Ms C McCormack v Gold Care Management Services Ltd: 2300213/2023

EMPLOYMENT TRIBUNALS

Case No 2300213/2023

Between

Ms C McCormackClaimant

Gold Care Management Services LtdRespondent

Before

Employment Judge Dyal sitting with NLMs Ms Cook

In person for claimant

Miss L Hatch (instructed by Counsel) for respondent

Date 10 September 2024

JUDGMENT

[1]The claims fail and are dismissed. JUDGMENT having been sent to the parties and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, written reasons are provided as follows.

REASONS

[1]This matter came before the tribunal for its final hearing.

[2]Unfortunately, the case arrived at the final hearing without an agreed List of Issues. Accordingly, it was necessary to produce one at the outset of the hearing. We went through the claim form and the Claimant’s Scott Schedule methodically, discussed both and produced an agreed, consolidated document identifying the complaints: Whistleblowing disclosures

[1]Did C make a qualifying disclosure within the meaning of s.43A ERA 1996? In particular:a. Was there a disclosure of information?

b. Did C believe that the disclosure was made in the public interest?

c. If C held such a belief, was it reasonably held?

d. Did C believe that the disclosure tended to show one or more of the matters listed in sub para a) to (f) of s.43B ERA 1996? and

e. If C held that belief, was it reasonably held?

[2]Was the disclosure made in a manner that accords with the scheme set out in ss.43C-43H ERA 1996?

[3]The alleged disclosures are: i) 12th September 2022 1. I had a conversation with the Group Operations Director of the First Respondent, Phil Smith, and mentioned what I believe and later confirmed to me by the transition Manager of the bullying tactics shown towards he, by two members of the support team of the First Respondent During my conversation I requested to receive further clarification regarding email monitoring, GDPR regulation, the removal of staff flies and the actions against the Environmental Health Report and internal Quality Audit. 2. Email to Phil Smith repeating essentially the above [p199]. ii) 16th September 2022 I had a conversation with the Auditor, Hassan Abdi, of the First Respondent who explained that he has concerns, regarding the recording on the system, as it indicates the weight loss of residents continues, due to the fact of no permanent Chef in post and meals being prepared by the Kitchen Assistant. I insisted that this should be reported to his line manager immediately iii) 30" September 2022 / PID 2 SS I had a conversation with the Regional Manager, Georgio Loizou, and we discussed in detail the failings of GDPR, due to the increased amount of documentation that is being kept in drawers and open filing cabinets as there was no secure place to store them. Several emails had already been sent, requesting for a company to collect and destroy confidentially, but has been previously ignored (the emails are not said to be protected disclosures themselves). iv) 6th October 2022 Email [431] responding to an email which claimed that the Kitchen door, an action against the EHO report, had now been fixed. I requested clarification, as to the best of my knowledge, witnessed by myself and Deputy, that was not the case and it remain unable to shut firmly A Health & Safety concern, I had to raise to ensure that we are not in breach of any rules or failure in compliance. v) 22 October 2022 The email, 22.10.22, 21.19, p641: to Regional Manager, Quality Team, Deputy Manager – Inconsistency of records documented by care staff on PCS system. (N.b. The Internal messages to Nursing staff via PCS referred to in the Scott Schedule are not relied upon) vi) 23 October 2022 Email [656-7] to Regional Manager, Quality Team, Deputy Manager – incorrect reporting on a resident care plan, inconsistent with CQC notification submitted, compliance regarding migrant workers and right to work vii) 24th October 2022 I had a conversation with Regional manager, Georgio Loizou, regarding the unannounced HR visit, and questioned if the motive involved a unit manager/senior lead (C cannot recall her name). If this was the case, to add caution. I explained that the unit manager has spoken to the Business manager and reported wrongdoing of medication administration and its disposal carried out by the Deputy and ,another member of staff a few weeks ago and that the unit manager, felt threatened and bullied. (N.B. The reference to a nurse in the Scott Schedule was an error). viii) 26/10/2022 Orally to Mohammed Rohman that a particular employee who was sponsored by the Respondent was also listed as an agency worker for the Respondent. ix) 27/10/2022 Orally to PCS Trainer, Alex Landt, that the records on the system showed possible indications of neglect or abuse. Detriment – s.47B ERA 199

[4]Did R subject C to a detriment on the grounds that she made a protected disclosure? The alleged detriments are: i. 16/09/2022 by the Support Office No access to Care HQ or training given. ii. 22/09/2022 by the Support Office No support or continuation of onboarding following departure of Transition Manager. iii. 19-30/09/2022 by Quality Assurance Manager, Deputy Manager Exclusion of emails and withholding information. iv. 10/10/2022 by Head Office Recruitment Not informed or later given any feedback following HR audit. v. 11-16/10/2022 by Regional Manager Calls and emails being ignored. vi. 17/10/2022 by Chief of Care Quality & Governance Manipulative behaviour, with passive aggressive comments towards me. vii. 21/10/2022 by Regional Manager and Operations Manager. Chief of Care Quality & Governance, Associate Director of Care, Regional Manager Withdrawn from Health & Safety training to attend urgent meeting. 4 weeks to complete action plan on QAT. Unfair [un]achievable tasks given, with constant change and inconsistency. viii. 24/10/2022 by Regional Manager, HR advisor, Deputy Manager, Support Office Excluded from Meetings ix. 26/10/2022 by Support Office No help or support given during Recruitment Day. x. 26/10/2022 by Recruitment Ignored my questioning regarding Migrant workers. xi. 28/10/2022 by Associate Director of Care, Quality & Governance, Deputy Manager. Chief of Care Quality & Governance, Deputy Manager, Regional Manager Excluded from 7.am meeting. With deliberate intentions to avoid speaking with me (Ms Ford and Ms Landt) Abusing position of Seniority with behaviours to cause major embarrassment and upset and a feeling of low self-worth (Mr Cheekory) Undermining my work and refusal to explain current incidents and aggressive behaviour shown towards me in the morning (Mr Loizou). Automatic Unfair Dismissal – 103A ERA 1996

[5]Was C dismissed? The possibilities are:a. by R by express words of dismissal on 28/10/2022 (s.95(1)(a) ERA 1996) ;

b. by R by an ultimatum on 28/10/2022 of resign or be dismissed that amounts in law to a dismissal (s.95(1)(a) ERA 1996);

c. by C’s resignation in circumstances in which she was entitled to terminate by reason of R’s conduct (s.95(c ) ERA 1996); alternatively;

d. no dismissal.

[6]Did C’s employment terminatea. without notice (s.97(1)(b) ERA 1996) by reason of her resignation with immediate effect on 28/10/2022?

b. with notice (s.97(1)(b) ERA 1996) by reason of her letter dated 29/10/2022.

[7]What was the effective date of termination? Was ita. 28/10/2022; or

b. 28/11/2022 as suggested in C’s letter dated 29/10/2022.

[8]Did C resign in response to a fundamental breach of contract by R?a. C relies upon breaches of the implied duty of trust and confidence, in particular i. The detriments set out above; and ii. R’s conduct on 28/10/2022.

b. Did C resign in response to the alleged breaches?

c. Did C waive the breaches and affirm the contract of employment?

[9]If C was dismissed, was the reason or principal reason for C’s dismissal that she made a protected disclosure – s.103A ERA 1996? Documents 3. In the months leading up to the hearing there was a lot of correspondence between the parties in relation to case preparation including requests for specific disclosure from the Claimant. Judge Heath refused to make an application for specific disclosure in advance of the hearing. It is sufficient to say that at the outset of the hearing, on inquiry from Judge Dyal, the Claimant indicated that she did not pursue any application for specific disclosure and was content to proceed with the documents she had. 4. There was an agreed bundle before us running to 978 pages. Witnesses 5. The following witness gave evidence:a. The Claimant;

b. For the Respondent: i. Dipender Kaur Sehgal, HR and Workforce Director ii. Julia Landt, Associate Director of Care, Quality and Governance and later Director of the same iii. Jennifer Rollings, Senior Policy Compliance Officer iv. Alex Landt, Digitisation Assistant Manager v. Mohammed Rohman, former Regional Recruitment Co-Ordinator (later Senior Recruiter) vi. Georgio Loizou, former Regional Manager (written evidence only). Setup of the hearing 6. There were some unfortunate errors with the setup of the hearing: a. The hearing was long since listed by video-link and that is what the parties rightly expected. The afternoon before the first day of the hearing the tribunal’s administration appeared to overlook this and told the parties the hearing was in person. Accordingly, the Claimant said she would attend in person. However, the Respondent indicated that it could not; b. The message communicated to Acting Regional Judge Khalil by the tribunal’s administration was that the Claimant was unable to attend a video-hearing from home, whilst the Respondent was unable to attend the tribunal. He therefore directed that the hearing be conducted in a hybrid manner on day one, with the Claimant attending the tribunal and the Respondent attending by videolink. The idea was for the trial judge to decide the best format for the remainder of the hearing from there.

