Ms K Martin v Barnet, Enfield and Haringey Mental Health NHS Trust: 2203869/2022
EMPLOYMENT TRIBUNALS
Case No 2203869/2022
Between
Ms K MartinClaimantBarnet, Enfield and Haringey Mental Health NHS TrustRespondent
Before
Employment Judge GlennieIn person for claimantMr B Phelps (instructed by Counsel) for respondentDate 17 October 2024
JUDGMENT
The unanimous judgment of the Tribunal is that the complaints of detriment for making a protected disclosure; constructive unfair dismissal (under both section 103A and section 98 of the Employment Rights Act 1996); direct discrimination because of age; and victimisation are all dismissed.
REASONS
[1]The Claimant, Ms Martin, makes the following complaints, which are disputed by the Respondent Barnet, Enfield and Haringey Mental Health NHS Trust:1.1 Detriment for making a protected disclosure.1.2 Automatically unfair or ordinary unfair constructive dismissal1.3 Direct discrimination because of age.1.4 Victimisation[2]The Tribunal gave an oral judgment with reasons at the conclusion of the hearing. These written reasons are produced at the request of the Respondent. The Tribunal is unanimous in the reasons that follow.
The issues
[3]The issues in the case were set out by Employment Judge Khan at a preliminary hearing on 16 February 2023 and these were confirmed with the parties at the commencement of this hearing. We decided that in the first instance we would hear and determine the issues as to liability. These were as follows:[4]Protected disclosures4.1 Did the Claimant make a qualifying disclosure? The Claimant claims that she raised concerns about workload, staffing levels, safe working practices and patient safety in a letter dated 23 May 2021 to Mitasha Borhara, James Ennis and Barry Day.4.2 Did the Claimant disclose information within the meaning of s 43B(1).4.3 Did the Claimant reasonably believe that the disclosure was made in the public interest?4.4 Did the Claimant reasonably believe that the disclosure tended to show that the health and safety of any individual had been, was being or was likely to be endangered (s 43B(1)).4.5 If the disclosure is found to be a qualifying disclosure, it is agreed that it was protected in that it was made to the employer (s 43C).[5]Detriment (ERA s 47B). Did the Respondent subject the Claimant to the following detriments:5.1 The Claimant did not receive a response to her letter dated 23 May 2021.5.2 The Claimant was suspended on 28 May 2021 by James Ennis, whereas her colleague Linda was not.5.3 The Claimant was not contacted again by Mr Ennis on 2 June 2021.5.4 The Claimant was told by HR on 2 June 2021 that she was being investigated for safeguarding.5.5 The Claimant was told by Mr Ennis on 3 June 2021 that she would be temporarily redeployed.5.6 Mr Ennis wrote to the Claimant on 25 June 2021 setting out four allegations and confirming that she would be temporarily redeployed5.7 The Claimant was subjected to a disciplinary investigation which was completed on 15 February 2022.5.8 The Claimant’s grievance dated 18 August 2021 was not investigated.5.9 The Claimant was told by Dr Swanzy-Derben on 7 March 2022 that she would be redeployed to Trent Ward.[6]If so, was this done on the ground that the Claimant had made a protected disclosure?[7]Constructive dismissal.7.1 The Claimant relies on allegations 5.1 – 5.9 above. The alleged final straw is allegation 5.9.7.2 Did this conduct breach the implied term of trust and confidence? The Tribunal will need to decide whether the Respondent behaved in a way that was calculated or likely to destroy or seriously damage the trust and confidence between employer and employee; and whether it had reasonable and proper cause for doing so.7.3 Did the Claimant resign in response to this breach?7.4 Did the Claimant waive the breach or affirm the contract?[8]Automatically unfair dismissal. If the Claimant was dismissed, was the reason or the principal reason for the dismissal that the Claimant made a protected disclosure?[9]Unfair dismissal. If there was a dismissal, and if the reason or principal reason for it was not the making of a protected disclosure:9.1 Has the Respondent shown that the reason or principal reason for dismissal was a potentially fair one?9.2 If so, was this dismissal fair or unfair in accordance with ERA s 98 and, in particular, did the Respondent act in all respects within the so-called range of reasonable responses?[10]Direct discrimination because of age10.1 If the Claimant is found to have been suspended on 28 May 2021, was that less favourable treatment, i.e did the Respondent treat the Claimant less favourably than it treated or would have treated others in not materially different circumstances? The Claimant compares herself with her colleague Linda.10.2 If so, was this because of the Claimant’s age?10.3 Was this treatment a proportionate means of achieving a legitimate aim (an issue which did not in the event arise for determination).[11]Victimisation11.1 Did the Claimant do a protected act? The Claimant claims that at a meeting with Barry Day on 22 September 2021 to discuss her grievance she complained that she had been treated differently because of her age or dyslexia when compared to Linda in relation to her alleged suspension.11.2 If so, did the Respondent subject the Claimant to a detriment because of this when it failed to investigate her grievance?[12]Time Limits: The Tribunal did not in the event address this aspect. Preliminary Issue[13]After the Tribunal had done the necessary preliminary reading we heard an application by the Respondent to strike out the claim because of the late delivery of the Claimant’s witness statements, i.e. her own statement and those of her witnesses. For reasons that we gave orally we refused that application, but held that the Claimant was not to be permitted to rely on the evidence of Vaysen Udaiyan as allowing this would have caused prejudice to the Respondent.
