkinson. She had been told about resident D and asserts at this hearing that the claimant was responsible for that wrongdoing. Mrs Jackson refers to social media and texts and the claimant colluding with other staff, and the message we were taken to was at page 219 in the bundle from the claimant to a former colleague which says: 10.5 Reserved judgment with reasons – rule 61 23 March 2017 “Can you call Emma Hatfield from CQC about all the things you witness. Her number is X. I’ve just called her. She can’t call you. You can say it all in confidence as you still work there. I need these residents to be safe and cared for”.[120]That was the only text message that the respondent disclosed which it relied upon to support the case it presents at this Tribunal. There is nothing in that text message that would support Mrs Jackson’s assertion that the claimant was colluding to ensure the maximum damage to the home. The recipient of the text was free to either contact the CQC or not. They were being invited to tell the CQC what they had witnessed and nothing more. The issue for the claimant is clear from her message she was concerned about the safety/care of the residents because she no longer worked there.[121]It is unfortunate that Mrs Jackson did not take the time to pause and consider her response before sending it. That was a theme that we saw throughout her evidence and presentation of the case. She did not listen to the question before answering and she did not heed guidance given to her, by the Tribunal to pause and think before answering questions. She continued to make very serious personal accusations against the claimants. Even when it was clear to her from the evidence given, particularly by Miss Hopkinson, that the respondent had not in fact followed the whistle blowing policies and procedures that she had drafted, she did not defer from her approach.[122]Reading the letter, it was clear the tone was intimidating and threatening. In cross-examination when it was put to Mrs Jackson that the purpose of the letter was to intimidate and threaten the claimant so that she would not take any further action. Her angry response was “well it didn’t stop her did it”. Her answer discloses her motive was retaliatory because of the allegations the claimant made. Mrs Jackson intended the letter to frighten the claimant ‘off’ by telling the claimant she would ‘take whatever steps were necessary’ backed by the board of directors threatening legal action. She had also taken against the claimant based on only one side of the story. Her mind was made up before any investigation. We found the detriment as alleged is made out against Mrs Jackson and the home as the employer.[123]Miss Almzedi suggested to Mrs Jackson that she could have sent a much more neutral letter telling the claimant that there would be an investigation, when it would happen, how it would happen, who would conduct it and what the ex-employer was trying to achieve from that investigation. This could have assured the claimant her complaints were being taken seriously without the need to make any threats. She would then be fully informed before any further contact was made of the next steps in an open and transparent way to avoid any further complaints. Mrs Jackson does not accept, even upon reflection that she should have done that.[124]Mrs Jackson then instructed Mr Taylor to carry out an ‘investigation’. She describes him as “the independent and impartial investigator”. He is not an employee of the respondent. He is used as an agent whenever required to undertake specific projects like fire evacuation prevention training. She says in her statement: “I suggested to him that he should commence the 10.5 Reserved judgment with reasons – rule 61 24 March 2017 work by calling Karen to identify in detail the issues as I was driving and could not record them all. I believe this is what he attempted to do but he was ignored and sent me a copy of the text message”. Detriment involving Mr Taylor[125]This then leads to the detriment alleged against Mrs Jackson involving Mr Taylor. The claimant alleges that Mrs Jackson instructed Mr Taylor to approach her and question her purporting to be from the CQC, accusing her of theft, insisting she had to attend a meeting with him and texting her (the events described in paragraphs 44 to 47 of the claim form). Those paragraphs are repeated in the witness statement in which the claimant gives a very detailed account of her telephone call with Mr Taylor. The respondents were fully aware of the allegations from the claim form and knew the telephone call was pleaded as a detriment.[126]In those circumstances you would expect that Mrs Jackson would ensure that Mr Taylor’s witness statement provided some detail about the instructions he received from Mrs Jackson, the ambit of his authority and the call he made to the claimant following those instructions. His witness statement makes no reference at all to the call made by him to the claimant and was in our view deliberately misleading. He says at paragraph 8: “I was informed that she would not talk to me but nevertheless I sent her a text on the number I had been provided. I was asked to carry out a safeguarding investigation in January 2019. I was made aware that the allegations were being made by Karen McGuire a carer who had walked out of work on 9 January 2019”.[127]Mr Taylor made a correction to his statement at the beginning of his evidence by adding a sentence to his paragraph 6 to say: “I contacted her by telephone on 10 January 2019”. In his witness statement he did not offer any details of that conversation. We found Mr Taylor was being deliberately evasive about the telephone call, firstly by not referring to it at all in his witness statement, implying he was ‘informed’ that the claimant would not talk to him, when he had spoken to her directly and knew exactly what had happened. Secondly by only including the fact of the call at all as a ‘correction’ to his statement when he knew it was the reason he was called to give evidence.[128]Mr Taylor has 31 years of experience as a police officer rising to the rank of Detective Chief Superintendent before retiring. He tells the tribunal he has a law degree. He has worked for ‘ADL Care Plc’ for the last 5 years when ‘they’ commission work from him ‘usually through Pearl Jackson the Operations Director of ADL Plc’. He was fully aware of the importance of that telephone call prior to this hearing because it was the only alleged detriment that involved him, yet he chose not to deal with it at all in his statement. The statement prepared for these proceedings ends with a ‘statement of truth’ signed on 18 September 2019.[129]We were surprised given Mr Taylor’s long experience in the police force, which would have included taking statements, that he was unable to provide a statement dealing truthfully with the matters he was required to address, to assist the Tribunal. 10.5 Reserved judgment with reasons – rule 61 25 March 2017[130]Given the conversation that had taken place between Mrs Jackson and the claimant prior to her call with Mr Taylor and the tone of the letter that followed, it is likely that Mr Taylor would have understood that Mrs Jackson was angry with the claimant and wanted to protect the home at any cost. She had taken against the claimant and wanted his help given the allegations made and CQC’s involvement. His instructions would have included Mrs Jacksons expressing her views about the claimant in the same tone as her letter.[131]The claimant’s witness statement accurately reflects what was said to her by Mr Taylor in that call and we set it out in full because we accept it in its entirety. “I received a phone call from a man who called and introduced himself as the head of the whistle blowing team at CQC. However, when he was talking to me I felt that something was not quite right. I was taken aback by the tone that the caller adopted and became more suspicious of him as the call carried on. He was very forceful in the way that he spoke to me not professional or calm. He was telling me that I needed to tell him everything about what I’d reported and leave nothing out and that if I didn’t tell him everything that there would be consequences. This made me smell a rat to be honest, I’d not encountered this kind of attitude from CQC before. I just felt that the caller was acting in a manner that no professional organisation representative would. As the male voice carried on speaking I thought that I recognised it, and then realised that this was the voice of the man who worked for Charlton Court and who had in the past carried out the fire training. As soon as I realised this I said to him I know who you are, you aren’t from CQC you work for Charlton Court. You carry on the fire training for Pearl and his name came to me and I said your Bob Taylor. Mr Taylor stopped talking and seemed shocked to be challenged and I again said to him you don’t work for the CQC. Mr Taylor then admitted he didn’t work for the CQC but then proceeded to tell me it was the same thing in that he was a private investigator and he was conducting an investigation into matters. Mr Taylor told me that I had to tell him what I’d reported to the CQC. I was also told by Mr Taylor that I had to attend at Charlton Court to be interviewed. I said to Mr Taylor I didn’t have to attend Charlton Court to be interviewed. It was wrong for him to suggest that I had to do this and make out it was compulsory. I was very unhappy about how he was speaking to me and thought that it was utterly outrageous that he’d pretended to be from the CQC in the first place. I didn’t want to carry on the conversation with him and I told him that I didn’t care for how I was being spoken to and advised that I’d reported my concerns to the home and to the CQC already and the CQC would deal with the matter now. Mr Taylor shocked me he would not take no for an answer. I found the call to be extremely intimidating and threatening when Mr Taylor saying a number of times that the home was going to take steps needed to protect the home and directors and that I must tell him everything that I’d reported. Mr Taylor seemed very annoyed when I advised him that I would not coming in to be interviewed and then he proceeded to accuse me of stealing confidential documents to which I said don’t be ridiculous I’ve done no such thing. You’re just trying to intimidate me don’t call me again”. 10.5 Reserved judgment with reasons – rule 61 26 March 2017[132]The claimant reasonably perceived the call as ‘extremely intimidating and threatening’. We found the detriment is made out against Mr Taylor acting as the agent of Mrs Jackson on behalf of the home. This detriment is therefore made out against all 3 respondents. Detriment of late payment of wages[133]This detriment complaint is made against Mrs Jackson and/or Miss Hopkinson for not paying the claimant’s wages on time in January or February 2019. Both claimants expected to be paid on or around 7 February 2019 and they were in fact paid a week later. The cheque they received after 7 February had cleared on or about 12 February 2019. Mrs Jackson’s explanation for this is that for ‘leavers’ a cheque is issued a week after the normal BACS pay date which would have been 7 February 2019. The cheque was signed by the appropriate persons and then posted to the claimant. We accepted that was the administration process involved in the payment of final salary to leavers. By posting the cheque some delay was expected. Mrs Jackson made the point that the delay was in fact minimal taking into account the process involved. She said that if the respondents had wanted to delay payment as a detriment they would have delayed for a longer period of time.[134]We accepted Mrs Jackson’s evidence that the payment of the cheque and timing was dictated by the administrative process and the process followed was the same for any leaver and would reasonably take the time it did. The claimants were not subjected to a detriment in the late payment of wages. Detriment of negative verbal reference[135]The final alleged detriment is that Miss Hopkinson provided a negative reference for Mrs McGuire to her new employer. After resigning, she did manage to find employment at another care home. Mrs McGuire attended the induction, everything went well, she was due to start that employment and then was told that because of a negative reference from Miss Hopkinson that she was ‘not suitable’. The offer of employment was withdrawn. She then contacted Miss Hopkinson to ask her about the bad reference that had been provided. Miss Hopkinson recalls being contacted by the claimant about a ‘bad reference’ but she was unable to speak to the claimant at the time. She says she had no further contact and denies she provided a bad reference.[136]We did not accept that evidence and preferred the evidence of the claimant. She had a prospective employer keen to employ her who only withdrew the offer after an induction process. In those circumstances some contact was likely between the old and new employer and the claimant immediately relayed what she had been told to Ms Hopkinson. The claimant’s call referring to a bad reference and the offer being withdrawn are indicators that something must have happened to change the new employers mind. Although Ms Hopkinson denies this happened we did not find her evidence credible. We were satisfied that it was likely on the balance of probabilities that Miss Hopkinson gave the claimant’s prospective employer a negative verbal reference telling them she was not suitable resulting in the claimant losing that employment. The detriment is made out. 10.5 Reserved judgment with reasons – rule 61 27 March 2017 Miss T Skitt complaints[137]Miss Skitt alleges 4 protected disclosures were made internally to her employer and that she made an external disclosure reporting her concerns to the CQC in January 2019. Again, we will deal with the internal disclosures first, in our findings of fact because these internal disclosures are relied upon by the claimant for all the detriments alleged against the employer during her employment. She does not make any allegations against Mrs Jackson as a separate respondent.