Mrs R Wight v The Christie NHS Foundation Trust: 2402375/2023

EMPLOYMENT TRIBUNALS

Case No 2402375/2023

Between

Mrs R WightClaimant

The Christie NHS Foundation TrustRespondent

Before

Employment Judge Eeley

In person for claimant

Mr P Gilroy KC for respondent

Date 3 February 2025

JUDGMENT

[1]The complaints of being subjected to detriment for making a protected disclosure are not well-founded and are dismissed.

[2]The complaints of ordinary and automatically unfair constructive dismissal because of protected disclosures (sections 94, 95(1)(c), 98 and 103A of the Employment Rights Act 1996) are not well-founded and are dismissed. JUDGMENT having been sent to the parties on 17 February 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:

REASONS

[1]This is a decision and reasons determining the claimant’s legal Employment Tribunal claims as pleaded and as summarised in the agreed List of Issues. It is a case about whether the claimant was constructively unfairly dismissed by the respondent. It is also a case about whether, when the claimant made protected disclosures, she was subjected to detriments by the respondent on the grounds that she had made those protected disclosures. Further, it is about whether her alleged constructive dismissal was automatically unfair on the basis that it was because of those protected disclosures. I have sought to make it clear from the outset of the final hearing that I am not going to venture outside the scope of the statutory jurisdiction in which this tribunal operates. Consequently, I am not going to make findings as to whether, when the claimant ‘blew the whistle,’ the criticisms, concerns or allegations she raised about Nurse A were correct, justified or otherwise vindicated. An assessment of such matters is not the business of this Employment Tribunal. In drawing such conclusions I would be sitting in judgment on Nurse A’s competence, performance, conduct or integrity. That is a matter for another forum, the NMC, as regulator of the nursing profession. I understand that there are separate (but related) proceedings which are still ongoing before the NMC.

[2]Likewise, I am not conducting a general enquiry into the standards of patient care or medical research within the respondent’s hospital. I am not here to determine whether any patients have in fact suffered harm or whether such harm could be attributed to the provision of inadequate care by those employed by the respondent. Again, the tribunal is not the regulatory body for the NHS. Nor does it conduct public enquiries into the way that NHS institutions are run. Rather, the tribunal is here to determine the impact of the relevant parties’ actions or omissions upon the claimant’s contract of employment with the respondent. It is that contractual relationship of employment between the claimant and the respondent which is at the foundation of the causes of action that I am going to determine. The tribunal will not make findings or pass judgment on matters which are outside the proper scope of the legal case which is before this tribunal.

[3]Nor, in large part, is this a case about whether the claimant actually made protected disclosures or ‘blew the whistle.’ For the most part the respondent has conceded that the claimant made some protected disclosures (although not all of the disclosures that she alleges as part of her tribunal claim.) Of course, the claimant is entitled to the associated legal protections which flow from the fact that she has made those protected disclosures. However, that is not to say that everything that happened to the claimant at work (after she made the protected disclosures) amounts to legal detriment(s) to which she has been subjected because she made the protected disclosures. Hence the length and detail required in the findings of fact which follow.

[4]I note that some elements of the claimant’s claims were withdrawn at various stages of the final hearing. This will be addressed at the appropriate place in the paragraphs which follow.

[5]During the course of the hearing I was referred to the contents of an agreed hearing bundle which consisted of pages up to and including 2677 in the paper copy of the bundle. Additional pages numbered 2678-2685 were added to the bundle during the course of the hearing. Numbers in square brackets below are references to pages within the hard copy bundle, unless otherwise indicated. I also had the benefit of a cast list and chronology.

[6]I received written witness statements from the following people:a. Rebecca Wight, the claimant, formerly the Advanced Nurse Practitioner (In-patients) at the respondent’s hospital.

b. Neil Bayman, Executive Medical Director at the respondent.

c. Joanne Booth, HR Business Partner for Network Services at the respondent.

d. Victoria (Vicki) Burns, Service Manager for Medical Oncology from April 2020 onwards. Line manager for the claimant and Nurse A.

e. Dr Andrew Clamp, Consultant Medical Oncologist (specialising in the treatment of gynaecological cancers.).

f. Annie Dewberry, Divisional Associate Chief Nurse and AHP’s Clinical Support and Specialist Surgery (CSSS).

g. Dr Jurjees Hassan, Consultant Medical Oncologist (gynaecological cancers and colorectal cancers).

h. Thomas Hicklin, Band 7 Clinical Safety and Risk Manager from September 2021 until September 2022.

i. Professor Gordon Jayson, Professor of Medical Oncology.

j. Natalie Marshall, Head of Operational HR.

k. Dr Claire Mitchell, Consultant Medical Oncologist (specialising in the treatment of gynaecological cancers).

l. Dr Zena Salih, Consultant Medical Oncologist and Clinical Lead of CAReGO.

m. David Smithson, Deputy Director of Workforce.

n. Roger Spencer, Chief Executive at the respondent.

o. Jacqueline Wrench, interim/substantive Divisional Director of Network Services at the respondent. Line manager for Vicki Burns.

p. Professor Janelle Yorke, Chief Nurse and Executive Director of Quality at the respondent (and Professor in Cancer Nursing at the University of Manchester.) Dr Salih and Dr Hasan did not give oral evidence at the final hearing but their written statements were considered and given such weight as was appropriate given that they had not attended the hearing for cross examination.

[7]The tribunal had the benefit of a written opening note and closing written submission on behalf of the respondent. Both parties provided oral closing submissions, for which I was grateful. THE FACTS

Background

[8]The claimant, Mrs Wight, joined the respondent’s GMO team in 2018 as an Inpatient Advanced Nurse Practitioner. The respondent developed a new “CAReGO” service. In simple terms, the purpose of the CAReGO service was to address the needs of a particular cohort of patients with gynaecological cancers who may develop bowel obstruction as a result of their medical conditions. The CAReGO service was intended to address the issue of where the patient should best be treated and cared for. It concerned which treatments were indicated for the patients in order to give those patients a better quality of life. Fundamentally, the aim of the service was to facilitate more treatment of patients in their home settings, where the patient would be able to spend more quality time with family and loved ones, rather than spending lengthy periods in the relative isolation of a hospital ward. Central to the aims of the CAReGO service could be the use of parenteral nutrition to address such bowel issues outside the hospital setting. The service concept was that there would be an Inpatient Service (for which the claimant was the Advanced Nurse Practitioner) and an Outpatient Service, which would manage the assessment and treatment of patients outside the hospital setting and which would also make decisions about when hospital admission was necessary or appropriate.

[9]On 1 February 2021 ‘Nurse A’ was recruited as the Advanced Nurse Practitioner (hereafter “ANP”) for outpatients in the CAReGO service. The job plan and description for the role had been developed under the aegis of Professor Jayson and the Service Manager for Medical Oncology. (This was done before Victoria Burns started in her post.) Vicki Burns did the shortlisting process on the respondent’s Trac system. This was a paper exercise which was done without access to further detailed information which might lie ‘underneath’ the headline details of Nurse A’s degrees/qualifications. Nurse A met the essential criteria for the role, as did the other applicants. All the applicants went forward for interview. They were interviewed by a panel which included the claimant, Professor Jayson and Ms Burns. All three interviewers scored Nurse A the highest and she was appointed to the role. Professor Jayson had previously worked with Nurse A in a different role in private practice and had previously had a good working relationship with her. Neither the claimant nor Ms Burns had worked with Nurse A before.

[10]The CAReGO service became operational on or about 1 March 2021. PD1

[11]On 4 June 2021 (as is conceded by the respondent) the claimant says that she informed Professor Jayson that if Nurse A were to undertake a full time PhD alongside her job with the respondent, this would compromise patient safety and service levels. She considered it difficult (if not impossible) for Nurse A to do a full time PhD alongside full time employment with the respondent without the standard of Nurse A’s work for patients suffering as a result. This protected disclosure was apparently made when the claimant visited Professor Jayson at home. The tribunal has been shown the text message exchange from the following day wherein the claimant thanked Professor Jayson for support. Professor Jayson’s response was very complimentary towards the claimant and indicated that he wanted his team to succeed. He concluded by saying, “Pls air any worries or frustrations as I really would prefer to sort them out, thanks for your message and have an excellent weekend.” This message exchange suggests (amongst much other evidence in the hearing bundle) that they had a good, friendly and professional working relationship. For the avoidance of doubt, all the indications are that Professor Jayson had good, professional and friendly relationships with both the claimant and Nurse A for the most part of the chronology with which I am concerned. They may not have been friends outside of the work context but I find that there was a friendly and supportive relationship. The tribunal recognises that every working relationship may have an ‘off day.’ On such occasions one or more colleagues may be ‘snappy’ or short tempered. The relationships between Professor Jayson, the claimant and Nurse A will have been no different, particularly given the important and onerous work undertaken by the service in question. The state of any working relationship has to be judged in the round and not solely on the best or the worst days of that working relationship. Of course, it is entirely possible that an initially sound working relationship may sour or break down completely over time.