The applicable law
[14]The Employment Rights Act 1996 includes the following provisions about protected disclosures: 43A In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B ….a qualifying disclosure means any disclosure of information which in the reasonable belief of the work of making the disclosure is made in the public interest and tends to show one or more of the following - (d) that the health or safety of any individual has been, is being, or is likely to be endangered.[15]Section 47B(1) of the 1996 Act 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.[16]A detriment is done “on the ground of” a protected disclosure if the disclosure was a material (meaning, not trivial) factor in its being done. It is not necessary that the disclosure be the only or principal reason or factor, as in the case of unfair dismissal.[17]Section 94 of the 1996 Act provides for the general right not to be unfairly dismissed. Further provisions about unfair dismissal include the following: 98(1) In determining…..whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) The reason (or, if more than one, the principal reason) for the dismissal, and(b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it – (a) Relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) Shall be determined in accordance with equity and the substantial merits of the case. 103A An employee who is dismissed shall be regarded…..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.[18]The question under section 98(4)(a) is often described as involving the range of reasonable responses, or as being whether the employer acted in a way in which no reasonable employer could have acted in the circumstances.[19]The legal elements of a constructive dismissal are set out in paragraph 7 above.[20]Turning to the complaints under the Equality Act 2010, section 13 of that Act makes the following provision about direct discrimination: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[21]Section 27 includes the following with regard to victimization:(1) A person (A) victimises another person (B) if A subjects B to a detriment because- (a) B does a protected act….(2) Each of the following is a protected act – …(d) making an allegation (whether or not express) that A or another person has contravened this Act.[22]Section 136 of the Equality Act provides as follows with regard to the burden of proof:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) has contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[23]In Efobi v Royal Mail Group [2021] ICR 1263 the Supreme Court confirmed that the two-stage approach identified in relation to the previous anti-discrimination legislation in Igen v Wong [2005] ICR 931 and Madarassy v Nomura [2007] ICR 867 remained valid under the Equality Act. At the first stage, the burden is on the claimant to prove, on the balance of probabilities, facts from which the Tribunal could properly conclude, in the absence of an adequate explanation, that an unlawful act of discrimination had occurred. At this stage, a difference in protected characteristic and a difference in treatment alone would not, without more, be sufficient. There would have to be something else (which might not in itself be very significant) to provide the basis of such a finding. If such facts were proved, the burden was on the respondent at the second stage to explain the reasons for the alleged discriminatory treatment and satisfy the tribunal that the protected characteristic had played no part in those reasons. Evidence and findings of fact[24]The Tribunal heard evidence from the following witnesses:24.1 The Claimant.24.2 Mitasha Borhara, the Crisis Team Manager and the Claimant’s line manager at the relevant time.24.3 Barry Day, at the relevant time Managing Director of the Respondent’s Barnet Division and Deputy Chief Operating Officer.24.4 Derek Knight, at the time a Team Manager at North Middlesex University Hospital. There were witness statements on behalf of the Claimant from Bernadette Rock, Patrick Payne and Georgina Marks, all of whom were available to give evidence but for whom neither Mr Phelps nor the Tribunal had any questions. We read and took into account those witness statements. There was also an undated statement from Rawie Roberts who was not available during the course of the hearing to give evidence. The Tribunal had read that statement but gave it less weight than it would have done if he had been available to appear.[25]There was an agreed bundle of documents and page numbers that follow refer to that bundle.[26]The Claimant began work for the Respondent in November 2018. She is an experienced Band 6 registered Mental Health Nurse, and she worked in the Crisis Unit. Her work included acting as a Shift Leader and carrying out Mental Health Assessments in the community. At the time of the events with which the Tribunal is concerned she was around 49 years of age.[27]On 16 May 2021 the Claimant and a colleague, who we will refer to as Linda, visited a patient at home. Linda is also a Band 6 registered Mental Health Nurse. The Claimant relied on Linda as a comparator for her complaint of discrimination because of age. It is therefore relevant to record that the Claimant was not sure of Linda’s age but said in evidence that she thought that she was around 5 or 10 years younger than she was.[28]The Claimant made the point several times in the course of the hearing that the referral which led them to the visit on 16 May should have been acted on within 24 hours, but in fact, according to the Claimant, took about 10 days to be reached. Whether or not that was exactly the position, the Tribunal concluded that this had no real bearing on the issues that we have to decide. There were also questions about the booking and cancelling of interpreters and whether it was necessary for two Band 6 Nurses to attend as opposed to a single Band 6 and another individual. Again, it was not necessary for the Tribunal to reach any determination of these matters.[29]In relation to the visit on 16 May 2021 the Tribunal found the following factors to be relevant.29.1 The patient, who we will identify as X, had previously expressed suicidal thoughts and had attempted to take her own life.29.2 X, who speaks Farsi, could speak very little English.29.3 The Claimant and Linda had some conversation with X using very little English and making use of gestures.29.4 X’s 9 year old daughter, who speaks some English and better English than her parents, became involved in the conversation.[30]There was some uncertainty about precisely how X’s daughter became involved, although it was not ultimately necessary for the Tribunal to decide how this occurred. X’s daughter said that X’s problem was neck and back pain. This being taken into account, X was then discharged from the Crisis Unit. In paragraph 6 of her witness statement the Claimant said that X was no longer in crisis when “I” assessed her on 16 May. We note this because in the course of the hearing there was a developing question about who was responsible for the assessment.[31]In her initial statement made internally at page 166 the Claimant wrote that “we” completed a discharge summary and forwarded this to X’s GP to follow up on her physical health, stating that there were no signs of any psychotic or delusional ideation during the visit. In her oral evidence the Claimant sought to distance herself from the decision to discharge X, emphasising that Linda had written the assessment report, without however suggesting that she disagreed with its content. She stated that she disagreed with the form of the report. Several times in the course of being cross-examined the Claimant said that she did not write the report.