[138]Miss Skitt alleges the following disclosures were made by her to her employer: 1 Telling Nicky Kent (a senior carer) that a resident with soiled pads had been taken to a social event unchanged, that carers had been taking cigarette breaks and were unwilling to help and that this had happened in December 2018 (claim form paragraph 8). 2 Telling Nicky Kent that a resident was being left in an unsuitable chair in December 2018. 3 Telling Nicky Kent that a resident was being left in bed most of the day because carers did not want to change her in December 2018 (claim form paragraph 11). 4 Telling the same things to Miss Hopkinson and/or Miss Metcalfe in December 2018 (claim form paragraph 12).[139]Miss Skitt alleges she was subjected to the following 4 detriments on the grounds of her protected disclosures of: 1. Her colleagues making her feel uncomfortable, isolating her and refusing to work with her. 2. Miss Metcalfe, commenting to on 9 January 2019 “you’re going too”. 3. Miss Hopkinson not investigating her concerns from December 2018 onwards. 4. Miss Hopkinson and/or Mrs Jackson not making her final payments on time in January/February 2019. 5. Miss Hopkinson and/or Mrs Jackson providing her with a negative reference after she left. Alleged Protected Disclosures 1 and 2[140]For the first alleged the claimant gives a detailed account of the information she alleges was disclosed to Nicky Kent. Resident P had soiled himself and his pad and trousers were ‘sodden’. The resident was upset and the claimant felt dreadful that this had happened. She was shocked that rather than change P, carers had wheeled him in his chair into the resident’s hall where a band was playing. This left resident P in a dreadful state in the middle of a social event. The claimant had been unable to change him on her own because she needed 2 carers to change him. She asked other carers, Andrea and Linda, who would not assist. The claimant felt that this 10.5 Reserved judgment with reasons – rule 61 28 March 2017 situation violated P’s dignity and it upset and frustrated her. In the end the claimant shouted out for help loudly and only then, did she manage to get someone to help her change P.[141]The claimant reported this incident to Nicky Kent that day. She advised that she felt this was neglect and this was not the first time that she had noted that residents were not being changed when they needed to be and they were being left for too long due to the wilful refusal of some staff to assist with two-person changes. The claimant in the end was assisted by a carer called Ruth who helped her to change resident P. The claimant was very upset at what happened and the fact that when she was changing him, he was crying and felt humiliated at what had happened.[142]The claimant also raised a concern with Nicky Kent that resident P was being left on an unsuitable chair by carers who could not be bothered to use the hoist to position P in a special chair. Instead P was regularly being sat on an ordinary chair. The claimant had come on duty and found this to be the case on a number of occasions (alleged disclosure 2).[143]Miss Skitt was asked if she had ever previously ‘whistle blown’. She told us she had worked as a carer going to service user’s homes before working for the home. She suspected a family member was stealing money from one of the service users she attended. She reported this to the police, the family member was prosecuted. Her employer had supported her in the reporting of her concerns. She reported it because she believed that if there is ‘wrong doing’ and you suspect it is occurring you cannot ignore it. Miss Skitt did not benefit from making the disclosure to the police she acted out of concern for the service user.[144]For these alleged disclosures the respondents knew it was important to have Nicky Kent, the senior carer named, to give evidence if they wanted to challenge the claimant’s account. We did not have a witness statement for Ms Kent.[145]Miss Skitt’s maintained her account under cross-examination. Although there was some confusion on her part as to the date of the social event (Christmas Eve or Christmas Day) that confusion did not change the substance of the complaint she made about resident P’s treatment.[146]Miss Hopkinson tells us that no investigation was carried out at the time because she says no report was made to Nicky Kent about this resident. She does however, include in the bundle notes of interviews she carried out in April 2019, after this claim was presented. The individuals interviewed were Ruth Hay, Linda Debenham and Andrea Ogden. Ms Ogden confirms that she was working on Christmas Eve when an entertainer was on, in the downstairs lounge. She recalls Tracy Skitt had asked her if she could assist her to take resident P to the toilet. She told Miss Skitt she could not help and as soon as another member of staff arrived he would be taken to the toilet. She says resident P was fine with this and not long after that Ruth Hay came in and helped Tracy take him to the toilet. She says the resident was not upset or distressed and confirmed resident P required two staff members to assist him with elimination. Ms Hay recalls being asked by 10.5 Reserved judgment with reasons – rule 61 29 March 2017 Tracy Skitt on entering the lounge to assist her with taking resident P to the toilet which she did immediately. She said the resident was fine and was not distressed.[147]Although we didn’t hear from any of those individuals they do corroborate the claimant raising concerns involving resident P. We accepted and preferred the claimant’s account a report was made to Nicky Kent expressing concerns that resident P had soiled himself and she was trying to seek assistance to take this resident to the toilet. She had requested hep from other carers who refused to help. She had to wait until Ms Hay eventually helped her take him to the toilet. We accept the claimant’s account of the incident and of the report she made to Nicky Kent. The claimant reasonably believed the information she was disclosing to Nicky was about suspected neglect of resident P, who she believed was unreasonably left sitting in soiled wet clothing. She made that disclosure in the public interest and was disclosing information which tends to show a relevant failure in relation to the alleged neglect of the resident which she believed was a breach of the legal obligation she had as a ‘carer’ to the resident. It was a protected disclosure. Alleged Protected Disclosure 3[148]Miss Skitt alleges that in December 2018, she complained to Nicky Kent that resident B was being left in bed most of the day because carers did not want to change her.[149]We had no evidence from Ms Kent on this disclosure. We accepted the claimant’s account of the report she made. She reasonably believed that the resident was being neglected by being left in bed in those circumstances. She reasonably believed the information she was disclosing to Ms Kent was in the public interest. She reasonably believed it tends to show a relevant failure in the possible neglect of the resident which was she believed a breach of her legal obligation as a ‘carer’ to the resident. Alleged Protected Disclosure 4[150]Miss Skitt alleges that in December 2018, she told Miss Hopkinson that residents were not being washed and were being left in bed against their wishes and/or being left soiled.[151]The claimant was repeating information she had already reported to Nicky Senior and this was not a new disclosure of information. She told Miss Hopkinson that she felt some of the staff were neglecting the residents and it needed sorted out straightaway. Miss Hopkinson told her that she would sort it out and the claimant trusted her to sort things out but soon began to lose faith that anything would change in terms of sorting this out. The claimant also believed that Miss Hopkinson had told her colleagues that she had complained about them alleging neglect. One carer calling her a ‘grass’ and refused to work with her.[152]We had already found that Miss Hopkinson had disclosed the allegation of neglect made by Mrs McGuire to Carer B. She would have done the same in relation to Miss Skitt’s allegations of neglect. It was common knowledge 10.5 Reserved judgment with reasons – rule 61 30 March 2017 amongst the other carers the seniors and management that the 2 claimants were making allegations of neglect against the other carers.[153]Miss Hopkinson denies that Miss Skitt raised any concerns with her and in paragraph 6 of her witness statement asserts she is “fully aware of the complaints and the whistle blowing process and always follow these and act professionally”. Her assertion is not supported by our findings of fact in relation to Mrs McGuire and her own acceptance that she had not followed the process. Detriment 1: Other carers isolated her and refused to work with her.[154]The first detriment that Miss Skitt relies upon is that her colleagues “made her feel uncomfortable, isolated her and refused to work with her”. She describes how in January 2019 she was feeling awful for the residents and finding it hard to go to work and was on occasion absent from work. She was experiencing animosity at work and was being given the cold shoulder by colleagues who now viewed her as a grass. She got dirty looks and was ignored, she would say good morning and hello and there was nothing coming back not even an acknowledgement. If she asked a question or requested assistance she was ignored. Some of the staff refused to work with her.[155]The staff surveys support this view as did the evidence of Brandy Rumsey and Sophie Goulding and Mrs McGuire. There was a lot of bad feeling towards the new carers who were perceived to be telling tales to management/making allegations against the other carers of neglect/not doing their job properly. Based on our findings of fact of the atmosphere generally at work towards the two claimants, and Miss Skitt’s evidence, which we accepted we found that this detriment was made out. Miss Skitt was made to feel uncomfortable she was ignored and isolated by the other carers who refused to work with her. Detriment 2: comment by Miss Metcalfe.[156]The second detriment Miss Skitt alleges is that on 9 January 2019, Miss Metcalfe made a comment to her of ‘you’re going too’ before she left her employment that day.[157]Mrs McGuire confirmed that when she resigned she told Ms Metcalfe that others might follow referring to Miss Skitt/Ms Hodgson (the other claimants). It was that conversation that would have prompted Ms Metcalfe to make the enquiry. Miss Skitt accepted that the comment made in that context was understandable. This was not a detriment but an enquiry made of Miss Skitt to see if she was leaving because of what Mrs McGuire had said before she left. Miss Skitt did not return to work after the 9 January 2019. We did not find that Miss Skitt was subjected to a detriment in those circumstances. Detriment 3: Miss Hopkinson’s failure to investigate her concerns.[158]The third alleged detriment Miss Skitt complains about is that Miss Hopkinson did not investigate the concerns she raised with her from December 2018 onwards. Miss Hopkinson denies any report was made to her. We have not found Miss Hopkinson to be a reliable witness generally, and on this dispute, we prefer and accept Miss Skitt’s account. We found that the concerns had been reported to Miss Kent initially and then to Miss 10.5 Reserved judgment with reasons – rule 61 31 March 2017 Hopkinson. Those concerns were not investigated, as they should have been under the homes policies and procedures leaving the claimant unprotected and unsupported when other carers knew she had complained about them and had referred to her as a ‘grass’. The detriment is made out. Detriment 4: delay in paying final wages[159]The fourth alleged detriment is that Miss Hopkinson and/or Mrs Jackson delayed paying Miss Skitt her final wages. We refer to our findings on this in relation to Mrs McGuire, which also apply to Miss Skitt. The payments for leavers are by cheque not BACS payment and were delayed by a week. This delay was the time it took for the cheque to be issued cashed and cleared because of the administrative process that applies. That process is independent of Miss Hopkinson or Mrs Jackson. As Mrs Jackson said in her submissions if ‘they’ wanted to delay it deliberately it would have been a much longer delay. The detriment is not made out Detriment 5: negative reference provided by Miss Hopkinson[160]The final detriment Miss Skitt relies upon is that Miss Hopkinson provided a negative reference to her new employer on 12 February 2019. Miss Skitt describes this reference as ‘petty’ and an attempt to cause her trouble because she had blown the whistle. She also suggests that the termination letter has been created for the purposes of this Tribunal.[161]Miss Hopkinson’s evidence was that on 11 January 2019 before she supplied that reference she had dismissed the claimant. She relies upon a letter of dismissal (page 64). Miss Skitt never received that letter and was unaware of any ‘dismissal’. The letter in the bundle is signed by Miss Hopkinson. It states that Miss Skitt’s employment had been terminated during her trial/probationary period for not returning to work after the 9[162]The reference provided by Miss Hopkinson is completed on behalf of the company “ADL Care Ltd”. She confirms the start date of employment was 4 December 2008. The leaving date is 9 January 2019 and the reason for leaving is “unknown”. When it was put to Miss Hopkinson’s that if she had in fact dismissed Miss Skitt, she should have stated that reason known to her. Miss Hopkinson could not explain why she did not refer to the dismissal in the reference, if the letter existed at the time the reference was provided.