c. In the meantime, the tribunal panel had been told by the tribunal’s administration that the hearing was in-person. However, one Non-Legal Member was unable to attend in person so she was due to attend remotely.

d. The above is what was communicated to Employment Judge Dyal the afternoon before the hearing. He took the view that having a hearing with one party remote, one in-person, part of the panel in-person and part of the panel remote was a highly undesirable setup. Accordingly, he directed that the hearing be by video-link. Since he was told the Claimant could not attend such a hearing from home, he arranged for her to join the videohearing from one of the tribunal’s hearing rooms. This he understood to be a helpful accommodation of the Claimant’s needs.

e. Thus on day 1 of the hearing, everyone joined by videolink, but the Claimant alone did so from a tribunal hearing room.

f. There was a delayed start to the hearing because Employment Judge Dyal discovered at around 10am, that both Non Legal Members assigned to the case were on the employers’ panel. He raised this with the listing team immediately and this issue was resolved by changing the constitution of the panel, albeit at the cost only of some delay.

g. The technology worked well on day 1 and the hearing was effective. However, at the end of the day 1, Employment Judge Dyal checked with the Claimant if she continued to want to attend the hearing from the tribunal. At this point both sides made clear that this was not something the Claimant had asked to do. She had been expecting to, and was ready to, attend the hearing from home. She had simply indicated she would attend in person when she was told, the afternoon before the hearing, that it was in person. Employment Judge Dyal explained why the hearing had been set up as it had, and apologised to the Claimant that she had needed to attend the tribunal. He indicated that she could of course join the hearing from home on subsequent days and that is what she did. The evidence and the closing submissions 7. All witnesses were cross-examined by the other party at some length (save for Mr Loizou who did not give evidence). The main focus of the Claimant’s case questions was that she had not been supported. There was almost no emphasis or reference to her case that she had been subjected to detriment/dismissed because she had made protected disclosures. Employment Judge Dyal reminded the Claimant of her case periodically and suggested she may want to ask witnesses about it. Nonetheless, the focus was on support and the perceived lack thereof. 8. At the close of the evidence, the Respondent’s counsel produced a skeleton argument. We adjourned to give ourselves and the Claimant time to read it. Counsel made oral closing submissions thereafter. The Claimant made an impassioned and emotional closing speech, largely focussing on a perceived lack of support in the job. Findings of fact Introductory matters 9. The Respondent is part of the Gold Care Homes Group, a care provider. It owns around 34 homes. It acquired the Amy Woodgate House care home from the local authority in March 2022 (‘the Home’).

Findings of fact

[10]An internal Quality Assurance Audit (QAA), designed to mirror a CQC assessment, was conducted in July 2022. The overall rating was ‘Requires Improvement’. A turnaround action plan was created. The idea was to periodically conduct further QAAs to assess the home’s performance. QAA audits were carried out by the Quality Assurance Team.

[11]On 11 August 2022, the Respondent arranged for an external auditor to carry out a mock Environmental Health Office inspection at the Home. The outcome was truly dreadful. A score of 70% is a ‘red fail’ i.e., the worst category. The Home scored 23%. The report set out a litany of fundamental failures like “very poor hand washing techniques, especially in a care home… I had to remind them many times to wash their hands in between different tasks like cleaning and touching raw food”. The following table extracted from the report, assessing cleaning, gives the general idea of how bad things were:

[12]Progress on the turnaround plan was monitored by a Quality Assurance Tracker (QAT).

[13]The Respondent has a large corporate machinery, with centralised Quality Assurance, Compliance, HR and Recruitment departments. There was a lot of senior management focus and a lot of extra resource given to the Home during this transitional period.

[14]There was a Transition Manager, Ms Sunita Aucharaz, in the home who temporarily filled the role of Home Manager. The idea was that she would work alongside the new Home Manager when appointed and hand over to them before exiting to her next role in the group. The Home also had a Deputy Manager: Charlotte Ford. She was a long-serving and experienced employee. She knew how things worked within the Respondent’s business.

[15]The Home Manager of a care home is a senior job that carries a great deal of responsibility in relation to vulnerable residents, staff and otherwise. In this setting, the Home Manager had overall responsibility for the home at the local level, but reported to a Regional Manager. It was the Home Manager’s responsibility to see that, and ensure that, the other staff working at the home fulfilled their responsibilities and completed the necessary paperwork to show that they had. Accordingly, the Home Manager waws required to conduct a number of different types of audit at different intervals, including, most importantly, the Manager’s Daily Audit (‘Daily Audit’).

[16]The Daily Audit was completed on a standard form that posed questions that the manager had to enter a response to. Mostly the questions required a yes/no answer but some required a short narrative response. These ranged over the essentials of a well run home. The Daily Audit was to be uploaded to the system so it could be reviewed by more senior management and the information within it used to inform compliance analyses. The Claimant’s appointment and early days of employment

[17]The Claimant was employed by the Respondent as Home Manager from 5 September 2022. She was recruited via an agency. The employment was subject to a 3 month probationary period. The Respondent had a probation policy in typical terms. The Claimant’s salary was £70,000 reflecting the seniority and responsibility of the role.

[18]We find that the Claimant formed an almost immediate negative view of the Respondent.

[19]The Claimant had a three-day corporate induction in her first week. She did not approve of the fact that the induction was both for new starters and existing employees transferring to new roles, as there would therefore be differing levels of familiarity with the Respondent’s systems and procedures. During the induction, the Claimant was given a lot of information and it is clear that she struggled to process all of it. The style of learning did not suit her. She would have liked to be given a manual explaining in one place how everything worked rather than being told by a variety of people how things worked.

[20]On the second day of the induction the Claimant met Nicky Romang, Regional Manager. The Claimant formed an immediate negative impression of her. She asked Ms Romang what the plans were following her induction. Ms Romang said she did not know and did not even know what she herself was doing having recently started.

[21]A number of things happened in the induction that concerned the Claimant:a. During a presentation to demonstrate how to access the Respondent’s IT system, Ms Samantha Varnals, Learning and Development Manager, logged onto the manager’s account for the Home. The Claimant saw that there were 1803 unread emails. She was concerned both that Ms Varnals could access the account and by the number of unread emails.

b. The Claimant was told that only passwords given by support / IT could be used to access the system, rather than a user-generated password. She was concerned this meant passwords were not private. Claimant’s first days at the Home

[22]On 8 September 2022, the Claimant went to the Home for the first time. She telephoned on the way to speak to Ms Aucharaz. The Claimant had the impression that Ms Aucharaz did not know who she was and was not expecting her. She was unimpressed.

[23]At the home the Claimant observed a meeting between Ms Aucharaz and Ms Strevens:a. Ms Strevens questioned Ms Aucharaz about matters such as condiments not being on tables, staff uniforms and badges;

b. There was a discussion about the kitchen as the chef had resigned;

c. The Claimant thought that Ms Strevens’ tone and manner towards Ms Aucharaz was rude, unprofessional and bullying, and that Ms Strevens was abusing her authority. We accept that this is what the Claimant made of it but her description of the meeting is general and quite vague. We did not think we can rely on the Claimant’s judgment of what is rude/unprofessional/ bullying, since in the course of her evidence we have had a lot of exposure to it and disagreed with much of it. For instance, she is of the view that it is disrespectful to the home manager for senior management to attend the home without notice. We do not agree: it is plain that senior management need to be able to attend the home without notice and that there are myriad reasons why.

d. At one stage, Ms Strevens reminded Ms Aucharaz that her probation review was the following week.

[24]Later, the Claimant saw Ms Dipinder Sehgal, HR and Workforce Director, take a staff file from an unlocked cabinet. She was concerned that the file was in an unlocked cabinet, that Ms Sehgal took it at all, and further, that (and this was an assumption the Claimant made) Ms Sehgal took it off site. We accept that the cabinet was not locked but should have been. However, we do not follow the other parts of the Claimant’s concern. We see nothing amiss about the HRD looking at staff files, whether on or off site. (In fact we accept Ms Sehgal’s evidence that she did not take the staff file off site but read it in another room). Ms Sehgal was looking at the file to consider a TUPE issue in relation to the employee.

[25]On 9 September 2022, the Claimant attended a meeting with Ms Aucharaz and Rosa Rodrigues, Quality Auditor. The Claimant thought Ms Rodriguez was rude to Ms Aucharaz, by saying ‘why is the Unit Manager still doing medication”, “she is not capable to do medication”, “why”, “why”.

[26]The Claimant reflected over the weekend that there was a “toxic culture”. This was a hasty and heavy conclusion to reach with such limited experience.

[27]At the Home, there was an office and a computer for the Home Manager. These were being used by Ms Aucharaz when the Claimant arrived. the Claimant shared them with her although, on her evidence, “out of respect” she allowed Ms Aucharaz to have priority. She therefore had limited access to the computer and the office in the early days.