[32]In answer to the Tribunal, after her evidence in cross-examination, the Claimant referred to her colleague discharging X and added that she could not remember if she knew at the time that Linda was going to do that. The Tribunal asked itself whether it was realistic for the Claimant to try to avoid or reduce her degree of responsibility for X being discharged. For our purposes we decided that what was most relevant was what the Claimant said internally to the Respondents at the time. As we have noted, she did not seek to distance herself from the decision initially or in the course of the investigation that followed.[33]On 20 May 2021 X’s GP phoned the Respondent and said that X’s child had been used as an interpreter. The GP also made criticisms of the decision to discharge X. The note of the phone call is at page 109, and it reads as follows: Telephone call from the GP – he wanted to query about the assessment that was conducted on X on 16 May with her daughter being the interpreter. He asked for when that patient was first referred to the Crisis Team and informed that patient was referred via CTS on 6 May with the plan for the Trust to assess crisis needs. Asked what the outcome of the assessment was on 16th and informed that patient was discharged back to GP. Reported that he was the advocate for the patient and feels that the patient was not assessed properly as the patient’s husband had called the GP surgery this morning and informed him that wife could not inform daughter of what was going on with her and discuss the suicidal ideations with daughter interpreting. He has requested to speak to the Team Consultant about this as he would like to make a formal complaint. He gave his mobile number and has requested for the team to call him back today. Informed that this message will be passed onto Consultant. It is not entirely clear who “he” is intended to mean throughout that note, but the Tribunal noted that probably the GP but possibly X’s husband was intending to make a formal complaint.[34]Still on 20 May 2021 (this was a Thursday), Ms Borhara emailed the Claimant and Linda, asking about the visit on 16 May. That email is at page 108, and it reads as follows: I have received a complaint from this service user’s GP. I understand from the GP that she was seen on Sunday, her 9 year old daughter was used as an interpreter? I understand that you had difficulties in getting an interpreter although one was booked by admin but cancelled by staff over the weekend. Please can you explain what happened here, we cannot use service users’ children (under 18) as interpreters. Linda replied something under two hours later at page 106. In summary, she said that she understood that it was not appropriate to use children as interpreters nor indeed to use family members generally. She said that normally one would never imagine doing it, but on this occasion the family insisted. Linda said that they did not have any concerns about immediate risk after seeing her, and that she allowed the child to act as a form of interpreter because the husband insisted and was irate. She said that they tried to use telephone interpreting but could not get an answer from that service.[35]The Claimant did not reply on Thursday 20 May. Ms Borhara said in crossexamination that when she saw the Claimant on the morning of Friday 21 May she asked the Claimant to reply to that email. The Claimant disputed that this happened. Although this evidence was not in Ms Borhara’s witness statement, the Tribunal found as a matter of probability that she did say this. We found Ms Borhara’s evidence generally to be credible. Furthermore, she had received a response from Linda, which might well have prompted her to seek the same from the Claimant.[36]Still on 21 May 2021, during the afternoon there was an exchange between the Claimant and Ms Borhara in front of other team members which Ms Borhara referred to in paragraph 34 of her witness statement. This involved the Claimant describing alleged inadequacies of an agency worker. Ms Borhara said that this exchange made her and the Deputy Manager feel somewhat uncomfortable.[37]On the Friday evening, 21 May 2021 the Head of Nursing, Doctor SwanzyDerben, identified serious concerns about what had happened on 16 May. In an email on page 110 to Ms Borhara and others she wrote: “as already discussed this morning there are serious concerns with the practice of both nurses around safeguarding and discharging a high risk patient without a comprehensive mental health assessment and risk assessment following a referral from the GP. The practice is unsafe and seriously undermines quality governance and good practice. This is clearly a capability issue and requires HR involvement” and she set out steps that she advised should be taken.[38]The Tribunal found that it was clear from this email that Dr Swanzy-Derben had serious concerns about both issues, namely safeguarding (with reference to the patient’s child) and the discharge without a comprehensive assessment.[39]On 23 May 2021, which was a Sunday, the Claimant sent an email to Ms Borhara copied to Mr James Ennis and to Mr Barry Day about events on 21 May. That is at pages 113-114 and the Tribunal will set it out in full because this is what the Claimant relies on as amounting to a protected disclosure. It reads as follows: Re: Friday 21 May 2021. Days like Friday 21 May can often be extremely busy and stressful for the B6 Shift Lead. Last Friday I was the am Shift Lead and when I started in the morning I was greeted with a handover from the night staff which was heavier than normal. As the Shift Lead it was my responsibility to deal with this as well as having the responsibility for ensuring a high volume of patients were allocated appropriately to HGT Staff. Also as you are aware the Shift Lead is responsible for handling all calls that come through on the Shift Lead phone, due to the nature of these calls it can often be time consuming ensuring that they are dealt with, [reads approximately but we think it meant] appropriately and in a timely manner, no one day is the same in the HGT and on some shifts the workload can be heavier than others, the Shift Lead therefore needs to be able to juggle a number of changing priorities whilst ensuring the needs of our patients are met. Any successful shift relies heavily on having safe staffing levels, the fostering of good team work and staff being able to undertake the work they are employed to do. Unfortunately the latter was not the case on Friday afternoon and after a hectic morning of Shift Lead I eventually got to give a handover to the pm Shift Lead. Because the allocated B6 Shift Lead was unwell another B5 nurse had to replace them which meant that the pm shift were minus one staff nurse. Due to this I was put to work with an agency staff Yusef, I asked him if he could carry out a patient assessment and was surprised when he told me he did not know how to do assessments, he did not have a RIO card and he was unable to input patient notes electronically into RIO. So, after a hectic and pressured morning as Shift Lead I was now left to complete the afternoon assessments myself with Yusef tagging along with me. When booking an agency nurse I would have thought it important for the person placing the booking to have an understanding of the level of experience and practical ability required of an agency nurse in order for them to carry out the work they are booked to do in a safe and competent way. There has been a lot of media coverage especially during Covid 19 concerning the vast sums of money NHS Trusts pay for agency staff and we know that an agency nurse is paid a lot more money than a permanent staff nurse which is why on a personal level I think it is unacceptable and unsafe for the Crisis HGT where a nurse’s work is intensive, busy, fast paced and carries a lot of responsibility to book and pay for an agency nurse whose experience and skills fall far short of what is required. On Friday Yusef’s obvious lack of experience