[12]Professor Jayson is a highly regarded practitioner and a leader in his field. He is clearly someone (from the evidence that I have read and seen) who wishes to innovate and develop the reputation of the service that he runs. Alongside that it is also apparent that he wishes to support and encourage colleagues (including nurses) in their career development. Both the claimant and Nurse A were beneficiaries of this approach. Both of them wished to undertake further study and research with a view to gaining further qualifications. Nurse A wished to do a PhD and it was anticipated that she would do this whilst employed by the respondent. Hence the claimant’s concern that Nurse A was essentially taking on too much in doing a full time job and a full time PhD. (I also note that the Advanced Nurse Practitioner role was a ‘step up’ in level/ banding for Nurse A too.) PD2

[13]The second protected disclosure relied upon by the claimant actually covers a period of time and a number of text messages between 14 June 2021 and 18 November 2021. It has a number of component parts. The claimant says that she informed Dr Salih that Nurse A posed a risk to patient safety and was dishonest. The respondent concedes that the text communications amounted to a protected disclosure for the purposes of this tribunal case. However, the respondent did not address specific messages within this category. Rather, the respondent made the concession in relation to the communications as a group or class. The protected disclosure was addressed as a composite whole.

[14]Dr Salih was the consultant who was due to take on the leadership role within the CAReGO service once it was fully up and running. She took this on under the leadership of Professor Jayson. He confirmed that he provided support to her during regular discussions (which took place every Sunday evening, at least). His intention was to support and assist her for a period of time so that he could eventually step back and the service would be more self-sufficient. (There was an element of ‘succession planning’ involved in this.)

[15]The claimant also line-managed Sarah Wood. She was the CAReGO Clinical Co-Ordinator rather than a clinician. Both the claimant and Ms Wood had some difficulties in their dealings with Nurse A. On 3 August 2021 the claimant conducted Ms Wood’s PDR (Professional Development Review). Following this, the claimant then raised some issues regarding Nurse A with Dr Salih. The record in the bundle shows that the issues included Nurse A expecting Ms Wood to make clinical calls even though she was employed as part of the administrative staff rather than as a clinical employee. Given that these concerns had been raised, on 4 August 2021 Dr Salih and Professor Jayson met with Nurse A to discuss issues and implement changes. The invitation which was sent to Nurse A prior to that meeting indicates that a clinical concern had been raised to Dr Salih and Professor Jayson and that they wanted to meet with Nurse A in order to ‘iron things out’ and plan how to streamline matters and improve the situation.

[16]On 18 August 2021 it was confirmed that Nurse A’s PhD would be delayed until January 2022 and that her PhD would be undertaken part time over six years (instead of full time over approximately three years alongside a full ANP job role.)

[17]I am informed that on 1 September 2021 the claimant began a pre-doctoral NIHR funded 1 year research fellowship. Consequently, her clinical days reduced.

[18]On 26 August, the claimant had requested a meeting with Nurse A in order to discuss the difficulties that she had encountered as well as a breakdown in communication between them. It appears that the meeting took place on 1 September. The claimant clearly tried to raise concerns directly with Nurse A and (as subsequent documentation shows) was not satisfied with her responses. The claimant has since said that Nurse A lacked the necessary skills, training, experience and judgment for the role that she was employed to undertake for the respondent. The claimant also took the view that Nurse A lacked insight into her own shortcomings. She was not convinced that Nurse A would address the issues just because the claimant had raised them with her at this meeting. Hence the claimant attempted to escalate her concerns within the team from a relatively early stage in the chronology.

[19]Ms Burns (Service Manager for Medical Oncology) had a three month career break/ sabbatical and was away from the department when these concerns were first raised by the claimant and when Professor Jayson and Dr Salih first spoke to Nurse A about them. She came back to work in September 2021.

[20]On 6 September 2021 the claimant requested a meeting with Ms Burns. Ms Burns offered a number of times for the proposed meeting. Before the claimant contacted Ms Burns, Nurse A had already contacted Ms Burns and requested a discussion/meeting too. She was upset by the claimant and about the concerns that had been raised with her regarding her practice. She wanted to discuss this with Ms Burns. It is important to note that Ms Burns had a duty of care to both the claimant and Nurse A. She line-managed both of them and would have to approach both of them with an open mind. Further, Ms Burns was not in a clinal role (having been in management since approximately 2008.) This meant that the steps that she could take in response to any concerns raised were more managerial in nature. She would have to defer to the views and suggestions of senior clinicians in relation to matters of clinical competence etc. Furthermore, Ms Burns could not control which nurse raised her concerns with her first. She had to listen to both of them and take appropriate steps to discharge that duty of care to both of them. She could not, from the outset, assume that either of the nurses was ‘in the right’ without fairly listening to both nurses and considering their concerns with an open mind. Just as the claimant did not want Ms Burns to prefer Nurse A’s point of view to the claimant’s, the converse was also true.

[21]Ms Burns’ initial conversations with the claimant and Nurse A indicated that, in addition to any other issues that there might be, there was certainly an issue with the relationship between the two ANPs. Ms Burns was entitled to identify this relationship issue and try to resolve it. The fact that she did so does not automatically mean that she was accepting a narrative from Nurse A that the claimant was a bully. Nor does it mean that she had concluded that there was no merit in the concerns that the claimant had raised about Nurse A. The claimant has become convinced that she was painted as the person ‘in the wrong’ or ‘the bad guy’ right from the outset and that Ms Burns would never choose to support the claimant in preference to supporting Nurse A. This may well have been Ms Wight’s perception but it is not really borne out by the evidence that the tribunal has seen. The evidence the tribunal has heard suggests that Ms Burns recognised the relationship breakdown without necessarily attributing blame for that breakdown to one or another person. The fact that was that Nurse A was upset (whether justifiably or not) and the claimant was also raising concerns. It was a thorny problem for Ms Burns to address the issue and satisfy both nurses at the same time. I am satisfied that, whether or not she went about matters in an optimal way or in fact managed to solve the problem, she did act in good faith to try and resolve the issues with both of the ANP’s. PD3

[22]The third of the protective disclosures took place on 21 September 2021. The claimant met with Ms Burns. It is now conceded by the respondent that, on 21 September, the claimant informed Ms Burns that Nurse A posed a risk to patient safety because she was incompetent. She also alleged that Nurse A was performing triage services that she was not qualified to do. The protected disclosure is conceded by the respondent as having taken place on this date and on the basis that the claimant disclosed information generally that Nurse A posed a risk to patient safety because she was incompetent. The more specific portions of the alleged protected disclosure in the Tribunal’s list of issues are not specifically conceded.

[23]Ms Burns conceded that at the meeting the claimant told her about some of her concerns and about how the CAReGO service was operating in practice at that point in time. She didn’t specifically recall the claimant saying that Nurse A posed a risk to patient safety but for the purposes of the protected disclosures claim the respondent has conceded that there was some communication about a risk to patient safety. (The respondent does not concede that Nurse A in actual fact posed a risk to patient safety due to a lack of competence). Nor does Ms Burns accept that she referred specifically to a personality clash between the claimant and Nurse A but she says she did refer to the strained relationship between the two of them. Ms Burns denies dismissing the claimant’s concerns and says that she listened to what the claimant was saying.

[24]I find that this first meeting involved a discussion about more general concerns regarding outpatients. This clearly related to Nurse A because she was the ANP in charge of running the Outpatients Service. I also note that clinical discussions would have to be picked up and addressed more specifically by Dr Salih and Professor Jayson and the other responsible clinicians. Whilst the claimant subsequently summarised the concerns that she said she had been raising since August in an email dated 16 November [392], this does not mean that all of the specific bullet points on the list in the email were raised with Ms Burns at the meetings, particularly this first discussion in September. For example, the issue relating to the use of the hotline service alongside CAReGO is unlikely to have been raised with Ms Burns on 21 September. Indeed, Ms Burns’ recollection is that the more specific issues were raised at the subsequent meeting on 10 November.

[25]It seems likely that on 21 September the claimant did not invoke any particular HR policy during the meeting. She is unlikely to have suggested that particular steps should be taken. Rather, concerns were raised verbally and acknowledged verbally and then discussed. Ms Burns was to take matters away to consider how they could best be addressed and who was qualified to address them. Thus, it appears that during the course of the meeting Ms Burns said that she would meet with Dr Salih (the Clinical Lead) to understand what else was needed in terms of Nurse A’s development. Ms Burns felt that the appropriate next steps were to discuss the issues with Dr Salih and formulate a plan which could then be incorporated into Nurse A’s PDR. From an objective viewpoint this appears to be an appropriate first step. In many cases it will be appropriate for an employer to take a staged approach to such issues: informal resolution; identification of relevant training and support needs; review after completion of the training and then, if problems still persist, more formal HR processes may be necessary. Of course, in a clinical setting, if a mistake or particular conduct poses a significant risk of serious patient harm, it may be necessary to take immediate steps to remove or reduce that risk by stopping the clinician from treating patients without a third party present. However, other senior clinicians would be the ones best placed to risk assess the various options and decide which would strike the correct balance between support and development of the employee and the protection of patients and their safety. A non-clinician would not be well placed to make this assessment.

[26]Once an action plan was put in place for Nurse A the details of it would not have been shared with the claimant as, at this point, it was part of Nurse A’s PDR and thus a confidential HR matter between Nurse A and the respondent (as her employer.) I can recognise that there might be some things that the claimant (and others) might need to know in terms of working alongside Nurse A but this would not routinely entitle them to wholesale disclosure of confidential HR matters and discussions (as between Nurse A and her employer.)

[27]There is no contemporaneous record showing that the claimant indicated that she wished to make a complaint or use a procedure such as the “Freedom to Speak Up” policy at this stage of the chronology. In any event, I have read and considered the contents of the Freedom to Speak Up policy (which was included within the tribunal’s hearing bundle from [2133].) Section 6 of that policy sets out the procedure for employees to raise concerns under the policy. At page 2140 subsection (b) states that employees should, “Discuss the issue with your line manager with the intention of resolving or addressing your concern quickly and informally.” The following paragraphs provide a method of escalating concerns where the employee is unwilling to talk to the direct line managers or feels that the line manager has not resolved matters appropriately i.e. go to the Head of Department or Service Manager, ask HR, or go to the designated officer. In the claimant’s case that would be the Chief Nurse and Executive Director of Quality.

