Mrs T Murphy v Lewisham and Greenwich NHS Trust: 2302217/2023
EMPLOYMENT TRIBUNALS
Case No 2302217/2023
Between
Mrs T MurphyClaimantLewisham and Greenwich NHS TrustRespondent
Before
Employment Judge RamsdenDate 1 July 2025
JUDGMENT
[1]The Claimant was employed by the Respondent from 19 January 1981 until her summary dismissal on 16 February 2023.[2]The Claimant worked as a senior nurse in the Respondent’s Queen Elizabeth Hospital in Woolwich, latterly as a Band 8B Senior Matron.[3]The Claimant says that she made 16 protected disclosures during the course of her employment (the Alleged Protected Disclosures). Ten of those are accepted by the Respondent as being protected disclosures, five are disputed and part of the remainder is accepted by the Respondent as being a protected disclosure.[4]The Claimant says that she was dismissed for the reason, or the principal reason, that she had made protected disclosures. The Respondent says that she was dismissed for gross misconduct. 1 of 84[5]After a period of ACAS Early Conciliation which began on 24 and ended on 26 April 2023, the Claimant presented a Claim Form to the Tribunal on 23 May 2023.[6]A Preliminary Hearing for Case Management took place on 3 October 2023 before EJ J Anderson, who made various Case Management Orders.[7]A further Preliminary Hearing for Case Management took place on 21 March 2024 before EJ Tegerdine. At that hearing, EJ Tegerdine determined (among other things) that this case would be consolidated with that of another nurse who had also been summarily dismissed by the Respondent, Annie O’Lone.[8]A third Preliminary Hearing for Case Management was held by Acting Regional Employment Judge Khalil on 14 June 2024. Further Case Management Orders were made.[9]Following clarification of the Claimant’s complaints at Case Management Hearings, on 7 November 2024 the Respondent presented Amended Grounds of Resistance to this case and to that of Ms O’Lone.[10]On 11 March 2025, Ms O’Lone withdrew her claim. That withdrawal does not affect this claim, save that some further Case Management Orders were made by EJ Hart on 24 March 2025 following a further Preliminary Hearing for that purpose. EJ Hart determined that this hearing would proceed in relation to the Claim, and that it would determine liability only.[11]Following discussions with EJ Hart, the Respondent amended the list of complaints and list of issues, and the version of that document agreed with the Claimant was sent by the Respondent to the Tribunal on 28 April 2025. That document is appended to this judgment as Appendix 1. The complaints[12]As noted above, the parties agreed a list of complaints, and a list of issues, on 28 April 2025, and that document is Appendix 1 to this judgment.[13]In summary, the Claimant avers that: a) She was subjected to various detriments on the ground that she had made one or more protected disclosures, contrary to section 47B of the Employment Rights Act 1996 (the 1996 Act); b) She was automatically unfairly dismissed for the reason, or principal reason, that she had made one or more protected disclosures, contrary to section 103A of the 1996 Act; c) She was unfairly dismissed by the Respondent, contrary to section 94 of the 1996 Act; and d) She was wrongfully dismissed, i.e., summarily dismissed without notice or payment in lieu of notice, in breach of the contract of employment between her and the Respondent. 2 of 84[14]The Respondent denies each of these complaints. The hearing[15]The Respondent was represented in the hearing by Mr Adjei, Counsel. The Claimant represented herself, with assistance from a friend, Eimear Cardwell, for part of the hearing, and the assistance of her son, Thomas Murphy, for the remainder. At one point, Mr Murphy continued cross-examination of one of the Respondent’s witnesses (Mr Hastings) on the Claimant’s behalf and with her permission, because the Claimant was distressed but wished for the hearing to continue.[16]When asked at the outset, neither party sought adjustments to the conduct of the hearing. The Claimant was unwell on the afternoon of the fourth day - a Friday. The hearing resumed on Monday morning, with the Claimant confirming that she had recovered and was well enough to proceed.[17]The length of time it took to hear evidence and submissions exceeded the time anticipated in the hearing schedule, and so judgment was reserved. Documentary evidence[18]The Respondent prepared an agreed hearing bundle of 2,811 pages.[19]The Claimant had provided material which formed a supplementary bundle of 391 pages which she applied to have admitted into evidence. The Respondent objected to that material on the ground of relevance. The Tribunal reviewed the contents of the supplementary bundle at the outset of the hearing, and considered that certain documents could be relevant to the Claimant’s case, and so admitted those into evidence (pages 126-134, 140-159, 166-178, 200-219, 220-247, 256-272 and 310).[20]The Claimant also sought to have a further document, an email chain, entered into evidence. The Respondent objected to its inclusion on the ground that its contents were privileged. The Employment Judge reviewed the document and agreed with the Respondent (and questioned the relevance of the document). That document was not admitted into evidence.[21]The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if the Tribunal was taken to the document in evidence or as part of a reading list. The Tribunal notified the parties at the outset of the Hearing that they could only rely upon it having read documents that it was specifically referred to by means of a reading list, witness statements, oral evidence or submissions, insofar as they were identified as being relevant to an issue in the case. For instance, the Claimant’s side witness statements make extensive references to material in the Bundle and the Supplementary Bundle. The Tribunal has only read that cross-referred material where it considers that material to be relevant to the issues in the case. 3 of 84 This was considered proportionate in light of the timetable, the volume of documentary and witness evidence, and the relatively narrow set of issues in dispute. Other documents[22]A four page chronology had been prepared, as had a two page cast list and a two page key documents list. Those documents had been agreed by the parties, and the Tribunal read and took account of those. List of issues[23]The parties had agreed a list of issues on 28 April 2025, and that document appears at Appendix 1 of this judgment.[24]At the outset of this hearing, the Employment Judge observed that of the 29 protected disclosures relied on by the Claimant, a number had been accepted by the Respondent, and a number disputed. The Employment Judge asked the Claimant to look at the list of disputed protected disclosures to consider whether she wished to rely on all of them.[25]At the start of the second day of the hearing the Claimant withdrew her reliance on some of the 29 disclosures, namely those identified numbers 1, 4, 6, 9, 13, 15, 18, 19, 20, 21, 22, 25 and 27 in Appendix 2.[26]In the course of her evidence, the Claimant stated that her complaint about the Respondent’s referral of her to the NMC was: a) Not with the fact of the referral, but with its content - which the Claimant contended was inaccurate; and b) With the timing of the referral – which the Claimant said had been delayed following her dismissal on 16 February 2023 until after the Claimant had given evidence in support of the Respondent in its resistance of an Employment Tribunal claim brought against it by another employee. Remote observers[27]The Respondent applied for observers to attend the hearing via CVP – its witnesses who wished to observe the hearing but, because the Respondent understood it to be a hybrid hearing, had not made arrangements to attend the hearing in person, and its solicitor with conduct of the case.[28]The reason some of the Respondent personnel believed it was a hybrid hearing was a paragraph in the Orders from the most recent Preliminary Hearing for Case Management, the relevant part of which reads: “Witnesses should attend in person if they can. However it is anticipated that at least some if not all of the respondent’s witnesses will be attending by CVP, the claimant raising no objection. If the claimant wishes for any of her witnesses to 4 of 84 attend by CVP then she should seek to agree this with the respondent. The parties (and their representatives) are required to attend in person.”[29]On-the-face-of-it, this anticipates that the Respondent’s witnesses can attend by CVP, but arguably, given the context of the paragraph, that should be read as referring to when they give evidence. However, that’s not what it says, and so the Respondent understood they could observe the hearing by CVP.[30]A CVP link was already set up in order for the hearing to be recorded. The Tribunal asked for the Claimant’s views as to whether it should allow that same link to be used for observers to attend the hearing. The Claimant objected, saying: a) That she felt uncomfortable with Respondent personnel observing by that means, as much of the content of her evidence is sensitive; and b) If the Respondent wished to observe the hearing for learning purposes, its personnel should attend in-person.[31]The Tribunal observed that: a) It would be in the interests of justice to make the direction. The Respondent witnesses wish to observe the case as it progresses, and there is a benefit to additional observers from the Respondent’s solicitors, to understand the evidence on which the decision will be reached; b) There is the capacity and technological capability to enable attendance via CVP – the CVP link is set up anyway to record the hearing, this would simply involve providing external people with the dial-in details for that CVP link; and c) Allowing remote observers would not create an unreasonable administrative burden – the Tribunal Clerk would simply need to pass on the dial-in details, and observe who in fact attended.[32]Taking account of the mandatory factors in the Remote Observation and Recording (Courts and Tribunals) Regulations 2022: a) The principle of open justice is a weighty one; b) The Respondent’s application was made on day 2 of the hearing, so late, but that was because the Respondent understood that remote attendance had already been permitted; c) Facilitating CVP observation would not be burdensome from a tribunal perspective; d) This hearing is an entirely public hearing, with no restrictions on who may attend it; e) The observers are all based in the UK; f) The Claimant’s discomfort would arguably be the same if those Respondent witnesses observed in-person or via CVP – it would not be 5 of 84 affected by remote attendance. The attendance of the Respondent personnel and solicitor should assist the public understanding of the law and the administration of justice, third parties had also asked to attend via CVP, and this would enable them to observe and scrutinise the proceedings, and there were no safety or right to privacy matters engaged by the application – anyone could attend in-person and have the same access.[33]The Tribunal judged the principle of making the direction to allow remote observation was appropriate – the reasons for doing so outweighed the reasons for not doing so. In particular, the Tribunal could see the value in the attendance of the Respondent witnesses. The Tribunal was also conscious that the Respondent is a public sector organisation, and reducing the amount of public money spent by the attendance of its witnesses is to be generally welcomed.[34]The Tribunal Ordered that remote observers were permitted provided they were identified and they kept their videos off (as the screen in the Tribunal room faced the witness stand directly, and it could be off-putting to the Claimant and others giving evidence). Witness evidence[35]The Tribunal heard evidence from the following witnesses called by the Claimant: a) The Claimant herself; b) Amanda Yates, Matron; c) Danielle Burnage, a former employee of the Respondent, who was a General Manager for Acute, Elderly and Ambulatory Medicine between February 2020 and October 2022; d) Sharon Brundish, a former employee of the Respondent, who performed the role of Flow co-ordinator for the period 2019 to February 2023; e) Eimear Cardwell, a former employee of the Respondent, who was Practice Development Nurse for Acute and Emergency Medicine at the time of some of the events with which this claim is concerned; f) Thomas Murphy, a former employee of the Respondent, who latterly held the position of Associate Service Manager, and is one of the Claimant’s sons; and g) Annie O’Lone, formerly Head of Nursing for Queen Elizabeth Hospital, and the Claimant’s line manager; and the following witnesses relied upon by the Respondent: h) Hazel Gleed, who was, at the time of the events with which this case is concerned, the Respondent’s Divisional Director of Operations for Women, Children and Sexual Health, and the person who decided that 6 of 84 there should be a disciplinary investigation in respect of the Claimant (and in respect of the Claimant’ son, Mr Murphy, and Ms O’Lone); i) Joanna Peck, Site Director of Nursing for UHL and Lewisham Community. Mrs Peck was the Disciplinary Investigation Officer in respect of the Claimant’s disciplinary process; j) Philip Briggs, who was the Divisional Director of Nursing and Governance for Queen Elizabeth Hospital Medical Division (and is now an Associate Chief Nurse for the Respondent), and the person who took the decision to suspend the Claimant pending investigation into the misconduct allegations against her; and k) Tom Hastings, now the Deputy Chief Operating Officer of the Respondent, but at the time of his involvement in the events with which this case is concerned, the Director of Operations for Allied Clinical Services Division. Mr Hastings was Chair of the Claimant’s Disciplinary Hearing, and took the decision to dismiss her.[36]All witnesses gave their evidence in-person.[37]The Respondent did not object to Mrs Yates’ evidence being interposed while the Claimant was under oath, to enable Mrs Yates to attend. Facts Some context[38]The Respondent is an NHS trust, and operates two hospitals: Lewisham Hospital, and Queen Elizabeth Hospital in Woolwich.[39]The Claimant began working for the Respondent on 19 January 1981 as a senior nurse.[40]At the time with which the events in the Claim are concerned, the Claimant worked in the Emergency Department of the Queen Elizabeth Hospital as the second most senior nurse in that department, holding a Grade 8B post. The Claimant was line-managed by Miss O’Lone (who held a Grade 8A post). Ms O’Lone was in turn line-managed by Mr Briggs.[41]At that time the Emergency Department had a large number of nurses working in it – estimated by the Respondent to be around 200. a) A significant number of those nurses were employed to work in the Emergency Department on shift patterns, and when they worked those shifts those were known as “substantive shifts”. b) The Emergency Department also used the services of a large number of agency nurses. c) In addition the hospital operated a “bank” for nurses who could sign up for individual shifts, which could include shifts in the Emergency Department. 7 of 84[42]Some nurses who worked substantive shifts also signed up to work “bank” shifts to supplement their income. “Bank” shifts were paid at an hourly rate that exceeded the rate for substantive shifts by £5 or £10 an hour.[43]The hospital’s “bank” staff also included administrative/clerical staff.[44]Each person registered with the “bank” was registered at a particular grade. The grade they were paid when they worked a bank shift depended on the grade assigned to the work sought. For example, a nurse registered on the bank at grade 6 could sign up to perform a bank shift at grade 6 or lower, but could not sign up to perform a grade 7 bank shift.[45]The Respondent’s year for annual leave ends in March. The Tribunal heard evidence, accepted by both parties, that: a) The Respondent commonly experiences difficulties with staff who have accumulated but not taken annual leave by the time of the final quarter of the leave year (January to March), which coincides with the time of heavier workload for the hospitals it runs because of the winter period. b) Staff with accumulated but untaken leave risk losing that leave if it is not taken by the end of the leave year. c) If all staff affected by this were to take their annual leave in that final quarter, the pressures facing the Respondent would be significantly greater. d) Therefore there is a regular practice of staff taking their annual leave but then signing up to work “bank” shifts, so that they, in effect, work some portion of their annual leave, but get paid more than double for it (paid for their annual leave, and paid for working the “bank” shift). e) This is an accepted practice at the Respondent, and does not require approval from the Respondent’s Executive Committee (also known as “Gold Command”).[46]As a registered nurse, the Claimant’s work for the Respondent was regulated by the Nursing and Midwifery Council (the NMC), and she was required to maintain her registration with the NMC as a condition to her continued employment by the Respondent.[47]The NMC Code of Practice sets out the professional standards of practice and behaviour for nurses, midwives and nursing associates expected by the NMC, and in relation to nurses it requires that they: “display a personal commitment to the standards of practice and behaviour set out in the Code. You should be a model of integrity and leadership for others to aspire to. This should lead to trust and confidence in the professions from patients, people receiving care, other health and care professionals and the public”. 8 of 84 The Respondent’s policies, procedures and guidance[48]The Respondent’s 5 January 2020 Disciplinary Policy and Procedure provides, among other things, that: a) “No disciplinary action will be taken until the case has been fully investigated. Any employee accused of misconduct will be fully informed of the nature of the allegation(s) against them and will be given the opportunity to state their case before any formal action is taken”; b) “Generally, no employee will be dismissed for a first breach of discipline except in the case of gross misconduct, when the outcome could be summary dismissal”; c) “Employees also have a responsibility to support issues being dealt with promptly without unreasonable delay”; and d) “The Trust is required to notify the relevant professional body of any identified breaches of the professional codes of conduct and practice”.[49]The Disciplinary Policy and Procedure refers to certain designated roles in any disciplinary process: a) That of Commissioning Manager. The Commissioning Manager is the person who:(i) Decides if a disciplinary investigation should be commissioned;(ii) Decides whether suspension of the employee is necessary, and this is to be kept under regular review;(iii) Is responsible for identifying a suitable Investigating Manager;(iv) Reviews any investigation report, and determines: Whether the investigation was sufficient and reasonable; and What the appropriate next steps are, which may be ‘no action’, ‘informal action’, or ‘consideration at a formal hearing’; and(v) Identifies an independent Disciplinary Hearing Chair, if needed, with advice from the Employee Relations team. b) That of Investigating Manager. The Investigating Manager is responsible for: (i) Conducting the “necessary, thorough investigation to establish the facts of any alleged misconduct”; (ii) Writing the investigation report; (iii) If a disciplinary hearing is convened, presenting the investigation report; (iv) Where informal action is recommended, feeding back their findings to employees; and 9 of 84 (v) Dealing with issues promptly, and ensuring there is no unreasonable delay.