placed an additional burden on me, increased my workload, put me in a situation where I felt very stressed, upset, frustrated and almost burst into tears. This is why after my conversation with you and Jimmy I had to leave the office in order to compose myself. Although Abigale and Neisha was present I did not feel that I had their support, once I had composed myself I returned to the office where Shola had a chat with me and she called Abigale to come and talk with me. The next two paragraphs are a little confused but they appeared as follows: Lastly, I would also like to say, that the admit [probably admin], informed me that they were told that they were not to accept any information from the referrer and to pass it onto the Shift Lead. This is very unhelpful towards the Shift Lead as with the high stress level of shift leading most of the time this becomes another stress on the Shift Lead and we are having to stop other job which can be done which leave you to put more on the next Shift Lead and causes issues among the nurses who Shift Lead. I would appreciate this to go back to how it was. Lastly, I do not feel we are working in a safe environment at present as well the Shift Leads are to do a lot and the admin used to take information from referral, which helped the Shift Lead and I have been informed Friday morning that they are no longer allowed. Are you trying to burn out your staff until they drop?[40]It is convenient to deal here with the issue as to whether this amounted to a qualifying disclosure. The necessary elements of a qualifying disclosure are set out in paragraphs 4.1 to 4.4 above. The Tribunal found that the letter does indeed contain information. It describes events during the shift, and the agency nurse saying that he could not carry out patient assessments and could not input patient notes.[41]It might be said that the Claimant had given no evidence specifically to the effect that she in fact believed either that she was making the disclosure in the public interest, or that the disclosure tended to show the endangering of health and safety. Mr Phelps, advisedly in the Tribunal’s judgement, did not take that particular technical point but instead looked at what the disclosure said and whether that demonstrated the relevant elements; and if so whether any such belief would have been reasonable.[42]The Tribunal made the following findings. The disclosure does not suggest any danger to the health and safety of patients. The final sentence refers to the burn out of staff and in particular of the Claimant herself. We asked ourselves whether that was sufficient to satisfy the requirement of a reasonable belief that the disclosure tended to show the endangering of health and safety. We found that it was. We found that the fact that the Claimant wrote this indicates that she in fact believed it. She referred to there not being a safe environment. The information is not confined to a single shift; the Claimant was referring to a change of practice which she said was placing a greater burden on the Shift Leaders. The Tribunal found that it was reasonable to believe that if the burdens and stresses on Shift Leaders became too much, their health was likely to be endangered.[43]There is a general public interest in the good running of NHS services. Did the Claimant have a belief that she was raising her concerns about stress and burn out in the public interest? The Tribunal takes a similar view on the question of this belief, as to the belief discussed above. The Claimant was writing about Shift Leaders, not just herself, and the use of agency staff generally. The content of the letter led us to find that the Claimant did indeed believe that she was making the disclosure in the public interest. The matters that she raised directly affected the service. The Claimant referred to it being unsafe to make such use of agency staff, and she referred to the burn out of staff. We found that it was reasonable for her to believe that disclosures about such matters occurring in the NHS were made in the public interest. We therefore found that the test for a qualifying disclosure was satisfied.[44]Returning to the chronology of events, on 24 May 2021 the Claimant began a residential course at a remote location. On that day Linda came to the office and was seen by Ms Borhara and Mr Ennis. Ms Borhara’s evidence in paragraph 14 of her witness statement was that they had been given advice by HR to relocate both individuals away from home working while the incident was investigated. Ms Borhara continued that Linda went home for the rest of that day and “did not return immediately as she then took sick leave”. The Claimant’s evidence was that Linda texted her on 24 May to say that the two of them were under investigation, and further that she heard from Linda that she was sick on Tuesday 25 May and returned to work on Thursday or Friday of that week on the bed management team.[45]The Respondent’s instructions, which were provided at the point when submissions were being given, were that their records showed that Linda was sick from 26 May to 10 June and then again long term commencing on 1 August 2021. The Tribunal can see from documents such as that at page 252 as an example, that Linda was indeed on long term sickness absence. She was absent on 29 October 2021 and evidently had been for some time.[46]The Tribunal therefore had to consider what finding it made about what it was that actually happened in relation to Linda. We found that she was indeed absent sick on 25 May. We found it unlikely in the particular circumstances that she would be on sick leave for one or two days and then return to work, while the Respondent’s records showed that she remained absent sick. We find that what probably happened was that Linda was allocated to the bed management team and it was from that team that she was then off sick from 25 May until 10 June.[47]Returning to the Claimant, her course ended on Friday 28 May 2021. Mr Ennis telephoned her, with Ms Borhara also being present in the office while he made the call. Mr Ennis said that the Claimant was not to come into work while another role was found. Ms Borhara’s evidence at paragraph 16 of her witness statement was that Mr Ennis said over the phone that this was because of the need to investigate concerns about the assessment made on 16 May. The Claimant’s evidence was that he did not give a reason why she was not to come in while another role was found for her.[48]As to that, the Tribunal finds it unlikely that Mr Ennis gave no explanation at all for directing the Claimant not to come into work, although quite likely that he would not want to say very much about it. In any event the Claimant knew in effect what it was about from her communication with Linda. The Tribunal finds that the conversation was as described by Ms Borhara. In particular, the Claimant had already received an email about the incident and therefore there would be no particular reason for Mr Ennis not to say anything at all about what the reason for this step was.[49]The Claimant’s evidence was that she was expecting to hear from Mr Ennis on about 2 June 2021, after the bank holiday. She did not receive any contact from him, and contacted HR and spoke to Keira of that department. In her witness statement at paragraph 8 the Claimant said that then on 3 June 2021 Mr Ennis emailed her saying that he was exploring options to redeploy her temporarily, she said due to unspecified concerns. The existence of that email is confirmed at page 139 by the Claimant’s union representative. That representative said that Mr Ennis had responded to the Claimant saying that she had not been suspended and that she was on authorised leave pending redeployment.