[28]Within the policy the employee is advised to focus on factual information and evidence with specifics about dates and times, witnesses etc. The point is that an attempt should be made to resolve matters informally before more formal steps are taken. Subparagraph (g) on the same page indicates that, whoever has received the concern, it should be acknowledged within two working days, the acknowledgement should include arrangements to have a discussion about the concerns with the complainant, and that discussion should take place as soon as practicably possible, normally within ten working days. This part of the procedure seems to imply that there will have been a written complaint or concern which is acknowledged in writing within two working days. The claimant did not make a written complaint at this stage but raised her concerns verbally. It would perhaps be unduly formalistic to require the respondent to acknowledge a verbal complaint in writing where it had already been acknowledged verbally as soon as it was raised and when it had been discussed verbally in the meeting (on the same day that it was raised.) If the claimant required a written acknowledgement or record then it was, of course, open to her to put her complaint in writing.

[29]A flowchart showing the appropriate process is at Appendix 1 of the policy [2148]. That flowchart indicates that, if the matter is raised with the immediate line manager, it should be discussed informally. The flowchart sets out provision for acknowledgement within two working days and if the matter is resolved this is all to the good. If not, then the employee has routes to escalate the concerns to senior managers and the Freedom to Speak Up Guardian. At that stage there is a conversation within ten working days to agree how the concern will be processed. Then there should be an outcome within 25 working days, if informal. If the matter is still not adequately resolved, the employee can raise concerns with the Chief Executive or Chair of the Board or to the Chair of the Audit Committee. Appendix 2 of the policy also contains a pie chart. The purple portion of the chart addresses outcome and feedback. The respondent’s “vision” (as represented in the chart) is that: lessons to be learned will be identified and acted upon; the complainant will be satisfied that the outcome is fair and reasonable even if they do not agree with it; the complainant will be told what was found out and what action is being taken; a plan to monitor the situation will be put in place; and the complainant will feel confident that patients are safe and that the complainant’s team remains a supportive place to work.

[30]There is also a grading metric to identify what constitutes a ‘query,’ a ‘concern’ or a ‘formal concern,’ each of which has a different set of timescales and steps associated with it (Part 7 of the policy [2141]). So, for example, a concern raised directly with a manager should be acknowledged within two working days and investigated within 25 working days. A formal concern gives 60 days for the investigation phase. I am satisfied that at this stage in the chronology the claimant would probably be categorised as raising a ‘concern’ rather than a ‘query’ or a ‘formal concern.’ Had the policy been invoked by either party, it is likely that the timescale for dealing with ‘a concern’ would have been applicable at this stage. It also appears that the respondent has since updated its policy to make it clear that not every concern warrants an investigation [2163, 2169].

[31]The claimant also alleges that during this meeting Ms Burns said that Nurse A ‘has a hard job and that she did not know anyone else who could do it.’ Ms Burns cannot recall either way and does not admit or deny saying that. Having said that, it would be an odd thing for her to have said if she thought that both ANPs had hard jobs and Nurse A’s job was no harder than the claimant’s. On balance, I am not satisfied that Ms Burns did make this comment. If anything was said at all I suspect the claimant has either misremembered or misinterpreted it through the lens she subsequently adopted (i.e. that Nurse A was favoured over her and that she, Mrs Wight, was seen as being ‘in the wrong.’)

[32]Ms Burns took the concerns raised by the claimant away and raised them with Nurse A at their next meeting. The claimant would not necessarily have visibility of this as it was an individual meeting between Nurse A and her line manager (Ms Burns) and was likely to have been a confidential meeting in the D1

[33]The first of the alleged detriments in this case relates to the request for feedback for the claimant’s PDR. The claimant alleges that Ms Burns called her character into question when she requested colleague feedback for use at the claimant’s PDR.

[34]There was email correspondence between the claimant and Ms Burns in order to make arrangements to hold the claimant’s PDR. As part of the preparation for the PDR Ms Burns asked the claimant to seek feedback from colleagues on or about 6 November. On 19 October Ms Burns asked for suitable dates and times to conduct the PDR [334]. The core email was dated 6 November and stated [333]: “Thank you Rebecca. I have sent you an invite. Let me know if the date needs to change. In advance of the PDR, please can you ask a mix of staff that you work with to send me some feedback directly that can be used within the PDR discussion and also to assist us in objective setting.”

[35]Ms Burns’ evidence was that this was not a request for anonymous feedback as the feedback would be discussed with the claimant at the PDR as part of the PDR process in any event. Ms Burns’ view was that it was more efficient to get the feedback direct from the claimant’s colleagues so that she could read it and consider it before the meeting. She explained that she was using this technique because she had just been through a ‘360 degree review’ process herself and she thought that this was a good way to go about the PDR process. She was trying to replicate that process informally and she says that she did this with any of her direct reports who were due to have a PDR at around this time. Ms Burns’ evidence was also that it was her intention to collate this feedback and share it with the claimant at the PDR conversation. Unfortunately, the PDR was postponed. Then the claimant cancelled it and asked that somebody else should complete her PDR (i.e. not Ms Burns).

[36]There is nothing in the available evidence to suggest that Ms Burns intended to call the claimant’s character into question by making this request for feedback in the way that she did. Indeed, the feedback was positive so it would not have called her character into question in any event. As the PDR did not actually take place, the claimant cannot know what Ms Burns would have said to her during any such meeting.

[37]The claimant’s evidence in chief in relation to this issue was that she was surprised by the request for feedback because it did not form part of the Trust’s PDR policy or preparation tool. The claimant said that she had previously offered feedback for her PDRs of her own volition but she hadn’t been asked to do so by managers during her previous eight years at the hospital. She said that Ms Burns did not ask Nurse A for this sort of feedback and so the focus of the claimant’s complaint seems to have been on a difference in treatment between the claimant and Nurse A as regards requests for feedback. (That said, Nurse A was in a somewhat different position given that concerns had already been raised and were being addressed with Nurse A by this time. Further feedback requests may not have been required or appropriate in such circumstances.)

[38]In cross examination the claimant maintained that Ms Burns had made her mind up that the claimant was ‘a bully’ and that she had made a decision to get feedback about the claimant without the claimant seeing it first so that Ms Burns could prove that her opinion of the claimant was the correct one. However, if that was the plan it apparently did not work as the feedback about the claimant was positive. Had Ms Burns been intending to get such negative feedback to prove a case against the claimant then it was a risky step to take as she would have no control over the sort of feedback she would receive from the claimant’s colleagues. Furthermore, the claimant unfortunately jumped to the conclusion that Ms Burns did not ask for this feedback in relation to Nurse A even though the claimant would not have known this at the time. She would not know whether feedback was requested regarding Nurse A. These features of the evidence indicate that Mrs Wight was already alert and suspicious about how managers were dealing with her (the claimant) as compared to how they were dealing with Nurse A. That said, the claimant did not actually react consistently with this interpretation of events at the material time. If the claimant had thought that there was something untoward about Ms Burns’ request (or that it was an unnecessary or unfair innovation), one might have expected her to question it or ‘push back’ on it in some way (whether verbally or in emails). She could have questioned why this was being done and could have asked whether everybody else was going through the same process as she was. She did not do this. This tends to suggest that, if the claimant genuinely now thinks that Ms Burns was subjecting her to a detriment by making the feedback request, this is likely to be a conclusion that she has reached with the benefit of hindsight, taking into account subsequent events. There is no reason to believe that Mrs Wight had this view of the feedback request at the time it was actually made by Ms Burns.

[39]On balance, I have concluded that the claimant did not see the request for feedback as detrimental at the time it was made. She has developed this view of it subsequently. The earliest documentary record of the claimant questioning the feedback is in the claimant’s email to Ms Dewberry on 8 December. However, that email again focuses on an alleged difference of treatment (between the claimant and Nurse A) rather than on the feedback request itself being detrimental. Indeed, when the claimant actually forwarded the feedback on 8 November [353] there is no hint of disquiet on the claimant’s part. Taking into account the surrounding evidence that I have heard, any assertion that the claimant was so beaten down by this point in time that she was compliant without question, lacks credibility. The surrounding evidence makes it clear that the claimant was well able to stand up for herself and her concerns at this stage in the chronology. There is every reason to think that if the claimant had a concern about the feedback request, she would have had the wherewithal to articulate it at the time, even if by email. The claimant was not being universally or consistently submissive or compliant at this point in the chronology.

[40]Interestingly, the way the case was put during the hearing was different to the way it is expressed in the list of issues. The evidence at trial focussed on the apparent disparity of treatment between the two nurses and that the idea that the claimant was in some way being ‘set up.’ Her concern was that managers were not going to take Nurse A to task sufficiently rather than the way that she (the claimant) was being dealt with. By contrast, the list of issues focuses on the allegation that by seeking feedback Ms Burns was calling the claimant’s character into question. This is qualitatively different.