[28]One of the Claimant’s complaints is that she did not have a proper handover. It seems that the overlap between her and Ms Aucharaz did not work as intended. Whereas we would expect them to have worked very closely together, with the Claimant increasingly taking over the reins, this did not happen at least not to the extent it needed to. Rather, the Claimant was letting Ms Aucharaz use the office and computer as Ms Aucharaz needed to, while working around her.

[29]On the other hand, it was clearly not entirely the Claimant’s fault. Ms Aucharaz should have been handing over to her. And, there was no clear timeframe in place, at least none the Claimant was told of, as to how long Ms Aucharaz would be at the Home. Nonetheless, the Claimant was not as assertive in getting the knowledge and information that she needed from Ms Aucharaz as we would expect for a Home Manager.

[30]The Claimant likewise did not find Ms Ford helpful. Without suggesting this was entirely the Claimant’s fault, there was a surprising lack of assertiveness on her part in relation to Ms Ford. It was part of her job to manage Ms Ford. Putative public interest disclosure (PID) 1: 12.09.2022

[31]On 12 September 2022, Mr Phillip Smith, Group Operations director, attended the home to meet with the Claimant. She told him that she:a. had seen 1803 unread emails in the manager’s inbox;

b. did not feel safe using the manager’s email address because other had access;

c. was not happy using her personal mobile for business;

d. did not appreciate how she had seen Ms Aucharaz being treated by Ms Strevens and Ms Rodrigues. Said Ms Rodrigues was rude and she would not be able to work with her if that is way she talked to others.

e. questioned outstanding actions on the audit as far back as May 2022;

f. said she did not have access to agency usage, hours and costs.

[32]The Claimant found Mr Smith a sympathetic ear. Mr Smith among other things told the Claimant he would see what he could do regarding the mobile phone and to send an email to IT. He would look into the agency issue.

[33]The Claimant emailed Mr Smith that evening:a. Repeated the concerns about the email account. She said: “I do have concerns regarding the safety factor, GDPR regulations: who, also have access… advise how to manage the current email box as 1900+ emails unread”;

b. Said she was concerned about her personal information and data shared when using workplace app;

c. Requesting a work mobile phone. Putative PID 2: 16.09.22

[34]On 16 September 2022, Mr Hassan Abdi, Quality Assurance Auditor, carried out a further QAA at the Home. He had a discussion with the Claimant. One of the things he said was that he was concerned that the recordings on the system indicated residents were continuing to lose weight and this was due to the fact there was no permanent chef in post and meals were being prepared by the kitchen assistant. The Claimant said he should report that to his line manager.

[35]Mr Abi shared the initial feedback of the audit with the Claimant on the same day. She added some comments including that a chef had been interviewed and it was expected that he would be on board by the end of October.

[36]The QAA rated the home as ‘requiring improvement’ in 4 out of the 5 criteria assessed, while scoring ‘good’ against the ‘caring’ criterion. The overall ratings were as follows:

[37]The QAA identified many short-comings of many kinds, many along the lines of the kind of things the Claimant relies upon in some of her putative PIDs:a. Key tabs on CMT (compliance monitoring tool) that were out of date

b. PCS records/charts/risk assessments were not completed sufficiently

c. Duty of candour not being complied with

d. Lessons learned following accidents not carried out

e. Issues with medication record keeping

f. Two patients with bed rails but only a risk assessment for one of them

g. Eight residents who did not have but should have had risk assessments

h. Controlled drugs were not recorded appropriately with a discrepancy in relation to morphine

i. No evidence the home manager was overseeing the cleaning schedules

j. Missing documentation on audit of 3 staff files and no record that original documentation had been checked

k. Significant inconsistencies in the cleaning, temperature and delivery charts;

l. no copy of the GCH policies in the main kitchen;

m. The dining experience was not to the required standard, there was “a kitchen assistant and 2 kitchen assistants working in the kitchen”, the home did not have a chef at the moment, the menu was not followed and all residents were given 1 option at lunch time. “The experience poor and a lot of work is required in this area.” Alleged detriment 1: 16.09.22

[38]The Claimant complains that on 16 September 2022, the support office denied her access to Care HQ - a piece of CRM software and that she was not trained on it. It is a tool for the sales aspect of the Respondent’s business, i.e., selling places in the home. In her witness evidence she says she was told to expect some emails in relation to CRM which did not arrive. She made inquiries and IT told her that she did not yet have access to Care HQ. We accept she did not have access to Care HQ on this date but not that she was denied access. It simply had not been set up yet.

[39]The wider evidence shows that significant efforts were made to assist the Claimant with Care HQ:a. Zak Herring, Customer Relations advisor, assisted the Claimant with login details to CareHQ on 26 September 2022;

b. Mr Herring had training call with the Claimant on 27 September 2022;

c. Remote training was arranged for the Claimant on CareHQ to take place on 30 September 2022. She did not attend. This was because Mr Loizou was in the home to support and a staff meeting was arranged and she wrongly assumed that it was no longer needed following the training with Mr Herring.

d. Mr Herring went to the home on 4 October 2022 to assist with CareHQ. This was arranged by Victoria Sives the head of Sales and Customer Relations.

e. On 10 October 2022, Ms Sives, praised the Claimant use of CareHQ in an email to her and senior management.

[40]In around 19 September, a new Regional manager, Mr Loizou, commenced employment. The Claimant met him twice briefly in the week commencing 19 September 2022. They had their first proper meeting on 30 September. Mr Loizou attended the home around twice a week for a variety of purposes and the Claimant was not always there. She saw him around once a week.

[41]On 21 September 2022 it was announced that Ms Aucharaz would leave the home the following day. She moved on to her next assignment with the Respondent. Alleged Detriment 2: 22 September 2022

[42]The Claimant says she had no support or continuation of onboarding following the departure of the Transition Manager on 22 September 2022. We do not accept that. The evidence shows that she continued to be supported and onboarded. Our findings identify further support and further onboarding both on and after this date.

[43]We note that the Scott Schedule states that the Claimant lost access to the systems on this date for a time but she confirmed in evidence that she was not alleging this related to her conversation with Mr Smith (putative PID 1 – the only putative PID that had taken place by this stage). If she had not made the concession we would in any event, on the evidence, have so found.

[44]On 22 September 2022, Ms Landt went to the Home and met the Claimant for the first time. She welcomed her, answered the Claimant’s questions about the organisational structure, offered to answer any systems/process questions the Claimant had, discussed the QA Tracker, and said she would visit weekly and offer support as needed. This was very supportive, although the Claimant does not see it.

[45]Also on 22 September Ms Sives, emailed the Claimant in a supportive way. She pointed out various issues to address at the home, she sent the Claimant a link to the Occupancy Strategy Material folder and offered to organise training for the house keeping team.

[46]On 26 September 2022, the Claimant asked Ms Varnals for help accessing PCS, MLC and Radar. She received an immediate response from Sandip Panchal, Associate Director of IT and Systems, telling her who to contact in each case. In her submissions, the Claimant took issue with the fact she had needed to liaise with a wide range of people during her employment with the Respondent, she estimated about 30. This is an example of where the necessary contacts were number of people rather than a single person. To us this is simply unremarkable in a medium to large business such as the Respondent’s.

[47]On 26 September 2022, Ms Landt attended the Home again to monitor compliance for the turnaround tracker. She highlighted many issues in an uncompromising way, for instance:a. No weekly medication audit had been undertaken;

b. There were no dining audits completed/saved on CMT from 9 September 2022;

c. The audits and weekly weights were missing;

d. The food and fluid intake records were not detailed enough. Alleged detriment 3: 19 – 30 September 2022

[48]It is unclear what information the Claimant says was withheld from her or what emails she was excluded from. She does not say in her statement, claim form or Scott Schedule. When asked about it in cross-examination, the only matter the Claimant identified was that Ms Landt had asked Ms Ford to do things without copying her (the Claimant) into the email. We find that did happen but accept Ms Landt’s (unchallenged) evidence it was once. However, in any event the Claimant raised this with Ms Landt and on 29 September 2022 Ms Landt, on the Claimant’s account, willingly agreed to copy the Claimant in when making a request of Ms Ford.

[49]On 28 September 2022, the Claimant met Jennifer Rollings, Snr Policy and Compliance officer, at the Home for a one to one induction meeting. This was further support and on-boarding. She explained to the Claimant how to do various tasks including audits and how to use the compliance monitoring tool. In relation to audits this included a briefing on the home manager’s Daily Audit. In the main this was material that had been covered in the original induction; but the Claimant had not absorbed it and so she was given further induction.

[50]The Claimant told Ms Rollings that she did not have access to all the systems she needed to. Ms Rollings advised the Claimant to do tasks on paper and then scan them into the system in due course. Ms Rollings followed up with Ms Samantha Varnals in relation to system access who in turn emailed the Claimant with helpful information. Ms Rollings made a general offer to be a point of contact for the Claimant if she needed anything. This was very supportive.