[50]Meanwhile the matter was referred to an internal body of the Respondent named the Just Culture Panel. They considered the 16 May visit on 28 May 2021 and on 1 June 2021 made a recommendation for both cases, so that is in relation to the Claimant and Linda, to proceed informally. Dr Swanzy-Derben did not agree with this proposal and on review with other managers decided that in fact there should be a formal capability process.[51]In an email of 4 June 2021 Dr Swanzy-Derben wrote this at page 130: “I would like to express my concern about the Just Culture Panel’s decision for informal management of the two BCRHTT who involved an eight year old child of the patient in interpreting and discharged the patient who was deemed appropriate for treatment following reassessment due to a lack of comprehensive mental health assessment”. Dr Swanzy-Derben then referred to another matter and said that the minimum expectation was formal capability. She continued: “I have reviewed the case with the managers and we have made a decision to proceed with formal capability which will include redeployment of the staff to different areas until achievement of the capability objectives”. 32 Mr Day replied to that on page 129 on the same day, saying that he too was surprised at the outcome. He wondered whether the Just Culture Panel should reconsider the decision and wrote: “ The practice that I hear about does not sound safe or of high quality, something that we would expect for all our service users.” 33 With regard to proposed redeployment of the Claimant, it was agreed that there was a suggestion of working on Covid vaccinations and that the Claimant declined this, and that this was not taken any further as not being within her area of work. There was also on 28 May 2021 at page 120, in an email from a colleague in the Haringey division to Ms Borhara, a proposal to redeploy the Claimant to Daisy Ward. The Claimant said that she was unaware of that proposal, and there is no evidence to contradict this. Ms Borhara said that she handed the matter over to Mr Ennis. The Claimant clearly did not in fact go to work on Daisy Ward and the Tribunal considered that, if she had been offered this and had refused it, one would expect to find that recorded somewhere in the documents. Having said that, we find that there were efforts to redeploy the Claimant and that it is implausible that Mr Ennis or Ms Borhara would, having established that something might be available, deliberately failed to inform the Claimant of it.[52]Then on 9 June 2021 at page 143 Ms Borhara sent an email to the Claimant asking for a response to her email of 20 May (that being the original one about what had happened on 16 May). The Claimant commenced sick leave on 14 June 2021 and on 16 June 2021 sent her initial statement to which we have already referred, at page 166. In the covering email the Claimant said that she had discussed this with her union representative before sending it.[53]In the statement the Claimant referred to the visit on 16 May, although getting the date wrong saying 9 May 2021, and related what had occurred. She said she and Linda tried calling the interpreter service many times but they did not answer. They tried to assess the patient’s risk needs using nonverbal communication due to the language barrier. They were using sign language and the patient was pointing and signing to areas of her body that were concerning her. She pointed to her back and neck, she seemed to be frustrated that she could not express herself.[54]The Claimant continued: “We noticed that there was no indication of psychosis or delusional ideation, she was tidy in her appearance and so was her home environment. While we were talking to and trying to assess X her husband left us and returned with their 9 year-old daughter. The husband was insistent that we use the child to interpret; we were adamant that we could not use the child to interpret as this was inappropriate due to the safeguarding and protection of children. We turned to the child and said, “what is the problem with your mum”, the child replied “she has back and neck pain”. We listened to them as best we could taking into consideration the language barrier, picking up on words that were understood and using familiar signs that are consistent to all of us. Unable to conduct a full assessment due to the language barrier we communicated as best we could under the circumstances and advised X to follow up with her GP as she did not appear to be in crisis. We completed a discharge summary and forwarded this to X’s GP to follow up on her physical health as there were no signs of any psychotic or delusional ideation during our visit.” Then the Claimant referred to the call from Mr Ennis on 28 May.[55]On 25 June 2021 the Claimant was sent notice at page 158 of a formal disciplinary investigation. This included four allegations and said that Mr Knight was to investigate these. In summary the allegations were these: 1. Conducting an assessment with a service user using a child in the family as an interpreter. 2. The assessment conducted did not address the mental health needs of the service user and the service user was subsequently discharged from the team without having a comprehensive mental health assessment. 3. Your actions have adversely affected the reputation of the Trust. 4. That the actions involved could be considered a breach of standards as defined by the MNC. Mr Knight stated in paragraph 8 of his witness statement, and he was not challenged about this, that he held off arranging a meeting with the Claimant as she was then absent sick but with the passage of time he asked HR for advice and decided at a later stage to go ahead.[56]Meanwhile on 19 August 2021 the Claimant raised a grievance which is at page 213. This raised a number of matters. The Claimant referred to the call from Mr Ennis on 28 May, and said that Mr Ennis had not made contact with her immediately after the bank holiday weekend. The Claimant said that she phoned HR and that she heard nothing more from Mr Ennis until his email of 3 June in which he apologised for not making contact earlier, informed her that she had not been suspended, and said that he was exploring options to redeploy her on a temporary basis. The Claimant referred to her email of 23 May about the situation on 21 May and, more generally, she said that as an employee of the Trust she felt she had a professional duty to raise concerns and was encouraged to do so and she should not fear retaliation or intimidation from her managers. She said, “I do not believe it is any coincidence that the bullying and intimidating behaviour that I feel I have been subjected to by Mr Ennis and Ms Borhara followed immediately on from my email where I did raise my concerns” and she said that the bullying and intimidation was in the form of what appeared to be a vindictive and disproportionate handling of a complaint or allegation made by a GP concerning the visit on 16 May.[57]The Claimant continued that she had not been provided with a copy of the complaint or allegation made against her. There was not in the event a written complaint as such; as we have said it was received over the phone. The Claimant said she had not been given the opportunity to have an informal discussion about the incident and said that in those two respects Mr Ennis or Ms Borhara had not followed the Trust’s disciplinary policy.[58]On 22 September 2021 there was a grievance meeting held by Mr Day. There is a file note of that at pages 227-229, headed “informal grievance meeting”. In summary, Mr Day addressed the contents of the grievance letter, to which we have already referred. Particular points that emerged were that the Claimant went through the detail of the incident on 16 May, saying that she had asked the father not to use the child as an interpreter, but he insisted. The Claimant said that she felt that she had not been able to provide her side of the story. She had written a statement but had not heard anything back from the Safeguarding Team.