[163]In answer to the question “did you find the applicant to be honest and trustworthy”. Miss Hopkinson replied ‘no’. To the question “Did you find the applicant to be reliable and carrying out his or her duties” she answered ‘yes’ but she also says she would not re-employ the applicant.[164]In her witness evidence Miss Hopkinson describes that reference as ‘generally positive’ but does not offer any explanation for why she found the claimant was not honest and trustworthy. Miss Almzedi highlighted how damaging that reference was to the claimant’s prospects of employment in the care sector and sought an explanation for the assessment made. Miss Hopkinson could not explain how she had assessed the claimant not being honest and trustworthy. She knew how damaging such a statement would be. She would not expect any employer to employ a carer who was not honest/trustworthy. We found the detriment was made out. The claimant 10.5 Reserved judgment with reasons – rule 61 32 March 2017 reasonably saw this as a negative and damaging reference unjustifiably given by Miss Hopkinson. The constructive dismissals.[165]Both claimants allege they resigned because their employer fundamentally breached the implied term of mutual trust and confidence by subjecting them to the detriments they rely upon in this claim. The respondent has not challenged the reason they have given for leaving their employment.[166]Mrs McGuire had secured her first job after 17 years absence from work. She enjoyed the job formed close relationships with the residents and would not have just left a job she had only just secured.[167]In Miss Skitt’s case this was the first time that she had worked in a residential home environment, but she has worked in the care sector previously providing care to services users in their homes.[168]We found they resigned because of the detrimental treatment they were subjected to by their colleagues and management after making protected disclosures. Having raised concerns about neglect they were left unsupported by management and were subjected to reprisals by management and colleagues.[169]Additionally, after Mrs McGuire left the home, Miss Skitt would have been left alone and more exposed to the risk of further retaliatory treatment if she had remained. External reporting to the CQC[170]Although it was not necessary to make any findings of fact about whether a protected disclosure was made to the CQC the evidence we saw produced by the respondent in the bundle (relied upon to support the ‘exoneration defence’) gave the Tribunal, some cause for concern.[171]On 10 January 2019, after Mrs McGuire had resigned informing Miss Hopkinson she would be reporting the home to the CQC, Miss Hopkinson sent an email to Ms Hatfield. The email states: “Hi Emma I just wanted to make you aware that a staff member walked out of shift yesterday due to gossiping. She has since taken to social media with immature comments. She has telephoned Pearl Jackson, the director and made some accusations about the home which Pearl is investigating and I am telephoning safeguarding to make them aware.[172]On the same day Emma Hatfield replies by email: “No problem at all. As if you haven’t got enough to do”.[173]Miss Hopkinson immediately labels the claimant as the trouble maker in this email exchange and Miss Hatfield sympathises without question. In another email on 14 January 2019, Miss Hatfield is given an update of the situation by Miss Hopkinson. Her response on the same date is “That is appalling. What is wrong with her?”. Another update follows and Miss Hopkinson apologises for ‘going on’ about it. Miss Hatfield responds “No you are not going on. It is upsetting I just don’t know what she thinks she will achieve”. In another email sent by Miss Hopkinson dated 16 January 2019, Miss Hopkinson states “I appreciate you have a process you have to follow but I really feel this is all just malicious and vindictive”. Miss Hatfield in her 10.5 Reserved judgment with reasons – rule 61 33 March 2017 response of the same date states: “I’m sorry that you had to deal with all of this”.[174]Mrs McGuire having seen these emails says in her statement “I am alarmed at the inappropriate degree of empathy between the CQC inspector and the care home manager and I feel this is worrying given the nature of what was being reported. I would have expected more impartiality”.[175]Unfortunately, from the email exchange we saw (disclosed and relied upon by the respondent), we can see why the claimant has those views of the relationship between Miss Hopkinson and Miss Hatfield. From the claimant’s perspective she expected the CQC interaction to demonstrate the impartiality she had received in her dealings with the home. Applicable law[176]Section 43B of the Employment Rights Act 1996 (“ERA 1996”) sets out the provisions about disclosures qualifying for protection. Subsection (1) provides “that a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and tends to show one or more” relevant failure.[177]The claimants rely on the following relevant failures:a. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject and;b. That the health or safety of any individual has been, is being or is likely to be endangered. “[178]In this case because the internal disclosures have been made to the employer the disclosures (if protected) are qualifying in accordance with section 43C (disclosure to the employer or other responsible person).[179]The claimants allege that they have been subjected to detriments, on the ground that they have made protected disclosures in accordance with section 47B of the ERA 1996.This provides “that a worker has the right not to be subjected to any detriment by any act or any deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure”.[180]In Fecitt and ors-v- NHS Manchester(public Concern at Work the Court of Appeal confirmed the approach to causation in section 47B that it will be infringed if the protected disclosure ‘materially influences’ the employers detrimental treatment of the worker.[181]It is in 2 different situations that section 47B confers the right. Subsection (1) confers the right of the worker not to be subjected to detriment by an act done ‘by his employer’ on the specified ground. Subsections (1A) to (1E) cater for the second situation: the right not to be subject to detriment by any act done by “another worker” on the specified ground. The other worker’s act or the agent’s act is to be treated as the employer’s act, so as to render the employer vicariously liable for it.[182]This vicariously liability would apply for the alleged detriment by the other carers/seniors/managers/Mrs Jackson named by the claimant as ‘another worker’ and to Mr Taylor as the ‘agent’ instructed by Mrs Jackson, as a director on behalf of the employer. 10.5 Reserved judgment with reasons – rule 61 34 March 2017[183]Section 47B(1A) ERA 1996 applies which provides that: “a worker (“W”) has the right not to be subjected to any detriment by any act or any deliberate failure to act done –(a) by another worker of W’s employer in the course of that worker’s employment or(b) by an agent of W’s employer with the employer’s authority on the grounds that W had made a protected disclosure”.[184]Whether an act takes place ‘in the course of employment’ is a question of fact for the tribunal and in this case no dispute arose. All the detriments relied upon, although denied, were in the course of the claimant’s employment. Post-employment detriments are also covered because of the wider definition under section 230(3) which includes those who used to be to be in a contractual relationship with the employer (Woodward-vAbbey National and Onyango-v- Berkley Solicitors 2013 ICR D17).[185]Section 47(1B) provides that “where a worker is subjected to a detriment by anything done as mentioned in subsection(1A) that thing, is treated as also done by the worker’s employer”[186]Section 47(1C) provides that “for the purposes of subsection (1B) it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer”.[187]Section 47(1D) provides a defence to the employer:“in proceedings against the worker’s employer in respect of anything alleged to have been done as mentioned in subsection(1A)(a) it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker- (a) From doing that thing, or(b) From doing anything of that description”[188]Section 48(2) provides that “on a complaint made it is for the employer to show the ground on which any act or deliberate failure to act was done”.[189]For the dismissal complaints section 103A applies and provides that an employer who is dismissed “shall be regarded for the purposes for this part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure”.[190]In Kuzel-v- Roche Products Ltd (2008) EWCA CIV 380 the Court of Appeal addressed the burden of proof under section 103A and held that a burden lay on an employee claiming unfair dismissal under the section, to produce some evidence, that the reason for the dismissal was that the employee had made a protected disclosure, but that once she had discharged that evidential burden, the legal burden lay on the employer to establish the contrary.[191]Where a claim is brought against a fellow worker or agent of the employer, Section 47B(1A) provides that the fellow worker or agent is treated as the employer for the enforcement provisions and accordingly, bears the same burden of proof as the employer (Section 48(5)(b)). 10.5 Reserved judgment with reasons – rule 61 35 March 2017
Conclusions
[192]For Mrs McGuire we found that 4 protected disclosures had been by the claimant to her employer through either Mrs Lewis or to Miss Metcalfe. For disclosure 1, see paragraph 45: disclosure 3, see paragraph 60, disclosure 4, see paragraph 65, disclosure 5, see paragraph 82. We set out how on each disclosure we found Mrs McGuire raised concerns of neglect, reasonably believing she was raising those concerns in the public interest and reasonably believing her disclosures of information tended to show a relevant failure (breach of the legal obligations of a carer/health and safety). Whether she was telling her managers about a resident, being left unattended, left too long without being changed, an injury, or being taken outside inappropriately dressed, those were concerns she believed she was expected as a carer to raise. Using the employer’s broad definition of ‘neglect’ these were reports made by the claimant alleging failures “to take the right steps and care appropriately” for the residents. The sort of concerns, carers were encouraged, under the whistleblowing policy, to report.[193]Although the home had the right policies on ‘paper’ those policies were not put into practice. Senior nurses and managers had responsibility to protect the residents and to protect those who raised concerns of neglect (whistleblowers). The promises made in the policy to those carers who blew the whistle was to “respect confidentiality, investigate thoroughly and support and protect them”.[194]We found Mrs McGuire had been subjected to detriments by the other carers, carer B and carer P (see paragraphs 85-103 and 105-109), by Miss Hopkinson arbitrarily moving the claimant and providing her with an unjustified negative reference (see paragraphs 104 and 136), by Mrs Jackson sending the claimant a threatening and intimidating letter (see paragraphs 122) and by Mr Taylor making a threatening and intimidating phone call (see paragraphs 132).[195]For each of those detriments we found Mrs McGuire reasonably perceived that she was subjected to a detriment by the actions/failure of other workers and by Mr Taylor acting as the agent of the employer. Section 47B(1A) provides the worker/agent’s acts/failures are to be treated as the acts/failures of the employer, rendered vicariously liable.[196]On the question of causation and the reason for that detrimental treatment we applied the guidance given by the Court of Appeal in the Fecitt case. Section 47B will be infringed if the protected disclosure ‘materially influences’ the employer’s detrimental treatment of the worker. Section 48(2) provides that “on a complaint made it is for the employer to show the ground on which any act or deliberate failure to act was done”.[197]The difficulty for Mrs Jackson in addressing causation is her defence to the claims is based upon her assertion the claimants were lying, there were no protected disclosures and no detriments. We found Mrs McGuire had made 4 protected disclosures and was subjected to 9 detriments, during the course, of her employment. Mrs Jackson advances no grounds on behalf of the employer for the detriments to offer any other reason for 10.5 Reserved judgment with reasons – rule 61 36 March 2017 the treatment which we found had occurred. Only in relation to one detriment (Miss Hopkinson moving Mrs McGuire after Christmas 2018) was a reason advanced, but the asserted reason (moving the claimant as part of a general move around) was not accepted (see paragraph 104).[198]Mrs Jacksons second defence was that Mrs McGuire was the ‘wrongdoer’ not carer B in relation to resident D being taken outside inappropriately dressed. While she does appear to accept what happened with resident D was wrong, to then suggest the claimant was now responsible was implausible. We found the evidence of Carer B in so far as it is relied upon to support Mrs Jackson’s assertion, was unreliable and self- serving.[199]The claimants were working in a home where they were both identified as the carers responsible for making disclosures to seniors/managers alleging neglect and complaining that the other carers were not doing their jobs properly. This was a home where gossip, division blame and bad feeling towards the claimants was openly expressed and condoned by management. Instead of following the whistleblowing procedures in place to protect those who alert the employer to suspected neglect/abuse they sided with the other carers. We contrasted Mrs McGuire’s treatment by management (Miss Lewis, Miss Metcalfe and Miss Hopkinson) for alleging neglect, with carer B’s treatment by management, as the person accused of neglect in the near miss with resident D (protected disclosure 5).