[50]The disciplinary outcomes anticipated by the policy and procedure include examples of the type of conduct that is likely to be deemed to be gross misconduct and lead to dismissal without any previous formal or informal warnings having been given. Those examples include: a) “Improper use of an official position for private gain, or for the gain of some other person, including soliciting or accepting bribes”; b) “Serious insubordination, refusal to co-operate or neglect of duty”; c) “Serious breach of trust and confidence”; d) “Financial irregularities on official duties… including falsification of time sheets”; and e) “Fraud”.[51]The Respondent’s February 2020 Suspension Guidance included the following content: a) “Alternatives to suspension must always be considered prior to suspending any member of staff”; b) “Having firstly considered all alternatives to suspension, there may still be instances where suspension with pay is necessary while investigations are carried out under one of the Trust’s relevant policies… The reasons why suspension from duty may be appropriate include… The employee’s continued presence could prejudice the conduct of the investigation”; c) “Where possible, suspension should take place in person”, and the Guidance anticipated that at that meeting “The nature of the allegation should be outlined to the employee (if appropriate/possible, statements can be shared)”; and d) “Suspension should be formally reviewed every 2 weeks, and the individual notified accordingly. In situations where a longer period of suspension is expected, given the circumstances of the suspension, then a revised frequency can be agreed”.[52]At the time with which this case is concerned the Respondent’s Standards of Business Conduct and Conflicts of Interest Policy was on its third version (dated 17 December 2019). That policy contained the following expectations: a) That all staff familiarise themselves with the policy’s contents; and b) That staff not misuse their position to further their own interests or those of persons close to them.[53]The Respondent’s Temporary Workforce Policy dated June 2013 was included in the Bundle, but neither party took the Tribunal to any part of it. 10 of 84 The Claimant raised various concerns: February 2014 to August 2019[54]The Respondent accepts that the Claimant made protected disclosures on each of: a) 3 December 2015; b) 6 January 2016; c) 24 October 2016; d) 1 December 2017; e) 16 January 2019; f) 22 April 2019; and g) 31 July 2019.[55]The Claimant says that she also made protected disclosures in the following communications: a) By email to Ann-Marie Coiley on 21 November 2018, when the Claimant says she raised concerns about the Paediatric Emergency Department (Disputed PD 1); b) By email on 9 December 2018, sent to Ms Coiley and Alison Munday, when the Claimant says she raised concerns regarding harm to a patient being cared for in a public corridor (Disputed PD 2); c) By email dated 16 December 2018 the Claimant says that she raised concerns regarding both:(i) The health and safety risk of using the public corridor to care for patients without equipment; and(ii) Patients waiting in ambulances, to Kelly Lewis-Towler (Divisional Director of Operations QEH Medicine), Caroline Willis and Ms Coiley (Disputed PD 3); and d) By email/letter to Mr Briggs and Ms Dean on 11 August 2019 about the speed of response to patient safety incidents within the department (Disputed PD 4).[56]The Respondent disputes that these were protected disclosures. Appointment of Amelia Bowden, June to September 2020[57]Amelia Bowden is the daughter of Ms O’Lone who was the Claimant’s line manager.[58]Prior to Ms Bowden’s recruitment and appointment, a critical incident was declared in relation to the Emergency Department’s storage of patient notes. Consequently, the Respondent sought to recruit additional staff to scan those 11 of 84 notes, and that work was evaluated as sitting at band 3 in the Respondent’s job grading system.[59]The Claimant had a long history of conducting interviews for people seeking to work on the Respondent’s “bank” staff.[60]Ms Bowden was interviewed for a position on the Respondent’s “bank” staff as Bank Band 3 Administrative and Clerical on 10 June 2020 by the Claimant and Mrs Cardwell. Ms Bowden was successful in her application, and was set up on the Respondent’s payroll system from 9 September 2020.[61]The Respondent avers that, at the time of her appointment, Ms Bowden was still at school and did not have any relevant administrative or clerical experience. The Respondent says that the Claimant showed Ms Bowden preferential treatment because of her friendship with Ms Bowden’s mother. This was one of the misconduct allegations levelled against the Claimant by the Respondent in the disciplinary process.[62]In her application form Ms Bowden wrote that she had had no previous employment due to age. However, in notes recorded from their interview with her, one of Mrs Cardwell or the Claimant wrote: “Relevant experience working with the public Worked with children work experience Worked within an admin role previously”. The Claimant made further disclosures, September to November 2020[63]On 9 September 2020 the Claimant sent an email to Ms Lewis-Towler, Mr Briggs and Mr Milton, in which she says she raised concerns regarding the environment and care for patients within the Emergency Department. This is said by the Claimant to be a protected disclosure, which is disputed by the Respondent. This disclosure is Disputed PD 5.[64]The Claimant made a further disclosure which is accepted by the Respondent as a protected disclosure on 4 November 2020. Mr Hastings commenced employment with the Respondent, January 2021[65]Mr Hastings began working for the Respondent in January 2021. The Claimant was promoted, 15 February 2021[66]On 15 February 2021 the Claimant was promoted to the role of Band 8B Senior Matron for Queen Elizabeth Emergency Department, Woolwich. Ms O’Lone was instrumental in her promotion, but that she would not have been promoted if Mr Briggs or Ms Lewis-Towler did not support her appointment. 12 of 84 Further concerns raised by the Claimant, February 2021 onwards[67]On 28 February 2021 the Claimant emailed Mr Briggs and Mrs Peck raising concern about a member of staff’s professional conduct and the impact this could have on patient safety. The Respondent accepts this was a protected disclosure.[68]On 30 November 2021 the Claimant emailed Ms Lewis-Towler and Mr Briggs to raise concerns regarding the security and safety of a mental health patient, and staff, which the Respondent accepts was a protected disclosure.[69]These disclosures, together with the eight further disclosures made by the Claimant which the Respondent accepts were protected disclosures, are referred to as the Accepted PDs. The Respondent looked into rostering practices, November 2021[70]The Respondent says that, as part of its Workforce Priorities Programme, it started to look at roster practices affecting a number of its units, including its Emergency Departments (in the Queen Elizabeth Hospital as well as the Trust’s Lewisham site), in November 2021. The work incentive matter, 31 December 2022[71]In 2021, 31 December fell on a Friday. This meant that there was a long weekend, with the Bank Holiday for New Year’s Day falling on Monday 3 January 2022.[72]There had been considerable concern in the run up to 31 December 2021, that there would be nursing staff shortages over the new year period. The omicron variant of the Covid-19 virus meant that a number of people were off sick, and some staff were taking time off over the New Year period, at a time when there were more hospital admissions than the usual ‘busy period’ over winter.[73]At 11:21am on 31st December 2021, Kelly Lewis-Towler posted a message on the QEH Senior Managers WhatsApp group saying: “£150 bonus paid to anyone taking a bank shift tonight and across the weekend. Please use WhatApp groups include admin/nursing/AHPs. Please start ringing around to fill the shift.”[74]At 11.23, Ms Lewis-Towler further added: “Anyone involved in rotas”.[75]At 11:46 Ms Lewis-Towler added a further message saying: “Yes Monday day and Night and must be a full shift, not 2hrs and home. Anyone already working rostered will also get it”.[76]The Claimant did not have a mobile telephone, and nor was she working on 31 December 2021. Mr Murphy does have a mobile telephone, and was part of the QEH Senior Managers WhatsApp group chat. Mr Murphy happened to be at the Claimant’s house when he received a telephone call from Ms O’Lone at approximately 13:00, which brought his attention to Ms Lewis-Towler’s WhatsApp 13 of 84 messages. Mr Murphy put his telephone on ‘speaker phone’ so that Mrs Murphy could hear what Ms O’Lone had to say. All three of them agree that Ms O’Lone told Mr Murphy and Mrs Murphy that there had been a dramatic reaction to Ms Lewis-Towler’s WhatsApp messages. Some of those staff members already booked to work substantive shifts in the period beginning on the evening of 31 December 2021 and ending on Monday 3 January 2022 began to say that they would “go off sick”, as they had had enough as this, like all previous bonuses, was only available to people working “bank” shifts.[77]As part of its internal investigations into the conduct of the Claimant, Mr Murphy and Ms O’Lone, the Respondent received evidence from Ms O’Lone, and a witness statement from Sharon Brundish, which noted that: a) Ms O’Lone had been contacting staff who worked on 31 December 2021 and asked “if they were one of the members of staff who took annual leave over the New Year weekend and worked a bank shift and how this was communicated to me”; and b) When asked about what happened on 31 December, Ms Brundish wrote: “I remember this day like it was yesterday as all staff were questioning Annie [Ms O’Lone] about it being unfair that they wouldn’t get the bonus and staff working with them who were on a normal shift would be working just as hard, but they wouldn’t be getting the bonus, I was very upset as were other staff on the shift. I spoke to Annie, and told her how this is, how can they do this, I remember [GA] was in charge and he was also very angry about the bonus”.[78]GA was interviewed as part of the disciplinary investigation into the Claimant, but he was not asked about the reaction in the department to the WhatsApp messages, or to the later email.[79]In the telephone call between the Claimant, Mr Murphy and Ms O’Lone on 31 December 2021 at around 13:00: a) In response to Ms O’Lone’s reports of the upset and the threats from staff members already booked to work substantive shifts that they would call in sick, the Claimant made the suggestion that:(i) They (i.e., the nurse leaders for the Emergency Department) do what they do in February/March in relation to annual leave – allow staff already booked on annual leave to then book to perform a bank shift and get the incentive payment as well as the bank rate of pay; and(ii) They allow staff members booked on to substantive shifts to cancel those shifts and book holiday, so they could then be booked to work bank shifts and get the incentive payment. This would also have 14 of 84 the consequence that they would get the enhanced “bank rate” for those shifts; b) Ms O’Lone and Mr Murphy thought this was a good idea, and might help to achieve the purpose of the incentive arrangement by increasing the number of people working shifts in the Emergency Department through that critical incident period (rather than see bank staff numbers booked over that period increase, but significant numbers of rostered staff reporting in sick, as anecdotal accounts suggested they would otherwise see); and c) Ms O’Lone said that she would check if Ms Lewis-Towler was supportive of the suggestion and would get back to them.[80]The Claimant, Mr Murphy and Ms O’Lone all gave consistent evidence that Ms O’Lone then called back at around 13:30, and reported that she had spoken to Ms Lewis-Towler and raised the Claimant’s suggestions. Ms O’Lone told the Claimant and Mr Murphy that Ms Lewis-Towler had said “do what you need to do to fill the shifts”, which they took as giving the go-ahead to the Claimant’s suggestion. The call concluded with Mr Murphy being instructed to put a message into the Emergency Department Nursing WhatsApp group to communicate this.[81]Mrs Peck (who subsequently investigated this matter, as described below) interviewed Ms Lewis-Towler on 12 August 2022. Ms Lewis-Towler described the following: “I think one of the shocking things for me was when we went back, and I was shown Christmas and New Year period, & the number of ED [Emergency Department] staff who were removed from their substantive shift in retrospective and applied with a bank shifts to earn more money. I now think some of the reasons why individuals in ED do not want to come forward is because they have also benefited from the poor behavior.”[82]The notes of the interview then go on to record the following interaction: Ms Lewis-Towler: “I’m pretty sure Meera had agreed that there would be that kind of £150 payment. And then we could ask staff if they were willing to cover some of the Christmas New Year periods. What I became aware that, was the incident in ED where we already had… we had extensive risk which was sensitive due to the gaps. And suddenly, we had no gaps and, you know all suddenly got covered. Again, Tom gets a huge thank you, and you think, how did you cover all these shifts?” Mrs Peck: “I will tell you what we know. On the 31st December, [the Queen Elizabeth Emergency Department] was in quite a difficult situation and I believe we’ve been told that you and Annie went into the department in the morning into quite a difficult situation in ED on the 31st December 2021.” Ms Lewis-Towler: “Yes, I remember.” 15 of 84 Slightly later on, the interview records the following exchange between Mrs Peck and Ms Lewis-Towler: Mrs Peck: “So we’ve been told that there was quite an issue with staff. That this was only applying to the application of the £150 was only being applied to those people who booked bank, and there were concerns raised.” Ms Lewis-Towler: “No, it was to everybody.” Mrs Peck: “So, we’ve heard from not just three individuals, but from other people. That it was just for people working bank and people were never aware that it was applicable to everybody. We’ve heard from Annie that this was raised, that there was a conversation with you all about, about this, uproar from staff, and that the message was do what you need to do. Can you recall that conversation?” Ms Lewis-Towler: “No, that’s not the conversation. And I would never give permission to manipulate a rota for financial gain. Certainly not when people are already put down to work shifts. This was not a discussion… Under no circumstances would I ever approve taxpayers’ money via Tom going in and retrospectively amending shifts of staff that is already working. Absolutely not”.[83]Mr Murphy then sent the following message into that Nursing WhatsApp group at 14:02: “Tracey and Annie are also offering anyone that is working permanent to make it fair the chance to use there annual leave and work the shift as bank to they do not lose out the opportunity of this one off bonus. Please let me know if you want to annual leave and work as bank”, together with, at 14:03: “I feel like my phone may blow up after sending that text [with several emojis showing a face crying with laughter]”.[84]At 14:50 on the same day (31 December 2021), the Respondent’s Chief Strategy Officer, Jim Lusby, and its Chief People Officer, Meera Nair, sent a joint email to a large mailing list entitled “All staff: incentive to work over the Bank Holiday”. In that email, Mr Lusby and Ms Nair wrote: “… with rising levels of staff sickness combined with a high number of Covidpositive patients at our hospitals, we need to take additional steps to cover staff shortages. As a result, we are offering an additional incentive for all colleagues who will be working over the coming Bank holiday.. Colleagues who carry out a full shift from this evening (Friday 31 December) will receive an additional £150 for each full shift. This offer will be open up to and including night shifts on Monday 3 January to cover the holiday period. The additional incentive will be for all shifts that have been advertised to date. If you are not already working this weekend but are able to do so, please do speak 16 of 84 to your line manger to check if you can carry out a shift on the frontline… whether carried out as part of your substantive role or through the Staff Bank… “we have declared a critical incident…”.[85]Both parties accept that this message is somewhat contradictory, as the later reference to “whether carried out as part of your substantive role or through the Staff Bank” would indicate that both bank shifts and substantive shifts were covered, but the preceding text referred to the additional incentive being for “all shifts that have been advertised”, and both parties agree that substantive shifts were not advertised. The Claimant’s clear evidence was that she read the earlier wording, referring to advertised shifts, as meaning that the £150 incentive only applied to bank staff. She maintains that this is the correct reading of the email. The Respondent disagrees.[86]The parties agree that the Claimant did not receive any £150 incentive payment. She was booked to work at least one substantive shift over the bonus period, but did not cancel and rebook that shift so as to receive the incentive payment. Subsequent review of the work incentive matter, January 2022[87]In January 2022 the Trust was discussing with its roster software provider whether areas could be identified to enable it to make efficiencies.[88]Gillian Hale, the Respondent’s Head of Rostering and e-Solutions for Doctors, emailed the Respondent’s Chief People Officer, Meera Nair, on 24 January 2022 to raise concerns about the roster activities of the Emergency Department, namely: a) That family members were requesting, assigning and approving bank shifts, and in some cases changing the grade requirement for shifts, for each other; and b) That, in respect of the new year work incentive period, there were a number of staff working in the Emergency Department who had a planned rostered shift cancelled and were then added back onto the roster as a bank shift, thereby rendering them eligible for enhanced bank rates of pay. In some cases this was done after the individual in question had worked the shift.[89]The Respondent’s Deputy Director of Finance, David Cooper, was also informed of Ms Hale’s concerns in January 2022, and he asked the Counter Fraud team to investigate. The Respondent’s management team decided to run a concurrent disciplinary investigation in relation to the matter. The Claimant’s garden leave, 30 May 2022 to 16 June 2022[90]Those concerns resulted in the Claimant’s son, Thomas Murphy, and the Claimant’s line manager, Ms O’Lone, being suspended pending investigation into 17 of 84 misconduct allegations on 30 May 2022 by Mr Briggs. Mr Briggs decided to place the Claimant on garden leave with effect from the same date.