[59]Mr Day asked about the Claimant going back to work and how she felt about that, not necessarily returning to the team that she had been in. The Claimant said that she felt scared to go back to that team as she felt that Mr Ennis and Ms Borhara would have a vendetta against her. Mr Day asked the Claimant where else she would like to work until the matter was sorted out. The Claimant replied that she had worked on wards for many years. Mr Day asked if she would like to work in community team in another division. It was also noted that the Claimant was interested in psychiatric liaison, preferably at Barnet Hospital. Mr Day recorded that the meeting ended with him saying that he would like to get the Claimant back to work and to hopefully get some movement in the next couple of weeks.[60]The Claimant’s case is that at this meeting she complained of being treated differently to Linda and that she did so citing her age and condition of dyslexia. Mr Day agreed that the Claimant had complained of being treated differently, but he said that she did not refer to any protected characteristics. The Claimant’s case was that she maintained that she did refer to those two protected characteristics, but when cross-examining Mr Day she was unable to put to him what it was that she said. She stated she was not able to remember what she had said in relation to age or dyslexia in that context. That being so, the Tribunal has concluded that we cannot make a finding that the Claimant did a protected act on this occasion given that Mr Day says that she did not, and the Claimant cannot remember what it was that she believes she said. There is therefore no evidence on which such a finding could be based.[61]On 27 October 2021 at pages 245-246 Mr Day wrote to the Claimant regarding the grievance. He said this: “Many apologies for the delay in getting back to you following our meeting on 22 September 2021, things have been really busy as I am sure you will appreciate. We discussed a number of points during our meeting, and I attach some notes from our discussion. First of all, I would like to assure you that we would like to have you back at work in some capacity and somewhere you would feel comfortable. To this end we are considering a number of options and once identified and agreed we will look for you to be temporarily moved for the rest of the process. Please advise me when you would be available to start and I will ask Mitasha Borhara, the manager to get in touch with you. To address some of your other concerns the investigation is ongoing, and I would like to wait for the outcome of that and what the report includes as the findings and next steps. The findings should be based on facts only. I have asked for the investigation to be completed as soon as reasonably possible. I have asked for a due date and when I have this I will let you know”.[62]Then Mr Day referred to the investigation having gone through the preinvestigation approval process and he said, “I would like to clarify that you were never suspended from duty, you were asked not to come into work in the immediate short term for your own protection, but should have returned in some capacity soon after and you may have returned had you not needed to take sick leave. I understand that Jimmy Ennis did apologise for the delay in communication around this time”.[63]The Tribunal noted in particular that Mr Day said that, so far as the grievance was concerned he was awaiting the outcome of the investigation. The investigation meeting with Mr Knight took place on 15 November 2021 and there are notes of this at pages 273-274. In the event the Claimant had little by way of cross-examination for Mr Knight and no real criticism of his role in the matter.[64]Mr Knight produced the investigation report at pages 324-337 on 9 January 2022. He concluded that there was insufficient evidence to support allegation number one, that is the allegation about using the child as an interpreter, but there was sufficient evidence to support allegation number two. On the latter he wrote: “With regards to the second allegation of the assessment conducted not addressing the mental health needs of the service user and the service user being subsequently discharged from the team without having a comprehensive mental health assessment, the investigation found evidence to support this”.[65]The Tribunal noted that Mr Knight reached the same conclusions with regard to Linda at pages 299-314. It also seemed to us that the two other allegations, numbers three and four, really arose from the two substantive allegations, one and two and added little to them.[66]Dr Swanzy-Derben wrote to the Claimant about the investigation report on 15 February 2022 at pages 378-9. Dr Swanzy-Derben said “it is of serious concern that as a Band 6 Nurse you did not carry out a comprehensive mental health assessment and risk assessment and discharged the service user due to poor clinical judgment. Your omission could have potentially jeopardised the wellbeing of the service user and resulted in death had the GP not made a complaint and the service user subsequently reassessed and accepted the treatment due to her presenting risks. In this respect your practice compromised the safety of the service user. The outcome of this investigation could have been referral to a disciplinary hearing due to the serious nature of the unsafe practice demonstrated….”[67]However, Dr Swanzy-Derben went on to say that what would be required was a management plan to support learning and development going forward and that this was to involve in particular redeployment to the acute wards to enable safe practice and clinical decision making as part of the team, and then management supervision including completion of further training. What was in practical terms an identical outcome was also sent to Linda.[68]The Claimant and her union representative met Dr Swanzy-Derben on 7 March 2022 to discuss this outcome. Following this the outcome letter was then amended (at pages 403-405) to include the location and duration of the redeployment, the latter being 12 months. Once again Linda received a letter in the same terms.[69]The Claimant resigned from her employment on 22 March 2022. The letter by which she did this is at pages 408-409. In it the Claimant said that she believed there had been a serious breach of contract by the Trust and that she had no alternative but to leave as a result of that breach. She wrote: “The decision to move me on a permanent basis to a role which is not a community role is a serious and fundamental breach of my contract and was the final straw which left me with no choice other than to resign. The failure of the Trust to consider my open grievance within a timely manner is also serious and fundamental breach of my contract”.[70]The Claimant continued that there were further concerns about how she had been treated which she would like to add to the open grievance. She said that the disciplinary investigation had breached the disciplinary policy and procedure, and that the investigation had arisen shortly after she had whistle-blown in the email of 23 May. The Claimant said that it was acknowledged by Dr Swanzy-Derben that the findings of the investigation suggested that there was insufficient evidence of using the child as an interpreter (although she made no reference in her resignation letter to the allegation that was found to be substantiated). The Claimant wrote: “Furthermore I firmly believe that the outcome of the investigation, which bore no relevance to the original reason for the investigation, was a deliberately punitive attempt to besmirch my professional reputation within the Trust and damage my career within the Trust”. The letter concluded with the Claimant saying that her notice period was three months but that she did not feel able to continue working because of the fundamental breach and wanted to agree a date when her employment would end. Conclusions on the issues[71]Turning back to the issues in the case, we have already explained our decision that we find that the Claimant made a qualifying, and therefore a protected, disclosure. We now turn to the detriments relied on by the Claimant in paragraph 2.1 of the issues identified by Judge Khan.