[51]Up until this point the Claimant had not appreciated that the Daily Audit and the record of the ‘Take 10 at 10’ meeting were different things. She had been uploading the Take 10 at 10 and not completing the Daily Audit. Ms Rollings set her straight about that. There was some overlap between the matters those respective dealt with but they were by no means co-extensive and served different purposes.

[52]On 29 September 2022, Mr Loizou emailed the Claimant noting she had not completed the QA tracker update for the week. The Claimant responded asking that when they met, they go through what needed to be provided and when. Antipathy to colleagues

[53]It is clear as early as 29 September 2022, the Claimant had taken against a significant number of her colleagues (including Ms Landt). She had built a close relationship with Josie Button, administrator, and we have before us text messages exchanged between them in which the Claimant refers to colleagues in a very disparaging way and in places in very derogatory terms (which she apologised for in the course of the hearing). Putative PID 3: 30 September 2022

[54]The Claimant met with Mr Loizou on 30 September 2022. She raised a number of matters, including:a. During her induction there had been many unread emails in the manager’s inbox;

b. She asked for advice on how to manage this especially where others had access to the inbox, folder and drives on her computer. The Claimant was aware that at the least Ms Aucharaz and Ms Varnals could access the manager’s account;

c. She said Charlotte was unsupportive and reported to Julia Lindt not her;

d. She raised health and safety concerns about the kitchen. It is not clearly in evidence specifically what but we infer it was about the ongoing lack of a chef.

[55]In the meeting the Claimant and Mr Loizou updated the Turnaround Action Plan. After the meeting the Claimant messaged Mr Loizou as follows: “Just wanna say ‘Thank you’ for your support – simply da best!!”. He responded “My pleasure we will make the home great again”.

[56]Also on that day Mr Loizou emailed the Claimant a table setting out what audits that had to be carried out at home level together with frequency of them. This was supportive and gave the Claimant the information she had asked for.

[57]On 5 October 2022, the Claimant emailed Ms Varnals, trying to postpone her attendance on a level 3 H&S course on the basis that she was busy and Ms Ford was attending in any event. Ms Varnals sent her what we think was a polite message that encouraged her to attend the course as it was only arranged annually. She was told the trainer was running late so she could attend to her work beforehand and that Ms Ford was on a different course. The Claimant’s take on this was that Ms Varnals was ‘becoming difficult’. We do not agree. Her message was benign and appropriate.

[58]Also on this day the Claimant completed a Manager’s Daily Audit.

[59]On 6 October 2022, Ms Rollings emailed the Claimant to say that when completing the new admissions (i.e., new residents in the home) tracker it had been apparent that not all areas of compliance had been met. She set out in her email the organisational standard in relation to new admissions. This was important but essentially basic stuff: e.g. a photo of the resident, height, weight, body map, risk assessments for moving and handing, falls and so on. The Claimant was, and at the hearing remained, a bit baffled by Ms Rollings’ email. The gist of part of her cross-examination of Ms Rollings was ‘how was I supposed to go about complying with these organisational standards?’ In our view, these were basic matters that the Respondent rightly expected a Home Manager to ensure were complied with. Not by doing the work themselves but by making sure that the large contingent of staff beneath them did it. Having the knowledge and ability to get this kind of thing done was simply part of a Home Manager’s skill-set.

[60]Ms Rollings told the Claimant, on behalf of Mr Cheekory, that in future if this happened again a letter of concern would be issued and attached a sample letter of concern so the Claimant could see what one contained. A letter of concern is a pre-disciplinary intervention that sets out the problem, indicates what needs to be done to address it and indicates that failure to do so will initiate a discinplinary process. Putative PID 4: 08.10.22

[61]On 7 October 2022, Suit Arora, Associate Director, emailed the Claimant and others a tracker that showed progress on the action points to resolve the findings of the EHO audit. The Claimant responded on 8 October raising a number of concerns:a. A kitchen door, as well as needing painting, was not closing and she was unsure if this was remedied;

b. She said “we’re all aware of the current situation with the Kitchen and from the report and my observations, little improvement has been made”;

c. She said she had tried to make sense of the paper within the kitchen but it seemed they needed to start over;

d. The Kitchen Assistant who was acting up required training and support all round and was struggling. Until there was recruitment an agency chef should be block-booked.

e. She added comments to the EHO report.

[62]On 7 October 2022, the Claimant emailed the accounts department to report a problem accessing the Softworks system. She received a response asking her for details about what the issues were the next working day, 10 October 2022.

[63]Also on this day the Claimant completed the Manager’s Daily Audit. Alleged Detriment 4: 10.10.22

[64]On 10 October 2022, Ms Popa, immigration compliance officer, attended the home. The Claimant found her in Ms Ford’s office. The Claimant introduced herself and asked what she was doing. She was auditing staff files. Ms Popa left the home without discussing the audit findings or otherwise feeding back.

[65]The Claimant completed the Manager’s Daily Audit on this day.

[66]On 12 October 2022, Mr Loizou emailed the Claimant chasing her for her an update on the QA tracker (which was a day late).

[67]On 13 October 2022, Ms Rollings reminded the Claimant of her responsibility to register as the home manager with the CQC and offered to assist if that was needed (more support, more assistance with onboarding).

[68]On 13 October 2022, there was an important meeting regarding the QAA of the Home that included senior management and Mr Loizou. The Claimant was unfortunately unable to attend because she was unwell. Alleged Detriment 5: 11 to 16.10.22

[69]The Claimant says her calls and emails were ignored by Mr Loizou in the period 11 – 16 October 2022. At a general level this is not right. The Claimant herself gives evidence of emails, texts and a phone call with Mr Loizou in this period. And there are examples in the bundle.

[70]In the Scott Schedule it is said that Mr Loizou did not respond to the Claimant by email in relation to an agency and HR query. It is unclear (because the Claimant has not explained in her pleading, Scott schedule or evidence) what she means. It appears to be a reference to her email of 11 October 2022 where she raised a query about whether she could use other agencies. It appears there was no email response to this.

[71]The Claimant’s evidence is also that over the weekend of 14 October she was trying to contact Mr Loizou and she did not get a response until the Monday morning. Her evidence is that on the Monday he messaged here “not sure what’s up with my phone!!”. So we accept there was some communication over the weekend he did not respond to. However, we infer he had a problem with his telephone and in any event he came and visited the home on 18 October (see below). Mr Loizou was not ignoring the Claimant.

[72]In the Scott Schedule there is a specific complaint that Mr Loizou did not update the Claimant about the meeting of 13 October 2022, regarding the QAA. We accept that, however, he was not the decision maker at that meeting, and the decision maker did update the Claimant. On 14 October 2022, Mr Cheekory emailed the Claimant on the very topic with an update. He stated that she was required to ensure that by no later than 14 November 2022, the key lines of enquiry (KLOEs) ‘Safe’ and ‘Well led’ ratings for the home were ‘Good’ and that the rating for ‘Care’ remained ‘good’.

[73]On 30 September 2022, Mr Cheekory had sent an email with a wide distribution list including the Claimant emphasising the importance of daily audits as a result of recent CQC inspections. In this email of 14 October 2022, Mr Cheekory pointed out that the Claimant had begun to complete daily audits in the required format but she had then ceased to do so. He scheduled a meeting with her and Ms Rollings to go over her Quality/Governance induction. Alleged Detriment 6: 17.10.2022

[74]The meeting with Mr Cheekory and Ms Rollings took place on 17 October 2022. Ms Rollings led the meeting and went over some of the Respondent’s governance systems. She gave the Claimant the opportunity to ask for help in relation to anything she was unsure about. The meeting was not manipulative and “passive aggressive comments” were not made. The meeting was held to try and support and help the Claimant and conducted in that way. This was further induction and on-boarding.

[75]On 19 October 2022, Mr Cheekory emailed the Claimant and said that he agreed with the timelines set in the QAT which meant that an internal ‘good’ rating should be delivered by mid-November. He added “Carol I’m sure you will smash delivering this and I will look forward to having the discussion of how you would like to celebrate the achievement of an internal rating of ‘Good’ in November. He also said that if there were aspects that ‘may need a nudge of resource, or support to ensure we reach destination on time, then its fine to flag this, the end justifies the means’. In other words, the Claimant could ask for what she needed to meet the targets even if that had a cost.

[76]On 19 and 20 October 2022, the Claimant had internal training on conducting investigations and disciplinary, with Ashleigh Duncan, HR Advisor (yet more onboarding).

[77]On 20 October 2022, Ms Landt attended the Home to update the QA Tracker. Having done so she asked the Claimant what she could do to help. The Claimant asked her to complete the Daily Audit so she did so (helpful and supportive).