[200]Management (Miss Lewis/ Miss Metcalfe) immediately and openly sided with carer B, before any investigation was carried out. Ms Metcalfe did not investigate it, but treated it as a grievance, made by the claimant, against carer B. She did not follow the whistleblowing policy, or treat it in the way the claimant expected it would be treated which would have protected and supported her in the process. The other carers, knew that Mrs McGuire had reported carer B to management. When carer B confronted the claimant on the 21st December 2019 that was because she already knew the claimant had made an allegation of neglect against her. When after that confrontation she complained about the claimant to her managers, they sided with her, and moved the claimant. The claimant and the other carers, knew that had happened. This gave the other carers a green light to continue the unpleasant treatment instead of protecting Mrs Mcguire from any further reprisals for reporting her concerns.[201]If the home as the employer had followed the procedures the respondent might have been able to argue that it took all reasonable steps to prevent other carers managers or agents from behaving detrimentally towards the whistle- blower. If the policy genuinely intends to encourage the reporting of concerns to managers, those managers must then be seen to act impartially to protect and support the whistle-blower, while the concerns raised are investigated.[202]We were satisfied that carer B and other carers who subjected Mrs McGuire to the detriments were materially influenced by the protected disclosures made by Mrs McGuire. Both claimants were known to have made allegations of neglect, found to be protected disclosures. They were blamed by other carers for telling tales to management. Management then sided with the other carers against Mrs McGuire allowing the coldshouldering treatment (not talking/dirty looks/allowing carers to refuse to 10.5 Reserved judgment with reasons – rule 61 37 March 2017 work with her) to continue. Miss Hopkinson’s decision to move the claimant was materially influenced by the protected disclosures made by Mrs McGuire. Mrs Jacksons intimidating and threatening letter to the claimant expressly refers to the disclosures made which she describes in her letter as ‘everyday occurrences” inflated by the claimant. Her letter was a deliberate angry retaliatory response to the disclosures made. Mrs Jackson had decided at the outset before any investigation was carried out by Mr Taylor, that the claimant in making these allegations was “evidently vindictive towards senior management”. She tells her so in the first paragraph of her letter. Mrs Jackson was materially influenced in her treatment of the claimant by the protected disclosures she had made. Her instruction to Mr Taylor to contact the claimant was given in that context of protecting the home and taking ‘whatever steps were necessary’. Mr Taylor’s call to Mrs McGuire was made with that purpose in mind. It was extremely intimidating and threatening. Finally, the bad reference given by Miss Hopkinson, was given because Miss Hopkinson was materially influenced by the protected disclosures made by the claimant and her motive in doing so was retaliatory. There were no concerns about Mrs McGuire performing her role as a ‘carer’ that would have justified a bad reference. In Miss Hopkinson’s communications with the CQC on the day the claimant left her employment, she paints a picture of the claimant, as a troublemaker, to defend the home and gain support from the CQC inspector.[203]We concluded that Mrs McGuire was subjected to 9 detriments by other carers, Miss Hopkinson, Mrs Jackson and Mr Taylor as the agent of the employer on the grounds of her protected disclosures. As well as individual liability the employer is vicariously liable for the acts of the workers/agent responsible for the detrimental treatment. In this case as a named respondent Mrs Jackson is also individually liable for the threatening letter sent to the claimant on 10 January 2019.[204]For Miss Skitt we found that she had made 3 protected disclosures. For disclosures 1 and 2 see paragraphs 140-147, for disclosure 3 see paragraph 148-149. We found Miss Skitt was subjected to 3 detriments. Firstly, by the other carers making her feel uncomfortable, ignoring her, isolating her and refusing to work with her (see paragraph154-155). Notably that evidence of the unpleasant working environment was corroborated by Mrs McGuire and Sophie Goulding. Secondly, Miss Hopkinson’s failure to investigate her concerns (paragraph 158). Thirdly, Miss Hopkinson providing her with a negative unjustified reference (paragraph 160-164).[205]No other reason for the detrimental treatment is advanced by Mrs Jackson her position has been to simply deny that it occurred. We found the other carers were materially influenced in their detrimental treatment of the claimant by the protected disclosures she had made. She was labelled as a ‘grass’ for making allegations of neglect against the other carers who then refused to work with her and subjected her to unpleasant treatment. The reason for this treatment was the protected disclosures she had made.[206]Miss Hopkinson sided with the other carers against both claimants and did not investigate the concerns raised. Miss Hopkinson was unable to explain 10.5 Reserved judgment with reasons – rule 61 38 March 2017 the unjustified negative reference she had provided and how it fit in with her purported letter of dismissal. She knew that reference would be very damaging to the claimant’s prospects of obtaining employment. Miss Hopkinson was materially influenced in her detrimental treatment of Miss Skitt by the protected disclosures she had made. The acts of the other carers and Miss Hopkinson are attributable to the employer, rendered vicariously liable for those acts/failures to act. We concluded that Miss Skitt was subjected to 3 detriments by her employer on the grounds of her protected disclosures.[207]For the unfair dismissal complaint, we found both claimants resigned because of the detrimental treatment they were subjected to by their colleagues and by management for making protected disclosures. Having raised concerns about neglect of residents against other carers, the claimants were left unsupported and unprotected by management. They were subjected to reprisals by management and the other carers for making protected disclosures during the course of their employment. That conduct breached the implied term of mutual trust and confidence and it entitled the claimants to resign and treat themselves as constructively dismissed. They did not delay and affirm the breaches by the employer they resigned in response to them.[208]Mrs Jackson on behalf of the employer has not advanced or produced any evidence to try to establish any other reason for the constructive dismissals. We concluded the only reason for the claimants’ constructive dismissals were the protected disclosures they had made. That reason for dismissal is automatically unfair in accordance with section 103A of the Employment Rights Act 1996.[209]A remedy hearing will be listed to determine remedy for the successful complaints. Separate directions will be issued in relation to that hearing.[1]Mrs. K McGuire having succeeded in her complaint of being subjected to 9 detriments on the grounds of making protected disclosures and of unfair dismissal for making protected disclosures, is awarded compensation for injury to feelings in the sum of £20,000 incorporating aggravated damages in the sum of £8,000 payable by ADL Plc.[2]Additionally, the parties have agreed the sum of £1,925.00 is payable to Mrs. K McGuire by ADL Plc as compensation for loss of earnings for the unfair dismissal.[3]To those sums we add interest in the sum of £2,365.96 making the total sum awarded £24,291, which ADL Plc is ordered to pay to Mrs. K McGuire[4]Miss T Skitt, having succeeded in her complaint of being subjected to 3 detriments on the grounds of making protected disclosures and of unfair dismissal for making protected disclosures, is awarded compensation of £15,000 incorporating aggravated damages in the sum of £5,000, payable by ADL Plc.[5]To that sum we add interest in the sum £1,693.15 making the total sum awarded £16,693.15 which ADL Plc is ordered to pay to Mrs. K McGuire.[1]By judgment dated 11 December 2019, the claimants succeeded in their claims of unfair dismissal for making protected disclosures and for being subjected to detriments for making protected disclosures (9 detriments for Mrs. McGuire and 3 detriments for Miss Skitt). The issue of remedy came before us at a hearing on 12 March 2020. The Issues[2]The Tribunal had to decide the correct level of compensation that should be awarded to the claimants for injury to feelings for the successful detriment and dismissal complaints. The claimants had succeeded in most of the complaints they had brought. They had provided a schedule of loss and Mrs. McGuire had also provided some wage slips to support the wages claimed.[3]Mrs. McGuire was seeking £45,000 for injury to feelings including aggravated damages and £1925 for loss of earnings.[4]Miss Skitt was seeking £35,000 for injury to feelings, including aggravated damages and made no claim for loss of earnings.[5]The respondents agreed £1925 was payable to Mrs. McGuire for loss of earnings and that £10,000 was the appropriate level of award for compensation for injury to feelings, for each claimant. The correct identity of the employer[6]An unresolved issue from the last hearing was the correct name of the respondent ‘employer’ in these proceedings. Either it was ‘ADL plc’ (respondent 1) or it was Charlton Court Care Home Ltd (respondent 3). At the liability hearing the Tribunal were left with the unsatisfactory position of having to name both respondents in the judgment. The judgment makes it clear to the respondents that they needed to clarify the position to identify the ‘employer’ and provide supporting evidence, before this remedy hearing. Conduct of these Proceedings[7]At the liability hearing, we had found Mrs. Jackson on behalf of the respondents, had improperly conducted these proceedings in the following ways:6.1 She deliberately misled the Tribunal about her previous experience of Tribunal hearings to avoid any censure for her failures (paragraph 4).6.2 Her approach in defending these proceedings was inflammatory, ignoring any guidance given by the Tribunal. She accused the claimants of lying, then of the wrongdoing they had reported, and then of wasting time by bringing these proceedings (paragraph 5, 6 21).6.3 Evidence was deliberately concealed and records were altered to mislead the Tribunal and to try to discredit the claimants. Mrs. Jackson deliberately concealed parts of an inspection report only disclosing parts that were helpful to the respondents’ case and to corroborate her statement. She asserted that home had been ‘completely exonerated’ and therefore the claimants were lying, when she knew that to be untrue.6.4 She was dishonest and was prepared to go to any lengths to try and portray the claimants in the worse possible light concealing evidence that went in their favor.6.5 Mrs. Jackson, Miss Hopkinson and the witnesses that attended the hearing were openly hostile towards the claimants during the liability hearing, making it a difficult and unpleasant hearing for them. As we note in paragraph 21 of the judgment, while that kind of reaction might have been expected by more junior staff (given their hostility towards the claimants in the workplace), we expected better behavior from the senior management representing the respondents in these proceedings.6.6 The hostility and anger towards the claimants was clearly visible throughout the hearing. 2 notable examples were the angry response of Mrs. Hopkinson who accused the claimants of ‘wasting 2 weeks” of her life by bringing these proceedings and Mrs. Jackson (in the context of the letter she sent to Mrs. McGuire) confirming it was a deliberate act that had failed to achieve the desired outcome of preventing her from bringing these proceedings.[8]At the last hearing Mrs. Jackson confirmed that the respondent could have obtained professional representation, but had chosen not to. Given the findings made we had hoped the respondents would have learnt some lessons and changed their ways by taking these proceedings a bit more seriously.[9]Unfortunately, that has not been the case. Although Ms. Brooke’ Ward is instructed to represent the respondents at this hearing, she confirms solicitors were only recently instructed. She accepts the respondents were alerted to this issue prior to this remedy hearing. No one else has attended to assist the Tribunal. She has no evidence to present on behalf of the respondent. She has not been involved previously and has limited knowledge of the case. She confirms the findings made by the Tribunal are not challenged and she cannot assist any further with the correct identity of the ‘employer’.[10]The Tribunal were left without any further evidence or an explanation for the respondents’ failure to address the issue.[11]Miss Almazedi draws our attention to the fact that since the last hearing in October 2019, and despite the respondent having the means to pay for legal representation, Mrs. Jackson has chosen to continue to act as the representative until last week. For that reason, to accommodate her ‘unavailability’, the remedy hearing was delayed until 12 March 2020. It was unreasonable for Mrs. Jackson, a named respondent, to then decide not to ‘turn up’, or send any evidence or explain her absence. The conduct of the respondents since the last hearing shows complete disregard and contempt, not only towards these claimants, but also to the Tribunal and these proceedings.