[91]The Claimant avers that putting her on garden leave in the absence of any recognised procedure was a detriment, and that it was done on the ground that she had made one or more protected disclosures (Alleged Detriment 1).[92]The Respondent – via evidence from Mr Briggs – says that it suspended the Claimant at this time because of her potential involvement in the disciplinary case involving her son.[93]The Tribunal finds that Mr Briggs suspended the Claimant for two reasons: a) He was concerned that the Claimant remaining on site would be difficult given the suspension of Ms O’Lone and Mr Murphy given her closeness to those individuals; and b) He considered there could be evidence to substantiate misconduct allegations against the Claimant, albeit that that evidence had not yet been gathered.[94]Mr Briggs generally had a poor recollection of the events surrounding the Claimant’s disclosures, garden leave and suspension. His explanation of this relating to the time period of the Claimant’s garden leave and subsequent suspension was credible – he was very fearful at that he would also be subjected to misconduct allegations because he managed Ms O’Lone and (indirectly) the Claimant, both of whom were suspected of serious poor practices.[95]However, while Mr Briggs’ recollection was generally poor, his recollection was clear and confident when he answered questions about why the Claimant was placed on garden leave. He recalled being advised by the Respondent’s HR team that placing the Claimant on garden leave was an appropriate and reasonable thing to do, and he considered it was necessary given the Claimant would have access to information and evidence relevant to Mr Murphy’s suspension, and there was a concern that the Claimant was also involved in those matters.[96]Contemporaneous documentary evidence supports those matters as being his reasons for doing so, as the letter placing the Claimant on garden leave stated that the reason for doing so was that the Allocate roster review raised “significant anomalies” that required further investigation, and given the sensitivity of that investigation, placing the Claimant on garden leave was considered the only suitable option. Mr Briggs requested the bank books, 10 June 2022[97]The witness statement of Ms Yates described how, on 10 June 2022, Mr Briggs came into the Nursing Sisters’ office and asked Ms Yates where the bank books were kept. Ms Yates’ evidence was that Mr Briggs requested the past 18 months’ worth of bank books, i.e., to the beginning of 2021. 18 of 84[98]In oral evidence to the Tribunal Mr Briggs did not deny this, but nor did he recall it. He said that he “presume[d]” he handed them to the person in HR who ended up assisting Mrs Peck with her investigation, but said that if he had them, he wouldn’t have had them for long. Mr Briggs vehemently denied removing any pages from the bank books. The investigation of the Claimant’s conduct, June to November 2022[99]Mrs Gleed suspended the Claimant from work on 17 June 2022. The letter informing the Claimant of this said that the reason for her suspension “is based on evidence that has been obtained during an ongoing investigation into e-roster activity”. The letter stated that the Claimant’s suspension would be for 12 weeks, as was “to allow the full investigation to be undertaken given the seriousness of the allegations being reviewed”. The letter itself did not set out the allegations against the Claimant, but it enclosed the Terms of Reference of the investigation Mrs Gleed was commissioning, and those Terms included a list of five allegations against her.[100]The Claimant’s suspension endured for 8.5 months, which she says was a detriment done on the ground that she had made one or more protected disclosures (Alleged Detriment 2).[101]On the same day Mrs Peck was appointed as the Investigating Manager.[102]Mrs Gleed and Mrs Peck were appointed to these roles in respect of the misconduct investigations into the Claimant, Mr Murphy and Miss O’Lone. The Respondent decided to run those investigations concurrently, given the large amount of common facts.[103]The Claimant met with and discussed the allegations against her with Mrs Peck on each of 2 and 24 August 2022.[104]Following completion of the initial witness interviews by Mrs Peck, she recommended to Mrs Gleed that the Terms of Reference for the Claimant’s investigation be revised so as to include some additional allegations.[105]The Claimant’s suspension was extended for a further ten weeks on 14 September 2022.[106]Inadvertently, the Respondent sent the revised draft Terms of Reference to the Claimant on 16 September 2022.[107]An additional set of terms of reference were sent to the Claimant on 26 September 2022, following completion of Mrs Peck’s initial interviews with 24 witnesses. Those terms of reference set out a further five allegations of misconduct.[108]A third investigatory interview was held with the Claimant on 4 October 2022. 19 of 84[109]Mrs Peck compiled an Investigation Report in respect of the allegations against the Claimant on 14 November 2022, and that was provided to Mrs Gleed the following day.[110]Of the seven allegations of misconduct considered in that report, Mrs Peck concluded that: a) There was sufficient evidence to substantiate three of them, that:(i) The Claimant manipulated the Emergency Department roster between 31 December 2021 and 3 January 2022 for financial gain for self and others. Mrs Peck concluded that 78 shifts had been cancelled and rebooked as bank shifts, at significant extra expense to the Respondent (this is referred to in Mr Hastings’ outcome letter as ‘Allegation 1’);(ii) The Claimant finalised booking on the roster system for family members against management advice between 1 November 2021 and 31 May 2022 (this is referred to in Mr Hastings’ outcome letter as ‘Allegation 3’); and(iii) The Claimant interviewed and appointed Ms Bowden as a Bank B3 A&C with no previous experience, working against recruitment guidelines (this is referred to in Mr Hastings’ outcome letter as ‘Allegation 9’); and b) There was no evidence to substantiate the other four.[111]Mrs Peck’s report was sent to Mrs Gleed on 15 November 2022 for her consideration as Commissioning Manager. The Claimant asks for correspondence to be suspended for a short period, November[112]The Claimant wrote to the Respondent on 16 November 2022 to notify it that her family had suffered a close bereavement, and to request that correspondence between them be paused for a brief period until after the funeral. The Respondent agreed, and correspondence between them resumed on 25 November 2022. The Commissioning Officer determines her response to investigation report, 1 December 2022[113]On 1 December 2022 Mrs Gleed wrote to the Claimant, informing the Claimant of her decision that the matter should be referred to a formal disciplinary hearing in respect of three allegations, those being the allegations which Mrs Peck had recommended were taken forward.[114]The Claimant was invited to a disciplinary hearing, advised that one possible outcome was her dismissal for gross misconduct, and she was sent a copy of the disciplinary investigation report. 20 of 84[115]The Claimant contends that the Respondent relied on the evidence of 31 witnesses, only four of whom were relevant to the issues in respect of which the Claimant was being investigated. The Claimant avers that the other 27 witnesses were used to give opinion evidence against her. This alleged use of excessive and irrelevant witness evidence is Alleged Detriment 3.[116]In response to this, Mrs Peck for the Respondent says that these individuals were interviewed because that is where the investigation led her. Mrs Peck said that she had an initial list of people she wanted to speak to about the allegations against the Claimant, and that the evidence from those individuals and from the Claimant led her to interview a far greater number of people. Mrs Peck said she did not interview the Claimant’s family members as she did not think their evidence would add to the investigation.[117]It appears to the Tribunal that a large number of people were interviewed, most of whom added little to the Respondent’s understanding of the allegations. We find this significant: it supports the Claimant’s contention that the Respondent was looking to find things to criticise for her. We find that that is correct. Mrs Peck was keen to do a thorough job of investigating the Claimant’s conduct generally, not confined to the allegations raised (as is also supported by the expansion of the allegations over the period of the investigation). We do not consider that Mrs Peck was in any way motivated by the fact that the Claimant had made protected disclosures – but she was motivated by a desire to uncover any inappropriate conduct on the part of the Claimant. The disciplinary process, December 2022[118]The disciplinary hearing was held with Mr Hastings on 15 December 2022.[119]The Claimant sent an email to Mr Hastings on 30 January 2023 raising concerns about evidence tampering within the disciplinary investigation, which she says amounted to a protected disclosure. The Respondent disputes that this amounted to a protected disclosure (Disputed PD 6). Specifically, the Claimant says that the Respondent: a) Removed pages from bank books where those pages showed that her family members had signed in to work (Alleged Detriment 4); and b) Lost or withheld bank books and information regarding the e-rostering system which showed other employees finalising the bank shifts worked by their family members (Alleged Detriment 5). The Claimant’s dismissal[120]The Claimant was informed of the outcome of that hearing on 16 February 2023, both in person and in writing: she was summarily dismissed.[121]Mr Hastings’ letter to the Claimant of 16 February 2023 (the Outcome Letter) included the following: 21 of 84 a) In relation to Allegation 1, that the Claimant manipulated the ED roster between 31st December 2021 and 3rd January 2022 for financial gain for self and others:(i) Mr Hastings upheld this allegation.(ii) He recorded that the Claimant did not dispute this allegation.(iii) “I accept that, initially, [you allowing manipulation of the roster system] may have been due to your incorrect interpretation that the £150 bonus payment was only for bank staff at the time. However, your inability to clearly escalate when you became aware it was paid to everybody, and continued apparent failure to recognise the severity of the impact of your incorrect interpretation on the Trust (even at the Hearing) is of concern.”(iv) In relation to the manipulation of the roster, “I consider such action outside of your remit and role demonstrated a lack of financial governance and probity which resulted in misuse of public monies on this occasion. This demonstrates a disregard, on your part, of the requirement for you to ensure effective budget management and highlight any anomalies to the Head of Nursing and Finance Team… based on the contents of the Report and the evidence presented by you at the Hearing, you did not appear to grasp the financial impact that these changes had on the Trust or seem to recognise that this was problematic”.(v) In terms of the suggestion the Claimant made, that staff booked to work a substantive shift over the bonus incentive period be permitted to cancel those shifts, take annual leave and then book to work a bank shift, Mr Hastings concluded that this demonstrated “a failure to recognise that annual leave is intended to benefit staff health and wellbeing and as such, should be used to facilitate rest and recuperation from work”. b) In relation to Allegation 3, that the Claimant finalised booking on the roster system for family members against management advice between 1st November 2021 to 31st May 2022: (i) Mr Hastings upheld this allegation. (ii) Mr Hastings noted that: “You suggested many other colleagues had finalised shifts for their children. However, the Investigation established that this was not the case and there was only one other member of staff who had done so… This individual is no longer a substantive employee of the Trust, having left in March 2022.” (iii) He observed that the countersignature process for bank shifts, i.e., that the nurse in charge of the shift countersigns the signature of the bank staff member in relation to each shift worked to verify that 22 of 84 the bank staff member worked that shift “is a particularly important part of the financial governance structure within the ED, providing assurance to members of staff who finalise shifts that actual hours were worked”. (iv) He found that, while the Claimant asserted that her practice of finalising bank shifts for family members changed after the discussion with Ms O’Lone in November 2021, “the data collected by Investigator shows that you actually continued to finalise shifts for your children and Zoe [the Claimant’s son’s partner]; in particular you did so 14 times between 23 December 2021 and 6 April 2022. You maintained that you felt comfortable signing off your family members timesheets/finalising bank shifts for family members because the ED Bank Book was used as a reference point to give you assurance that the hours were worked by your family members… In the Hearing, you were not able however to demonstrate any records to confirm the accuracy of bank shift finalised by you as recorded in the ED Bank Book which is of concern… Not all Bank Books were available during the Hearing… Out of the 14 shifts you finalised for your sons and Zoe between 23 December 2021 and 6 April 2022, there were only 7 shifts that could be reviewed in the Bank Books… Of those which could be reviewed, only 1 of the 7 shifts had a corresponding signature in the Bank Book”. (v) “I recognise that there is no specific Trust policy for managing family relationships whilst at work. However, in the absence of a specific Trust policy, I would expect that, as a Senior Matron and Registered Nurse, you would have familiarised yourself with Trust’s Standards of Business Conduct and Conflict of Interest Policy (2019) or at the very least adopted a common-sense approach to managing potential conflicts of interests, particularly when it comes to finalising shifts retrospectively for additional work for close family members… You have confirmed that in November 2021, you were asked by Mr Briggs – via your line manager – to cease the signing of family members time sheets. This was a reasonable request and you were not able to demonstrate to me that you took every possible effort to follow this advice. You were insistent that this needed to be documented by Phil to you; however, this was reasonable for this instruction verbally to come via your line manager, particularly as you had already been given similar advice prior.” 23 of 84(vi) “On the balance of evidence, I contend that it would have been practical and reasonable for somebody else to be identified to finalise shifts for your family members, instead of you.”(vii) “In addition, the situation us further concerning by the fact that you are not able to demonstrate whether these bank shifts were actually worked… The lack of corresponding signatures demonstrates to me that you did not have a robust process to confidently sign off your family members timesheets, even if it was permitted for you to do so.”(viii) “It appears that you wilfully and deliberately continued to finalise bank shifts for family members, despite repeated instructions and guidance not to do so.” c) In relation to Allegation 9, that the Claimant interviewed and appointed Amelia Bowden as Bank B3 A & C, with no previous experience, working against recruitment guidelines: (i) Mr Hastings upheld this allegation. (ii) “I do not see this as a good use of your time”. (iii) “I am not confident that you have a developed understanding of good, fair recruitment practice.” (iv) “This recruitment episode could have been managed and handled by another member of the team, responsible for leadership of the team AB was recruited to work for.” (v) “Your approach to this situation was extremely concerning, given that you are a senior Registered Nurse.” d) In the concluding section of his letter, Mr Hastings: (i) Concluded that the Claimant’s conduct amounted to gross misconduct within the Trust’s Disciplinary Policy, as it fell within two of the examples of such conduct given in that Policy, being: “improper use of an official position for private gain, or for the gain of some other person”; and “serious breach of trust and confidence”; (ii) Considered that the Claimant’s conduct breached Trust values on multiple occasions, regarding that conduct as “likely to have impacted on the team culture and views of the team towards you as a leader”. He also concluded that the Claimant had shown “very limited reflection” during the Investigation and Hearing as to why these issues had caused concern for the Respondent, and had “deliberately deviated form the advice of HR and wilfully ignored the management instructions of Annie O’Lone [and] Mr Briggs”; 24 of 84 (iii) Expressed concern that the Claimant demonstrated a lack of understanding about the importance of certain aspects of her job description pertaining to financial governance, roster management, fair recruitment process and managing conflicts of interest appropriately; and (iv) Breached the NMC Code. e) The letter stated: “I noted that you put forward a number of points which you consider amount to mitigating circumstances. In reaching my decision I have taken into account the following mitigating factors presented by you.” The letter does not proceed to identify any mitigating factors identified by the Claimant. It continues: “However, I do not consider these are sufficient to mitigate your actions and I am therefore satisfied that you have committed gross misconduct. There is no satisfactory explanation, or justification, as to why you conducted yourself in this way.” Later on, Mr Hastings wrote: “I note that you have significant service with the Trust and a clean disciplinary record. However, as above, I was particularly concerned that a Band 8b Senior Matron and Registered Nurse would conduct themselves in the way that you have… I was not able to find any mitigating factors that would justify a lesser sanction and have concluded that the only appropriate sanction is summary dismissal.” f) Mr Hastings went on to consider whether the Claimant could return to work for the Respondent in any capacity, but concluded that she could not, noting the breach of trust, and that her line manager, Ms O’Lone, “had spoken to you (most recently in November 2021) about the amount of bank shifts that you were working at weekends”. He concluded that he had seen “a pattern of concerning behaviours and multiple breaches of the Trust’s policies and procedures”, representing “a wholesale breach of trust and confidence”. He also cited his perception that the Claimant had a lack of awareness for the need for accountability for decisions, and a lack of selfreflection on her part.