[78]On 21 October 2022, Ms Landt emailed Mr Loizou, the Claimant and others with the updated QA Tracker following her visit the previous day. She congratulated Mr Loizou and his team (thus including the Claimant) on completing the first 15 actions on the QA Tracker. She highlighted some problems she had noted at the home including:a. a serious issue about the (lack of) administration of a particular resident’s medication; and

b. a list of significant concerns around infections prevention and control. Alleged Detriment 7: 21.10.2022

[79]On 21 October, the Claimant was due to attend a remote Health and Safety training session. However, Mr Loizou came to her office and told her that she needed to attend an urgent meeting. She therefore could not complete the training.

[80]Mr Cheekory and Ms Landt were already present in the meeting room. The gist of the meeting was that Mr Cheekory said the progress at the home had been slow and there was a 4 week deadline to complete the actions on the QAT tracker. The Claimant asked how it was possible and Mr Cheekory said it had to be done. PID 5: 22 October 2022

[81]On 22 October 2022, the Claimant emailed Ms Landt and Mr Loizou:a. She said that on her reading of PCS and care staff daily notes, there were over 10 residents who had daily mattress checks and/or bed rails with no assessment or care plans in place;

b. She referred to the care plans of two residents and the turning requirements for them. She said they had not been carried out robustly over a 24 hours period;

c. That there were assessments completed but no care plan linked to them;

d. She asked if there was a guideline for the mattress settings;

e. She raised another query about bed rails.

[82]These were exactly the kind of things that she was supposed to deal with and resolve as home manager. Ms Ford responded answering most of the questions. Putative PID 6: 23.10.22

[83]On 23 October 2022, the Claimant emailed Mr Cheekory and Ms Landt:a. Referred to needing PCS training

b. The email referred to notifying the CQC of a serious injury to a resident, a pressure sore and that the CQC had been told the resident was repositioned 4 hourly. She said that from 13 October it would be 2 hourly during the day and 4 hourly at night. However, she said that the records showed discrepancies ranging between 5 – 12 hours and only 1 entry of the district nurse visiting.

c. She asked whether certain functions were still in use, essentially because the information they recorded seemed to be out of date;

d. She asked whether certain functions could be used, such as carers confirming that a shift handover had been read.

[84]On 24 October 2024, Ms Landt responded substantively to the Claimant’s questions in an informative and helpful email. She also said she would go over matters in more depth with the Claimant when next at the Home. This was supportive. Putative PID 7: 24.10.2022

[85]On 24 October 2022, Ashley Duncan, HR Advisor, came to the home and met with Ms Ford. Mr Loizou told the Claimant the purpose of the visit was to meet with Ms Ford. The Claimant told Mr Loizou that if it was about disciplining the Unit Manager, they should be cautious because she had been told by Josie that the Unit Manager had told her (Josie) that Ms Ford was trying to discipline her (the Unit Manager) after she (the Unit Manager) had spoken about medication concerns and errors by Ms Ford and another senior member of staff. Alleged detriment 8: 24.10.22

[86]There was a meeting between Ms Ford and Ms Duncan. The Claimant was not invited. There is nothing to suggest it was a meeting she should have been invited to. There is nothing odd about a member of staff having a private meeting with someone from HR. QAA audit: October 2022

[87]On 24 October 2022, there was a further QAA audit at the home, again conducted by Mr Abdi. This showed a decline in scores since September. In October, the overall scores were:

[88]The audit highlighted shortcomings of very many kinds and many were much the same as September’s audit:a. There was still no risk assessment for one of the residents with bedrails.

b. There was still no falls risk assessment for certain residents.

c. There was no evidence that risk assessments had been updated following falls. There were significant shortcomings in the paperwork for several members of staff including in one case a lack DBS checks.

d. Medication trolleys were left on units long past medication rounds.

e. Controlled drugs were not stock checked daily and were not audited weekly.

f. The Daily Audit was not carried out consistently.

g. Health and safety audit and infection control was not carried out for September and October.

h. Night Audit not carried out for the last 6 months.

[89]Clearly the report made for very disappointing reading. Broadly, it showed decline rather than improvement. Putative PID 8: 26 October 2022 and alleged detriments 9 and 10

[90]On 26 October 2022, Mohammed Rohman, Senior Recruiter, came to the home to speak with the Claimant about sponsored employees. It was also a recruitment day which he had helped to organise. At some point the Claimant observed to Mr Rohman that there was a member of staff whom the Respondent sponsored (and directly employed) who was also an agency worker for the Respondent. She was effectively querying whether this was appropriate. Mr Rohman did not give her an answer then or afterwards.

[91]At this distance, Mr Rohman has no recollection of the conversation. His evidence is that he would not have known the answer and would have looked into it and, had the Claimant still been around, would have reverted to her. He was a straight forward witness and we infer his account of what he would have done is what in fact happened. i.e. he did not know the answer so he looked into it, but by the time he got it, the Claimant was no longer around (see below).

[92]The Claimant completed the Manager’s Daily Audit on this day. This was the fourth and final occasion on which she completed that Audit.

[93]The Claimant complains that Ms Ford and the Regional Administrator, did not assist with the open day, but instead were in the office doing other things. We accept they did not assist with the open day and that they were doing other work. Equally, as the Home Manager, the Claimant could have instructed Ms Ford at the least to help, but she did not. Putative PID 9: 27.10.2022

[94]On 27 October 2022, Mr Alex Landt attended the Home to provide training to the Claimant on Person Centred Software (PCS). The Claimant’s evidence is “during the training session, we both [sic] that there were gaps in the systems one of them being the nightly check, which are not being carried out by the night staff, leading to neglect”. We find that the Claimant said something to this effect.

[95]We also accept Mr Landt’s evidence that while there was a discussion of there being gaps in the night checks, he did not say it was indicative of neglect. He did not know whether there was a failure to carry out the checks or simply a failure to record them.

[96]It was a matter for the Claimant, as the home manager, to get to the bottom of it. She was responsible for ensuring that her staff were both carrying out the checks and recording them. 28 October 2022 Alleged detriment 11: part 1

[97]When the Claimant arrived at work on 28 October 2022, Ms Landt was there. We accept her evidence that she had simply carried out a routine unannounced visit to check on the night-staff, something it was her job to do. The Claimant believes she was excluded from a meeting between Ms Landt and Ms Ford. However, we accept Ms Landt’s evidence that she had no meeting arranged with Ms Ford and that if the Claimant saw her talking to Ms Ford that was simply an unplanned discussion that arose on the day. The Claimant happened not to be part of the discussion but she was not excluded from it. Alleged detriment 11: part 2

[98]Mr Cheekory came to the Home and had an unscheduled meeting with the Claimant. The focus of the meeting was:a. Daily audits: he asked the Claimant if she had been completing them. She had not completed one since 21 October 2022. In essence, her explanation was that she had been under a lot of pressure with other demands, including the recruitment day and training, and that she had not been adequately supported by other staff.

b. The staff allocation tool had not been fully completed.

c. Cleaning schedule for the service should have been implemented but had not been progressed, though the Claimant was about to progress them. Alleged Detriment 11: part 3

[99]The Claimant had a meeting with Mr Loizou later in the afternoon. He told her that a decision had been made regarding the Claimant and her probation and that things were not working out. The Claimant asked him if he wanted her to go (i.e., leave her employment) and he said yes “but don’t worry if you go today I will get 2 weeks pay for you”. The Claimant became distressed so he left her to calm down. When he came back he asked what she was going to do, and she said ‘I don’t have a choice do I’. He said ‘no’. She responded “shall I give my resignation now”, he said “if you don’t mind”. She replied “I have to go now?” and he said ‘yes’.

[100]The Claimant then wrote an email of resignation in front of Mr Loizou, resigning with immediate effect. The Claimant did not return to the home again after leaving that day.

[101]We find that Mr Loizou for all intents and purposes gave the Claimant a blunt ultimatum that if she did not resign she would be dismissed. There is only one answer to the question of who really ended the employment relationship: the employer. The Claimant was therefore dismissed.

[102]The next day she sent a letter to HR in which she said the resignation had been forced by Mr Loizou failing which she would have been dismissed at her probationary review. She asserted that it had come about because she had made protected disclosures. She said she was treating herself as constructively dismissed and gave one month’s notice to 28 November 2022. That was also that date to which she was paid.

[103]On 2 November 2022, Ms Baker wrote to the Claimant among other things asking to arrange a grievance meeting. She also spoke to the Claimant. The call was incomplete because of bad telephone reception. The Claimant did not ask for a grievance meeting.

[104]On 18 November 2022, Ms Baker wrote again, purporting to accept the Claimant’s resignation, stating that she had not heard further regarding a grievance meeting but that the Claimant’s email of 23 October 2022 to Mr Cheekory was being investigated. The Claimant did not hear further on that.

[105]The Claimant made a DSAR. The Respondent made some response to it but the ICO upheld a complaint about various aspects of the response on 4 April 2023.

[106]After the Claimant departed on 28 October 2022, Ms Ford stepped up to Home Manager. With assistance from Ms Landt the home was rated ‘good’ overall in December by the CQC. Law Public interest disclosures

Law

[107]A protected disclosure is a qualifying disclosure made by a worker in accordance with any of sections 43B to 43H ERA.

