T C R Pitblado v Guy’s and St Thomas’ Foundation: 2300108/2023
EMPLOYMENT TRIBUNALS
Case No 2300108/2023
Between
Toby Christopher Roman PitbladoClaimantGuy’s and St Thomas’ FoundationRespondent
Before
Judge M AspinallDate 21 December 2024
JUDGMENT
The claim of automatic unfair dismissal is not well founded and is dismissed. The claim of constructive unfair dismissal is also not well founded and is dismissed. The claims of detriment on the grounds of having made protected disclosures are not well founded and are dismissed. Overall, the Tribunal concludes that the complaints presented in this case are not made out. The claims fail in their entirety for the reasons set out in detail in this Judgment.
REASONS
[1]The Claimant, Mr Toby Pitblado, was employed by the Respondent, Guy's and St Thomas' Foundation, as a Financial Accountant from 30 October 2019 until his resignation on 2 October 2022. The Respondent is an independent charity which supports Guy's and St Thomas' NHS Foundation Trust hospitals in London.[2]The Claimant's line manager was Ms Maggie Hou. Mr Stuart Snowden was the Respondent's Director of Human Resources. Mr Peter Webb was Ms Hou's line manager. Mr Moray McConnachie was the Respondent's Executive Director of Operations.[3]In April 2022, the Claimant received a pay rise as part of an annual salary review. He subsequently claimed this did not adequately reflect his job performance as required by his contract.[4]On 6 July 2022, the Claimant sent an email to all staff at the Respondent, approximately 165 individuals. The email contained criticism of various aspects of the Respondent's practices, including diversity, equality and inclusion initiatives, recruitment, salaries, and training sessions. It named certain senior individuals including Mr McConnachie and Mr Andy Radcliffe.[5]The following day, 7 July 2022, the Claimant attended a meeting with Ms Hou, Mr Webb and Mr Snowden. This was described by the Respondent as an informal disciplinary meeting. The Claimant was informed that some staff had been offended by the email.[6]Later that day, the Claimant was suspended pending investigation into potential misconduct. He was advised he should not contact other staff during the suspension without authorisation.[7]The Respondent decided to first undertake an investigation under its whistleblowing policy into the issues raised in the Claimant's email. This was conducted by an external consultant, Ms Eleanor Ashby of Withers LLP law firm. The Claimant argued Ms Ashby was not sufficiently independent.[8]In late September 2022, after the conclusion of the whistleblowing investigation, the Claimant was notified that no qualifying protected disclosures had been identified. The Respondent stated it would now commence a disciplinary investigation into potential misconduct by the Claimant.[9]On 16 September 2022, the Claimant resigned from his employment, stating his last day would be in December 2022 after serving his contractual notice period. He asked whether he could leave immediately with payment in lieu of notice. The Respondent did not agree to this request.[10]The disciplinary investigation continued after the Claimant's resignation. The investigating officer was Mr Luke Watkeys, also an external consultant. The Claimant disputed whether Mr Watkeys was independent.[11]On 2 October 2022, the Claimant resigned again with immediate effect, arguing he had been constructively and unfairly dismissed due to the Respondent's conduct and breaches of his employment contract.[12]The Claimant presented claims to the Employment Tribunal alleging automatic unfair dismissal and detriments on the grounds of having made protected disclosures. He also claimed constructive unfair dismissal.[13]The main issues in dispute were whether the Claimant made protected disclosures, whether the Respondent's actions amounted to detriments or breaches of the implied term of trust and confidence, and whether the Claimant was dismissed or resigned.[14]The Tribunal convened a hearing which commenced on 16 July 2024. The hearing was adjourned and reconvened in person on 21 and 22 November 2024. The Tribunal deliberated in chambers on 25 and 26 November 2024 having received written closing submissions from the parties.
The complaints
[15]The Claimant presented claims to the Employment Tribunal alleging automatic unfair dismissal contrary to section 103A of the Employment Rights Act 1996. He argued that the reason or principal reason for his dismissal was for making protected disclosures.[16]The Claimant contended he had made a number of protected disclosures in his open letter emailed to all staff on 6 July 2022. These included disclosures relating to breaches of equality law regarding diversity initiatives and recruitment practices. He also claimed he disclosed potential breaches of charity law regarding the Respondent's Objects and political activity.[17]In addition, the Claimant argued he was subjected to a number of detriments by the Respondent on the grounds of making protected disclosures, contrary to section 47B of the Employment Rights Act 1996. The alleged detriments included his suspension on 7 July 2022 pending investigation and being placed under investigation.[18]The Claimant further presented a complaint of unfair dismissal contrary to sections 94 and 98 of the Employment Rights Act 1996. He contended the Respondent's conduct amounted to a fundamental breach of the implied term of trust and confidence such that he was entitled to Mr Toby Christopher Roman Pitblado -v- Guy’s and St Thomas’ Foundation [URN 2300108-2023] 21-Dec-2024 Judgment Page 2 of 14 resign and treat himself as constructively dismissed.[19]It was the Claimant's case that the investigation conducted under the Respondent's whistleblowing policy was not reasonable or impartial. He disputed the independence of the appointed investigating officer, Ms Eleanor Ashby.[20]The Claimant also argued the disciplinary investigation commenced after his resignation was predetermined and tainted by bias. He objected to the independence of the investigating officer, Mr Luke Watkeys.[21]In addition, the Claimant alleged the Respondent failed to provide him with contractual performance-related pay increases in breach of his employment contract.[22]The Claimant sought a declaration from the Tribunal that he was automatically and constructively unfairly dismissed. He also sought compensation for injury to feelings and financial losses arising from the Respondent's breaches of trust and confidence.[23]The Respondent did not accept the Claimant's account in a number of key respects. It was the Respondent's case that the Claimant had not made any qualifying protected disclosures. His open letter contained unsubstantiated allegations rather than disclosures of information tending to show breaches.[24]The Respondent contended the Claimant was treated fairly and reasonably at all times. There were no acts of detriment in response to any purported protected disclosures. It denied the Claimant was constructively dismissed, arguing there were no repudiatory breaches of his employment contract.[25]It was the Respondent's position that both the whistleblowing and disciplinary investigations were conducted in a procedurally fair and impartial manner. The appointed investigating officers were suitably independent.[26]The Respondent maintained the Claimant's pay reviews were conducted properly in line with its contractual obligations. His salary increases were in accordance with its standard practice and policy.[27]In light of the above, the Respondent invited the Tribunal to dismiss the Claimant's complaints in their entirety. It contended there were no breaches of employment law or the Claimant's contract of employment.[28]The Tribunal was therefore required to determine the claims and issues in dispute between the parties, make findings on the relevant factual evidence, apply the relevant legal principles, and decide whether the complaints were made out. Issues for the determination of the Tribunal[29]The Tribunal notes that the following issues were identified for determination at a Preliminary Hearing before