[122]The Claimant says: a) This was a detriment done on the ground that she had made protected disclosures, contrary to section 47B of the 1996 Act (Alleged Detriment 6); b) That the sole or principal reason for her dismissal was that she had made one or more protected disclosures. The Respondent disagrees and says it was a fair dismissal for misconduct; c) Complains that her dismissal was in any event unfair, as:(i) Evidence she raised during the investigation an disciplinary hearing was ignored; 25 of 84(ii) Concerns raised by her about the tampering of evidence was ignored;(iii) The selection of witnesses for the disciplinary process was biased; and(iv) Senior management provided untrue evidence to discredit the Claimant’s practice; d) That she was wrongfully dismissed. Again, the Respondent denies this and says that her actions amounted to gross misconduct and that it accepted her fundamental breach of contract, which brought her contract to an end without the need for notice or pay in lieu of notice; e) That the disciplinary outcome letter referred to the Respondent’s Business Continuity Policy, which she had never seen or been provided with. The inconsistent application of this policy, she avers, was Alleged Detriment 7; and f) The Respondent acted inconsistently when it took the decision to dismiss her. She points to the Respondent’s treatment of Thomas Murphy who, in response to the same facts (the Claimant says), only received a first written warning (Alleged Detriment 8).[123]The Claimant was informed of her right to appeal the decision to dismiss her, but she did not use it. The Claimant was a named respondent, and a witness, in another person’s Employment Tribunal case against the Respondent[124]The Claimant gave evidence, on her own behalf and on behalf of the Respondent, in an Employment Tribunal hearing brought by another individual, between the date of her dismissal and the date of the NMC referral. NMC referral[125]Mrs Peck on behalf of the Respondent made a referral to the NMC about the Claimant on 5 April 2023. In the referral form – completed by Mrs Peck – the Respondent: a) Answered the question: “As far as you know, has the nurse or midwife ever raised a concern about patient safety or healthcare more broadly at your organisation?” in the negative; and b) Answered the question: “What did the nurse or midwife do or not do that causes concern?” in the following terms: 26 of 84 “A disciplinary hearing was undertaken to consider the following allegations: Manipulation of the Emergency Department healthroster between 31st December 2021 and 3rd January 2022 for financial gain for self and others – upheld Finalised bookings on the roster system for family members against management advice between 1st November and 31st May – upheld That as Senior matron you interviewed and appointed AB as bank band 3 Admin and clerical, with no previous experience, working against recruitment guidelines – upheld.”[126]The Claimant averred that: a) The Respondent’s action in referring her to the NMC (the detriment described in the agreed list of issues); and b) (As she described in the course of this hearing) its action in timing that referral so as to do so only once she had completed giving evidence on behalf of the Respondent, constituted a detriment done on the ground that she had made protected disclosures (Alleged Detriment 9). The Respondent agrees that it referred her to the NMC, and that that occurred after the Claimant had given evidence on behalf of the Respondent and herself (the Claimant was a named respondent) in Employment Tribunal proceedings, but the Respondent denies that either the fact of referral or its timing is capable of being a detriment at law. It also says that while the Claimant has criticised the Respondent for the content of that referral (the accuracy of the information in it), those contents are immune from suit.[127]It was Mrs Peck who made the NMC referral. She did so on the instruction of Mr Hastings in the disciplinary process outcome letter. We find that Mrs Peck’s reason for making a referral to the NMC was her instruction to do so from Mr Hastings, and we consider Mr Hastings’ reason for issuing that instruction was his belief in the Claimant’s misconduct. Those explanations from those witnesses were accepted by the Tribunal. Indeed, the Claimant did not suggest to Mr Hastings that he was motivated by any of her disclosures when he determined that she should be referred to the NMC.[128]The NMC wrote to the Claimant on 17 April 2023, stating that it had decided not to investigate the concern about the Claimant’s fitness to practise.[129]Mrs Peck, the person who made the NMC referral, agreed that it was not accurate in a number of respects, and explained the timing of the referral as being down to workload. She said that there was not a massive urgency to make the referral, as the Claimant was not dismissed for a clinical reason or for any concern regarding how she cared for patients. 27 of 84 The Tribunal process[130]ACAS Early Conciliation began on 24 April 2023, and ended on 26 April 2023.[131]The Claimant presented her Claim Form on 25 May 2023.[132]Preliminary Hearings for Case Management took place on each of: a) 21 April 2024; b) 14 June 2024; and c) 24 March 2025. Law Remote observers[133]Section 85A of the Courts Act 2003 provides that a court or tribunal: “may direct that images or sounds of the proceedings are to be transmitted electronically for the purpose of enabling persons not taking part in the proceedings to watch or listen to the proceedings”, and this power is the subject of subsidiary legislation in the form of the Remote Observation and Recording (Courts and Tribunals) Regulations 2022.[134]There are two types of direction that can be made pursuant to this power: a) A direction for transmission to “premises” designed by the Lord Chancellor as live-streaming premises (e.g., a second tribunal room set up for the Press where a popular case is being heard); or b) A direction for transmission to which individuals are given access.[135]Those Regulations provide that, before making either such a direction, the tribunal “must be satisfied that-(a) it would be in the interests of justice to make the direction; and(b) there is capacity and technological capability to enable transmission, and giving effect to the direction would not create an unreasonable administrative burden.”[136]Regulation 4 specifies certain matters which must be taken into account, broadly summarised as: a) The open justice principle; b) The timing and manner of the application; c) The resources needed to facilitate effective remote observation; d) Any legislative restriction on who can attend, any international issues; and e) The impact of the direction sought on: The content or quality of the evidence to be put; 28 of 84 Public understanding of the law and the administration of justice; The ability of the public to observe and scrutinise the proceedings; and The safety and right to privacy of any person involved with the proceedings. Automatic unfair dismissal: on the ground of protected disclosure[137]Section 103A of the 1996 Act 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.” Unfair dismissal: Dismissal for conduct[138]The protection of employees from unfair dismissal is set out in section 94 of the Employment Rights Act 1996 (the 1996 Act).[139]Section 98(1) sets out that that an employer may only dismiss an employee if it has a fair reason (or principal reason) for that dismissal: “In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”[140]The Supreme Court in Royal Mail Group Ltd v Jhuti [2020] ICR 731 held that: “In searching for the reason for a dismissal... courts need generally look no further than at the reasons given by the appointed decision-maker”.[141]Subsection (2) of section 98 identifies “the conduct of the employee” as a reason falling within subsection 98(1).[142]The fairness of a dismissal falls to be judged on the basis of the facts known to the employer at the time of the decision to dismiss (W Devis & Sons Ltd v R A Atkins [1977] IRLR 314).[143]Where the employer had more than one conduct-related reason for dismissal, the examination of the tribunal is of the totality of the facts known to (or beliefs held by) the employer when considering whether that amounted to a sufficient reason for dismissal (Governing Body of Beardwood Humanities College v Ham IKEAT/0379/13).[144]In the context of a dismissal for “conduct”, the employer must have reasonably believed the employee guilty of misconduct at the time of the decision to dismiss 29 of 84 them. The seminal decision of British Home Stores Ltd v Burchell [1980] ICR 303, EAT, as refined in subsequent authorities such as Singh v DHL Services Ltd EAT 0462/12 and Boys and Girls Welfare Society v McDonald [1996] IRLR 129, set out three questions to be answered when assessing the fairness of a conduct dismissal: a) Did the employer believe the employee guilty of misconduct at the date of dismissal? b) Did the employer have reasonable grounds for that belief? and c) At the stage when the employer’s belief was formed, had it carried out as much investigation into the matter as was reasonable in the circumstances?[145]The fact that three questions are to be answered does not mean that each needs to be ‘passed’ in order for the dismissal to be fair. The tribunal must ask itself whether the dismissal fell within the range of reasonable responses (McDonald). Investigating misconduct[146]The range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23), but that does not mean that the test is assessed multiple times to separate aspects of the same dismissal. The Court of Appeal in Taylor v OCS Group [2006] EWCA Civ 702 held that considering procedural fairness is part-and-parcel of considering whether the employer’s decision to dismiss was within the range of reasonable responses.[147]An investigation should be even-handed – looking for evidence that supports the employee’s case as well as evidence that does not (A v B [2003] IRLR 405).[148]It is an important principle of natural justice and procedural fairness that the employee should know the case against them (Byrne v B O C Ltd [1992] IRLR 505).[149]The degree of thoroughness required for an investigation to be reasonable is, according to the EAT in the case of ILEA v Gravett [1998] IRLR 497: “infinitely variable; at one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including questioning of the employee, is likely to increase. At some stage, the employer will need to face the employee with the information which he has. That may be during an investigation prior to a decision that there is sufficient evidence upon which to form a view or it may be at the initial disciplinary hearing”. 30 of 84[150]The requisite degree of thoroughness of an investigation is assessed not only by reference to the weight of initial evidence of what the employee is alleged to have done (e.g., whether they have been “caught in the act”, or whether the evidence is very tangential), but also by the gravity of the charges and their potential effect upon the employee (A v B [2003] IRLR 405). Where a finding of misconduct will blight an employee’s future career, the standard of fairness and thoroughness required from the employer will be high (Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 722).[151]If there has been a procedural flaw at the ‘decision to dismiss’ stage, but that stage is followed by an appeal brought by the employee against that decision, it is the entirety of the employer’s process (together with its reasons for dismissal) that should be assessed when considering whether the employer acted fairly in dismissing the employee (Taylor). Decision-making[152]Subsection (4) of section 98 provides: “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[153]In other words, when the employer has been shown to have a potentially fair reason for dismissal, a further enquiry follows as to whether, looked at ‘in the round’, the dismissal was fair or unfair.[154]The test in section 98(4) is an objective one. When the employment tribunal considers the fairness of the dismissal, it must assess the fairness of what the employer in fact did, and not substitute its decision as to what was the right course for that employer to have adopted (British Leyland v Swift [1981] IRLR 91).[155]The circumstances of the case may include matters such as: a) The size of the respondent (this is specifically stated in the subsection); b) The resources of the respondent’s undertaking (again, this is specifically stated in the subsection); c) The relevant background to the conduct (Had it happened before? Had the claimant received disciplinary warnings in respect of prior occurrences?); d) The claimant’s prior disciplinary record; 31 of 84 e) The claimant’s reflection upon their conduct in light of the concerns expressed by the respondent, e.g., whether the claimant has shown remorse and a commitment to act differently in the future; f) The claimant’s own situation, e.g., whether they were under stress or duress, in poor health or provoked; and g) The respondent’s consideration of alternatives to dismissal.[156]In many (though not all) cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another. The correct approach is for the tribunal to focus on the particular circumstances of each case and determine whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted in light of those circumstances. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439).[157]Therefore, once all three of the Burchell questions are answered, a further question must be answered by the Tribunal – whether the respondent otherwise acted in a procedurally fair manner, and whether, in light of its genuine and reasonable belief in the employee’s misconduct, the sanction of dismissal was within the range of reasonable responses open to it on an objective basis (Graham v Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903).[158]Section 98(4) requires that in answering that question the particular facts and circumstances of the case, and considerations of equity and the substantial merits of the case, be at the forefront of the tribunal’s mind when determining the breadth of the range of responses that a reasonable employer could have to those matters. In other words, the ambit of the range is case-specific, and is not infinitely wide (Newbound v Thames Water Utilities Ltd [2015] IRLR 734). The question for the tribunal is whether the employer’s response – of dismissing the employee – was within that range or not. Some specific considerations relevant to decision making: (i) Length of service[159]The Court of Appeal in Newbound approved of the account taken by the Employment Judge in that case of the claimant’s 34 years’ service with a clean disciplinary record, and noted that “it would have been extraordinary if he had not done so”.[160]Where there is more than one way to interpret the facts in a given case – for example, that either the employee was trying to defraud the company or had made a stupid mistake - an employee of long service and good conduct ought to be better believed than one of short service and poor conduct (O’Brien v Boots Pure Drug Co Nottingham [1973] IRLR 261). 32 of 84[161]However there are cases where the gravity of the employee’s conduct means that their length of service is of no materiality (AEI Cables Ltd v McKay [1980] IRLR 84). As the EAT put it in London Borough of Harrow v Cunningham [1996] IRLR 256, “in cases of serious misconduct length of service will not save the employee from dismissal”. (ii) Past conduct[162]The fact that past conduct of a similar kind was criticised but not the subject of formal disciplinary action (e.g., in the form of a warning) does not prevent that past conduct from being considered by the employer and it influencing the breadth of the range of reasonable responses to that conduct (NHS 24 v Pillar UKEATS/0005/16/JW). (iii) Past disciplinary record[163]As noted above, there is good authority that an Employment Tribunal can, and in some cases should, take account of a claimant’s disciplinary record (Newbound).[164]While the ACAS Code anticipates that it will be usual for a first disciplinary process, where the misconduct is upheld, to result in a first warning, the absence of prior warnings does not necessarily mean that dismissal is outside of the range of reasonable responses to poor conduct. (iv) Parity of treatment with others[165]The word “equity” in section 98(4)(b) was found, in the Court of Appeal decision of Post Office v Fennell [1981] IRLR 221 to include: “the concept that employees who behave in much the same way should have meted out to them much the same punishment. An Industrial Tribunal is entitled to say that where that is not done and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for the dismissal”.[166]The EAT in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, decided shortly after Fennell, took the view that, where an argument is made that a respondent’s treatment of a claimant in dismissing them was inconsistent with the treatment of others, the focus of the tribunal remains on whether dismissal was within the range of reasonable responses open to the employer in the particular circumstances.[167]The approach in Hadjioannou was cited with approval by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305. It held that: “If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether 33 of 84 in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified.”[168]The authorities are clear that there must be true parity between the comparison cases in order for past treatment of a different employee to bear on the fairness of the dismissal of an employee now (Paul v East Surrey District Health Authority [1995] IRLR 305). Each case will turn on its own facts and circumstances, and even in cases of similar misconduct, the employer (and tribunal) should also, as per section 98(4), look at the facts and circumstances of the particular individual concerned – even if their conduct is very similar to that of another employee, their personal circumstances may be quite different, and so whether dismissal is within the range of reasonable responses may differ between them. However cases of unjustified disparity are appropriately to be taken into account by a tribunal when assessing whether dismissal was within the range of responses open to a reasonable employer in the circumstances (Newbound). (vi) Remorse/reflection[169]Whether the claimant has shown remorse for their misconduct can be fairly taken into account by the respondent when determining whether to dismiss (Hodgson v Menzies Aviation (UK) Ltd EAT 0165/18) – remorse can be a mitigating factor, and sometimes a lack of remorse may be a relevant consideration. For instance, if the claimant showed themselves to be too entrenched in their view to heed management advice or instruction to change, that can be relevant to whether dismissal is within the range of reasonable responses to the claimant’s conduct (Perkin v St George’s Healthcare NHS Trust [200] ICR 2005).[170]It is worth noting, though, the comments made by Underhill LJ in Hewston v Ofsted [2025] EWCA Civ 250: “As a general proposition, I find it hard to see how in such a case it could be reasonable for the employer to bump up the seriousness of the conduct only because the employee fails during the disciplinary process to show proper contrition or insight.” However he acknowledged that: “there may be cases of less serious misconduct where a persistent failure on the part of the employee to recognise that they have done anything wrong means that there is a real risk that they will commit more serious misconduct in the future; and that that risk should in principle, depending on the particular circumstances, be capable of justifying dismissal”. (vii) Consideration of alternatives to dismissal[171]Whether the respondent considered alternatives to dismissal can be relevant to whether dismissal was within the range of reasonable responses open to it (London Borough of Hammersmith and Fulham v Keable EA-2019-000733-DA).