[12]Miss Almazedi contends the employer is ‘ADL Plc’. The company identified in the contract of employment, the whistleblowing policy, the payment instructions, the reference provided by Miss Hopkinson (on behalf of ‘ADL Plc’) and the instructions given to Mr. Taylor, to act as agent on behalf of ‘ADL Plc’. All the evidence points to ‘ADL Plc’ as the employer during and after the claimants’ employment. If the respondent had other evidence and wanted to clarify the position to suggest that was not the case, they have chosen not to provide it. ‘ADL PLC’ should be liable to pay compensation.[13]Miss Brooke’Ward cannot comment on the documentary evidence or the unchallenged findings of fact made. After taking instructions by telephone, she submits that “Carlton Court Care Home Limited” was the employer but cannot provide any further evidence to support that assertion.[14]We agreed with Miss Almazedi that the respondents have by their conduct in this regard, acted unreasonably and arrogantly. They have not demonstrated any change in attitude since the last hearing. In circumstances where they could have sought professional representation earlier, and assisted the Tribunal to identify the correct employer, they chose not to. Instead Mrs. Jackson’s has continued to conduct these proceedings on behalf of the respondents in the same manner. She has not provided any further evidence, she has not attended the hearing and she has not provided any explanation for those failures.[15]In the absence of any further evidence and doing the best we can with the evidence and the unchallenged findings made, we accept the claimants’ submission that at all the material times of interaction in the employment relationship ‘ADL Plc’ has been identified as the employer and was the employer liable to pay the compensation awarded. Applicable Law.[16]Section 49 of the ‘Employment Rights Act 1996’ deals with remedies for successful detriment complaints. Section 49(b) provides that: “the tribunal may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.”.[17]Section 49 (2) provides that: “the amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to-(a) the infringement to which the complaint relates,(b) any loss which is attributable to the act or the failures to act which infringed the complainant’s right.”[18]The reference to ‘infringement’ reminds the Tribunal to have some regard to the nature of the complaint, when any resultant loss is assessed. The more serious the offence, the more likely it is that feelings will have been injured.[19]Injury to feelings is the main element of the award of compensation the claimants seek. The onus remains on the claimant to establish the nature and extent of the injury caused by the detriments and dismissal.[20]In the case of(1) Armitage(2) Marsden and(3) HM Prison Service -vJohnson (1997) IRLR 162 the EAT set out five principles to consider when assessing awards for injury to feelings in cases of discrimination: 1 Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award. 2 Awards should not be too low as that would diminish respect for the policy of the legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches. 3 Awards should bear some broad general similarity to the range of awards in personal injury cases. 4 In exercising discretion in assessing a sum, Tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. 5 Tribunals should bear in mind the need for public respect for the level of awards made.[21]Although medical evidence may support a claim made for injury to feelings, it is not required for an award to be made. As Lord Justice Mummery acknowledged in the Court of Appeal in Vento-v-Chief Constable of West Yorkshire Police(no2)2003 ICR 318 CA, injury to feelings is not a medical term: “it is self-evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be artificial exercise…. Although they are incapable of objective measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment accepting that it is impossible to explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury.[22]Lord Justice Mummery identified three broad bands of compensation for injury to feelings as distinct from compensation for psychiatric or similar personal injury. There is considerable flexibility within each band, allowing tribunals to fix what they consider to be fair, reasonable and just compensation, in the particular circumstances of each case. Regard should be had however to the “overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feeling psychiatric damage and aggravated damage”.[23]The applicable Vento bands at the date of the presentation of these claims (pre-April 2019) are as follows: Lower band of £800-£8400 (for less serious cases) Middle band of £8,400 to 25,200 (for cases that do not merit an award in the upper band). Upper band of £25,200 from £42,000 (for the most serious cases), with the most exceptional cases of exceeding £42,000.[24]In Virgo Fidelis Senior School-v- Boyle 2004 ICR 1210 EAT, the EAT held that it was appropriate to adopt the same approach to compensation in whistleblowing detriment/dismissal claims as has been taken in discrimination cases. Employment Tribunal’s may award damages for injury to feelings and in doing so, should adopt the general guidelines to discrimination claims as set out in Vento.[25]We also applied the “Presidential Guidance Vento Bands 2017” which expressly provide that injury to feelings awards might also be appropriate in certain claims of unlawful detriment and provide the levels for each band as set out above.[26]The claimants also seek aggravated damages as an aspect of injury to feelings. In general, aggravated damages are only appropriate in cases where the respondent has behaved in a “high-handed, malicious, insulting or aggressive manner in committing the discriminatory act” (Alexander-v- Home Office 1988 ICR 685 CA).[27]Aggravated Damages are compensatory, not punitive and there must be some causal link between the conduct and the damage suffered. In HM Prison Service -v- Salmon 2001 IRLR 425, the EAT made it clear that “aggravated damages are awarded only on the basis, and to the extent, that the aggravating features have increased the impact of the discriminatory act or conduct on the applicant and thus the injury to his or her feelings”[28]In Commissioner of Police of the Metropolis-v- Shaw 2012 ICR 464 EAT Mr. Justice Underhill identified three board categories of case for aggravated damages: Where the manner in which the wrong was committed was particularly upsetting. This is what the Court of Appeal in Alexander meant when referring to acts done in a ‘high-handed, malicious, insulting or oppressive manner’ Where there was a discriminatory motive- i.e. the conduct was evidently based on prejudice or was spiteful, vindictive or intended to wound. Where such motive is evident, the discrimination will be likely to cause distress than if the same act was inadvertent: for example, through ignorance or insensitivity. However, this will only be the case if the claimant was aware of the motive in question an unknown motive could not cause aggravation of the injury to feelings, and, where subsequent conduct adds to the injury- for example where the employer conducts tribunal proceedings in an unnecessarily offensive manner, or “rubs salt in the wound” by plainly showing that it does not take the claimant complaint of discrimination seriously.[29]The sort of behavior, that may warrant an award of aggravated damages can include, the manner in which the defendant has conducted the proceedings, as the EAT made clear in Zaiwalla &Co - v- Walia 2002 IRLR 697. In that case, the respondent’s solicitors had put in a “monumental amount of effort” to an “inappropriate” extent and had conducted the proceedings in a manner, “deliberately designed… to be intimidatory and to cause the maximum unease and distress to the claimant”.[30]In Metropolitan Police-v-Shaw the EAT also reiterated that aggravated damages should be compensatory, not punitive and are an aspect of injury to feelings, not a separate head of claim. J Underhill recommended that tribunal’s use the words “injury to feelings in the sum of £X incorporating aggravated damages in the sum of £Y. Evidence 29. We heard evidence from both claimants which was tested in cross examination. We found them to be credible witnesses who have answered questions truthfully and honestly throughout these proceedings. 30. More than a year after these events they are still very emotional displaying anger, tears distress and upset in their evidence. It is clear these proceedings have been particularly unpleasant for them. We did not find them to be prone to exaggerate their evidence. For example, in their statements they both refer to still feeling upset and concern about the residents, they cared for in the home because they are worried that nothing has changed. This evidence was raised in cross examination with a view to it, being used against them to diminish the hurt feelings caused by the detrimental treatment. They both stood by the statements made and the feelings expressed in them. We found their evidence presented an honest reflection of their true hurt feelings which includes hurt feelings for the residents.[31]We accepted their evidence and set out below the facts relevant to remedy. For the avoidance of any doubt when we refer in this judgment to the “respondent” we are referring to “ADL PLC” and when we refer to Mrs. Jackson we are referring to the second respondent. Miss Skitt[32]Miss Skitt made 3 protected disclosures in December 2018, reporting other carers for the neglect of residents (leaving them to sit in soiled pads, or in unsuitable chairs, or leaving them in bed for long periods of time). She reported her concerns to Miss Hopkinson (Registered Care Home Manager). Miss Skitt was subjected to 3 detriments in the form of retaliatory treatment by her colleagues, by Miss Hopkinson who failed to investigate her concerns and left the claimant exposed to further retaliation by the other carers. Miss Hopkinson continued to subject Miss Skitt to detrimental treatment after she had resigned by providing her prospective new employer with a false and damaging reference which resulted in Miss Skitt losing that job. As the employer ‘ADL PLC’ is vicariously liable for that treatment.[33]By way of background, prior to working for ADL Plc, Miss Skitt had worked as a carer for an agency, on a ‘zero’ hours contract. She would drive to individual service user’s homes to provide them with care, on her own or with another carer. She decided to leave the agency to work for the respondent in a care home setting, to improve her working conditions, by having to drive less and having more security in her employment.[34]She was employed by ADL Plc from 4 December 2018 to 9 January 2019. She did not stay for very long in the end but her intention was to stay long term, which is what she has done in her previous role. She had whistle-blown in that role, when she had concerns about a family member stealing money from a service user. She reported her concerns to the agency and the police and was supported by them, in that process. She felt it was important that vulnerable people were protected from neglect/abuse and she felt she had a duty to report her concerns and do the ‘right’ thing.[35]The first detriment she was subjected to, after making her protected disclosures, was the retaliatory treatment by her colleagues after Miss Hopkinson had disclosed her identity to them. She was isolated and ostracised by her colleagues. They refused to work with her and made her feel uncomfortable. She was called a “grass”. She and Mrs. McGuire were in the minority, facing hostility from the majority, supported by management.[36]She describes how she was ‘absolutely horrified when she became the target of nasty bullying’ for doing her job and ‘taking a stand when she saw the poor treatment of residents at the home’. It was ‘awful’ when her colleagues refused to work with her. She was ‘deliberately and aggressively singled out’. She felt ‘intimidated and very isolated’. It got her down and she worried about what would happen next. She was anxious about coming to work and would get upset about it at home. Her distress caused distress for her family. It upset her daughter which then made her feel guilty.[37]Previously she had a good sickness record. When she worked for the respondent, she was absent from work more frequently because she was anxious about what her colleagues might do to her at work.[38]The second detriment is the management’s response to the protected disclosures made. Miss Hopkinson did not investigate the concerns raised by the claimant, she did not follow the respondent’s whistleblowing policies, put in place to encourage and protect whistleblowers. Miss Hopkinson breached confidentiality which left Miss Skitt exposed as the target of bullying which continued until she resigned. Miss Skitt could not understand why management were not protecting her for raising concerns and why her trust had been ‘abused’ in this way. She said the management response encouraged the bullying behavior of her colleagues with the aim of forcing her to leave. It was ‘deliberate hostile and achieved the intended aim’.[39]Miss Skitt had started working for the respondent on 4 December 2018 and left on 9 January 2019, on the day Mrs. McGuire resigned. She had only worked for a short period of time, but it was the intensity of the treatment she was subjected to in that short period that left her ‘very depressed’. She had ‘nightmares about the intimidation she had faced on shift’.