[41]My finding is that there is nothing in the papers to suggest or imply that the request was calling the claimant’s character into question. Rather, this was a normal management tool to ask for feedback. Ms Burns gave the explanation regarding her previous experience of 360 degree reviews, and the idea that she was looking to replicate this informally. This is plausible and the claimant’s allegation that this was some sort of ‘set up’ lacks plausibility. I reject the suggestion that this is a way of subjecting the claimant to a detriment, it is not detrimental treatment. It may have been something of an innovation but that does not make it detrimental. In context it is not an example of the claimant’s character being called into question or of the claimant being subjected to a detriment. Likewise, I am prepared to accept that Nurse A’s colleagues were also asked for feedback for her PDR. To some extent the claimant and Dr Salih had already provided it, given the areas of concern. I am not convinced that there was the disparity in treatment between the claimant and Nurse A which the claimant suggests.

[42]Reference to the disclosed documents regarding Nurse A’s PDR shows that there was a clinical plan put in place in consultation with the doctors in the department. The clinical plan was in a separate document to the PDR. It is important to recognise that Ms Burns was a manager and not a clinician. Consequently, any concerns about Nurse A’s practice or clinical competence would have to be referred to the consultants for their input. Ms Burns was not qualified to deal with this aspect of any concerns herself. As a manager she would ensure that other features of the employment relationship were properly managed. She could coordinate the clinical plans which were put in place and follow them up but she would not be able to implement clinical training or monitoring herself without assistance from the relevant clinicians, for example. PD4

10 November 2021

[43]On 28 October the claimant requested a meeting with Ms Burns as a ‘catchup.’ This subsequently seems to have taken place on 10 November. This was a Teams call between the claimant and Ms Burns. The claimant informed Ms Burns that the claimant’s previously raised concerns about Nurse A’s competence and patient safety had still not been addressed. Again, the respondent concedes that this was a protected disclosure. The respondent concedes that this fourth protected disclosure was made and that the claimant disclosed information generally that Nurse A posed a risk to patient safety because she was incompetent. The specific details of the disclosure which are set out in the list of issues were not necessarily addressed or conceded by the respondent.

[44]No notes were taken of the meeting in question. Ms Burns considered that the issues raised were about how the service was operating and whether Nurse A’s objectives and development had been properly implemented. She considered that this was a work in progress which Ms Burns intended to discuss further with Nurse A at the next one-to-one she had with her. Ms Burns conceded that more specific issues (such as those listed in the email on page 392) were probably raised during this meeting. The clinical issues were ‘in hand’ with the clinicians and Nurse A. Ms Burns was kept updated about those developments. The relationship breakdown between the claimant and Nurse A was something that Ms Burns could attempt to address because it was not a clinical issue. Hence the exploration of mediation. The tribunal recognises that there was a two-pronged approach to the concerns: clinical versus relational (to which mediation would be relevant.) Even at the 10 November meeting the claimant did not invoke the Freedom to Speak Up Policy or allege that Ms Burns was in breach of it. She did not escalate matters pursuant to the policy. The policies are available on the respondent’s computer systems and the claimant conceded that she had access to them during the course of the relevant period.

[45]On 15 November the claimant requested that Ms Burns attend a CAReGO Operational Meeting the next day. She requested Dr Salih’s consent for this.

[46]On 16 November the claimant emailed Ms Burns and Dr Salih under the heading “Clinical Concerns CareGo outpatient ANP Service” [391]. She started by saying that the email was a summary of the concerns that she had raised since August 2021 regarding how the outpatient CAReGO service was performing. She said that she had developed concerns about Nurse A’s clinical competence to carry out the required duties for her post. She recorded that Ms Wood had also raised concerns to the claimant about Nurse A at her (Ms Wood’s) PDR. Ms Wood’s concerns included: Nurse A inappropriately delegating clinical roles to Ms Wood; planned patient follow up appointments not being performed; and no ANP cover on Fridays so that Ms Wood was taking calls needing clinician input when none was available. The claimant said that she had escalated Ms Wood’s concerns (along with a few of her own) to Dr Salih and Professor Jayson. She said that her own concerns included patients not being appropriately assessed and managed by Nurse A thereby causing a risk of harm to patients in an outpatient setting and emergency admissions to hospital once the patient had become very unwell. The claimant stated her understanding that, as a result, weekly meetings were set up between Dr Salih, Professor Jayson and Nurse A in order to review outpatient management

[47]The claimant then asserted that, after she raised concerns, communications between the claimant and Nurse A had broken down. She recorded that she had met with Nurse A on 1 September and highlighted the concerns to her. She also pointed out that she had highlighted and discussed her concerns with Ms Burns on 21 September and on 10 November. She set out a list of bullet points that she said she had raised across the course of the two meetings:• Communication/handover prior to periods of leave

• Use of hotline service alongside CAReGO

• Follow ups not performed resulting in emergency admissions

• Very unwell patients not being identified and admitted, only to be admitted by another source (usually hotline) even hours/short days after

• Patient follow ups being missed on multiple occasions (no confirmed apps/times)

• Patient stratification/management

• Backlog of referrals to the service

• Not turning up to clinics when patients booked in

• Annotations not being completed in a timely manner (despite having only 3-4 appointments in a 9.5 hour working day)

• Sarah being unable to contact Nurse A for many hours in the day when contacted by patients needing advice

• Inappropriately advising Sarah to ask patients to seek “medical advice” when they call with clinical concerns, despite Nurse A being on clinical duty

• Not providing support/advice to patients with a number of basic requests made by Sarah regarding care of central lines. She also said that she had highlighted many of the concerns in the team operational meeting that same day (16 November). The claimant said that she was seeking reassurance that the concerns were being actioned as her concern for patient safety continued.

[48]The claimant alleges that, on 21 November, Ms Burns met with Nurse A to provide support. This is part of issue 5.1.2.5 in the tribunal List of Issues. Ms Burns says that this did not happen on 21 November (given that it was a Sunday) but that there was a meeting between Ms Burns, Nurse A and Dr Salih on 22 November. Far from being a meeting to provide Nurse A with support, Ms Burns says that it was a meeting which was held in direct response to the concerns that the claimant had raised about Nurse A. It was to discuss those concerns and agree limitations on Nurse A’s work, including which duties she could/could not undertake (and how.) This is reflected in the timeline of interactions which Ms Burns drafted and emailed to herself on 29 December 2021 [635]. The tribunal accepts Ms Burns’ evidence about this. She was in a position to know what was discussed at this meeting and what the purpose of the meeting was. The claimant could not have known that. Furthermore, it would, in any event, be legitimate for a line manager to provide support to one of their direct reports whose performance was under scrutiny. Those two aspects of a management role are not necessarily mutually exclusive. Nor should that provision of management support to Nurse A (another employee) be a matter of legitimate concern to the claimant. PD5

[49]I turn then to protected disclosure number five on 22 November. The claimant emailed Ms Burns and the consultant team regarding a formal escalation of her clinical concerns [402]. The email went to Dr Clamp, Professor Jayson, Dr Mitchell, Dr Hasan, Dr Salih and Ms Burns. It was entitled “formal escalation clinical concerns.” In the body of the email the claimant confirmed that she had formally raised clinical concerns in the last week, alleged that she had been raising concerns for a few months but they hadn’t been appropriately addressed. She said that this was because the concerns have repeatedly been wrongly considered to be a ‘clash of personalities’ or an ‘attack on Nurse A’ and that this had detracted from the critical issues she had raised. The claimant therefore requested a review of her concerns to be carried out by a senior clinical member of staff from outside the gynae team. The claimant talked about her own stress and anxiety and concluded that she would appreciate it if other members of the team could “refrain from continuing to openly cast their personal views on my motivations for raising concerns.” The Tribunal was not presented with evidence that this was actually happening but clearly the claimant was concerned that things were being said about her in the workplace.

[50]Ms Burns responded to the claimant on 22 November. She confirmed that she had received the claimant’s email on the Friday but hadn’t been able to meet with Dr Salih to discuss the issues by that time. She confirmed that she then managed to meet with Dr Salih on Friday afternoon and that she had further meetings planned that day (i.e. 22 November). Ms Burns sought to reassure the claimant that she was taking her concerns seriously and planned to work with the whole team to find the best way forward to support Nurse A and the service. Ms Burns enquired whether the claimant was around that afternoon.

[51]Dr Mitchell also responded on 22 November [401] to acknowledge the email and thanked the claimant for raising concerns because she recognised that it was difficult to do that within a small team. She sought to reassure the claimant that the consultant team would take the claimant’s concerns on board and look to address them. She noted that discussions and plans were already in progress. She was sure that the claimant would be updated as soon as was appropriate. She concluded by noting that it was important that the claimant felt supported and listened to. She invited the claimant to speak with her directly if she needed to. Arrangements were apparently made for the claimant and Dr Mitchell to speak later that day in person.

[52]On 25 November an agreement was reached that Dr Mitchell and Dr Clamp would do a review of cases highlighted by the claimant. Temporary safeguards were to be put in place in the meantime. Dr Mitchell’s understanding of what was required is summarised in her email to Ms Burns and Dr Salih on 25 November, which was copied to Professor Jayson [415]. Drs Mitchell and Clamp intended to review an initial 8 cases within the following week. In the interim she thought that they needed to put some temporary safeguards in place. She wanted to temporarily divert all CAReGO call backs to hotline/CNS and temporarily consolidate the CAReGO OP nurse-led clinics onto Tuesdays and Thursdays so additional support could be provided by the GMO team. She asked that Nurse A and Sarah Wood be reassured that this was to support them during the current pressures and that the team aimed to reintroduce things ASAP. Dr Salih had discussed this approach with Dr Mitchell and agreed it. They did not feel that this should be delayed until the next week. She noted that the Tuesday project meeting had been suspended.