[172]The ACAS Code anticipates that, in most cases, misconduct will be met by a warning: 34 of 84 “19. Where misconduct is confirmed or the employee is found to be performing unsatisfactorily it is usual to give the employee a written warning. A further act of misconduct or failure to improve performance within a set period would normally result in a final written warning.” “20. If an employee’s first misconduct or unsatisfactory performance is sufficiently serious, it may be appropriate to move directly to a final written warning. This might occur where the employee’s actions have had, or are liable to have, a serious or harmful impact on the organisation.”[173]However, it acknowledges that: “23. Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.” Summary of the questions for the tribunal[174]Summarising the above, this means that the tribunal must answer four questions when considering the fairness of a dismissal for misconduct: a) Did the respondent genuinely believe the claimant guilty of misconduct at the date of dismissal? b) Did the respondent have reasonable grounds for that belief? c) When the respondent’s belief was formed, had it carried out as much investigation into the matter as was reasonable in the circumstances? d) Taking account of both the substantive and procedural fairness of the respondent’s response, was dismissal within the range of reasonable responses available to it? Gross misconduct/wrongful dismissal[175]Where a contract of employment between an employer and an employee is fundamentally breached, the innocent party may accept that fundamental breach and bring the contract to an immediate end. Where an employer has purported to accept a fundamental breach by the employee and do that, but the employee says that the conditions to do so were not made out, the employee may bring a complaint of wrongful dismissal.[176]The tribunal must then examine: a) Whether the employee breached the contract of employment; b) Whether the breach was fundamental, going to the heart of the contract (Wilson v Racher [1974] ICR 428); and c) Whether the employer accepted that breach without affirming the contract. 35 of 84[177]While the test for the tribunal in a complaint of unfair dismissal includes assessing the reasonableness of the employer’s actions and whether dismissal was within the range of reasonable responses open to it, the examination undertaken by the tribunal when considering a wrongful dismissal complaint is an objective one: whether, on the balance of probabilities the tribunal finds as a matter of fact that, on the evidence before the employer at the time of dismissal, the employee committed a repudiatory breach of the contract of employment which was then accepted by the employer without affirmation of that contract. The employer’s reasonable belief is not a part of that consideration (as shown by cases such as Shaw v B and W Group Ltd EAT 0583/11).[178]In cases of dishonesty, the issue of whether the breach was a fundamental one is that outlined in the case of Neary v Dean of Westminster [1999] IRLR 288: whether the employee’s dishonesty so undermined trust and confidence that the employer is no longer required to retain the employee in its employment.[179]Where the issue is the employee’s conduct, that conduct must be a deliberate and wilful contradiction of the contractual terms or amount to gross negligence (Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 1 WLR 698).[180]A series of acts which, individually, are insufficient to amount to a fundamental breach of contract may, in aggregate, demonstrate a pattern of behaviour of sufficient seriousness to justify dismissal (Mbubaegbu v Homerton University Hospital NHS Foundation Trust EAT 0218/17). Protected disclosure detriments[181]Section 47B(1) of the 1996 Act 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.”[182]The term “protected disclosure” is set out in section 43A: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[183]In the case of a dispute between parties as to whether a protected disclosure has been made, that dispute can be answered by addressing a series of questions derived from the conditions in sections 43A to 43H (as applicable): a) Did the averred communication happen as a matter of fact? b) Did the claimant make it? c) When making it, did the claimant disclose information? d) Was that disclosure in the public interest? 36 of 84 e) When making it, did the claimant have a reasonable belief that it was in the public interest? f) Did the disclosure tend to show one or more of the matters described in section 43B(1)? g) Did the claimant have a reasonable belief that the disclosure tended to show that matter?[184]Section 43B(1) provides: “(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,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. … (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[185]A “qualifying disclosure” made to the discloser’s employer is a “protected disclosure” pursuant to section 43C.[186]While a disclosure must be made “in the public interest” to be capable of being a protected disclosure, the phrase “in the public interest” is not defined in the legislation. The leading case on the meaning of this condition is the Court of Appeal decision in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed (Public Concern at Work intervening) [2018] ICR 731. In order for a disclosure to be in the public interest it must serve the interests of persons outside the workplace. Where the disclosure relates to a breach of the person’s own employment contract (or personal interest of another nature), there may also be a public interest in the disclosure – it will depend on the facts. Relevant factors for assessing whether the disclosure is also in the public interest may include: a) The numbers in the group whose interests the disclosure served; b) The nature of the interests affected, and the extent to which they are affected by the wrongdoing disclosed; 37 of 84 c) The nature of the wrongdoing disclosed; and d) The identity of the alleged wrongdoer.[187]The “public” in “public interest” can be a subset of the general public, potentially even a subset composed only of employees of the same employer (Underwood v Wincanton plc UKEAT/0613/15).[188]Raising a concern about the endangerment of health and safety will usually always involve an element of public interest (Dobbie v Felton t/a Feltons Solicitors [2021] IRLR 679).[189]Even if a disclosure does raise matters of public interest, it still will not be a protected disclosure if it was not made by the worker in the reasonable belief that it was in the public interest. The claimant in Simpson v Cantor Fitzgerald Europe [2021] ICR 695 was found to have been primarily concerned with the value of his own commission, even though his disclosures were of public interest.[190]The language “in the reasonable belief of the worker” involves applying an objective standard to the personal circumstances of the discloser (and this was considered by the EAT in the case of Korashi v Abertawe Bro Morgannwg University Local Health Board [2012] IRLR 4, which concluded that those with professional or ‘insider’ knowledge will be held to a different standard than laypersons in respect of what it is ‘reasonable’ for them to believe). This “reasonable belief of the worker” language applies to both whether the disclosure is in the public interest and whether the disclosure tends to show one or more relevant failure. There are both subjective and objective elements to this test. a) The subjective element is that the worker must believe that the disclosure is in the public interest and that the information disclosed tends to show one of the relevant failures; and b) The objective element is that that belief must be objectively reasonable (Phoenix House Ltd v Stockman [2017] ICR 84).[191]The protection afforded workers by section 47B is from detriment by his employer done on the ground that the worker has made a protected disclosure, so a claimant pursuing a claim under section 47B must show: a) That they made a protected disclosure; b) That they suffered some identifiable detriment; c) That detriment was at the hands of their employer; and d) There was a causal connection between the act or failure and the protected disclose – that the detriment was on the ground of their protected disclosure.[192]It is not a “but for” test, but rather whether the detriment is “on the ground” of the protected disclosure is to be understood as meaning that the protected disclosure “materially influences (in the sense of being more than a trivial influence) the 38 of 84 employer's treatment of the whistleblower” (Fecitt v NHS Manchester [2012] ICR 372).[193]This requires an examination of the mental processes (conscious or unconscious) of the decision-maker – what caused or influenced them to act (or fail to act) as they did (London Borough of Harrow v Knight EAT/0790/01).[194]Section 48 of the 1996 Act 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.”[195]Section 48(2) does not mean that the burden of disproving the necessary causative link between the protected disclosure and the detriment shifts to the employer – rather, it means that while the burden of proving that connection rests with the employee, the employer is expected to identify and evidence the ground or grounds on which it acted or failed to act so as to result in the detriment shown by the claimant. The claimant does not ‘win’ by default if the employer fails to establish a reason for its actions – there remains an evidential burden on the claimant (Ibekwe v Sussex Partnership NHS Foundation Trust UKEAT/0072/14/MC).[196]However, “In the absence of a satisfactory explanation from the employer… tribunals may, but are not required to, draw an adverse inference”, but any “inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found” (International Petroleum Ltd v Osipov UKEAT/0058/17). Dismissal: a “detriment” on the ground of having made protected disclosures?[197]Dismissal for the reason, or principal reason, that the employee made a protected disclosure is an unfair dismissal (section 103A of the 1996 Act).[198]The right that a worker has not to be subjected to any detriment by any act, or any deliberate failure to act, by their employer done on the ground that the worker has made a protected disclosure (in section 47B of the 1996 Act) does not apply where the detriment in question amounts to dismissal (section 47B(2)(b) of the 1996 Act). The NMC’s legislative regime[199]The Nursing and Midwifery Order 2001 (the 2001 Order), made pursuant to section 60 of the Health Act 1999, established the NMC.[200]Pursuant to Article 3 of the 2001 Order, the NMC’s principal functions are to establish standards of education, training, conduct and performance for nurses, midwives and nursing associates, and to ensure the maintenance of those standards. The over-arching objective of the NMC in exercising its functions is 39 of 84 the protection of the public, and that involves (among other things) promoting and maintaining public confidence in the nursing profession.[201]The NMC is obliged, by Article 5 of the 2001 Order, to maintain a register of qualified nurses. The obligation on the NMC to maintain that register is an obligation to ensure that the people who appear on it have established “the standards of proficiency necessary for safe and effective practice under that part of the register” (Article 5(2)(a)) and that they have provided sufficient “evidence of good health and good character in order to satisfy the [NMC] that [they are] capable of safe and effective practice as a nurse, midwife or nursing associate” (as appropriate) (Article 5(2)(b)).[202]Article 21 of the 2001 Order requires the NMC to establish and keep under review effective arrangements to protect the public from persons whose fitness to practice is impaired.[203]Where an allegation is made against a nurse on the NMC’s register that their fitness to practice is impaired by reason of misconduct, the NMC is required to consider that allegation by the terms of Article 22 of the 2001 Order. That initial consideration may result in a referral to the NMC’s Fitness to Practise Committee, or its Investigating Committee (pursuant to Article 22(5) of the 2001 Order), and the latter may in turn refer the nurse to the Fitness to Practice Committee (the FPC) (Article 26(5A) of the 2001 Order). The NMC, pursuant to its powers in various articles of the 2001 Order, made the Nursing and Midwifery Council (Fitness to Practise) Rules Order of Council 2004. The rules in that Order (the FPC Rules) set out detailed requirements for how the NMC is to respond to an allegation made pertaining to Fitness to Practise. Those include: a) A process by which the registered nurse may make representations to the FPC; b) The FPC may hold a hearing, and if it does so, the FPC Rules prescribe matters such as notice requirements in relation to that hearing; c) The default position is that hearings of the FPC take place in public; d) The nurse may be legally represented at an FPC hearing; e) Witnesses may be called to give evidence at an FPC hearing; f) Requirements of the kind of notice that is required to be given to the registered nurse; and g) The FPC is to be advised by a legal assessor.[204]After a process of scrutiny, the allegation against the nurse may be determined to be well founded or not well founded, and if well founded, that could result in the nurse being struck-off the NMC’s register (pursuant to Article 29(5)(a) of the 2001 Order).[205]The NMC Code states: 40 of 84 “When joining our register, and then renewing their registration, nurses, midwives and nursing associates commit to upholding [the standards in the NMC Code]. This commitment to professional standards is fundamental to being part of a profession. We [i.e., the NMC] can take action if those on our register fail to uphold the Code. In serious cases, this can include removing them from the register.”[206]There is a process whereby the person aggrieved by the NMC’s decision (that may be the nurse) may appeal against the NMC’s decision, and those appeals are determined, for nurses in England and Wales, to the High Court (as described in Article 38 of the 2001 Order).[207]It is a criminal offence for a person to falsely represent themselves as being registered with the NMC, or to use the title “registered nurse” if they are not on the NMC’s register (Article 44 and the Nurses and Midwives (Parts of and Entries in the Register) Order of Council 2004). Is the making of a referral to the NMC capable of being a protected disclosure detriment?[208]The EAT decision of Ahari v Birmingham Heartlands and Solihull Hospitals NHS Trust UKEAT/0355/07/CEA concerned whether giving evidence to the Fitness to Practise Panel of the General Medical Council could be an act of discrimination. His Honour Judge Peter Clark noted that the answer to this question depended on whether the Fitness to Practise Panel was a quasi-judicial body, which in turn depended on whether it met the four-fold test set out by Lord Diplock in Trapp v Machie [1979] 1 AER 489, namely: a) Is it a tribunal recognised by law? b) Is the nature of the issue akin to a civil or criminal issue between adversarial parties in the courts? c) Is there a procedure similar to that in a court of law? d) Is the outcome a binding determination of the civil rights of the parties?[209]Clark J noted that there is a tension between: a) On the one hand, the general interest that the law should provide a remedy to a citizen whose reputation is besmirched by malicious falsehoods; and b) On the other, the interest in ensuring that witnesses before tribunals recognised by law should be able to give their testimony free from any fear of being harassed by an action that they acted out of malice.[210]Acknowledging that tension, he concluded that if the Fitness to Practise Panel was a quasi-judicial body, the immunity that was provided to a witness to that Panel was absolute: there is no need for the witness to prove an absence of malice in order to be immune from suit for giving their evidence to that Panel.[211]Clark J concluded that the General Medical Council’s Fitness to Practise Panel did satisfy the four-stage Trapp test to be a quasi-judicial body, and therefore the 41 of 84 respondent was immune from Dr Ahari’s allegation that the evidence given by its Clinical Director to the Panel involved unlawful direct discrimination on the ground of race.[212]The High Court considered similar issues in the case of White v Southampton University Hospitals NHS Trust [2011] EWHC 825 (QB), where Mr Justice Eady noted that: a) “The public policy objective [behind this immunity] is to enable people to speak freely, without inhibition and without fear of being sued, whether making a complaint of criminal conduct to the police or drawing material to the attention of a professional body such as the GMC or the Law Society for the purpose of investigation. It is important that the person in question must be able to know at the time he makes the relevant communication whether or not the immunity will attach; that is to say, the policy would be undermined if, in order to obtain the benefit of the immunity, he was obliged to undergo the stress and expense of resisting a plea of malice: see the remarks of Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, 214”; and b) “It has long been recognised that one of the consequences of according immunity to such communications is that sometimes it can operate to protect a malicious informant.” Application to the claims here Were the Disputed PDs protected disclosures?[213]Whether the Disputed PDs are protected disclosures depends on the answers to a number of questions, considered below. Disputed PD 1: the email of 21 November 2018[214]Did the averred communication happen as a matter of fact? a) There is no dispute from the Respondent that the Claimant sent an email to Ms Coiley on 21 November 2018, and it appears in the Bundle.[215]Did the Claimant make it? a) Yes.[216]When making it, did the Claimant disclose information? a) Yes, this is not disputed by the Respondent. The email relates to the management of a capacity issue.[217]Was that disclosure in the public interest? a) The Tribunal concludes that it was (and the Respondent does not expressly dispute this). The email relates to paediatric medical reviews so as to free-up beds in the Emergency Department, and the fact that in the 42 of 84 interim certain patients would stop being accepted. It was in the public interest that Ms Coiley as the Interim Head of Nursing in the Acute and Emergency Medicine Division was aware of difficulty and the plan to relieve it.[218]When making it, did the Claimant have a reasonable belief that it was in the public a) The Tribunal finds that she did – the Claimant was looking to keep a senior colleague informed so as to ensure efficiency and promote the resolution of a capacity challenge. Objectively, keeping such a person involved is in the public interest.[219]Did the disclosure tend to show one or more of the matters described in section a) Yes, the Tribunal finds that the email tended to show that the health or safety of the would-be patients who could not be accepted given the capacity issue was likely to be endangered.