[108]A qualifying disclosure is defined by section 43B, as follows: (1) In this Part 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 of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, […] (d) that the health and safety of any individual has been or is likely to be endangered.

[109]In Williams v Michelle Brown AM,

UKEAT/0044/19/OO

at [9], HHJ Auerbach identified five issues, which a Tribunal is required to decide in relation to whether something amounts to a qualifying disclosure: ‘It is worth restating, as the authorities have done many times, that this definition breaks down into a number of elements. First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in subparagraphs (a) to (f). Fifthly, if the worker does hold such a belief, it must be reasonably held.’

[110]A worker can make a qualifying disclosure even if the content of the disclosure is in fact wrong Darnton v University of Surrey [2003] I.C.R. 615.

[111]S.47B(1) ERA provides: 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.

[112]Care must be taken to establish the ground(s) on which the employer acted as it did. The ground(s) is/are a set of facts operating on the mind of the relevant decision-maker, it is not a ‘but for’ test. The correct test is whether 'the protected disclosure materially influences (in the sense of being more than a trivial influence on) the employer's treatment of the whistleblower (Fecitt v NHS Manchester

[2012] IRLR 64

at [45]).

[113]In Warburton v Chief Constable of Northamptonshire Police EA-2020- 000376-AT, Griffiths J said this of the meaning of detriment (the context was an Equality Act 2010 complaints but the meaning of detriment is the same in the ERA):50. The key test for present purposes is for the ET to ask itself: “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?”. It is not necessary to establish any physical or economic consequence for this question to be answered in the affirmative. The requirement that this hypothetical worker is a reasonable person means, of course, that an unjustified sense of grievance would not pass this test. All of this is established by the judgment of Lord Hope (and other cases which he cites) in Shamoon at para 35.

51. Although the test is framed by reference to “a reasonable worker”, it is not a wholly objective test. It is enough that such a worker would or might take such a view. This is an important distinction because it means that the answer to the question cannot be found only in the view taken by the ET itself. The ET might be of one view, and be perfectly reasonable in that view, but if a reasonable worker (although not all reasonable workers) might take the view that, in all the circumstances, it was to his detriment, the test is satisfied. It should not, therefore, be particularly difficult to establish a detriment for these purposes.

[114]S.48 ERA provides: (1A) A worker may present a complaint to an employment Tribunal that he has been subjected to a detriment in contravention of section 47B. […] (2) On a complaint under subsection […](1A)[…] it is for the employer to show the ground on which any act, or deliberate failure to act, was done. Unfair dismissal Dismissal

[115]By s.94 Employment Rights Act 1996 (ERA) there is a right not to be unfairly dismissed.

[116]Dismissal is defined at s.95 ERA.

[117]In Martin v Glynwed Distribution Ltd

[1983] ICR 511

, Donaldson MR, said this: The industrial tribunal had to make up its mind whether, on the evidence, the reality of the situation was that the employers terminated the employee's employment or that the employee did. Plainly the fact that the employee signed a letter of resignation is a factor and an important factor in reaching a conclusion on this issue, but it cannot be conclusive. East Sussex County Council v. Walker, 7 I.T.R. 280 illustrates this, but it does not alter the definition. It is tempting to give other examples of circumstances in which either the only conclusion, or a possible conclusion, is that it was really the employer who was terminating the contract and not the employee, notwithstanding that the employee went through the motions of resigning. However experience shows that industrial tribunals tend to treat illustrations as being what they are not — an explanation or qualification of the parliamentary definition. Whatever the respective actions of the employer and employee at the time when the contract of employment is terminated, at the end of the day the question always remains the same, “Who really terminated the contract of employment?” If the answer is the employer, there was a dismissal within paragraph (a) of section 55(2) of the Act of 1978. If the answer is the employee, a further question may then arise, namely, “Did he do so in circumstances such that he was entitled to do so without notice by reason of the employer's conduct?” If the answer is “Yes,” then the *520 employer is nevertheless to be treated as if he had dismissed the employee, notwithstanding that it was the employee who terminated the contract.

[118]S.103A ERA provides: An employee who is dismissed shall be regarded for the purposes of 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.

[119]There is an important distinction between detriment cases, where it is sufficient that the disclosure is a material factor in the treatment, and dismissal cases, where it must be the sole or principal reason (Fecitt v NHS Manchester

[2012] ICR 372

CA).

[120]The approach to the burden of proof in section 103A claims was summarised by Mummery LJ in Kuzel v Roche Products

[2008] ICR 799

as follows: ‘[49] Secondly, it is not profitable to discuss burden of proof issues in generalities. It must be related to particular issues, in this case to the different aspects of an unfair dismissal claim. On some issues the 1996 Act is completely silent on the burden of proof. In the absence of specific statutory provision the general rules apply. The general rules are that a person bringing a claim must prove it and a person asserting a fact must produce some evidence for it. Thus the burden was on Dr Kuzel to prove that she was unfairly dismissed. It was for her to produce some evidence for the facts she alleged. But it does not follow that the burden of proof was on her in respect of every element of the unfair dismissal claim. [50] An unfair dismissal claim has a number of aspects any or all of which may be disputed. In this case the dispute is about the reason for dismissal and where the burden of proof lies. The burden may differ according to the nature of the disputed issue. On the specific issue of dismissal, for example, the claimant employee must prove that he was dismissed. This will not usually be a difficult burden to discharge. The production of a letter of dismissal usually proves the point. There are, however, cases in which there is disputed evidence about whether the employee resigned or whether he was constructively dismissed. [51] Similarly there may be an issue as to the claimant's status affecting his right not to be unfairly dismissed. It is for the claimant to produce evidence to show that he was an employee of the respondent. This is not normally difficult. In most cases there will be a written contract, written particulars or some other document relating to pay arrangements and so on. In some cases oral evidence will be needed to prove the terms and conditions on which the claimant did work for the respondent. [52] Thirdly, the unfair dismissal provisions, including the protected disclosure provisions, pre-suppose that, in order to establish unfair dismissal, it is necessary for the ET to identify only one reason or one principal reason for the dismissal. [53] Fourthly, the reason or principal reason for a dismissal is a question of fact for the ET. As such it is a matter of either direct evidence or of inference from primary facts established by evidence. [54] Fifthly, the reason for dismissal consists of a set of facts which operated on the mind of the employer when dismissing the employee. They are within the employer’s knowledge. […] [56] I turn from those general comments to the special provisions in Part X of the 1996 Act about who has to show the reason or principal reason for the dismissal. There is specific provision requiring the employer to show the reason or principal reason for dismissal. The employer knows better than anyone else in the world why he dismissed the complainant. Thus it was clearly for Roche to show that it had a reason for the dismissal of Dr Kuzel; that the reason was, as it asserted, a potentially fair one, in this case either misconduct or some other substantial reason; and to show that it was not some other reason. When Dr Kuzel contested the reasons put forward by Roche, there was no burden on her to disprove them, let alone positively prove a different reason. [57] I agree that when an employee positively asserts that there was a different and inadmissible reason for his dismissal, he must produce some evidence supporting the positive case, such as making protected disclosures. This does not mean, however, that in order to succeed in an unfair dismissal claim, the employee has to discharge the burden of proving that the dismissal was for that different reason. It is sufficient for the employee to challenge the evidence produced by the employer to show the reason advanced by him for the dismissal and to produce some evidence of a different reason. [58] Having heard the evidence of both sides relating to the reason for dismissal it will then be for the ET to consider the evidence as a whole and to make findings of primary fact on the basis of direct evidence or by reasonable inferences from primary facts established by the evidence or not contested in the evidence. [59] The ET must then decide what was the reason or principal reason for the dismissal of the Claimant on the basis that it was for the employer to show what the reason was. If the employer does not show to the satisfaction of the ET that the reason was what he asserted it was, it is open to the ET to find that the reason was what the employee asserted it was. But it is not correct to say, either as a matter of law or logic, that the ET must find that, if the reason was not that asserted by the employer, then it must have been for the reason asserted by the employee. That may often be the outcome in practice, it is not necessarily so. [60] As it is a matter of fact, the identification of the reason or principal reason turns on direct evidence and permissible inferences from it. It may be open to the Tribunal to find that, on a consideration of all the evidence, in the particular case, the true reason for dismissal was not that advanced by either side. In brief, an employer may fail in its case of fair dismissal for an admissible reason, but that does not mean that the employer fails in disputing the case advanced by the employee on the basis of an automatically unfair dismissal on the basis of a different reason.’

[121]However, as Mummery LJ said [55] “. . . the burden of proof issue must be kept in proper perspective. As was observed in Maund . . . when laying down the general approach to the burden of proof in the case of rival reasons for unfair dismissal, only a small number of cases will in practice turn on the burden of proof.”