[53]The claimant provided a list of example cases for the consultants to review. It was located at [436-437] of the hearing bundle. It was sent to Drs Mitchell and Clamp on 24 November. Dr Mitchell had asked if there were datix reports by the claimant for the ‘red cases’ and she indicated that she would prioritise the most serious cases. The claimant replied that she had not ‘datixed’ the incidents because she had been made to feel that she was the problem. Dr Mitchell tried to reassure the claimant that she and Dr Clamp were a little more distanced from CAReGO and that they should be able to provide an objective assessment which could be fed back to all team members. Issue 5.1.2.5

[54]At around this time (on or about 23 November) the claimant alleges that Ms Burns praised Nurse A’s resilience during a phone call to Dr Salih. This is one of the more unusual allegations as it is not clear how the claimant would have been listening to a phone call between these two people or how she would have been able to hear both sides of such a conversation. The claimant addressed this in her witness statement for the tribunal. She says that she overheard a conversation on the phone where Ms Burns was praising Nurse A's resilience in coming into work every day. The claimant describes this as “devastating” to her (the claimant) because it implied that Nurse A was a victim of the claimant raising concerns and made it clear that Ms Burns lacked impartiality and had no regard for the difficulties that the claimant was facing. The claimant alleges that Ms Burns had no insight into the resilience that she (the claimant) required in order to continue in her role despite the ‘pushback’ that she was receiving.

[55]Ms Burns’ evidence was that she had no recollection of saying that during the phone call, indeed she wasn’t in work on 23 November. It is also questionable how the claimant would have overheard such a phone call, if indeed it took place. How would the claimant know who was on the other end of the phone call? She would have heard, at most, only half the conversation. The tribunal was provided with no context as to how the claimant came to be listening to this alleged conversation or to establish how reliable her account of what she overheard would be. Dr Salih’s witness statement is apparently silent on this allegation.

[56]I am not at all satisfied that the claimant would have heard the conversation or that she would have heard the context of any comments made. At best her perception of this event would be distorted, at worst, it did not happen at all. Even if such a conversation had taken place (as the claimant alleges), praise for Nurse A’s resilience is not the same thing as concluding that her performance in her role is adequate or that the claimant’s concerns about Nurse A are misplaced. Nor does it imply any views about the claimant’s resilience (or lack thereof.) The claimant just does not come into this alleged conversation at all. Just because a view is being expressed about Nurse A, this does not necessarily mean (by implication) that a view or opinion is also being expressed about the claimant (whether positive or negative.) The one just does not follow from the other. Praising someone’s resilience is just that, it is a recognition of the stresses someone is facing but still turning up to work. The claimant managed to make this into a comparison between her and Nurse A in which she (the claimant) comes off worse but that is not what was actually happening, even based on the claimant’s version of events. The claimant does not figure at all in the conversation. Nor does the alleged comment automatically mean that Ms Burns lacks impartiality or has decided to defend Nurse A to the claimant’s detriment. Just because Ms Burns may show some compassion for Nurse A that does not mean that she has no compassion for the claimant. Mrs Wight may genuinely believe that this conversation had something to do with her or subjected her to a detriment but as a matter of objective fact it did not. The tribunal does not accept her characterisation of this alleged conversation at all. The most that the tribunal can say is that the claimant had a perception that things like this were being said about her behind her back and that this may be the background to this allegation. The tribunal does not accept that this happened as alleged by the claimant for the purposes of this case. The tribunal prefers the respondent’s evidence in relation to this issue.

[57]Nurse A had some sickness absence from 29 November to 30 December 2021.

[58]On 6 December Dr Mitchell and Ms Burns met with the claimant to discuss the outcome of the Clamp/Mitchell case review. No minutes of the discussion were made but an email from Dr Mitchell to the other consultants [474] gives some context to the discussions. It explains that the finding was that, although they did not feel that any of the cases reached the level of ‘serious clinical incident,’ they did feel that there was scope for learning and improvement in practice for Nurse A and the service as a whole. The claimant appreciated the process that had taken place and the recognition of her concerns. Dr Mitchell and the claimant had discussed the plans to address the concerns in relation to Nurse A and the service. Ms Burns was to meet with Dr Salih to confirm the plan to support Nurse A. It was considered important that there was a clear structure with measurable actions to show recognition and improvement and processes for ongoing review. The email recorded that the claimant still had some professional concerns about Nurse A’s conduct and that Ms Burns was going to explore these further and also speak with Sarah about some of the issues raised. Suggestions were made for an ‘away day’ to review the service and develop it (and establish protocols and procedures for it) building on some things which were already in place. Suggestions were made about how and when this might be facilitated. Dr Mitchell also said that she had reiterated to the claimant that she wanted to ensure that the claimant felt confident that they had responded to her concerns although she acknowledged that there remained issues to be addressed. She stressed the importance of the claimant providing feedback too if she felt that issues were not being dealt with or if she had further concerns. They also touched on how the claimant and Nurse A were going to manage working together and that Ms Burns was going to try and help support them in relation to that. Annual leave at Christmas

[59]At around this time there was also a series of emails between Ms Burns, the claimant and Dr Salih regarding annual leave over the Christmas period. A summary of those emails reveals that on 6 December Ms Burns sent an email to the team (copying in Dr Salih) asking recipients to let her know what leave they were looking to take over Christmas and stating that Nurse A had booked from 27 December until 10 January. Ms Burns asked the team to let her know what they had all arranged between them.

[60]The claimant responded to the whole group the same day, “So the outpatient service is not operating from Friday 24th December to Monday 10th January? Is that a sensible way to run a service?” It was a somewhat terse email, somewhat disrespectful and critical of Ms Burns’ management of the issue and it was sent to the whole group on a ‘reply to all’ basis.

[61]Ms Burns responded to the claimant the next day (7 December). She only copied in Dr Salih to this email. Ms Burns explained that Nurse A was entitled to annual leave over the Christmas period if she had returned to work by then (because she was still on sick leave at this point) as was the rest of the team. Ms Burns asked the claimant to advise what she had already discussed and approved with Sarah and Sophie and to clarify whether that had been shared with the rest of the team. She stated, “All teams are advised to discuss and agree leave arrangements between them to ensure service need is covered.” She concluded by asking the claimant to review the tone of her email and be mindful of the recipients of the email. She recognised the claimant’s frustration but stated that her tone was not appropriate. She concluded by saying that Dr Salih was aware of Nurse A’s leave request and she was sure that she (Dr Salih) would be advising on an appropriate plan for patients during this time. The content of Ms Burns’ email makes it clear that she has picked up on the tone of the claimant’s email and the fact that she had ‘replied to all’ rather than just emailing Ms Burns in these terms. By sending this to multiple recipients, the claimant could be said to have ‘shown Ms Burns up’ in front of other people she line manages. The claimant has chosen to make her comments in front of others rather than in private. Ms Burns was also explaining the context of the leave discussion from a management point of view. This is something which the claimant may not have been aware of or taking into account when looking at the situation through the prism of how it impacted upon her.

[62]Just over an hour later the claimant responded and continued in the same vein as earlier by saying that, “It is entirely inappropriate that the team have not been consulted before annual leave has been approved for that length of time over the xmas period. Zena has confirmed that Nurse A had leave granted from 29 to 31 December. Can I ask who will be providing outpatient cover for the following week in January. There is no Registrar that week, so there will be no chance of ANP cover from the IP ANPs for outpatients. Can I ask that you treat the team fairly and consider the service needs and what annual leave we would all like prior to agreeing to long periods of leave.” Again, the claimant was alleging that Ms Burns was not treating the team fairly.

[63]At this point Dr Salih got involved in the exchange and noted that she had not realised that Nurse A was planning to take leave into January. She stated that on previous discussions with her it had been the week commencing 27 December that was mentioned to the team and that was the time that Dr Salih was aware of. That was the period that Dr Salih had thought Nurse A was referring to when she and Ms Burns met with her. She also noted that the discussion about Nurse A’s annual leave was prior to her going on sick leave. Dr Salih pointed out that they needed to review the request and consider the needs of other team members of the nursing and admin team. Dr Salih also asked whether Nurse A had confirmed when she would be returning to work and whether this would be a phased return.

[64]In light of the email exchanges it appears that there had been a miscommunication and a misinterpretation between Dr Salih and Ms Burns about what had already been agreed. To some extent they had been talking at cross purposes. Ms Burns thought that the whole period had been agreed and that Dr Salih knew about it and was in agreement, whereas Dr Salih was only aware of the December leave. This miscommunication, although unfortunate, does not suggest that anything untoward or underhand was going on. Indeed, Ms Burns replied solely to Dr Salih on 8 December (taking the claimant out of the response in order to clarify the position). She clarified her understanding of Nurse A’s leave request and apologised for the misunderstanding. She also pointed out that she wasn’t aware that Dr Salih was also on leave that week and was not aware of the amount of leave that the claimant had given to Sarah Woods. She made the point that the team would normally be expected to discuss and arrange leave amongst themselves. She had understood at the time that Dr Salih was in agreement with Nurse A’s request. Clearly that wasn’t the case and it was a misunderstanding. Ms Burns went on to make a number of other observations within the body of that email. She confirmed that (at that point in time) they did not know when Nurse A was likely to return to work and it was quite possible that she would not return before Christmas. She concluded, “I know we had time planned to meet to discuss Nurse A’s plan- but in light of the ongoing service gap I think we will also need to catch up this week to look at what practical steps need to be taken to put support in for the patients, Sarah and the rest of the team. I appreciate this will require discussion with the wider Gynae team as it is likely that additional support will be required. Please let me know when you have time to review with me.”