[220]Did the Claimant have a reasonable belief that the disclosure tended to show that a) Yes – in the email the Claimant referred to patients not being accepted for a two hour period while the paediatric consultants reviewed the already accepted patients with a view to creating bed space for the Emergency Department. It was reasonable to believe that that information tended to show the endangerment of the health and safety of those would-be patients who could not be accepted because of the capacity issue.[221]Disputed PD 1 was a protected disclosure. Disputed PD 2: the email of 9 December 2018[222]Did the averred communication happen as a matter of fact? a) A document is included in the Bundle that shows an incident report being shared. It is not disputed by the Respondent that this communication occurred.[223]Did the Claimant make it? a) No – it is plain (and accepted by the Claimant) that the sharing of the incident report was done by Ms Coiley, not the Claimant. Disputed PD 2 therefore is not a protected disclosure made by the Claimant.[224]Disputed PD 2 was not a protected disclosure by the Claimant. Disputed PD 3: the email of 16 December 2018[225]The Respondent accepts that part of this email, from the Claimant to Ms Coiley and Fred Ohanusi, contains a protected disclosure. The Tribunal agrees, and concludes that this renders the communication a protected disclosure. There is 43 of 84 no need to consider the individual questions only in relation to the part of the email that the Respondent disputes satisfies one or other of the limbs of the test.[226]Disputed PD 3 was a protected disclosure. Disputed PD 4: the email of 11 August 2019[227]Did the averred communication happen as a matter of fact? a) Yes, this is not disputed, and the email appears in the Bundle.[228]Did the Claimant make it? a) Yes.[229]When making it, did the Claimant disclose information? a) The Respondent says the Claimant’s email contains only information which had previously been disclosed – relating to concerns the Claimant had regarding patient safety – and was a request from the Claimant for the addressee to compile data for a report on that subject. b) The Tribunal disagrees. The email conveys the important information that the risks still continue.[230]Was that disclosure in the public interest? a) It is evident that it was. The communication from the Claimant that patient safety risks were ongoing is clearly in the public interest.[231]When making it, did the Claimant have a reasonable belief that it was in the public a) The Tribunal finds that she did. Not only did the Claimant evidently believe it was (as she was seeking to prepare a report on the particular patient safety risks to the Respondent), Ms Dean’s email preceding the Claimant’s on 11 August 2019 indicated that Ms Dean agreed with her, as did the others to whom Ms Dean highlighted it in the Quality and Safety Committee meeting. It was reasonable for the Claimant to believe that her communication that the risks were ongoing was similarly in the public interest.[232]Did the disclosure tend to show one or more of the matters described in section a) Yes, it tended to show that the health or safety of patients is and was likely to be endangered.[233]Did the Claimant have a reasonable belief that the disclosure tended to show that a) Yes, the Tribunal considers she did have that reasonable belief. The reasonableness of her belief was supported by Ms Dean’s previous 44 of 84 correspondence and Ms Dean’s raising of the matter with the Respondent’s Quality and Safety Committee.[234]Disputed PD 4 was a protected disclosure. Disputed PD 5: the email of 9 September 2020[235]Did the averred communication happen as a matter of fact? a) Yes – the email and the letter it attached are both included in the Bundle.[236]Did the Claimant make it? a) Yes. The Respondent does not dispute that, while it was sent by someone other than the Claimant, it was sent on behalf of a number of signatories which included the Claimant.[237]When making it, did the Claimant disclose information? a) The Respondent says it does not, describing the letter as a request for clarification concerning a known past practice, which had already been the subject of a CQC inspection report, and so the Claimant would have known at the time that the information it contained was not being “disclosed”. b) The Tribunal disagrees. The letter refers to the risk to patients, as the Respondent acknowledges, but it goes further and describes the risks to staff should that past practice continue. This was disclosing information to the Respondent.[238]Was that disclosure in the public interest? a) Yes, its contents were about the risks to staff, and therefore to patients as well, should the practice of using corridors as escalation areas continue.[239]When making it, did the Claimant have a reasonable belief that it was in the public a) Yes. The reasonableness of that belief is apparent from the contents of the letter, described above.[240]Did the disclosure tend to show one or more of the matters described in section a) Yes – it tended to show that the health or safety of staff is and was likely to be endangered, and that of patients.[241]Did the Claimant have a reasonable belief that the disclosure tended to show that a) Yes, it was perfectly reasonable for the Claimant to believe that.[242]Disputed PD 5 was a protected disclosure. Disputed PD 6: the email of 30 January 2023[243]Did the averred communication happen as a matter of fact? 45 of 84 a) Yes, as the Respondent agrees, the Claimant emailed Mr Hastings on 30 January 2023 to raise concerns regarding the tampering of evidence relevant to the disciplinary investigation pertaining to her.[244]Did the Claimant make it? a) Yes (this is not disputed).[245]When making it, did the Claimant disclose information? a) Yes – the Claimant conveyed four concerns with detailed information explaining why she held those concerns.[246]Was that disclosure in the public interest? a) It is clear that the email sent by the Claimant related to the disciplinary process against her, and whether someone at the Respondent had removed “bank” books, or pages from “bank” books, so as to prevent her from showing that other people had verified that the Claimant’s family members had worked the shifts in question. b) The Claimant presented a position to the Tribunal that, while this concern was motivated by resisting the disciplinary case against her, it was also of great public concern that the Respondent, an NHS trust, was tampering with evidence, because (as she rhetorically posed the question): what else could be tampered with? c) The Chestertons case makes it clear that a disclosure can still be in the public interest where it benefits the Claimant personally, and where the reason for making it was personal, provided it genuinely does serve the interests of the public. Whilst the factors cited in the case are not prescriptive points of relevance to this question, they support a conclusion that Disputed PD 6 was in the public interest:(i) If the Respondent, a large NHS trust, did tamper with evidence in relation to the Claimant’s disciplinary process, there could be a concern that there is a general willingness to tamper with evidence, which could relate to dealings with a very large number of patients, their families and friends, staff, contractors and others;(ii) The nature of the interests affected could be of supreme importance given the Respondent holds and manages lots of intimate sensitive information about its patients and their family members;(iii) The nature of the wrongdoing alleged is, at best, negligent care shown to the “bank” books, and at worst a deceitful cover-up of the truth; and(iv) The Claimant did not, in the email to Mr Hastings, name the person(s) alleged to be a wrongdoer, but the implication in it was 46 of 84 that the person responsible was one or more of Mrs Peck, Mr Hastings himself or some other member of the Respondent’s senior management team who had access to those books. We find this is sufficient to conclude that Disputed PD 6 was in the public interest.[247]When making it, did the Claimant have a reasonable belief that it was in the public a) We find that she did – not least because the conclusion of her email read as follows: “I am sure you will appreciate that tampering of evidence within an investigation is a serious offence and should not be taken lightly. I have therefore raised my concerns and sought advice from the professional standards authority and ACAS.”[248]Did the disclosure tend to show one or more of the matters described in section a) No, it did not tend to show any of the relevant failures in section 43B(1). While there is no definition in the section of the meaning of “miscarriage of justice”, the choice of language indicates that something more than concealing evidence in an internal employment dispute (that had not yet become a litigated dispute) is needed – referring to a profound injustice or failure of the administration of justice. b) While the Claimant alleged concealment, the concealment must be of one of the “relevant failures” to be satisfy this limb of the test.[249]Did the Claimant have a reasonable belief that the disclosure tended to show that a) Firstly, we consider that, at the time of sending the email, the Claimant was focused on the disciplinary process against her, and the Respondent’s treatment of her. We do not believe that she had any consciousness at the time of raising wider concerns, and her situation is analogous to that of the claimant in the Simpson case. b) Secondly, we consider that the Claimant cannot have had a reasonable belief that her email tended to show that a criminal offence, breach of legal obligation, miscarriage of justice, health or safety endangerment, environmental damage or concealment of information relating to any of those matters, had occurred, was occurring or was likely to occur – it didn’t show those things, and nor do we think she could have believed that it did. We do not think that either the subjective or the objective element to the “reasonable belief” test described in the Phoenix House case is made out here.[250]Disputed PD 6 was therefore not a protected disclosure. 47 of 84 The Protected Disclosure Detriment Complaints Causation generally[251]In order to succeed with any of her protected disclosure detriment complaints the Claimant would need to show that the relevant detriment was done on the grounds that she had made a protected disclosure. This is a question of fact.[252]The Tribunal notes in this regard that the Claimant’s case was expressed in the following way: a) While it was part of her job, as a registered nurse (and a very senior nurse in a busy and dynamic department) to raise safety concerns, she did so frequently, and there appears (on the evidence presented to us by both parties) to have been little response to those concerns being raised. On occasion the Claimant received an acknowledgement, or an offer of a meeting to discuss or an action to be taken, but the Claimant says there was no positive follow-through by the Respondent. b) The Claimant did not contend that any particular protected disclosure made by her was the ground for any particular detriment. Rather, she repeatedly referred to a culture that regarded raising concerns with antipathy. The Claimant expressed the firm belief that the accumulation of disclosures made by her resulted in her being targeted by senior management. c) The Claimant stated that those targeting her would never write anything down, but that influential “corridor conversations” would be prompted by her raising concerns, and those corridor conversations involved a build-up of enmity towards her from senior management. d) Some of the disclosures were made by the Claimant as part of a group of people raising concerns. The Claimant is not aware of any detriments suffered by any of her colleagues who raised concerns with her, but nor would she expect to know, given that detriments done on the grounds of having made protected disclosures are often subtle or relate to matters that are confidential.[253]The Respondent points out that the responses the Claimant received to her disclosures, almost universally, expressed gratitude that she had raised them, and talked about ways in which they could be progressed. The Respondent made no representations about the ways in which they were in fact progressed, though.[254]The Tribunal considers that the Claimant’s position is plausible – that in an organisation such as the Respondent’s, while there may be a public culture of openness and transparency, encouraging people to “speak up”, there could well be resistance to people actually doing so, especially if they are perceived as pushing those problems on to others and seeking to absolve themselves of responsibility (as was the response of the Respondent’s Director of Nursing and 48 of 84 Clinical Quality to one of the disclosures made by the Claimant that has been accepted as protected by the Respondent).[255]However, most of the disclosures accepted as protected by the Respondent, or as concluded by the Tribunal to be protected, occurred prior to the Claimant’s promotion on 15 February 2021. The evidence from the Claimant was that her promotion was supported by her direct line manager, Miss O’Lone, but that it would not have occurred if there had been resistance from the Respondent’s senior management. That is not to say that her pre-promotion disclosures could not have formed part of the accumulation the Claimant asserts, but it seems inherently unlikely. Promoting the Claimant was not a rubber-stamping exercise: she was elevated to a very senior position within the Queen Elizabeth Hospital – she was only one stage below the Head of Nursing within the Respondent’s organisational structure. It is not credible that the Respondent would have promoted the Claimant to a position of such responsibility and trust if it saw her as a trouble-maker at that time.[256]Only three of the Claimant’s protected disclosures post-date her promotion, and one of those (the last one to Mr Hastings on 30 January 2023) post-dated all of the acts relied on by the Claimant as protected disclosure detriments save for Alleged Detriments 6, 7 and 8. The protected disclosures that post-dated the Claimant’s promotion[257]In relation to the two other protected disclosures made by the Claimant after she was promoted, the Claimant acknowledges that there is no documentary evidence to support her contention that any of the Alleged Detriments were done on the ground of these, or indeed any, of her protected disclosures.[258]Taking each of the post-promotion protected disclosures in turn: a) The email of 28 February 2021:(i) This expressed concerns about a single member of staff. It was sent to, among other people, Mr Briggs and Mrs Peck, who were subsequently responsible for Alleged Detriment 1 (putting her on garden leave – Mr Briggs), Alleged Detriment 3 (as the Claimant would have it, use of excessive and irrelevant witness evidence in the investigation report into the Claimant’s conduct – Mrs Peck), Alleged Detriment 9 (the NMC referral – Mrs Peck, Mr Hastings), and were potentially responsible for Alleged Detriments 4 and 5 (pertaining to the removal of pages from the bank books and the misplacement/withholding of bank books). It was not sent to Mr Hastings, who was responsible for Alleged Detriments 6 to 8.(ii) While it is possible that this email, on its own or in combination with the other protected disclosures that preceded it, was the ground on which Mr Briggs and Mrs Peck acted in relation to these Alleged Detriments, the Tribunal finds that it did not. We are not persuaded 49 of 84 that the protected disclosures materially influenced Mr Briggs and/or Mrs Peck (Fecitt), whether consciously or unconsciously (Knight).(iii) Alleged Detriment 1: As noted in the Facts section above, the Tribunal accepts Mr Briggs’ explanation, that he put the Claimant on garden leave because: (I) He was concerned that the Claimant remaining on site would be difficult given the suspension of Ms O’Lone and Mr Murphy given her closeness to those individuals; and (II) He considered there could be evidence to substantiate misconduct allegations against the Claimant.(iv) Alleged Detriment 3: As noted in the Facts section above, we consider that the reason Mrs Peck interviewed so many people was because she did not confine her investigation to the allegations of misconduct made against the Claimant, but was keen to investigate any misconduct on the part of the Claimant. We find she did so not because the Claimant had made protected disclosures, or was expected to make protected disclosures in the future – Mrs Peck wanted to uncover any misconduct committed by the Claimant.(v) Alleged Detriment 9: As noted in the Facts above, the Tribunal has concluded that Mrs Peck made the NMC referral because Mr Hastings told her to – she did do so on the ground that the Claimant had made protected disclosures. Mr Hastings did not issue that instruction on the ground that the Claimant had made protected disclosures – he did so because he believed her to have committed misconduct, and he considered that conduct to have breached the NMC Code.(vi) Alleged Detriments 4 and 5: There is no evidence to indicate that Mr Briggs or Mrs Peck misplaced any of the relevant bank books, or removed pages from them. The Claimant asked each of them whether they had done this, which they denied forcefully, and the Claimant did not put allegations to them that they did so. The other person who the Claimant speculates could have removed bank books or pages from bank books is Mr Hastings, but there is no evidence besides her suggestion that he did so, and nor is there any evidence that he was aware of the 28 February 2021 email. b) The email of 30 November 2021: (i) This email expressed concerns about the safety for nursing staff in light of the procedures in the Emergency Department for dealing with mental health patients. 50 of 84 (ii) This email was sent to Mr Briggs and Ms Lewis-Towler. Ms LewisTowler was not responsible for any of the protected disclosure detriments relied on by the Claimant. (iii) For the same reasons as set out above in relation to Mr Briggs, we do not consider that any of the Alleged Detriments with which he was involved were done (if done at all) on the ground that the Claimant had made or was expected to make in the future protected disclosures.[259]Consequently, none of the Claimant’s protected disclosure complaints succeed.[260]We make some observations on two of the alleged detriments. Alleged Detriment 6: dismissal as a detriment[261]As noted in the Law section above, section 47B(2)(b) of the 1996 Act provides that dismissal cannot be an act of detriment for the purposes of a section 47B complaint. The Claimant’s contention that she was dismissed because she made protected disclosures should properly be considered as a complaint under section 103A of the 1996 Act, and is determined by the Tribunal under the subheading “Automatic unfair dismissal” below. Alleged Detriment 9: relating to the NMC referral[262]The Claimant’s assertion here has changed. She began by saying that the detriment she was asserting here was: a) The fact that the Respondent made a referral in respect of her at all, to: b) The fact that, when making a referral in respect of her to the NMC, the Respondent waited until after the Claimant had given evidence in support of the Respondent’s defence of an Employment Tribunal claim.