[72]The Tribunal found it important that the context of these alleged detriments should be kept in mind. These were that patient X’s GP had raised concerns that, in the Tribunal’s judgement, the Respondent had no option but to investigate. The concerns about the role of X’s 9 year old child and about X being discharged without the Claimant and Linda having obtained a first-hand account from her via an independent interpreter were serious. In the Tribunal’s judgement it is inconceivable that the Respondent could or should have just dismissed those concerns without investigation or even by way of an informal discussion. Dr Swanzy-Derben took a very serious view of the allegations from the outset, as shown in her email of 21 May 2021. So did X’s GP, and there was the threat of a formal complaint.[73]We turn then to the particular detriments, referring again to the list of issues.[74]Detriment 1. It is the case that the Claimant did not receive a written reply to her email of 23 May 2021. There was no evidence from Mr Ennis as to why this was or as to any oral response. We asked ourselves whether this was indeed a detriment, and on that point we considered that, while one would normally expect an acknowledgement of receipt of this sort of communication, it is the case that the Claimant did not follow it up or ask specifically for a response when none was forthcoming. We accept the evidence of Mr Day that he did in fact take steps on the substantive issues that the Claimant had raised, and in all of those circumstances we found that the failure to acknowledge the email was not of sufficient significance to amount to a detriment.[75]The Tribunal also asked itself whether there is anything in the evidence that could form the basis of a finding that this omission was materially influenced by the Claimant having made a protected disclosure. We concluded that this was not the sort of disclosure or complaint that would be likely to cause Mr Ennis to subject the Claimant to detriment, if that is what it was. We also considered that a failure to acknowledge an email was not something that would obviously be done in response to the making of a disclosure, especially one that was in fact acted upon as Mr Day described. We therefore found that the making of the disclosure did not materially influence the omission to respond to or acknowledge the email.[76]Detriment 2. This is expressed in terms of the Claimant being suspended on 28 May 2021. There was a dispute about whether she was in fact suspended, with regard to which the Tribunal found that the Claimant was not suspended but instead was placed on authorised leave for a short period, and then was on sick leave. The former, authorised leave, is something that was permitted by the Respondent’s then disciplinary policy under the heading of “action short of suspension.”[77]We considered, however, that the matter did not really end there and that perhaps the more important question is whether the Claimant was treated in any material way differently from Linda. As to this the Tribunal found as follows:77.1 The intention was for the Claimant and Linda to be temporarily redeployed pending the investigation.77.2 We have given our findings about what actually happened regarding the Claimant and Linda. Linda was found a redeployed place but went sick and so technically sick, as we found, from that redeployed position. The Claimant was found possible places, but these were not taken up before she went sick. Although there is a degree of difference in what happened, we find that there is no material difference in the way that the Claimant and Linda respectively were treated.77.3 There was then a further degree of difference in that Linda attended the office on 24 May and was told to go home. The Claimant did not attend the office, she finished her course and then was telephoned and told to stay at home. It was clear from the Claimant’s evidence that she regarded this as being of some importance, perhaps, we thought, reflecting a preference for face to face communication rather than emails or telephone calls, but ultimately we again found that there was no material difference in the way that the Claimant and Linda were treated. Linda came into the office on the Monday after the complaint had been made when there would have been little time to arrange for anything else to happen. The Tribunal considered that there would have been no purpose in allowing the Claimant to come into the office later in the week purely in order to be told to return home.[78]To the extent that there was any difference, we have asked ourselves whether there was anything in the evidence that could form the basis for a finding that the difference was materially influenced by the Claimant’s disclosures. We found that there was not, and that everything that happened flowed entirely from the allegations that had been made and the concerns about them. Such differences as occurred were minor, and there was no reason why the Claimant’s disclosures should have influenced these.[79]Detriment 3. It is the case that Mr Ennis did not contact the Claimant on 2 June 2022. The Tribunal found that he probably contacted her on 3 June and told her what the position was. The dates varied somewhat in the evidence before us, but whether this took one or two days, we asked ourselves whether that was a detriment. We consider that the Claimant would have been concerned about the situation, but we found that a delay of one or even two days was not sufficient to amount to a detriment, especially as the Claimant knew what it was that was being investigated.[80]We also asked ourselves whether there was any evidential basis for finding that this delay was materially influenced by the Claimant’s disclosure. We found no reason to consider that it would have been a factor. Again, there is nothing before us that suggested that this would have operated in such a way as to cause Mr Ennis to delay contacting the Claimant by a day or two.[81]Detriment 4. The detriment is expressed as being the Claimant was told by HR on 2 June that she was being investigated for safeguarding. If one were to hold the Claimant to the letter of that detriment it might be said that the reason why she was told that she was being investigated is that as a matter of fact she was, but we took it that the issue was intended to mean that the Claimant was saying that she should not have been investigated. Assuming that to be the case, we refer to the important context that we have already described. We found that it was not a detriment to be subjected to investigation with regard to something that required to be investigated.[82]So far as causation is concerned in relation to the investigation, we noted that Dr Swanzy-Derben had already expressed serious concerns about the incident on 16 May, before the Claimant made her disclosure, and that her position on that remained the same throughout. We found that there was nothing in the evidence to suggest that the investigation was undertaken for any reason other than that it was necessary in the circumstances. There was no basis for a finding that the making of the disclosures was a material factor.