[65]Clearly the claimant was not party to this correspondence at the time and will not necessarily have been aware of these discussions. However, they are a good guide to Ms Burn’s intentions and actions during the period. They suggest that the issue may have been managed ‘sub optimally’ but this was not by design. It does not disclose any intention to be unfair to the claimant or to favour Nurse A or ignore the needs of patients and the service over the festive period. In short, it does not disclose any malign intent on the part of Ms Burns. It also suggests an ongoing intention to make arrangements to ensure that everyone is properly supported and not overworked. (Dr Salih’s response also suggests that there had been some ‘crossed wires’/miscommunication.) Furthermore, emails on 8 December show Ms Burns considering appropriate support for Sarah Wood (who does not feel that she can work when a nurse is not also in work.)

[66]Ms Burns’ evidence about the Christmas leave arrangements indicated that there had been a misunderstanding about the extent of the agreement about Nurse A’s leave over the period. She also pointed out that, at that point in time, Nurse A would be returning to work from sick leave and would be undertaking some further training as part of addressing the concerns which had already been raised with her. So, although she would be back at work, she would not be working “as normal” in the service in any event. Ms Burns accepted this wasn’t handled in an ideal way but denied any intention to subject the claimant to a detriment.

[67]At around the same time (7 December 2021) there were emails passing between the claimant, Ms Burns and Dr Mitchell regarding the claimant’s concerns and Ms Burns’ line management. They had a discussion on 6 December and the claimant emailed Ms Burns and Dr Mitchell on the 7 December. She confirmed that she was satisfied there would be a plan going forward to support Nurse A to develop her skills. However, she had decided that the more day-to-day operational concerns about how the service was managed and the clinics were run and her concerns regarding communication and documentation needed to be escalated outside the team. She did not feel that Ms Burns was providing fair and impartial support as a manager of both herself and Nurse A and she gave examples of what she was talking about in the email, some of which is reflected in the findings of fact I have set out above. She concluded, “On this basis, I will today be formally escalating my concerns to a senior clinician outside the team for review.” A large portion of this email seems to be an allegation of favouritism by Ms Burns towards Nurse A. The claimant has interpreted any praise of Nurse A as detrimental towards the claimant. This does not bear critical analysis. Just because one nurse is being praised, this does not automatically imply a criticism of the other nurse. Both nurses could be viewed favourably at the same time. I was not an ‘either/or” situation. In reality, any praise for Nurse A had no necessary implication for Ms Burns’ view of the claimant. It could equally be a recognition of the fact that both ANPs were working in a difficult situation in a newly established service which was still being developed.

[68]Dr Mitchell responded to the email the same day acknowledging the claimant’s position and how difficult the situation was for her. She expressed understanding for the claimant’s position regarding an external review and she offered to help the claimant identify the best route to escalate matters, if required. She concluded: “Please know that myself and the team wish to continue to support you through this and are grateful for you raising your concerns.” It is evident that she was supportive and not at all hostile towards the claimant.

[69]Ms Burns also responded to the claimant and Dr Mitchell on the same day and said that she was sorry to hear the concerns. She tried to reassure her of the steps that were being taken, noted that she had met with Dr Salih that afternoon to talk through service cover needs (given Nurse A’s continued absence) and made it plain that contingency planning was ongoing as there was no return date for Nurse A at that time. She clarified the nature of the misunderstanding over the issue of Christmas leave and she picked up on a reference to Nurse A’s ‘preferences’ being given undue weight. She indicated that this was a reference to Nurse A’s preference regarding her agreed day off (Fridays). She confirmed that this had only recently been raised with Ms Burns as an issue and she had already raised the issue with Nurse A. There would be a review to ensure that the needs of the service were considered. She confirmed that she had let the claimant know that Nurse A’s job plan would be reviewed and the service need would be a factor in this. She was disappointed to hear that the claimant felt that her concerns had not been taken seriously. She confirmed that there had been many meetings and discussions in recent weeks with both Dr Salih and Nurse A following the claimant raising her concerns. Conversations were ongoing. Ms Burns also acknowledged that the claimant felt that Ms Burns had not been able to provide the claimant with the support that she needed during this time. As a result she had forwarded the claimant’s concerns to her line manager (Jackie Wrench) who would be in a position to discuss and advise the claimant further.

[70]The claimant responded again to Ms Burns (again copying in Dr Mitchell and Ms Wrench) and pushed back on the contents of the Burns email. She stated, “Sorry Vicki, but that was not how the conversation went on Monday. In the past when discussing Friday cover, and even with the offer for IP ANP to provide cover you have said that Nurse A would probably not “like” someone covering her outpatient service. On Monday, your words were “you wouldn’t like it if you had a work pattern agreed and it changed.” She disputed Ms Burns’ account. she also confirmed that she had escalated her concerns to Annie Dewberry and had a meeting with her so would pass on her list of communication/annotation concerns to Ms Dewberry for review. Importantly, the claimant asked for a change of line manager and for her PDR to be undertaken by someone other than Ms Burns. She also asked to be included in discussions about how the service is covered in Nurse A’s absence as she alleged that she was the person who was picking up all the extra work.

[71]There was a further supportive reply from Dr Mitchell on 9 December. There was a response from the claimant to Dr Mitchell appreciative of the support she had offered and indicating that she was ‘fed up with Vicki.” She referred to what she saw as Ms Burns’ lack of impartiality.

[72]I note that despite the claimant apparently appreciating Dr Mitchell’s efforts and indeed those of Dr Clamp at the material time, she has since changed her view of these two consultants such that they were on the list of individuals who had subjected her to whistleblowing detriment and were cross-examined on that basis. (Albeit those allegations have since been withdrawn during the course of the final hearing.) This would tend to suggest that Mrs Wight’s current view of the actions of Dr Clamp and Dr Mitchell has been coloured by subsequent events and does not match her view at the time, unless those emails to Dr Mitchell were not honest and truthful records of her position at the time that they were written.

[73]One of the claimant’s allegations in the list of issues was that, on 8 December she was subjected to a detriment by Annie Dewberry. The allegation was that Mrs Dewberry warned the claimant that by raising concerns she would be accused of bullying. The claimant asserted that this caused her significant stress and anxiety. That allegation has now been withdrawn.

[74]The claimant had emailed Annie Dewberry to summarise the position [507]. Some aspects of that summary are not correct. For example, the claimant says that there was no action and she received no feedback when she raised clinical and operational concerns via Vicki Burns in September. The chronology of events up to this point shows that there was action and she did get some feedback about what was happening. The claimant has somewhat overstated her case here. The claimant was not satisfied with the action taken but that does not mean that no action was taken. The claimant went into further detail within her email. She expressed the view that it was being insinuated that she was the problem in the situation. This was clearly the claimant’s feeling at the time but whether it accurately reflected the reality and the views of others is another matter. To some extent the claimant contradicts herself by saying that she is satisfied that the follow up on clinical concerns has been effective and taken seriously but she still has ongoing concerns which need reviewing regarding communication, set up of clinics and documentation. She continued her criticisms of the standard of Nurse A’s work and indicated that she now wanted input on this from outside the team. She referred to the adverse effect on her own health. She thanked Mrs Dewberry for her support. There is no suggestion within the document that Mrs Dewberry had subjected her to any treatment which she considered to be detrimental during the course of the meeting.

[75]It was part of the claimant’s case that, on 16 December, Ms Burns had a meeting with Nurse A to give her support. This was not really put to Ms Burns during the hearing and I was not directed to a contemporaneous document dealing with this. The most that it available to the tribunal is the entry in Ms Burns’ timeline of 29 December which notes that there was a follow up meeting with Ms Burns with Jo Booth also present and that Nurse A shared a letter and a time line of events which could be shared with the claimant via her manager. Nurse A was happy for mediation to be arranged if the claimant was agreeable. Again this is in keeping with the fact that Ms Burns was Nurse A’s line manager and would periodically have had meetings with her as a result. Again, there is nothing to suggest that the fact this meeting took place would detrimentally impact upon the claimant. This would be ‘business as usual’ and nothing to be viewed as untoward. PD6

[76]Protected disclosure number 6 took place on 17 December. The respondent conceded that this was a protected disclosure. A Teams meeting took place involving Jackie Wrench and the claimant. The claimant’s case is that she repeated her concerns about Nurse A’s clinical practice, the failure by the respondent to follow its own policies and the way in which patient safety was compromised. This was the first meeting the claimant had with Mrs Wrench and yet the claimant chose to record it covertly. The transcript of the recoding is in the hearing bundle.

[77]Mrs Wrench asked the claimant to fill her in on her concerns and her perspective and was evidently trying to understand what had gone on up to this point in the chronology. The claimant now criticises Mrs Wrench for saying, “So I suppose from my point of view is what it is that you feel you want as a sort of outcome of this. Where is it you want this to go?” I note, in passing, that this is a common question at the start of this type of meeting. This issue had been escalated to Mrs Wrench because the claimant was not satisfied with the way that others had handled it. It was therefore legitimate for Mrs Wrench to know and understand what the claimant’s objectives and aims were. What resolution was she looking for? It is a necessary question to ask when coming into a dispute in order to try and resolve it. If the manager does not know the desired outcome from the employee’s point of view, how can they decide how to address the issue to ensure that the claimant is satisfied and the complaint does not need to be escalated again? The claimant has apparently heard this as an implied criticism. Viewed objectively, it isn’t. It was just an example of Mrs Wrench trying to work out the perspectives of those involved and trying to identify the best solution. It is hard to characterise this as detrimental treatment of the claimant. The fact that the claimant felt the need to covertly record the meeting suggests that she was already mistrustful of Mrs Wrench before she had even met her. This in turn suggests that the claimant was prone to put a negative interpretation on Mrs Wrench’s words and actions.