[40]Since her dismissal she has had to return to her previous employer as an agency worker because of the false damaging reference provided by Miss Hopkinson which described her as ‘dishonest and untrustworthy’. If, she had not persuaded her former employer to take her back, she would not have been able to secure any work in the care sector. She would have had no means of supporting herself financially. As a result, she now has limited work choices which are unlikely to improve because the false reference has not been corrected since the judgment, and no new reference has been provided.[41]Miss Skitt describes the hurt and upset caused by the false reference She still thinks about this reference now and is unable to forget what happened. She is less willing to try to find employment elsewhere. She still gets upset about the way she was treated and the lengths the respondents had gone to ‘blacken’ her name and potentially ruin her working life for good. She was only able to avoid that ruin, by returning to work with her previous employer, who knew she was honest and trustworthy and did not need to rely on the false reference. She says it was ‘truly shocking that they did not care how this made her feel and this has caused her a lot of worry and anxiety’. She says the reference was “spiteful, malicious and done with the intention of deliberately harming me”. The fact that Miss Hopkinson was prepared to go to these lengths at the time and at the hearing to abuse her position and power, to present her as ‘dishonest’ was “shocking and upsetting” for the claimant.[42]It left Miss Skitt in the position, where she was unable to avoid discussing with others what had happened to her and the terrible experiences she had gone through. To the prospective new employer provided with the reference, she had to try and explain that she was not dishonest/untrustworthy. They felt they had to accept the reference and she lost the job. This was a ‘horrible’ time for her, she was ‘humiliated and stressed’. All she wanted to do at the time was try and forget it but this has left her a ‘bag of nerves’.[43]She describes how ‘unpleasant’ the hearing was because of the ‘hostility’ and ‘sheer hate’ expressed towards her at the hearing by the other carers and management, when all she had tried to do what was the right thing. It has ‘taken its toll on her’ and she has been ‘incredibly hurt’ at the treatment. She has not sought any medical treatment for her symptoms but has tried to cope with the effects herself without treatment.[44]Since the false reference and false letter of dismissal no apology has been provided by the respondent. No attempt has been made to correct the reference to enable the claimant to widen and improve her prospects as she had intended and to lessen the hurt feelings. This has left the claimant with the only option of working at the agency, where she does not have to rely on the reference because her employer knows she is honest and trustworthy.[45]The deliberate nature of this act by Miss Hopkinson, the damaging lasting effects of the false reference and the false dismissal letter created to damage Miss Skitt’s reputation are aggravating features of the detrimental treatment which have increased the impact of the hurt feelings. Mrs. McGuire[46]We found that Mrs. McGuire had been subjected to 9 detriments on the grounds of making 6 protected disclosures, raising concerns about the safety and wellbeing of the residents in the care home. Those disclosures included the disclosure made about Carer P, who had thrown porridge at a resident, and Carer B who was in the process of taking a resident outside inappropriately dressed, before Mrs. McGuire intervened. She had reported her concerns of neglect to senior management. Miss Hopkinson failed to follow the whistleblowing policy. She disclosed the claimant’s identity to the other carers resulting in retaliatory treatment which continued until Mrs. McGuire resigned.[47]The 9 detriments Mrs. McGuire was subjected by the other carers, by Miss Hopkinson, Mrs. Jackson and Mr. Taylor are: 1. Carer B (refusing to work with her and accusing her of telling tales) (December 2018). 2. Carer B “squaring up to her” (December 2018). 3. Carer B telling Miss Hopkinson that the claimant had bullied her. 4. 5 other carers, refusing to work with her not talking to her and accusing her of telling tales (December 2018) 5. Carer P refusing to work with her and giving her dirty looks. 6. Miss Hopkinson moving her to work downstairs after Christmas 2018. 7. Miss Hopkinson providing a negative verbal reference. 8. Mrs. Jackson writing to her on 10 January 2019 making spurious allegations, threats and generally using an intimidating tone. 9. Mrs. Jackson instructing Mr. Taylor to approach her and question her purporting to be from the CQC, accusing her of theft, insisting she had to attend a meeting with him and texting her.[48]By way of background before working for the respondent Mrs. McGuire had a long gap from work of more than 10 years to raise her family. She was eager to return to work and was pleased to get permanent employment at the care home. She worked for the respondent from 16 September 2018 to 9 January 2019. She was passionate about her job and full of enthusiasm. It was much more than a job for her, it was a vocation. She put her heart and soul into the job. She believed the residents should be treated like members of her own family. She felt genuine affection for them and enjoyed their company.[49]Her evidence in this regard was supported by the examples given in our reasons in the liability judgment. The occasion when the claimant invited one resident into her home to spend Christmas day with her and the fact she was awarded “Carer of the Month” in December 2018. She set high standards for herself and she expected the other carers, to do their jobs properly. She describes how it was ‘not an easy thing to do, to raise your concerns about the resident’s care, when you have just started a job and you want to be a part of the team and fit in’.[50]Mrs. McGuire’s strong feelings towards the residents and her ‘sense of responsibility’ were part and parcel of her character and came across clearly at both hearings. This made her very upset and angry at the neglect she witnessed. She was very vocal in challenging it by whistleblowing internally and externally to the CQC. She put her head above the parapet expecting her employer to deal with the disclosures properly to protect the residents and to protect her.[51]At first, she describes feeling a sense of relief in reporting her concerns because she found that seeing the treatment of the residents was ‘very distressing’ and when she went home she would keep thinking about the way things were at the home. She was upset and could not ‘switch off’. One of the things that affected her most about the treatment she was subjected to, was the ‘sense of shock and disappointment that the people in a position of power that she trusted to protect the residents and to protect her had abused her trust and did not do the right thing’.[52]She found the animosity following her disclosures ‘really upsetting’. She felt ‘genuine distress’ when she went home at night and as the weeks went on she was more and more ‘disturbed and alarmed’. She did not expect the ‘backlash’ that came with her reporting. She naively thought the managers would want to know. They would investigate and would stop the mistreatment she reported.[53]She found it unpleasant and ‘upsetting and hard to hear evidence’ at the hearing where blame for the mistreatment was deflected onto the residents and onto the claimants.[54]This has ‘shaken her confidence’ and added to the distress and hurt she feels now. She did not expect the ‘vicious and hostile behavior that followed it made her feel totally demoralised and isolated and very intimidated’.[55]She was very hurt and upset that Kelly Hopkinson breached her duty of confidentiality and ‘encouraged a situation where her colleagues felt able to take their resentment out on her by refusing to work with her and accusing her of telling tales’. Miss Hopkinson would have known that disclosing her identity was going to have this effect so feels it was a “deliberate act on her part. She did not seem to care that this meant she would become the target of resentment and hate by her colleagues”. This was a ‘real slap in the face and she was highly intimidated by this behavior’.[56]She was viewed as a ‘snitch’ by Carer B and the other carers which was genuinely upsetting and quite a shock. The abuse of power by the manager made the situation worse and even more serious. The claimant felt she deserved better treatment and it was wrong for managers to allow this to happen because it would discourage the reporting of concerns. The claimant was very uncomfortable and very disturbed and still thinks about it now.[57]Mrs. McGuire describes Brandy Rumsey (Carer B) as an “intimidating figure at the best of times” and “very scary”. She recalls how Brandy was “consumed with rage” when she squared up to her. She knew the claimant had reported her and the claimant believes she was empowered by management’s inaction, to behave in the way she did. When Brandy tried to suggest the claimant had bullied her she felt very frustrated and hurt by the false accusations which management accepted, when it was the claimant who was being bullied. The hostility at work was horrible. Brandy continued the hostile treatment at the hearing ‘not seeming to care for the fact it was horribly stressful and extremely upsetting’.[58]After Brandy had squared up to her, Miss Hopkinson subjected Mrs. McGuire to a further detriment by moving her away from the residents she had enjoyed working with. She then lied about the reason for doing it. Her actions meant she and the residents she cared for who had enjoyed her company were separated and both lost out. Mrs. McGuire felt bad about that.[59]She describes the ‘strong emotions’ she felt following her disclosures which fundamentally affected her home-life. Her constant anxiety impacted on her relationship with her husband resulting in her leaving her home and ending the marriage. In her witness statement she refers to her separation and says that he ‘had to put up with me crying and anxious most times when I came home from work’. She does not say the detrimental treatment caused the breakdown of the marriage. In cross examination when asked about the separation she said “a lot of it was that I was going home upset crying he couldn’t handle it he told me to leave. I was bringing it home. It was affecting our relationship I had been with him 20 years”.[60]Ms. Brooke’Ward invites us to make a finding that the detrimental treatment did not cause the breakdown and was unlikely to be the only factor in the breakdown of a marriage of 20 years, given the short period of time the claimant worked for the respondent.[61]The claimant agrees it was not the only factor it was the catalyst to her leaving the family because she was ‘bringing home’ the upset caused by the detrimental treatment at work.[62]The claimant moved out of the family home and is still homeless and dependent on family and friends. She has also lost a substantial amount of weight caused by all the stress of the treatment. She was ‘traumatised’ by the detrimental treatment by her colleagues and management. It was ‘humiliating’ to be the subject of dirty looks and upsetting being told that people would not work with her. She is still ‘shocked at the sheer nastiness of what went on and does not think she will ever feel the same again about the workplace’.[63]After she resigned, Kelly Hopkinson provided a negative verbal reference which was an ‘attempt to tarnish her name and reputation to deliberately cause more damage’. It made the claimant feel like she would have to ‘give up’. She could not believe Miss Hopkinson was doing this after she had left the job and she ‘still feels hurt and angry that this negative reference caused her to lose out on employment’. She had to find agency work on a zero hours contract when she was not intending to do that. She had to use other referees to be able to even stay in care work. All of it seems wrong when all she had done was carry out her duty of care as a care worker according to the law. It was a ‘horrible feeling trying to get work and feeling afraid about the reference issue’.[64]There are 2 post-employment detriments caused by Mrs. Jackson in sending the intimidating and threatening letter to the claimant on 10 January 2019 and instructing Mr. Taylor to call the claimant. We found these to be serious detriments and reminded ourselves of the findings made. The references to paragraph numbers are to the numbers in the liability judgment. The content of the letter is set out at paragraph 117. Mrs. Jackson had the opportunity to reflect on the letter before sending it (it was dictated over the phone and her secretary read over the contents of the letter and asked Mrs. Jackson if she still wanted to send it). Mrs. Jackson had carried not carried out any investigation to establish the facts before she sent the letter (paragraph 119) and in the letter accused the claimant of being ‘malicious’ and ‘threatened’ legal action.[65]We had found “It is unfortunate that Mrs. Jackson did not take the time to pause and think before sending the letter. That was a theme we saw throughout her evidence and presentation of the case. She did not listen …she did not heed guidance…she continued to make very serious personal accusations against the claimants……even when the evidence was clear…she did not defer from her approach” (At paragraph 121).[66]At the liability hearing it was put to Mrs. Jackson that her purpose in sending the letter was to intimidate and threaten Mrs. McGuire so that she would not take any further action. Her angry response to that question was “well it didn’t stop her did it”. After sending the letter an angry Mrs. Jackson instructed Mr. Taylor to contact the claimant.