[122]Those words are apposite because in this case the outcome does not turn on the burden of proof. We have been able to make a positive finding as to the reason for the dismissal.

[123]The ‘reason’ for dismissal is the factor operating on the decision-maker’s mind which causes him/her to take the dismissal decision (Croydon Health Services NHS Trust v Beatt

[2017] ICR 1420

). There are some circumstances in which the net must be cast wider, such as if the facts known to, or beliefs held by, the decision-maker had been manipulated by another person involved in the disciplinary process with an inadmissible motivation, where they held some responsibility for the investigation. That person could also have constructed an invented reason for dismissal to conceal a hidden reason (Royal Mail Ltd v Jhuti

[2020] All ER 257

[124]In University Hospital North Tees & Hartlepool NHS Foundation Trust v Fairhall,

UKEAT/0150/20/VP

, HHJ Taylor made the following observations: 36.The very existence of the protection for those who make public interest disclosures shows a recognition of the possibility that managers in an organisation may decide that they want to be rid of a whistle blower. In such circumstances, particularly in a large organisation, the route to the eventual dismissal of the whistle blower may be tortuous and involve a number of people who, to a lesser or greater extent, are in the know about the plan to get the whistle blower out of the door. Such a scenario may involve multiple examples of unexplained unfair treatment. The facts may look much like those found by the Tribunal in this case. As far as the dismissal is concerned, in most such cases the decision maker would be going along with an overall plan to remove the whistle blower. In considering the decision to dismiss, the tribunal only has to determine the reasoning process of the decision maker because that person, as others may have done in taking the decisions leading to the dismissal, acted as he or she did because the employee made protected disclosures. The twists and turns in the journey matter relatively little because it is the destination that counts; the eventual reasoning process of the person who took the decision to dismiss. The fact that the dismissal appears to be the culmination of a plan to get rid of the whistle blower may be circumstantial evidence to support the conclusion that the decision maker dismissed because of the protected disclosure; if there was an overall plan to get rid of the whistle blower, it is plausible that the decision maker was acting in accordance with that plan. Assessing factual scenarios of this nature is precisely what the employment tribunal is there to do. […] 41. The paradigm of the single decision maker who dismisses for a clearly expressed reason will often apply where the employer has a legitimate reason for dismissal. If an employer really has determined to rid themselves of a whistle blower the process may be complex and involve people who are keen to appear not to have been involved in the decision making; someone who wishes to ensure an employee is dismissed because of their whistle blowing is likely to try to keep to the shadows. Wrongdoers often wish to distance themselves from their decisions. It would be troubling if in such cases excessively complex arguments about the difficulty in determining the precise mental processes of all those involved in the process resulted in a valid claim failing. Fortunately, we can rely on the good sense of the members of employment tribunals to see through such ruses and get to grips with the reason that operated, however it got there, on the mind of the dismissing officer. Discussion and conclusion The way the parties put their cases

[125]The overwhelming focus of the Claimant’s case was that she was not treated fairly in that she was not properly supported. Her complaints about this span the duration of her employment including the period prior to making disclosures. In her presentation of the case, the Claimant very rarely linked the perceived unfairness to making disclosures and when she did, did so only in a very generalised way – simply an assertion. We have of course kept firmly in mind that the Claimant is a litigant in person without professional skills in case presentation. We have also kept in mind that unfairness can be an indicator of whistleblowing victimisation. Nonetheless, there was a conspicuous absence of any link between the conduct complained of and the disclosures made. We accept that the Claimant did not have the opportunity to put a case that she was treated as she was because she made PIDs to Mr Cheekory or Mr Loizou since they did not give evidence. That is so, but they are far from the only people who are impugned in her claim.

[126]The Respondent’s submissions are as set out in Miss Hatch’s skeleton argument which we need not summarise here. Inferences

[127]This is a case in which there was no direct evidence of any causative link between the disclosures made and the conduct complained of. However, we would not necessarily expect there to be as victimisation for making disclosures is often hidden. Accordingly, having made our findings of fact we stood back from them and asked ourselves whether any inferences should be drawn that the Claimant was treated as she was because of the disclosures she made. We concluded no such inferences fell to be drawn.

[128]There were some aspects of the Claimant’s employment which were clearly sub-optimal:a. No line manager input or direction in the first couple of weeks of employment;

b. Working with Ms Aucharaz for a period did not achieve what it should have – a gradual and orderly transfer of knowledge and responsibility. There was a lack of collaboration and Ms Aucharaz was moved with a day’s notice to the Claimant.

c. Ms Ford was not as helpful as she could have been.

d. System access was arranged in a very piecemeal fashion over an extended period time. 123. Beyond those matters: a. The Respondent did not follow the probation policy. Most significantly there was a dismissal without a probation review meeting and an abrupt one at that. b. There was an upheld complaint to the ICO in relation to the Claimant’s DSAR. c. We did not hear from Mr Loizou nor Mr Cheekory. The only explanation given for that was that they had ceased to work for the Respondent (not a barrier of itself to giving evidence) and Mr Loizou was on holiday. d. The Claimant did indeed raise many matters critical of the Respondent’s employees and the Home in her disclosures. 124. However, even taking those matters into account, we do not think any inference that the Claimant was treated as she was because she disclosed information falls to be drawn: a. There is really no evidence that the information the Claimant disclosed upset anyone at all or made anyone think she was a troublemaker. In fact, we do not think the evidence gives even a slight inkling of this. b. The fundamental premise of the Claimant’s employment – the very framework within which it existed - was that the home was doing badly, that it was unsafe in some respects, that it was non-compliant in very many respects and that there was a huge amount wrong. This, everyone agreed. It was the basic starting point rather than any kind of revelation. Pointing out shortcomings of the Home of the kind the Claimant did was pretty ordinary and routine in the specific context of this working environment. It was a turnaround home, that had not been turned around yet. c. People all around the Claimant were making disclosures of information about major short comings at the home, including of a health and safety critical nature, that were at least as serious, if not more so, than the ones she did. For instance Ms Landt and Mr Abdi. d. The business culture was very much to make a frank and realistic assessment of the Home. Doing so was not seen by management as troublemaking, on the contrary it was just part and parcel of the job.

e. Not all of the Claimant’s disclosures were about the Home itself. Some were about wider issues like bullying behaviour or data protection, but again there is not the slightest evidence or even hint in the evidence that this upset anyone or caused them to thing of the Claimant as a troublemaker or more generally has any link to any of the treatment complained of.

f. Many of the aspects of the Claimant’s employment we described as suboptimal occurred, or at least commenced, prior to the disclosures. Where they continued after the disclosures they did so in essentially the same fashion as before.

g. The Claimant’s dismissal was abrupt however the context explains this. Firstly, the Respondent was desperate to urgently turn the Home around. It was so bad that this was completely rational: it was of first important that it be turnaround and very quickly. This was reflected in the targets that were set. Secondly, we think it is pellucidly clear, that by the end of October 2024 the Respondent had lost confidence in the Claimant. In particular it lost confidence that she was the right person to turn the Home around. Again there was a totally rational basis for this: i. The Claimant was still not regularly carrying out the Daily Audit, which was a basic task of first importance. She managed it just four times in total; ii. The Home was going backward not forwards – it scored worse in the October QAA than the September QAA; None of this is to say that the Claimant was personally to blame for everything that was wrong in the home. She was not, the problems predated her employment. The issue was that the Respondent lost confidence that she was the right person to turn it around. And that was the essence of her job at that time. 125. On balance we conclude that whether the disclosures the Claimant made amount in law to protected disclosures or not, there is no basis to think or infer that they were any part of the reason for the treatment complained of. They were not. We now turn to that treatment and deal with each complaint directly. Detriment 1: 16/09/2022 by the Support Office: No access to Care HQ or training given 126. It is true that as at this date the Claimant did not have access to Care HQ and training had not been given. This was a detriment, albeit a very minor one with no significant consequences. 127. The reason for the detriment was nothing more than that the Claimant was a new starter and her access/training had not been sorted out yet. This had nothing whatsoever to do with any disclosure. She was later given access and later given training. The emails show that the Respondent was keen for her to have access and to be trained at a point in the chronology that post-dated several of the disclosures relied upon. Detriment 2: 22/09/2022 by the Support Office No support or continuation of onboarding following departure of Transition Manager; 128. This complaint fails on the facts. The Respondent clearly continued to support and onboard the Claimant following the departure of the Transition Manager on 22 September 2022. By way of example only: a. Regular visits from Ms Landt commencing on 22 September, on which date she was helpful and supportive and offered to provide further support as required; b. Ms Sives email of 22 September 2022; c. Email of 22 September 2022 from Sandip Panchal, Associate Director of IT and Systems, telling the Claimant who she needed to contact; d. On 26 September 2022, Ms Landt’s visit to the home and pointing out areas of non-compliance. The Claimant does not regard that as supportive but we do. Success in the Claimant’s role meant identifying areas of non-compliance in the Home and then ultimately resolving them. It was therefore helpful for Ms Landt to identify the short comings – that was assistance with a key part of the Claimant’s job. e. On 28 September 2022, Ms Rollings attended the home and gave the Claimant a further induction this time on a one to one basis. Ms Rollings also made a general and genuine offer to be point of contact for the Claimant if she needed any further assistance. f. On 30 September 2022, the Claimant had a meeting with Mr Loizou and she herself said of this ‘thank for the support – simply da best’. He followed up with an audit schedule explaining what audits were required and at what intervals. g. There are many other instances of support and continued onboarding in our findings of fact. Detriment 3: 19 to 30/09/2022 by Quality Assurance Manager, Deputy Manager Exclusion of emails and withholding information.