[263]Whether the Detriment 7 is put either way, the Respondent says that it is not, at law, capable of being a detriment in light of the fact that the making of a referral to the NMC as a quasi-judicial body attracts absolute immunity from suit in light of the common law doctrine of protecting such referrals from claims of defamation, protected disclosure detriment, etc., because of the public interest in referrals concerning fitness to practice being made.[264]Whether the NMC is a quasi-judicial body depends on whether it satisfies the four-stage Trapp test: a) Is it a tribunal recognised by law? Yes, the NMC was established by section 60 of the Health Act 1999 and the 2001 Order. b) Is the nature of the issue akin to a civil or criminal issue between adversarial parties in the courts? 51 of 84 Yes, because a person’s inclusion on the register is a mark of their proficiency, good health and good character. For this reason the FPC Rules set out a procedure by which a person may make a referral calling into question whether a person whose name appears on the NMC register is, in fact, of sufficient proficiency, good health and good character, and a process by which the NMC considers and determines the matter referred. The conclusion of that scrutiny could be the striking off of that person’s name from the NMC register, preventing their practice as a registered nurse, registered midwife or registered nursing associate – as described below. c) Is there a procedure similar to that in a court of law? Yes – the NMC’s process is described in some detail in the FPC Rules. Those rules provide: For a process by which the registered nurse (or midwife, or nursing associate, as appropriate) may make representations to the FPC; That the FPC may hold a hearing, and if it does so, the matters such as notice requirements in relation to that hearing; That the default position is that hearings of the FPC take place in public – respecting the principle of open justice that is so prized in the judicial system more generally; That the nurse may be legally represented at an FPC hearing; That witnesses may be called to give evidence at an FPC hearing; Requirements of the kind of notice that is required to be given to the registered nurse; and That the FPC is to be advised by a legal assessor. Moreover, the 2001 Order provides that there is a right of appeal from the FPC’s decision to the High Court (in England and Wales). These features bear clear similarities to the procedures applicable to a matter to be determined before a court of law. d) Is the outcome a binding determination of the civil rights of the parties? Yes: a referral to the NMC can result in a registered nurse being removed from the NMC’s register (pursuant to Article 29(5)(a) of the 2001 Order), which would then mean that that individual would be prohibited from working as a registered nurse. If the individual were to represent that they were still registered with the NMC, that would be a criminal offence.[265]We conclude that the NMC is, consequently, a quasi-judicial body, and therefore any referral made to it attracts immunity (Ahari). Moreover, as the kind of immunity that it attracts is absolute (also shown by the case of Ahari, as well as 52 of 84 the White case), none of the fact of the referral, its content or its timing of that referral is capable in law of being a detriment to which the protection generally afforded by section 47B of the 1996 Act applies.[266]The complaint of protected disclosure detriment asserted by the Claimant in relation to Detriment 7 cannot succeed – not because a referral to the NMC is not, in the ordinary (non-legal) sense, detrimental, but because for policy reasons the law has decided that this is not a detriment to which the protection of section 47B extends. Ordinary unfair dismissal[267]As noted in the Law section above, the questions to be asked and answered by the Tribunal to determine the merits of the Claimant’s complaint that she was unfairly dismissed where the Respondent relies on the Claimant’s conduct as the reason for her dismissal are as follows: a) Did the Respondent believe the Claimant guilty of misconduct at the date of dismissal? b) Did the Respondent have reasonable grounds for that belief? c) At the stage when the Respondent’s belief was formed, had it carried out as much investigation into the matter as was reasonable in the circumstances? d) Was dismissal within the range of reasonable responses open to the Respondent in the circumstances?[268]Those questions are to be considered on the basis of the matters known to the Respondent at the time of her dismissal (Devis & Sons). Each of those questions is considered in turn below. Did the Respondent genuinely believe the Claimant guilty of misconduct at the date of dismissal?[269]The Tribunal is satisfied that, as the Respondent contends, Mr Hastings took the decision to dismiss the Claimant, and that he did so based on a genuine belief that the Claimant had committed misconduct. Specifically, we find that Mr Hastings believed: a) That the Claimant saw herself as not having to comply with management instructions, and that this was shown in the following respects:(i) That the Claimant disregarded an instruction from Mr Briggs not to finalise her sons shifts; and(ii) That the Claimant had initiated an alteration to staff working rostered shifts over the four-day bonus incentive period to work bank shifts so that those staff members could receive greater payment for that work; and 53 of 84 b) That the Claimant’s working pattern resulted in her overpayment.[270]Conduct is a potentially fair reason for dismissal (section 98(2) of the 1996 Act). Did the Respondent have reasonable grounds for that belief?[271]Looking at the totality of the facts known to the Respondent (Ham), we find that the Respondent did not have reasonable grounds for the belief in the Claimant’s misconduct.[272]Mr Hastings’ evidence to the Tribunal was that he relied on his conclusions that the three allegations of misconduct that were made in respect of the Claimant were made out, and that he regarded the combination of all three as providing sufficient grounds for dismissing the Claimant. However, we find that Mr Hastings did not have reasonable grounds for concluding that the Claimant was guilty of those allegations of misconduct.[273]Taking each allegation in turn: a) Allegation 1: This allegation was that the Claimant had “manipulated” the ED roster for financial gain for self and others between 31 December 2021 and 3 January 2022. It is entirely unclear to the Tribunal how Mr Hastings could have concluded that this allegation was made out when:(i) He recognised that the Claimant had made no financial gain herself;(ii) He accepted that, throughout the period to which the allegation related, the Claimant did not appreciate that the £150 bonus payment was not confined to bank staff;(iii) The evidence before Mr Hastings was that the Claimant’s line manager, Ms O’Lone, had communicated to the Claimant that the Claimant’s suggestion (of moving rostered ED nurses on to Bank shifts) had been authorised by Ms Lewis-Towler. The fact that Ms Lewis-Towler disputed that she had given Ms O’Lone that ‘go ahead’ was not relevant to whether the Claimant reasonably believed that she had done so, as there was no suggestion from any quarter that the Claimant had spoken to Ms Lewis-Towler directly;(iv) When questioned about this in oral evidence to the Tribunal, Mr Hastings said that he took account of some quite key evidence on whether Ms O’Lone spoke with Ms Lewis-Towler as part of a separate investigation the Respondent undertook into allegations of misconduct against Ms O’Lone. Mr Hastings was the Disciplinary Manager in respect of Ms O’Lone’s misconduct proceedings, and so was aware of that evidence. Mr Hastings told the Tribunal that he formed the view that the Claimant and Ms O’Lone had decided to action the Claimant’s suggestion without checking with Ms 54 of 84 Lewis-Towler. Mr Hastings explained that a key piece of evidence supporting that conclusion was the WhatsApp message sent by Mr Murphy that “Tracey and Annie are also offering…”, which he said showed that it was in fact the Claimant and Ms O’Lone who took the decision, rather than Ms Lewis-Towler, or the Respondent’s executive management team in the email from Mr Lusby and Ms Nair. However, the basis for Mr Hastings reaching that conclusion, the WhatsApp message he told the Tribunal was so important, and the fact that he had reached that conclusion was not mentioned by Mr Hastings at all in the Outcome Letter, and there was limited discussion of it recorded in the Disciplinary Hearing minutes; and(v) He criticised the Claimant for failing to recognise that annual leave is intended to benefit staff health and wellbeing and should be used to facilitate rest and recuperation from work, when the parties agreed that the Respondent had a standard practice of allowing staff to work bank shifts while on annual leave in the latter part of the holiday leave year. In fact, Mr Hastings’ real concern with the Claimant’s conduct which he describes in the Outcome Letter under the heading of Allegation 1 (albeit that it is, in fact, a different allegation) was that when the Claimant realised that the £150 bonus payment was available to rostered staff as well as to bank staff, she should have escalated what happened on 31 December 2021 to someone more senior. This failed to acknowledge that, as the evidence of Ms O’Lone, Mr Murphy and the Claimant gathered by Mrs Peck showed, Ms O’Lone told the Claimant (and Mr Murphy) that the Claimant’s plan had the ‘go ahead’ from Ms Lewis-Towler. In that situation there would be no reason for the Claimant to consider that her actions needed to be escalated given they had been authorised by her line manager and by someone more senior than her line manager. Any subsequent discovery by the Claimant that she had misunderstood the remit of the £150 bonus would apply equally to Ms O’Lone and, as the Claimant understood it, Ms Lewis-Towler. Mr Hastings did not express in the Outcome Letter that he did not believe the evidence of the Claimant, Mr Murphy and Ms O’Lone on this point. In fact, he mistakenly records that the Claimant did not dispute the allegation, when she strongly disputed that she did anything for financial gain for self or others, and maintained throughout that she acted to mitigate the risk that rostered staff would call in sick for work at a time when a critical incident had been declared by the Respondent. Mr Hastings did not have reasonable grounds for believing the Claimant guilty of Allegation 1, or – absent an explanation that he did not accept the 55 of 84 Claimant’s assertion that she the shift-transfers were authorised by Ms O’Lone - the escalation failure. b) Allegation 3: This was the allegation the Claimant finalised booking on the roster system for family members against management advice between 1st November 2021 to 31st May 2022. (i) The Claimant asserted that many other colleagues finalised shifts for their family members. Mr Hastings stated that Mrs Peck’s investigation established that that was not the case. This plainly was incorrect: the Claimant told Mr Hastings that she had given Mrs Peck the names of many colleagues who finalised shifts for family members and that Mrs Peck had not looked into most of them. Mr Hastings cannot have reasonably believed that the Claimant was guilty of acting against management advice when he could not know whether there was a widespread practice of staff finalising shifts for family members given that the names the Claimant was citing were not names which Mrs Peck’s investigation had covered; (ii) Mr Hastings does not appear to have explored with the Claimant why she finalised shifts for family members in the period. Whilst the allegation is factual – that she finalised shifts for family members – the fact that it goes on to say “against management advice” implies a conscious decision not to follow that advice. Indeed, this is how Mr Hastings seems to have interpreted Allegation 3, and he concluded that the Claimant consciously finalised those shifts, and criticised the Claimant for failing to uphold higher standards of financial governance; (iii) Mr Hastings noted that the Claimant finalised shifts for her children and Zoe 14 times between 23 December 2021 and 6 April 2022, and that the Claimant said she felt comfortable to do so because the shift manager had authorised that shift by countersigning the relevant bank book. He stated: “the situation is further concerning by the fact that you are not able to demonstrate whether these bank shifts were actually worked” – and this is where the missing bank books, and missing pages from the bank books they had, was relevant. Of the 14 finalisations done by the Claimant: Seven of those fell in periods covered by bank books that were missing; The Claimant finalised two shifts for Mr Thomas Murphy when he was not required to use the bank book system due to his grade; and One of the remaining shifts was authorised by a supervisor, 56 of 84 leaving only four occasions where the Claimant appears to have finalised shifts for family members where the available bank book shows the shift entry with no authorisation signature. It is surprising that Mr Hastings levelled the responsibility for the missing bank books and missing pages of the bank books with the Claimant, by criticising her for not being able to demonstrate that these shifts were worked; and (iv) Mr Hastings concluded that the Claimant “wilfully and deliberately” continued to finalise bank shifts for family members, “despite repeated instructions and guidance not to do so”. It is unclear what instructions and guidance he is referring to, besides Mr Briggs’ instruction, relayed orally by Ms O’Lone on one occasion of uncertain date. The basis for his conclusion that this was wilful and deliberate is also unclear. We therefore conclude that Mr Hastings did not have reasonable grounds for believing that Allegation 3 was made out; and c) Allegation 9: That the Claimant interviewed and appointed Ms Bowden with no previous experience, working against recruitment guidelines: (i) Whilst Ms Bowden was interviewed having stated on the form that she had no previous work experience, the notes of the interview record that Ms Bowden had “Worked within an admin role previously”. There is a question, therefore, as to whether she was appointed “with no previous experience”; (ii) Mr Hastings does not refer to recruitment guidelines at all. There is no reference to any such recruitment guidelines having been breached; and (iii) His main criticism of the Claimant is that he saw her time as not well spent undertaking that recruitment – but that was irrelevant to whether Allegation 9 was made out or not.[274]In summary, in relation to the three apparent allegations of misconduct, Mr Hastings’ conclusions do not support upholding Allegation 1 or Allegation 9, and Allegation 3 was interpreted by him as involving conscious disregard of management instructions, which does not seem to have been explored with the Claimant, and so he could have no reasonable belief that that was made out. He did not have reasonable grounds for believing the Claimant guilty of the misconduct described in Allegations 1, 3 and 9.[275]In fact, Mr Hastings seems to have believed the Claimant guilty of different forms of misconduct, namely: a) The failure to report to more senior management when she did come to appreciate that the £150 bonus was available for rostered staff, as well as bank staff – but he did not have reasonable grounds for believing this in 57 of 84 any event, given that either he accepted the Claimant’s explanation that Ms O’Lone, her line manager, interpreted the WhatsApp communications from Ms Lewis-Towler and the email from Mr Lusby and Ms Nair, in the same way the Claimant did, and therefore it was a more widespread and more senior problem than one originating from the Claimant, or he did not accept the Claimant, Mr Murphy’s and Ms O’Lone’s evidence that Ms O’Lone, as the Claimant’s line manager, also read the communications in that way, and he considered them to be untruthful, which was not a reasonable conclusion given that was not put to the Claimant; b) That she made a financial gain, or acted so as to give another person a financial gain. However, the basis for this is not clear. He could be referring to the authorisation of shifts for family members (where “gain” would need to involve the family members not having worked that shift, which he does not say was the case), or the switching of rostered staff to bank shifts, where it is far from clear that the Claimant was motivated to give those staff members “for private gain” rather than to fill the shifts in a time when staffing rate had been declared to be a critical incident. Given the lack of evidential basis for concluding that the Claimant acted so as to give someone a financial gain in either of these ways, it instead seems that his real concern was the amount of bank shifts the Claimant was working, for which it is far from clear that he had reasonable grounds; and c) That she failed to spend her working time doing work that Mr Hastings regarded as appropriate for her level of seniority, i.e., that she should not have been recruiting administrative staff for the Bank. There is nothing to suggest that Ms O’Lone or Mr Briggs had ever expressed a concern about this. Indeed, the Claimant’s unchallenged evidence was that she had been recruiting staff for Bank at all levels for many years.[276]We therefore conclude that Mr Hastings did not have reasonable grounds for his belief in the Claimant’s misconduct. When the Respondent’s belief was formed, had it carried out as much investigation into the matter as was reasonable in the circumstances?[277]While Mrs Peck carried out an extensive investigation, it was not an investigation that explored the Claimant’s reasons for her actions, which was necessary for: a) A finding that the Claimant had manipulated the roster – an essential component of Allegation 1; b) A finding that the Claimant had acted against management advice (Allegation 3) – again, the implication is that that action was conscious; and c) A conclusion that the Claimant “[worked] against recruitment guidelines” (part of Allegation 9). 58 of 84[278]In relation to the investigation into Allegation 1, while Ms Lewis-Towler was interviewed, Mrs Peck did not always ask Ms Lewis-Towler open questions, but rather in relation to a key point of dispute (whether Ms Lewis-Towler authorised the redesignation of rostered shifts as bank shifts through use of annual leave), Mrs Peck told Ms Lewis-Towler what she knew, and Ms Lewis-Towler responded to those prompts.[279]The investigation report did not even mention the Claimant’s position that the Claimant understood that Ms O’Lone had discussed the Claimant’s suggestion (or switching staff booked to work substantive shifts on to bank shifts) with Ms Lewis-Towler, and that Ms Lewis-Towler had authorised it.[280]Also in relation to Allegation 1, the unchallenged evidence of Ms O’Lone was that she had told Mrs Peck that there were other nurses who must have overheard her conversation with Ms Lewis-Towler. One of the nurses who might have done so was GA. GA was interviewed by Mrs Peck, but Mrs Peck did not ask him whether he overheard any conversation between Ms O’Lone and Ms LewisTowler – a serious flaw in an investigation where a key conclusion came down to Ms O’Lone’s word against Ms Lewis-Towler’s, and where other people might have been able to back-up one side or the other. Ms Brundish, who says that she did overhear the conversation, was not interviewed at all by Mrs Peck.