[78]During the meeting the claimant referred to a clinical skills shortfall and the risks to patients and the fact that the service wasn’t actually achieving its aim in terms of admissions and outpatient treatment. There was a discussion about pathways and processes and whether some work needed to be done on them (i.e. is it a ‘system problem’ rather than a problem with an individual employee?) Even the claimant said that processes and pathways needed to be developed. It should also be borne in mind that this was a new service. The claimant made allegations that Nurse A had been allowed to take the wrong model (from Toronto) and that the lead consultant (Dr Salih) had not had sufficient input. She criticised the respondent for allowing Nurse A to do this and says that she, (the claimant) should have had more input because she was more experienced with the sorts of patients in this cohort. She alleged that matters had been brushed under the carpet. She said that one-to-one meetings had been happening but she had not seen any changes in practice. She maintained that Nurse A didn’t have the necessary skills and experience. She did, however, concede that this should have been tested more at interview, for which the claimant had partial responsibility. She also criticised Nurse A’s lack of response, the fact that she didn’t realise there was a problem when it was raised with her.

[79]For her part, Mrs Wrench expressed the view that proper steps needed to be put in place that could be measured against. She wanted something concrete against which she could measure the problem and the solution in order to see if the issue had been adequately addressed and to see if everyone was satisfied with it. It was in that context that she referred to ‘hearsay.’ The claimant criticised her for this in her evidence to the Tribunal. It was an unhappy choice of words but the substance of what she was saying was that the respondent needed clarity on the problem so that Nurse A and the managers would know what needed to be addressed and the respondent could measure whether the steps taken had worked or not.

[80]Mrs Wrench outlined ‘next steps’ during the course of the conversation. She addressed who needed to set out what was expected of Nurse A. She then went on to talk about relationships and the work that needed to be done on them. This was not Mrs Wrench saying that it was all about a breakdown in the relationship between the claimant and Nurse A. Rather, she was saying that there was more than one issue to address. The working relationships needed to be addressed as part of the solution. She was looking for ways to enable the claimant and Nurse A to work together effectively in the future. It is in that context that Mrs Wrench asked the claimant whether she would be agreeable to mediation. The claimant’s response was equivocal and could be summarised as: “I’m happy to have it but I’m not sure it is needed.” Mrs Wrench made it clear that Ms Burns would not be conducting the mediation as she was the line manager for both of the individuals involved. Mrs Wrench asked the claimant if she was happy with the planned next steps. The claimant said that she was and she agreed to keep the Ms Burns as her line manager but to review the position at the end of January.

[81]The claimant queried whether Mrs Wrench actually followed up with that January meeting. However, the claimant did not chase it up (as far as the records show) to point out that it hadn’t happened. Mrs Wrench did give evidence to the tribunal that there were regular one-to-ones but that these would not necessarily have been documented. It is not clear whether Mrs Wrench did in fact follow up on the issues raised. 5.1.2.8: EPROMS

[82]On 21 December, there was a Teams meeting about Sophie Maycock’s research and the issue of EPROMS. The attendees were the claimant, Professor Jayson, Dr Salih and Sophie Maycock. The meeting related to research proposals by Sophie, another nurse in the team. There was a discussion at the meeting about collecting information from patients via electronic means called EPROMS (“Electronic Patient Reported Outcome Measures”). Some clinicians within the respondent trust were champions of this measure and others had reservations about it. Professor Jayson was one of those who had reservations. He was concerned that it raised expectations on the part of patients that their electronic reports would be responded to ‘in real time,’ whereas there was no process in place for EPROMS to be monitored and responded to immediately. This was the background to the meeting on 21 December. Professor Jayson had held these reservations and concerns for a number of years (as had other doctors.) There are contemporaneous documents referred to in the hearing bundle that deal with concerns from 2019 onwards. I also heard evidence that Professor Jayson subsequently raised his concerns about EPROMS to others in different forums (for example, with the Chair of the Trust.) His views as expressed at the meeting in question were, therefore, in line with his known views on the subject throughout (both before and after the meeting.)

[83]In addition, the night before the meeting Professor Jayson was somewhat sleep deprived as his father was ill and he had to take him to hospital during the night. Professor Jayson’s stress levels were somewhat higher than normal. By his own admission he was not able to moderate his response to colleagues during the meeting in the way that he normally would as a result of this fatigue and elevated stress levels. Professor Jayson admitted that during this meeting he was rather ‘short’ with others and not as supportive as he might normally be. It appears that there was forceful difference of opinion between Professor Jayson and the claimant on the issue of EPROMS. Even though this was Sophie’s research project, the claimant expressed her views on the matter in a forthright manner. Sophie did not. Professor Jayson disagreed with the claimant as he was not in favour of EPROMS. There was a frank exchange of views and a difference of opinion between the claimant and Professor Jayson on this subject. The claimant took the view that she had been singled out for Professor Jayson’s attention and that she was subjected to a detriment as a result. Professor Jayson’s view was that it was a disagreement about EPROMS and the reason he and the claimant were the primary participants in the disagreement was because the claimant was more vocal in her support of EPROMS than the others present at the meeting. Thus, in disagreeing about EPROMS, Professor Jayson would, by necessary implication, have to have a disagreement with the claimant.

[84]The tribunal has concluded that it is perfectly normal and acceptable for medical professionals to have different points of view regarding the merits and demerits of particular ways of working. In a professional context both participants to the debate should feel able to express their views. It cannot be the case that either protagonist has to hold back from expressing their views for fear of being found to have subjected the other participant to a detriment. In a professional medical context the participants have to be able to express professional views honestly. That said, all parties should express their views professionally and the debate should not become abusive, unprofessional, or unnecessarily aggressive or intimidatory. Professor Jayson clearly recognised that he had been more forceful in the debate than he might normally be. He attributed this to the fact that he had not had enough sleep as he was dealing with his father’s illness. Despite being the most senior consultant in the team, he did not consider it beneath him to apologise for his tone or his approach during the meeting. He recognised that if the meeting were to happen again, he would manage it differently and would moderate his tone. It is for this reason that he sent an apology to the other participants via email [612] which sets it in context. In the email he refers to his “filter being disabled.” He stated, “Dear All, I am sorry I was grumpy this a.m. I had to take my dad into hospital in the middle of the night for massive haematuria and my filter was disabled! … Please feel free to take/leave any of this. Hopefully after a night’s sleep I will be a bit more balanced! Many thanks, all the best, Gordon.” (The main part of the email was giving further input into the matters that were under discussion at the meeting.)

[85]Having compared and considered the evidence in relation to this meeting I have concluded that Professor Jayson came across more forcefully than usual. There was a significant difference of professional opinion between Professor Jayson and other parties, particularly the claimant. Professor Jayson was entitled to express his clinical and professional views honestly during the meeting. His tone may have been inappropriate but I accept (having heard from the witnesses) that he was not directing this at the claimant specifically. The claimant may have been on the receiving end of it because she was the most forthright in relation to the substantive disagreement. However, this was not an example of him singling the claimant out because of who she was, or because of her prior protected disclosures. Rather, it was coincidence that she happened to be the one prepared to disagree with him on the subject matter of the debate. I am prepared to accept that any participant who had ‘stuck to their guns’ in the debate with Professor Jayson (about the merits/demerits of EPROMS) on that particular day would have been spoken to by him in the same way as he in fact spoke to the claimant. The claimant’s identity was not the determining factor. This is underlined by the fact that Professor Jayson’s views on EPROMS pre-dated the meeting. He did not have a disagreement just because it was the claimant who was promoting EPROMS. He already had those reservations about EPROMS prior to the meeting and he was acting consistently with his previously expressed views. This view of EPROMS, when combined with his personal issues/circumstances relating to his father, meant that anyone disagreeing with him in that meeting would have been treated in the same way as he treated the claimant. Hence, he felt that he had to apologise. Indeed, he subsequently made a second apology to try to make up for the events of the meeting. He apologised for his behaviour and asked whether it was possible to re-run the meeting. He felt that he had not respected the claimant’s point of view sufficiently. However, this was not an admission of the sort of scope suggested by the wording at paragraph 5.1.2.8 of the tribunal List of Issues. Whilst the claimant’s subjective perception may have been that she was singled out apparently because of who she was and/or the fact that she had made protected disclosures this does not reflect reality based on the totality of the evidence. I accept Professor Jayson’s explanation for his behaviour and his account of what caused him to act in this way during the meeting.