[67]Mr. Taylor was an experienced former police officer called to give evidence on this one issue. He failed to provide any account of it in his statement. He understood from the instructions Mrs. Jackson gave him that she was angry with Mrs. McGuire. She had ‘taken’ against her and wanted his help. The verbal instructions Mrs. Jackson gave him were conveyed in the same tone as the letter (paragraph 130).[68]Mrs. McGuire had provided a detailed account of the call which we accepted and set out in full at paragraph 131. Mr. Taylor falsely introduced himself as the head of the whistleblowing team at CQC. He was persistent and the claimant found the call ‘extremely intimidating and threatening’. When the claimant ‘smelt a rat’ and refused to see him, he accused her of stealing confidential documents. She told him she had done no such thing, told him he was trying to intimidate her and was not to call her again. The claimant describes the effect of the phone call as particularly upsetting and intimidating referring to it as a ‘very low point’. She felt ‘violated by it, it left her shaken’. She had by this point had to deal with both Mrs. Jackson and Mr. Taylor trying to frighten her off.[69]The claimant found the “sheer animosity that was directed towards her very difficult to deal with. It was so confrontational and aggressive with no regard for her feelings and the effect this matter has had on her life”. The claimant has in error omitted to expressly refer to Mrs. Jacksons letter in her evidence. She is dyslexic and thought it was in her statement. She asks us to, and we do read her reference to the effects of the “sheer animosity and aggression” as a general statement that applies to describe both the effects of Mr. Taylor’s phone call and Mrs. Jacksons letter.[70]The two detriments are connected acts instigated by Mrs. Jackson to intimidate the claimant and frighten her off pursuing matters further. As we found at paragraph 130, Mr. Taylor understood Mrs. Jackson was angry with the claimant and wanted his help to protect the home ‘at any cost’.[71]Mrs. McGuire describes the ‘horrible’ atmosphere at the hearing which made her nervous about coming back to the tribunal. She found Carer B and others continued to exhibit their hostility towards her not seeming to care for the fact it was “horribly stressful and extremely upsetting for her”. The way that Mrs. Jackson and Kelly Hopkinson “conducted themselves and the lies they told about the claimants have added to the hurt feelings”. Their behavior was “truly shocking and the lengths they were prepared to go to not disclosing evidence that put them in a bad light and making up all kinds of things” about the claimants was “very hard to listen to and brought back many memories of the feelings of intimidation”. The claimant was shocked at the ‘level of arrogance displayed and felt sad that the respondent had not seemed to have learnt anything and was continuing to be so defensive’. She felt awful thinking that “they may not have changed they seemed to be in denial about what went on”. Miss Hopkinson’s comments that they had “wasted 2 weeks of her life” were “very inflammatory”. The claimant says it was “really felt awful to witness this kind of attitude with no guilt whatsoever about the residents or anything else they had done”.[72]The claimant is still ‘very apprehensive’. It was a distressing experience and she ‘is fearful of being singled out and treated badly in the future if she does the right thing. The feelings of fear are always in the back of her mind’. While she understands raising these kind of issues is ‘protected’ the ‘character assassination’ that followed her disclosures has been ‘horrendous’. She is nervous and jumpy and still has nightmares. She is very tearful and emotional when she thinks about it and was worried about coming back for the remedy hearing and would not have done so without the support of her solicitor.[73]She has not sought any medical treatment and has tried to manage the effects, herself and has tried to move on, but has found this difficult when she has lost so much. She is still tearful when she thinks about what has happened and the lack of remorse shown. Although she did not get any apology or any reassurances this would not happen again, she fells if made now, it would not be sincere.[74]She says it will always shock and sadden her that they did not seem to care at all. Their main concern seemed to be to try and use whatever means they could to intimidate and bully the claimants and to try and ‘cosy up’ to the CQC to cover up the mistreatment of residents. She ends her statement: “I consider the conduct towards me and Miss Skitt to be of the most serious kind it was high handed deliberate and designed to force me out. It was not accidental or trivial it was targeted and deliberately intimidating and hostile trying to make me as scared as possible and also trying to destroy my reputation and prevent me from earning a living after I left” Submissions[75]Ms. Almazedi accepts the claimants were not employed for a long period of time but relies upon the ‘intensity’ of the treatment they were subjected to and its effect to support the level of award sought. The claimants were vulnerable carers, with no power, reliant on their managers who had the power to act, to address their concerns and to protect them. There was at the home, ‘mob rule’ with Carer B and others allowed to act as they wished, to bully the claimants because the managers did want to upset them.[76]The claimants were in the minority, isolated and intimidated and facing hostile working environment each day. They were subjected to detriments, by number of individuals. The claimants are principled people, who believe in doing the ‘right thing’ and have been treated appallingly for that. The conduct they were subjected to is so serious it should fall into the top band of Vento.[77]In support of that, Ms. Almazedi refers to extracts from the cases of Giwa-Amu -v- Department for Work and Pensions ET1600465/17 an age and race discrimination case where an award of £35,000 was made for injury to feelings of which £7,500 was for aggravated damages. Randerson -v Engineering & Technology Board t/a Engineering UK ET/2201768/15 a disability discrimination case where £25,000 was awarded for injury to feelings and personal injury was awarded and Hastings -v- Kings College Hospital NHS Foundation Trust ET/2300394/16 a race discrimination case where an award of £33,000 was made for injury to feelings and £40,000 for personal injury[78]The extract provided of Giwa-Amu, gives very limited details about the findings made. It was a case of race discrimination brought by an administration officer working for the DWP. During a ‘1’ month training period, Ms. Giwa-Amu was singled out and repeatedly humiliated by colleagues. She became the target of the group banter and was ostracised from the group. After speaking to a colleague about the bullying, the colleague breached her confidentiality and purposefully distorted her account. Ultimately, Ms. Giwa-Amu felt unable to complete the training. She went on sick leave and was dismissed for poor attendance. The extract states the “Tribunal in considering remedy for the discriminatory acts had regard to number of individuals causing Ms. Giwu-Amu significant distress. Regarding aggravated damages the Tribunal had particular regard to the breach of confidence and the post dismissal detriments”.[79]Ms. Almazedi relies on this case to support an award in the top band of Vento. She submits this was not a single incident but a campaign which intensified involving multiple people including senior levels of management. It was shocking for the claimants that those in power should consciously act in the vindictive way they did, in response to the claimants raising genuine concerns about the residents. If ever there was a case that falls into the top band, this was that case.[80]The feeling of hostility and intimidation was ever present in this case. Documents that exonerated or supported were deliberately kept back. False Documents were created to bolster the respondents case (a false letter of dismissal) and to try to deliberately mislead the Tribunal. Other aggravating features of the respondent’s conduct is the dishonesty of witnesses and the concealment and alteration of evidence. The outrageous way in which Mr. Taylor tried to impersonate the CQC to follow the line instigated by Mrs. Jackson to frighten off the claimants. Miss Hopkinson using the ‘cosy’ relationship she had with the CQC inspector to tarnish the claimants’ credibility and to label them as troublemakers. There has been a blatant attempt to silence two very vulnerable people who had done the right thing by whistleblowing. In response to those disclosures the claimants have been harassed and driven out of their jobs and then subjected to post employment detriments to cause them the maximum amount of damage in the future. To have their reputations attacked in this way and to face the hostility the claimants have had to face at the hearing is very hurtful and falls into the most serious category.[81]While Ms. Almazedi accepts that awards should not be punitive. These claimants have been honest reliable and transparent throughout these proceedings, in complete contrast to the respondents. The crying and upset seen during these proceedings is real. It reflects the real hurt and damage caused by the treatment they were subjected to which will be with them forever. Both claimants have, despite the respondents’ actions managed to find work. They have been stoic in trying to get on with life even though the effects continue to impact on them. It is of public importance that whistleblowing particularly in the care sector is encouraged. The claimants were brave enough to put their heads above the parapet. They should be compensated appropriately, in the light of all the detriments they were subjected to, which include the loss of a job that was very important to them both for different reasons.[82]Ms. Almazedi does not invite the Tribunal to make a split award to reflect concurrent liability for the acts of ADL Plc and Mrs. Jackson. The schedules of loss do not do so and no representations were made as to how any award should be split. Ms. Almazedi seeks an award against ADL Plc, in the top band of Vento (£25,200 from £42,000) of £45,000 for Mrs. McGuire and £35,000 for Miss Skitt to include[83]For the respondents, Ms. Brooke’Ward reminds the Tribunal of the judicial college guidelines to bear in mind the need to consider the level of awards made in personal injury cases (Chapter 4 deals with psychiatric and psychological injury). There is no medical evidence in this case and with those guidelines in mind, she submits these cases fall in the middle band of Vento, at the lower end.[84]She submits that the claimants did not attend their GP and have not had to have any medical treatment to treat the effects. They have had very short periods of employment when they were subjected to detrimental treatment. To support the level of award claimed they have referred in their witness statements, to feelings and upset about how the residents were treated. These hurt feelings for the residents are not relevant to any award of injury to feelings. There is a lot of anger and upset in this case and the Tribunal must distinguish between upset for the residents and how they are treated, and the claimants hurt and upset. While Ms. Brooke’Ward is not playing down the upset they say it caused them individually as set out in their statements, the upset and stress they describe, is nowhere near the upper Vento band.[85]She referred the Tribunal to 4 authorities: Ms. C -v- The Governing Body of Warren School and one other a first instance decision of the Employment Tribunal: Lipton Group Limited-v- Cudd UKEAT/0360/14: ICTS(UK)Ltd-v- Tchoula (2000) IRLR 643 and The Governing Body of St Andrews Catholic Primary School& Ors-vBlundle UKEAT/0330/09. She relies on these authorities to put the award in the middle band of Vento.[86]In that middle band of Vento (£8,400 to £25,200) the respondent’s assessment of the appropriate amount is £10,000 for each claimant, the lower end of the middle band. She makes no submissions on
Conclusions
Conclusions