[83]Detriments 5, 6 and 7. The position is much the same regarding detriments 5, 6 and 7 as for detriment 4. The Claimant was told that she would be temporarily redeployed. Mr Ennis wrote to her setting out four allegations and confirming that she would be temporarily redeployed, and there was a disciplinary investigation. Everything that we have said about detriment and about causation in relation to 4 applies by virtue of the same reasoning to those particular matters. In the Tribunal’s judgement, it was not a detriment for the Claimant to be temporarily redeployed, or for disciplinary allegations to be raised and investigated. These steps were necessary given the incident that had occurred. The fact that it had occurred was the entire reason why they were taken: there was no reason for the Claimant’s disclosures to have influenced them.[84]Detriment 8. This reads that the Claimant’s grievance was not investigated. In a narrow way one could say that the grievance was investigated, in that Mr Day looked into it. We considered that Mr Phelps was probably right in suggesting that the reality of the complaint was that the grievance was never taken to a formal stage, so we asked ourselves whether there was any evidential basis for finding that this was materially influenced by the Claimant’s disclosures. We found that there was not. We accepted Mr Day’s evidence that the reason why he took it no further than he did at that point was because he was awaiting the disciplinary outcome. This was what he said at the time in the email to which we have referred. His evidence, which the Tribunal accepted, continued that the Claimant then resigned, from which point he saw no reason to continue with the grievance.[85]Detriment 9. This was pleaded as being told by Dr Swanzy-Derben that she would be redeployed to Trent Ward. It is true that the Claimant was told that she would be redeployed to that ward. Again, we asked ourselves whether there was any evidential basis for finding that the decision to do this was materially influenced by the Claimant’s disclosures. As we have stated in relation to other alleged detriments, it was necessary to temporarily redeploy the Claimant. Assuming in the Claimant’s favour that moving her to a location to which she did not want to go could amount to a detriment, we found that this decision flowed directly from the findings on the complaint. The concerns about the complaint, as expressed by Dr Swanzy-Derben had predated the disclosure, and there was no basis on which we could find that the disclosure materially influenced the decision to redeploy the Claimant, or as to the location to which she should be redeployed.[86]The Tribunal then turned to the issues about constructive unfair dismissal, both automatic and under s.98. The first question is whether there was a dismissal. This involves asking whether the Respondent’s actions individually or collectively amounted to a breach of the implied term of trust and confidence. This is a term that the employer will not, without reasonable cause, act in a way calculated or likely to destroy or seriously damage the relationship of trust and confidence.[87]The Claimant relied on all of the detriments described above as breaches of the implied term. The Tribunal will not go through all of the matters again, but will summarise them at this point by saying that all of the findings that we have made in relation to the detriments are relevant here. For the reasons already given, these findings mean at the very least that the Respondent had reasonable cause for the actions taken. There was not, therefore, a breach of the implied term. This in turn means that the Respondent did not dismiss the Claimant.[88]The other issues are somewhat academic in the light of that finding, but the Tribunal accepted the Claimant resigned for the reasons given in her letter, albeit we found that these did not disclose a breach of the implied term.[89]If there had been a dismissal, was the reason or principal reason for it that the Claimant had made a protected disclosure? That involves asking first, did the Claimant make a protected disclosure? As we have already said, we found that she did.[90]Second, was the reason or the principal reason for the dismissal, if there was one, the making of the protected disclosure? In the present context, this means the reason for the Respondent doing the things relied on as breaches of the implied term. Our findings about causation of the detriments mean that nor could the reason for the dismissal be the making of the protected disclosure. We have found that these things were done for reasons other than the making of the disclosure.[91]If s.98 were to come into play we would ask whether there was a potentially fair reason, and was it reasonable or unreasonable for the Respondent to treat this as a reason for dismissing the Claimant. Again, in the context of a constructive dismissal (if there was such), this involves considering the Respondent’s actions that led to the Claimant’s resignation.[92]As to the reason or principal reason for the dismissal, we found that the Respondent’s reason for doing as it did in relation to the investigation; in relation to requiring the Claimant not to attend work; and then seeking redeployment whilst the concerns about the visit that took place on 16 May; all amounted to a reason related to capability. This is one of the potentially fair reasons.[93]If there was a dismissal, were the actions of requiring the Claimant not to attend work, and then proposing to redeploy her, within the range of reasonable responses? We found that they were, because the failing that had been identified was serious and had to be addressed in the interests of patient safety. Redeployment to work in a team as opposed to in the community for a period of 12 months was, we found, reasonable. In the Tribunal’s judgement it was in no sense a harsh response.[94]The remaining substantive issues arise under the complaints of direct discrimination because of age and of victimisation.[95]The complaint of discrimination because of age involves a comparison with the Claimant’s colleague Linda. We have found that there was no material difference in treatment as between them. Furthermore, there was no material difference that we could identify in their age. On the latter point, the Tribunal noted that we did not have evidence of Linda’s actual age, but only the Claimant’s impression that she was about 5 or 10 years younger. We considered that an age difference of 5 to 10 years as between an individual aged 49, and another believed to be aged around 39 to 44, in the particular circumstances scarcely amounts to a difference.[96]The Claimant suggested that she was nearer retirement age than Linda was, but the Tribunal considered that that did not seem to be a relevant consideration for someone aged 49 and could not see any reason why that consideration would be of any importance or relevance to the Respondent. There was no reason that we could identify why the Respondent would treat the Claimant less favourably than her colleague of the same grade because of a small age difference between them.[97]The Tribunal therefore concluded that there was no basis on which it could properly find, in the absence of another explanation, that any difference in treatment as between the Claimant and Linda (if there was a difference) occurred because of age.[98]As to the complaint of victimisation, we have already found that there was no basis in the evidence before us on which we could find that the Claimant did a protected act and so the complaint of victimisation fails for that reason. Also, in any event we have found that there was not a failure to investigate the grievance, which is the alleged detriment, and so the victimisation complaint would additionally fail for that reason.[99]Finally, there was some argument addressed to us on the question of time limits, but given our findings on the merits we did not consider it necessary or proportionate to reach a decision on that particular issue.[100]For the reasons that we have given the claim is therefore dismissed.