[281]The Claimant identified numerous colleagues who she said finalised shifts for family members (going to Allegation 3), but very few of those were explored by Mrs Peck.[282]The Claimant’s assertion that the relevant evidence (the bank books) had been tampered with was given cursory consideration. The Claimant believed that one of three people could have done the tampering: Mr Briggs (who had collected the books), Mrs Peck (to whom Mr Briggs had given them), and Mr Hastings (who reviewed the bank books). Mr Hastings asked Mrs Peck to look into the concerns the Claimant raised – which was evidently unsuitable. In a large organisation like the Respondent’s, there would have been other people Mr Hastings could have asked. This shows the level of consideration that was given to the Claimant’s concerns.[283]Allegation 9 depended on Ms Bowden having been recruited with no previous experience – and there were two pieces of evidence on this point, being Ms Bowden’s application form and the information gleaned from her in interview. It is extraordinary that no one explored with Ms Bowden what she had said in interview, and whether the statement recorded in the notes that she had told them that she had relevant experience was a genuine one, in which case Ms Bowden was not recruited with no previous experience, and the allegation should not be upheld.[284]Mrs Peck’s report was finalised ahead of Ms Brundish sending a statement, dated 5 December 2022, relevant to whether Ms O’Lone and Ms Lewis-Towler spoke on 31 December 2021, and what was said in that conversation. Ms Brundish’s 59 of 84 statement was dated ten days before the Claimant’s disciplinary hearing, and by his own evidence to the Tribunal was provided to Mr Hastings ahead of that hearing. Mr Hastings does not appear to have investigated the veracity of that statement himself, or to have asked Mrs Peck or anyone else to do so. Mr Hastings noted in evidence to the Tribunal that he considered Ms Brundish’s statement be dated (being made nearly a year after the event), and quite vague - but a reasonable investigation would have involved Mrs Peck and/or Mr Hastings engaging with Ms Brundish to explore the appropriate weight that should be given to her evidence. This is particularly so given the seriousness of the allegations the Claimant was facing, and risk that the investigation could reach career-ending conclusions.[285]Looking at the investigation in the round, we do not consider that it was evenhanded (A v B), or was sufficiently considerate of the Claimant’s explanations and questions – it was insufficiently thorough in light of the seriousness of the allegations and the seriousness of the possible consequences of the disciplinary process (Gravett).[286]The Respondent’s investigation did not meet the requirements of natural justice, as the matters Mr Hastings weighed against the Claimant were not all put to her in the investigatory meeting or disciplinary hearing (e.g., whether someone else could have finalised the shifts for her family members, why she finalised those shifts, whether she worked too many bank shifts in the face of concerns expressed by Ms O’Lone, whether it was appropriate for her to spend time recruiting administrative staff for the Bank) (Byrne).[287]As was shown by the fact that the misconduct proceedings against the Claimant ultimately resulted in a referral being made to the NMC in respect of her, this investigation had the potential to blight the Claimant’s career, and so the standard of fairness and thoroughness required from the Respondent was high (Roldan).[288]These material failings in light of Mrs Peck’s extensive investigation are all the more significant. The Tribunal considers that Mrs Peck went out of her way to explore more than the allegations that she was instructed to look at by Mrs Gleed, with the terms of reference updated retrospectively, and this supports the Tribunal’s concern that the Respondent was looking to find bases for disciplining the Claimant. We do not believe that that agenda was motivated by the Claimant’s protected disclosures, but we do think that the Respondent began the process with an objective to oust the Claimant, for reasons revealed in the Outcome Letter that were outside the scope of the allegations put to the Claimant.[289]These flaws in the investigation could have been corrected at the Disciplinary Hearing stage, if either Mr Hastings had conducted further investigation himself or had instructed that Mrs Peck do so – but he did not, and the flaws remained. 60 of 84 Taking account of both the substantive and procedural fairness of the Respondent’s response, was dismissal within the range of reasonable responses available to it?[290]We find that dismissal was very clearly not within the range of reasonable responses open to the Respondent.[291]While conduct is a potentially fair reason for dismissal, Mr Hastings did not have a reasonable basis for believing that the apparent allegations levelled at the Claimant were made out, and significantly a number of other matters which he took into account had not been investigated, or put to the Claimant.[292]In reaching this conclusion, we have taken careful note of the fact that a Tribunal is not to step into the shoes of the employer, and instead we are to look at the Respondent’s reasons, and its process, and consider the range of reasonable responses open to it and whether dismissal was within that range (British Leyland). When doing so, we are to take account of the circumstances of the case, and to bring the industrial experience of the Panel to bear.[293]Equity and the substantial merits of the case should also be taken into account, and on these facts we regard those relevant considerations as: a) The size of the Respondent – in this case, a large NHS trust, with a high number of employees; b) The resources of the Respondent – again, these were significant, albeit constrained by the demands on the public purse, and by the challenges of the Covid-19 pandemic; c) The relevant background – the Claimant had 42 years of unblemished service with the Respondent. She had been advised by HR some years previously not to finalise shifts for family members, and she had been instructed not to do so by Mr Briggs (Pillar), but in such a way (an oral relaying of that instruction via Ms O’Lone) that that instruction would have been legitimately perceived by the Claimant as being a less significant matter than a directly-delivered written instruction; d) The Claimant’s reflection on her conduct – the Claimant was very defensive about aspects of her conduct under scrutiny, and Mr Hastings regarded her as entrenched in her views (Perkins), raising the risk that the conduct would be repeated. However, the Claimant’s defensiveness should rightly be seen in the context of her trying to get the Respondent to engage with a different factual narrative to the one it was determined to follow. The Claimant was trying to get the Respondent to accept, or at least look into a number of matters that went to the heart of some of the allegations against her, e.g.:(i) That she had understood that Ms Lewis-Towler had ‘okayed’ the shift switches over the new year bonus incentive period; and 61 of 84(ii) Her perception that there was a widespread practice of staff authorising, as well as finalising, shifts for family members; e) The Claimant’s own situation – she was in her 60s, had worked for the Respondent for virtually all of her working life, she had worked through a period of immense strain for the Respondent (Covid-19 in ED), her son and friend were also being investigated for serious misconduct with all three of their jobs at risk, her honesty and integrity were being called into question for the first time in more than 40 years’ service, and her NMC registration was under threat; f) The Respondent’s consideration of alternatives to dismissal - this was cursory. Mr Hastings used extreme language to characterise the Claimant’s behaviour, for example, that her actions in relation to Allegation 1, “showed a lack of financial governance and probity”, which demonstrated “a disregard, on your part, of the requirement for you to ensure effective budget management”. That, in relation to Allegation 3, she “willfully and deliberately continued to finalise shifts for family members, despite repeated instructions and guidance not to do so. You failed to adhere to repeated requests to cease this practice but ignored this”. This is wholly out-of-line with what Mr Hastings actually found had happened, e.g., that: The Claimant genuinely understood that the £150 bonus incentive was only available for bank staff; and That only one instruction had be given to her about not finalising shifts for her sons, and no guidance whatsoever. Mr Hastings concluded that the Claimant could not work for the Respondent “in any capacity”, this is despite 42 years’ of unblemished service and his criticisms of her effectively being a failure to escalate a mistake she believed her line manager at least, and likely Ms LewisTowler, shared, not adhering to a management instruction delivered casually and orally (which had such little significance for its sender that could not initially remember giving it), and spending her time doing recruitment work that was beneath her role. We cannot understand Mr Hastings’ conclusion here – it is so far from reasonable. As a Senior Nurse, who worked in the ED for 42 years and through the Covid-19 pandemic, the Claimant must have been capable of following instructions and demonstrating trustworthiness. While we agree with Mr Hastings that senior employees should be expected to lead by example as regards recognising and managing conflicts of interest, and should reasonably be expected to apply good judgement in the absence of express instruction, the Claimant could have: 62 of 84 Been given training; Been considered for a demoted role requiring less judgementmaking; and/or Had a disciplinary sanction remain ‘on file’ so that if there was a further concern relating to her honesty or integrity that warning could have been taken into account alongside that new conduct of concern. These are matters that 42 years’ service demanded Mr Hastings to consider. Both the mismatch in the degree of his criticism of the Claimant to that which her actions warranted, and the rapid jump to a conclusion that dismissal (and summary dismissal at that) was the only appropriate sanction, embolden us in our conclusion that the Respondent had predetermined to dismiss the Claimant. It was not open to the possibility of doing otherwise.[294]The Claimant raised the inconsistency of the disciplinary outcome for her with that for her son, who faced one of the same allegations to the Claimant’s – but we are not persuaded of the relevance of a direct comparison. Mr Murphy was a Band 7 member of staff, but the Claimant was notably more senior at Band 8b, so their circumstances were not sufficiently similar that their outcomes should have been the same (Paul). However, an indirect comparison is illustrative. The outcome for Mr Murphy – a 12-month written warning – was at such stark contrast to that of the Claimant, even factoring in their relative seniority, that it is revealing of the desire, on the Respondent’s part, to dismiss the Claimant.[295]Mr Hastings also took account of the Claimant’s lack of self-reflection, and the (poor) example he considered she was setting for her team. This appears to have affected his decision on the appropriate disciplinary sanction (e.g., the Outcome Letter included: “I have no confidence that such conduct would not re-occur, were you to return to work, given your lack of understanding or self-awareness as to the impact of such conduct”). The potential for lack of recognition of poor conduct to exacerbate the degree of seriousness of misconduct so as to justify dismissal was recognised by Underhill LJ in the recent case of Hewston, but he considered that to be the exception, rather than a general rule, noting that, “As a general proposition” it is not reasonable for a lack of contrition or insight to “bump up” the seriousness of the conduct.[296]In conclusion, we find that dismissal was not within the range of reasonable responses open to the Respondent in the facts and circumstances of this case. Certainly the first and third allegations of misconduct were not made out on the basis of what Mr Hastings found, and Mr Hastings’ evidence to the Tribunal was that he considered the combination of all three allegations to provide sufficient grounds for dismissal, not any of those allegations on their own. 63 of 84 Automatic unfair dismissal[297]We have concluded that the reasons for the Claimant’s dismissal were reasons related to her conduct - that the Respondent regarded the Claimant as seeing herself as not having to comply with management instructions.[298]We do not consider the sole or principal reason for her dismissal was the fact that she had made protected disclosures. We accepted Mr Hastings’ evidence that he was unaware that the Claimant had made protected disclosures.[299]The complaint of automatic unfair dismissal therefore does not succeed. Wrongful dismissal[300]Unlike the complaint of unfair dismissal, where the Tribunal looks at what happened and considers whether dismissal was within the range of reasonable responses open to an employer in the Respondent’s situation, a complaint of wrongful dismissal requires the Tribunal to reach its own view as to: a) Whether the Claimant breached her contract of employment with the Respondent; b) If so, whether the breach was fundamental; and c) If so, whether the Respondent accepted that breach without affirming the contract.[301]Mr Hastings took the view that the Claimant had committed two fundamental breaches of the contract of employment between her and the Respondent: a) That she had made improper use of an official position for private gain, or for the gain of some other person; and b) That she had committed a serious breach of trust and confidence.[302]We disagree with both conclusions. a) The Claimant had made no private gain in relation to any of the three allegations. While she was booked to work a substantive shift over the £150 bonus incentive period, she did not switch that substantive shift so as to get the £150 bonus. b) We do not consider that the Claimant suggested the shift alteration arrangement she did for the purpose of other people making a financial gain. We consider that her purpose was clearly to ensure that staff booked to work substantive shifts did not call in sick, or were not otherwise disincentivised to work at a time when the Respondent had declared a critical incident due to staff shortages. c) In terms of trust and confidence, Mr Hastings considered that the Claimant’s conduct was likely to have impacted on the team culture and views of the team towards her as a leader. 64 of 84(i) If that related to Allegation 1, her team were not likely to think this, given the Claimant acted to ensure the shifts were filled and that substantive shift were not disincentivised by an arrangement designed to encourage people to work.(ii) If that related to Allegation 3, when asked by the Tribunal why she finalised shifts for family members when she had been told not to do so, the Claimant – who made sensible concessions throughout her evidence, and appeared honest and plain-speaking - said that she was not conscious of finalising shifts for family members, but she accepted the evidence presented by the Respondent that she had done so. She explained that the department had been under tremendous strain during the Covid-19 pandemic, and she was authorising lots of shifts due to high levels of staff absences and instances where staff had to shield, meaning it was more important that people who did extra shifts were paid for doing so. The Claimant says that she thinks she authorised those shifts when authorising many more. In other words, the Claimant says it was inadvertent, and we accepted that evidence. The Tribunal does not consider that team culture and views of her team towards the Claimant would be diminished by an error of this kind – provided that a sensible system was put in place to ensure that the Claimant was not in a position to finalise shifts for her family members in the future.(iii) If that related to Allegation 9, concerns of nepotism could have negatively affected team culture and people’s views of the Claimant as a senior leader, but the evidence shows that in interview Ms Bowden described administrative work she did outside of employment that was relevant experience – namely, working in her father’s business. The nature of the work was scanning paperwork – it was not highly-skilled work. Moreover, the hearing demonstrated that the Respondent employs many people from the same family as other employees. It is not clear why this appointment would be regarded as nepotism unless the evidence gathered in the interview was untrue, and the Respondent did not ask Ms Bowden about it. Mr Hastings also expressed concerns that the Claimant provided limited reflection on her actions. The Tribunal agrees with him there, but we are concerned that the reason for this is because of the paucity of the Respondent’s investigation, and its failure to engage with the points the Claimant was making as to why the Respondent’s version of events was not correct. 65 of 84 Mr Hastings also considered that the Claimant’s failure to follow Mr Briggs’ instruction to the Claimant, delivered orally via Ms O’Lone, not to finalise shifts for her sons, showed deliberate deviation from that instruction. As noted above, the Claimant’s evidence that it was an error seemed plausible to the Tribunal (and we were shocked that the Claimant had never been asked this question by the Respondent, in its investigatory or disciplinary processes). Moreover, even if the Claimant had deliberately deviated from that instruction, it would not be reasonable for her to understand that to be an instruction of fundamental importance, going to the root of her contract of employment, if Mr Briggs did not deliver that instruction himself, and if it was never confirmed in writing after the Claimant asked for it to be.[303]In summary, the Tribunal totally disagrees that the Claimant committed a fundamental breach of her contract of employment. At most, the Claimant failed to follow Mr Briggs’ indirect oral instruction in a busy period. That is very far from actions which show such a total disregard for the contract of employment between the Claimant and the Respondent that it entitled the Respondent to accept that breach and terminate her employment.[304]The Claimant’s complaint of wrongful dismissal is well-founded and succeeds.[305]While it is common in liability-only hearings for the Tribunal to make fact-related remedy findings, such as those pertaining to contributory conduct, Polkey and ACAS Code, the Claimant had prepared submissions based only on the liability sections of the list of issues, and so no decisions have been made by the Tribunal in relation to those matters. Conclusions[306]For all of the above reasons, the Tribunal finds that: a) The Claimant was not subjected any detriment on the ground that she had made one or more protected disclosures, contrary to section 47B of the 1996 Act; b) The Claimant was not automatically unfairly dismissed for the reason, or principal reason, that she had made one or more protected disclosures, contrary to section 103A of the 1996 Act; c) The Claimant was unfairly dismissed by the Respondent, contrary to section 94 of the 1996 Act; and d) The Claimant was wrongfully dismissed.