[87]The remedy issues for the tribunal to decide are: what is the appropriate Vento band? Is it the middle band as the respondent contends or the higher band as the claimant contends? Once we decide the band where in that band should the award fall? Should aggravated damages be awarded and if so how much? How much interest is due on the awards made.[88]The only real challenge to the evidence on hurt feelings is whether the references made in the claimant’s witness statements about their upset about the residents’ treatment, goes against them to diminish the effect of their hurt feelings for the detriments/dismissal?[89]We do not agree that this evidence goes against them. By making these references about the residents, the claimants are providing an honest reflection of their hurt feelings which include the feelings and concerns they still have for the residents. Throughout these proceedings, it has been clear that the claimants were and are genuinely concerned about the residents. To expect them now not to make any mention of those feelings, as a part of their evidence of hurt feelings, would be untrue and artificial.[90]The claimants are not considering their hurt feelings in a vacuum, without any context. The context is the home, the way the residents were treated and the way the claimants were treated for raising their concerns. It would have been surprising if they had made no mention of their feelings about the residents when those feelings drove them to whistle-blow. Their honesty goes in their favor, not against them. It made the evidence they gave about the hurt feelings caused by the detriments and dismissal, more, not less persuasive.[91]As to the comparison Ms. Almazedi seeks to make with this case and Giwa-Amu, it is a first instance decision which represents nothing more than another Tribunal’s assessment on a set of facts, made by that Tribunal very briefly summarised in the case report provided. It does not help inform this Tribunal of the appropriate award to make based on the facts of this case. We have to do the best we can, on the particular circumstances of this case and the available material before us to make a sensible assessment of the injury to feelings in order to make a just and equitable award.[92]Dealing then with the appropriate Vento bands. Despite Ms. Almazedi’s very strong and persuasive arguments, we do not agree on the evidence presented to us that the hurt feelings in this case fall within the top Vento band of £25,200 to £42,000. Although it was a serious case it did not, on the evidence before us, merit an award in the upper band. There is no medical evidence at all provided which might have supported the case for a higher band award. We are left with the evidence of significant hurt feelings over which we have accepted. In assessing the appropriate value to put onto those hurt feelings we did have regard to JSB guidelines on the level of awards made in personal injury cases. ‘Moderate’ psychiatric damage e.g. ‘work related stress’ can fall into that category with a range of awards from £5,500 to £17,900. ‘Moderately Severe’ psychiatric damage where the debilitating effects are more severe falls in the range £17,900 to £51,400.[93]Based on our assessment we agree with Ms. Brooke’Ward that the claimants’ cases fall within the middle band of Vento of £8,400 to £25,200. She suggests £10,000 for each claimant putting it at the lower end of the middle band.[94]Before we arrive at our assessment on the appropriate amount to award for injury to feelings, we will consider aggravated damages as part of the total sum awarded. This is so that we can have regard to the “overall magnitude of the total sum” awarded.[95]Ms. Almazedi has invited the Tribunal to make an award of aggravated damages for the reasons she gives which we have set out in her submissions. Ms. Brooke’ Ward makes no separate submissions on[96]We have set out the guidance given by the EAT in Commissioner of Police of the Metropolis-v- Shaw 2012 ICR 464 EAT which we apply. Firstly, we considered the manner in which the wrong was committed and whether that manner was particularly upsetting for the claimants. We found that when the claimants reported their concerns to Miss Hopkinson, the most senior manager at the home, they did not expect her to disclose their identities to the other carers. This breached confidentiality, abused their trust and exposed them to the hostile retaliatory treatment they were then both subjected to, until they resigned. The claimants were in the minority singled out by the majority. There were reprisals and a ‘mob rule’ culture with senior managers turning a blind eye to what was going on. Miss Skitt was labelled a ‘grass’ which is a sinister term when used against a fellow employee in the workplace context. She was afraid of what was going to happen to her when she went to work. Her sickness absence increased because she had to use this as a means of avoiding these colleagues at work. Miss Skitt described the treatment as “deliberate and hostile and that it achieved the intended aim of forcing her to leave.[97]Another aspect of the treatment that we considered was the manner in which the wrong was committed. For Miss Skitt the false and damaging reference provided by Miss Hopkinson falls into this category of case. The written reference provided to the prospective new employer describes her as “dishonest and untrustworthy”. It is difficult to think of 2 words that could be more damaging to any employee’s prospects of getting another job. Miss Hopkinson used those words deliberately to cause maximum damage to Miss Skitt’s future employment prospects and to tarnish her character knowing they were untrue. She knew the job Miss Skitt had secured would be lost and that no employer would employ her with that reference. This was ‘spiteful and vindictive’ conduct which was particularly upsetting and damaging for Miss Skitt. She has only been able to avoid the financial ruin it would have caused, by returning to work for her former employer, who knows her to be honest and trustworthy.[98]Miss Hopkinson also breached Mrs. McGuire’s confidentiality exposing her to hostile treatment by Carer B who squared up to her, ‘consumed with rage’. This was particularly intimidating and upsetting for her. Management response to this treatment was divisive and did not protect her. In fact, Miss Hopkinson punished the claimant by moving her away. She accepted Carer B’s accusation that the claimant was the bully in that situation. Her response gave the other carers, the green light to continue the retaliatory treatment when she could have stopped it by treating the complaints more seriously and confidentially as she was required to do under ADL Plc’s whistleblowing policies. Mrs. McGuire was also subjected to the extremely intimidating and threatening letter, which was an intentional act by Mrs. Jackson (sent after she had the opportunity to reflect upon it and change the content). She also instructed Mr. Taylor who proceeded to make the extremely intimidating phone call to Mrs. McGuire purporting to be from the CQC. Neither the letter or the phone call needed to be handled in the manner they were. These were deliberate, oppressive highhanded acts carried out by/for Mrs. Jackson with the sole purpose of frightening her ‘off’. This was deliberately done, as Mr. Taylor put it, to ‘protect the home’ at any cost.[99]The second category of case, where aggravated damages should be considered is where there was a discriminatory motive- i.e. where the conduct was evidently based on prejudice or was spiteful, vindictive or intended to wound. Where such motive is evident, the discrimination will be likely to cause more distress than if the same act was inadvertent: for example, through ignorance or insensitivity. Miss Skitt accurately describes the reference provided by Miss Hopkinson as a ‘spiteful and vindictive’ act. Miss Hopkinson knew when she provided it that it was false and damaging. To then add salt to the wound she intentionally created a false letter of dismissal to discredit Miss Skitt and to try to mislead the Tribunal. Miss Hopkinson knew it was a false letter. Miss Skitt knew it was false letter, but it might have been accepted by the Tribunal. It was another example of the lengths the respondent was prepared to go.[100]For Mrs. McGuire the intimidating and threatening phone call and letter also fall within this second category. These acts were deliberate acts based on Mrs. Jacksons prejudice towards Mrs. McGuire they were intended to ‘wound’ they were not inadvertent or accidental.[101]The third category of case for considering an aggravated damage award is where subsequent conduct adds to the injury, for example, where the employer conducts tribunal proceedings in an “unnecessarily offensive manner”, or “rubs salt in the wound” by plainly showing that it does not take the claimant complaint of discrimination seriously. We have already set out at the beginning of this judgment some of the respondent’s improper conduct of these proceedings (see paragraph 6). Ms. Almazedi has drawn our attention to other matters in her submissions and we set out below the conduct which we have considered under this category: The dishonesty of witnesses/ the respondents’ representative (Miss Hopkinson/Mrs. Jackson). The attempts made to deliberately mislead the Tribunal and discredit the claimants by concealing/altering documents. Documents that exonerated or supported the claimants case were deliberately withheld. False documents were created to mislead the Tribunal and to bolster the respondents’ case. Relationships and communication with external bodies (CQC) were used to dishonestly discredit Mrs. McGuire and present a false and damaging picture of her to the CQC. These communications were then included in the bundle to try to mislead the Tribunal and bolster the respondent’s case. Open hostility at the hearing was shown towards the claimants by witnesses and management (Miss Hopkinson Mrs. Jackson). Comments made at the hearing showed the claimants these proceedings were not being taken seriously (Miss Hopkinson’s comment that she had wasted 2 weeks of her life in attending the hearing). Mrs. Jackson defending this proceedings in an unnecessarily offensive and arrogant manner, falsely accusing the claimants of lying/mistreating the residents. Mrs. Jackson ignored the guidance given by the Tribunal at the hearing to desist. She chose to continue with the same approach from the beginning to the end of the hearing. The failure to take matters seriously after the liability hearing by learning lessons from the matters highlighted in the judgment and reasons. Not appointing legal representation in good time for the continued to defend these proceedings in the same arrogant manner, causing the remedy hearing to be delayed to a date she could attend and then not attending or explain her failure to attend. No apology/correction of false reference provided to demonstrate that matters were being taken seriously.[102]This catalogue of treatment shows that the respondent has not and is not taking the complaints seriously. As in Zaiwalla &Co -vWalia 2002 IRLR 697, a lot of time and effort has been spent by Mrs. Jackson in her conduct of these proceedings trying to attack and intimidate the claimants, to cause them maximum unease and distress rather than treating the complaints seriously and defending the claim in a more measured and honest way. Although, Mrs. Jackson is not a solicitor, the respondent was/is in her hands, out of choice, not necessity.[103]We have found aggravating features falling into all three categories and such a long list is unusual to find in one case. It does in our view justify an award of aggravated damages for the additional distress caused to the claimants by this conduct. Miss Skitt describes how ‘unpleasant’ the hearing was because of the ‘hostility’ and ‘sheer hate’ expressed towards her at the hearing. It has ‘taken its toll on her’ and she has been ‘incredibly hurt’ at the treatment. She has not received an apology/corrected reference She did not have any further contact with the respondent after her resignation. Our assessment is that the appropriate award for aggravated damages is £5,000. We agree with the respondent’s assessment of £10,000 for injury to feelings for the 3 detriments/dismissal making the total award in the sum of £15,000. To that sum interest is added in the sum of £1693.15.[104]We calculate interest using 21/12/2018-19/5/2020 515 days with a rate of interest of 0.08% giving a daily rate of £3.29 multiplying the daily rate with the number of days for the injury to feelings award.[105]For Mrs. McGuire we consider the appropriate award for aggravated damages is £8,000. Mrs. McGuire was more persistent in pursuing matters after she resigned. She reported her concerns to Mrs. Jackson and the CQC. This made her the sole target for the targeted intimidation that followed. That treatment was deliberate and premeditated and was intended to frighten her off. Miss Hopkinson’s email contact with the CQC was done for one reason only, to try discredit and tarnish Mrs. McGuire’s character before any CQC investigation. The emails were included in the hearing bundle, to try to mislead the tribunal to persuade them to believe the false picture created. Mrs. Jackson sent an intimidating and threatening letter (which did not work) and Mr. Taylor’s intimidating and threatening call (to protect the home at any cost). A concerted campaign was operated by senior management and Mrs. Jackson. She is as Director, able to use the power and means she had at her disposal to frighten the claimant off. In our assessment this further targeted treatment towards Mrs. McGuire, warranted a higher award of aggravated damages for.[106]The 9 acts of detrimental treatment carried out by numerous individuals employed by the Respondent have had a huge impact on Mrs. McGuire’s family/personal life. This treatment has contributed to the breakdown of her marriage. It has had a huge impact on her personally and on her confidence. There has been no apology given. No attempt has been made to show her they have changed their ways in the light of the findings made. They are, as far as she is concerned, still in ‘denial’. This job was her chance after a ‘10’ year family break to get back to doing something she loved. She put her heart and soul into it. The worry and stress and hurt are still clearly visible in her presentation at both hearings. She has lost the job she loved, lost weight, lost her confidence and found the personal attacks on her very distressing. She sums it up in her evidence when she states: “It was not accidental or trivial it was targeted and deliberately intimidating and hostile trying to make me as scared as possible and also trying to destroy my reputation and prevent me from earning a living after I left”[107]In our assessment we consider the effects justify an award of £12,000 for injury to feelings. Looking at the totality of the award made £20,000 is closer to the top end of the middle band, which was a more appropriate level of award for Mrs. McGuire, to reflect the extent of the hurt and upset she suffered.[108]To that award of £20,000 for injury to feelings we add interest in the sum of £2,257.53. We also add £1925 for loss of earnings with interest in the sum of £108.43. This makes the total award in the sum of £24,291,[109]We calculated the interest using the period 21/12/2018- 19/5/2020. 515 days at a rate of interest of 0.08% gives a daily rate of £4.38. By multiplying the daily rate with the number of days we get a figure of £2,257.63. For the loss of earnings, we used the midpoint to calculate the number of days. From 5/9/2019 to 19/5/20 this is 257 days multiplied by the daily rate of 0.42 pence gives a figure of £108.43.