[129]There was one email from Ms Landt to Ms Ford that Ms Landt did not copy the Claimant into. This was a detriment since Ms Landt was asking Ms Ford to do something and the Claimant as manger was not in the loop, but it was only the very most minor of detriments. More importantly, it was nothing at all to do with any disclosure the Claimant made. The reason for it was nothing more than an oversight on Ms Landt’s part in not copying the Claimant in. We accept her evidence on that. Detriment 4: 10/10/2022 by Head Office Recruitment: Not informed or later given any feedback following HR audit.

[130]The Claimant was not given feedback on this audit. We think that was a detriment, because there was an element of discourtesy in not giving her the feedback, albeit a minor one.

[131]We find that the reason for the detriment was nothing more than that Ms Popa overlooking to give the Claimant feedback. There was not the slightest evidence of any reason why she would have deliberately withheld feedback from the Claimant. There is nothing at all to link the treatment with any disclosure. There is no rational connection whatsoever between any disclosure and not getting audit feedback. Detriment 5: 11 to 16/10/2022 by Regional Manager Calls and emails being ignored

[132]Generally, it is not true that Mr Loizou ignored the Claimant’s calls and emails in this period. The evidence, including the Claimant’s own evidence, shows that he was communicating with her.

[133]There was an email dated 11 October 2022 that Mr Loizou did not respond to. However, we do not accept that there was any detriment involved in this. The Claimant had been due to see Mr Loizou on 13 October 2022. She did not because she was ill, but she could simply repeat the inquiry she made in the email when she next saw him or otherwise in a further written communication. Any sense of grievance the Claimant may have about not receiving an email response is unjustified in all the circumstances. We infer and find as a fact (because it is far the most likely explanation) that Mr Loizou did responding to that query in the Claimant’s email because he overlooked it. When it was originally sent he was due to meet with the Claimant on 13 October 2022. She was then unwell and an important meeting took place on that day without her. The action points of that meeting were then set out in Mr Cheekory’s email of 14 October 2022. A lot happened then immediately after the email, including the Claimant being off sick and a very important meeting. We are sure that there is absolutely no link between anything the Claimant disclosed and the nonresponse to the email of 11 October 2022.

[134]As to the complaint that Mr Loizou did not share any information regarding the QAT meeting and its updates on the 13 October 2022, again there was no detriment here. Mr Cheekory took over that matter and emailed the Claimant what she needed to know on 14 October 2022. If the Claimant has a sense of grievance that Mr Loizou did not give her the update it is unjustified. It made no material difference whether the update was from Mr Loizou or Mr Cheekory. In any event, the reason that Mr Loizou did not give the update is because Mr Cheekory did. This had nothing whatsoever to do with any disclosure the Claimant made. Detriment 6: 17/10/2022 by Chief of Care Quality & Governance Manipulative behaviour, with passive aggressive comments towards me. The meeting was held to cause embarrassment and belittle me.

[135]This complaint fails on the facts. The meeting was conducted in an appropriate and professional way, it was not manipulative nor passive aggressive. It was not held to cause embarrassment or belittle the Claimant but on the contrary to assist her. There was no detriment and if there was it was nothing to do with any disclosure; rather it was to support the Claimant to do her job. Detriment 7: 21/10/2022 by Regional Manager and Operations Manager. Chief of Care Quality & Governance, Associate Director of Care, Regional Manager. 4 weeks to complete action plan on QAT. Unfair achievable tasks given, with constant change and inconsistency.

[136]The Claimant was withdrawn from Health & Safety training to attend an urgent meeting with senior management. This was no a detriment. The meeting was more important than the training and there was no basis for the Claimant to have a sense of grievance that she was required to attend the meeting rather than the training. It is not as if she had any particular urgent need for the training. In any event, the reason for the treatment was that the Respondent wanted to urgently brief the Claimant and set her targets while Mr Cheekory was at the Home. Certainly, it was nothing whatsoever to do with any disclosures she made.

[137]The targets themselves were stiff but not unachievable. Challenging targets were deliberately set to help drive performance. There was no detriment to the Claimant – the target was commensurate with her role and responsibility. If the target was a detriment it was nothing whatsoever to do with any disclosures the Claimant had made. Rather it was, as stated, a stiff target that was given to drive performance with a view to improving the Home as swiftly as possible.

[138]There was no constant change or inconsistency. The overall goal was always to quickly turn the home around from requires improvement to good. If there was any constant change or inconsistency it was absolutely nothing to do with any disclosures the Claimant made but a response to the evolving picture at the Home which was moving backwards not forwards. Detriment 8. 24/10/2022 by Regional Manager, HR advisor, Deputy Manager, Support Office: Excluded from Meetings

[139]There was a meeting on this day between Ms Ford and Ms Duncan. This was not a detriment. There is no basis for the Claimant to have any sense of grievance that these two individuals met without her. There is no evidence that this was a meeting there was any need or reason for her to be it. Ms Ford had a right to meet with HR if she wanted to and did not need to notify or invite the Claimant. There is no evidence that meeting was about Claimant and no basis to suppose she had any reason to be invited or informed about it.

[140]In any event, we infer and find that the Claimant was not invited to the meeting because it did not concern her and the participants did not want her there. This had nothing whatsoever to do with any disclosure the Claimant made. Detriment 9: 26/10/2022 by Support Office No help or support given during Recruitment Day.

[141]This was a detriment, albeit one the Claimant could have mitigated by using her managerial powers to instruct Ms Ford to help her.

[142]The detriment had nothing whatsoever to do with any disclosure the Claimant made. We infer and find that no help was given to the Claimant because the other staff were busy doing other work and the Claimant did not ask them to stop that other work and instead help her. This had nothing whatsoever to do with any disclosure the Claimant made. Detriment 10: 26/10/2022 by Recruitment: Ignored my questioning regarding Migrant workers.

[143]Mr Rohman did not answer the question the Claimant posed about whether it was okay to both employ/sponsor someone and for them to be an agency worker. This was a detriment albeit a very minor one.

[144]We infer and find that the reason for the detriment was that Mr Rohman did not know the answer. He would have got back to the Claimant had she remained in the business but she ceased working in the business on 28 October 2022. Certainly this had nothing whatsoever to do with any disclosure. Detriment 11, part 1: 28/10/2022

[145]The complaint that the Claimant was excluded from a 7 a.m. meeting fails on the facts. There was no 7 am meeting as such and she was not excluded from it. Assuming Ms Landt and Ms Ford spoken to each other at 7 am this was not a meeting, in the sense of something that had been arranged, and the Claimant was not excluded from it. In any event, the reason why this happened is nothing more than that the Claimant simply happened not to be there when Ms Landt and Ms Ford happened to speak to each other at 7 am. This had nothing whatsoever to do with any disclosure that the Claimant made. Detriment 11, part 2: 28.10.2022

[146]Mr Cheekory did not abuse his position of seniority in order to cause the Claimant embarrassment/upset/feelings of low-self worth, or abuse his position at all. He raised performance issues with her in a non-abusive way. This did make the Claimant feel embarrassed/upset and give her feelings of low self-worth and was a detriment. However, the reason for the detriment was that Mr Cheekory believed that there were shortcomings in the Claimant’s performance and he wanted to raised them with her. The reason for the detriment had nothing whatsoever to do with any disclosure that the Claimant made. Detriment 11, part 3: 28.10.22

[147]In the Claimant’s meetings with Mr Loizou, Mr Loizou did subject the Claimant to detriment. He made clear that performance had not been good enough and he gave her an ultimatum, in effect, to resign or be dismissed. In law he therefore dismissed her. He was not, however, aggressive towards her.

[148]This had nothing whatsoever to do with any disclosure that the Claimant made. On the contrary, as explained above it was because the Respondent, including Mr Cheekory and Mr Loizou, had lost confidence in the Claimant. They no longer had any confidence that she was the right person to turn the home around. The Home Manager needed to be someone whom the Respondent believed could turn the Home around and very quickly. Automatic Unfair Dismissal – 103A ERA 1996 10. For the reasons already given, the Claimant was dismissed. However, no part of the reason for her dismissal was any disclosure that she made. We have already identified the reason for dismissal above. The claim of unfair dismissal contrary to s.103A ERA therefore necessarily fails.