[86]On 23 December Dr Clamp met with Nurse A to provide her with feedback. He sent a follow up email afterwards to Dr Salih and Dr Mitchell explaining what he had discussed with her, some of the clinical issues that had been raised, how this was going to be handled and areas for improvement [533]. The email stated, “I had a long meeting with nurse A yesterday AM where I think we did make some progress in terms of her understanding on the relevant issues raised from our review but also to allow us to move forward with our development plan for her role. I explained that although there were no major clinical concerns on our case reviews, we did identify some areas for improvement which reflect that she has not had any previous clinical experience as an ANP with sick oncology patients. We agreed that this means that sometimes she hasn’t been able to pick up some of the clinical nuances in complex cases which may have improved care. She certainly expressed a strong willingness to learn and knows that we are going to be recommending that she spends 3 sessions on AAU and that CAReGO clinics will now be running alongside consultant-led clinics with opportunities to debrief to allow her to learn and develop these skills for a number of months. We did also discuss some of the organisational issues-she accepts that sometimes she has missed patients who she has agreed to review during chemotherapy sessions and we discussed that we need to be more robust booking formal clinic appointments in future with a priority of F2F review for patients with active symptoms. She also accepts that sometimes her interactions with patients have not been annotated. However, she feels that the majority of these occasions, this is because her dictated annotations are de-prioritised by the secretarial team and have not been typed in a timely fashion or have been lost. I think that she may have a valid point here and I think we do need to work with Vicki to try and get additional secretarial support to focus and prioritise CAReGO typing from the whole team. She also feels that she has not been adequately supported in admin role by Sarah. I didn’t push this further, or explicitly talk through the specific concerns that Sarah had raised but I think that we will need to think carefully about how we repair this relationship. Her other major concern is about how she can work alongside Rebecca. Her view is that Rebecca has been very negative, rather than constructive when points regarding nurse A’s management of patients have been raised. She has agreed to the mediation process but is unhappy that Vicki has not shared with Rebecca a document that she has written listing her concerns ahead of this. I will pick this up with Vicki next week…”

[87]This email gives an insight in to what was being discussed with Nurse A during this period of time. Whilst the other documentation focuses on the clinical concerns being raised with Nurse A it also appears that some of the concerns that the claimant characterised to the tribunal as ‘operational’ or ‘conduct’ concerns (for example, proper annotation or follow up with patients) were also raised in the course of Dr Clamp’s discussions with Nurse A. It is not, therefore, correct to say that these further concerns were ignored by the respondent. However, the claimant may not have had sight of some of the communications which detail this aspect of the case at the time they were taking place. Again, this is largely understandable. Whilst the respondent needed to address all the concerns the claimant had raised and feedback to her to reassure her that they were being properly actioned, the details of the actions taken with Nurse A might be confidential to some extent. This is because the respondent and its managers were having to line manage two nurses of equivalent rank within the organisation and they had a duty of care to both employees. Some matters are more appropriately raised confidentially between employer and employee and it is not always appropriate for an employee’s peers to be fully cognisant of the details of the discussion. Whilst the claimant may well have had a legitimate concern, she was not Nurse A’s line manager and could not, therefore, expect to have the same level of visibility of line management steps being taken as Nurse A’s line managers would have had. She was performing a different role in the employment relationship and the amount of information that she would receive would therefore differ. Just because the claimant did not know about it at the time does not mean that it was not happening. There needed to be some degree of reciprocal trust between the claimant and her managers. She had to trust to some extent that when managers said they were raising issues with Nurse A and taking steps to address them, they were being honest and truthful about this. She did not necessarily have the right to independently verify that the managers were being true to their word. She may not have been satisfied by the reassurances that she was receiving from the employer. However, that does not mean to say that the employer was inappropriately managing its employment relationship with either the claimant or Nurse A. Rather it reflects the fact that the employer was having to manage potentially conflicting and competing interests of its two employees and was attempting to fairly discharge its duty of care to both of its nurse employees.

[88]On 24 December Professor Jayson sent the second of his emails apologising for his tone at the EPROMS meeting (as referred to above). He reiterated that it was due to him being exhausted after taking his father to hospital in the middle of the night. He continued, “However, that doesn’t make it right and I feel that I did not respect Rebecca’s point of view sufficiently so please accept my apologies for this. I therefore wondered whether we could rerun the meeting to start Sophie’s research but perhaps with an agenda that includes different projects.… Would it be possible to have a rerun? … Many thanks for considering this. Please accept my apologies again, all the best for the holidays, Gordon”

[89]On 31 December the consultant team shared an updated version of the plan for Nurse A/the recommendations with Vicki Burns. The plan included AAU sessions, aligning CAReGO clinics with consultant clinics, ensuring timely documentation of clinical contact (including the additional secretarial support), more robust clinic appointment bookings, advising Nurse A to focus on clinical development over the next three to six months, and considering deferring the start of her research for a similar period. Detriment 4

[90]Detriment 4 referred to 5 January 2022. The claimant emailed Victoria Burns asking to be included in emails regarding the CAReGO service. She alleges that she was subjected to a detriment by being excluded from relevant emails. The actual emails themselves have not been identified by either party during the course of the litigation.

[91]There was some email correspondence at this point in the chronology. On 5 January the claimant’s email stated, “There have been a couple of emails in the last couple of days regarding important information of how CAReGO is running secretary supported clinics next week. I have not been included in these emails, they have been passed on to me. I have now been covering the inpatient and outpatient service for six weeks whilst there is a bit of sick and a holiday, in order to support patients and the rest of the team. I would therefore appreciate if you included me in these communications as it is important for clinical planning of patient care.” Mrs Burns responded immediately to apologise and say that this was not in any way intentional and she provided some further information in the body of that email.

[92]During the course of cross examination the claimant maintained that she had not, in fact, received the emails in question from other sources. They had not been forwarded to her. Rather, she maintained that the ‘gist’ or ‘substance’ of the emails was communicated to her by others. This is despite the natural reading of her contemporaneous emails suggesting that she had now seen the emails in question.

[93]The tribunal still does not know which emails she missed out on and what problems, if any, that caused her. Nor can I see that there was any ill intent from Ms Burns or that she consciously excluded the claimant from this email correspondence. There is even less evidence to suggest that there was any link to the protected disclosures. If it was an oversight, this could have happened to anyone, whether or not the individual had ‘blown the whistle.’ It is odd that the claimant felt able to make this allegation in the course of the tribunal proceedings without ever knowing which email she was referring to. In any event, as noted, Ms Burns apologised immediately.

[94]On 7 January there is a further allegation that Ms Burns met with Nurse A to offer support to her. Again, I make the same point that I have previously made regarding Ms Burns acting as a line manager for Nurse A. I also note that Nurse A had had a period of sick leave and there would consequently normally be meetings with a line manager to facilitate an appropriate return to work. This is not exceptional or untoward. PD7

10 January 2022

[95]Protected disclosure 7 is said to have been made on 10 January 2022. The respondent was unable to identify any meeting on 10 January and therefore did not admit that this protected disclosure occurred. The claimant alleges that a business case meeting took place via Teams and that she informed Professor Jayson that the CAReGO service was not meeting its goals.

[96]During the course of the tribunal hearing, the claimant took Professor Jayson to a business case document (which will have been updated and modified over time) and said that the data in it had been discussed. Professor Jayson accepted that some of the data would have been discussed at some point. He did not recall the claimant saying that the service was not meeting its goals but did not dispute that the CAReGO service was not, in fact, meeting its goals at that point in time. PD8

[97]Also on 10 January, the claimant emailed Eve Lightfoot. She said that her concerns had not been properly investigated and indicated that patient safety continued to be compromised. The respondent concedes that this was a protected disclosure [730-731].

[98]Around 10 January it was discovered that Nurse A did not have quite the clinical ACP training or qualifications that had been thought. It appears that her master’s degree did not cover the sorts of areas that had been assumed given the title of the degree. Jo Booth and mediation

[99]Between 7 and 11 January there were emails between Jo Booth and the claimant regarding the proposed mediation. Jo Booth had been told that the claimant was agreeing to mediate and, as a result, she contacted the claimant in order to make arrangements for next steps in the mediation process. She sent an email to the claimant on 7 January which explained why she was getting in touch, which pointed out that an external mediator had been sourced and that they wanted to put in place arrangements for the mediation. Consequently, she asked for the claimant’s availability over the next couple of weeks. This email was sent in the context that the claimant had already agreed in principle to participate in mediation and this had been communicated to Jo Booth. The request for availability made sense in those circumstances.

[100]The claimant’s response of the same date read, “Can I first ask what is to be covered in the mediation session? What would Nurse A like to get out of this? As far as I am concerned the issues we have had are not personal, they are clinical issues that I have raised about Nurse A’s competence and expertise to carry out her role, of which I have formally raised. What are we discussing in the session? What is the goal? Just so I can get an idea of the outcomes expected.”

[101]Jo Booth’s email to the claimant explained her understanding of the purpose of the mediation to improve the working relationship moving forward. She wrote, “I acknowledge your comments about the concerns raised not being personal. Nurse A has written a letter describing some thoughts and feelings and I think that she would prefer somebody to read this out to you rather than share the letter. I can perhaps update you further after I have spoken to the mediator on Monday morning?”

[102]Just over ten minutes later the claimant responded by email to confirm that, “unfortunately more concerns have transpired in the last three weeks. I have serious questions regarding professional integrity and due to this I have suffered an enormous amount of stress and anxiety in this process, which is now going on since May 2021, which I have had little or no support with until last month. I would like to finish my process of understanding more about some of the key issues regarding Nurse A’s qualifications and training/suitability in her clinical role, which I’m going to discuss with Annie Dewberry. Following this, I would like to recover from this whole ordeal before sitting through any mediation process. Once my queries that I am discussing with Annie have been properly dealt with, I will be in touch. I hope you can understand my position at this time.”

[103]This email did cause some consternation within the respondent as it referred to new concerns arising in the previous three weeks. Management was somewhat unsure as to how this could have happened given that Nurse A was not in work during the period in question. Notwithstanding that, Jo Booth’s response of 11 January was to thank the claimant for her email and for being open about how she felt. She continued, “I have spoken to a mediator from the external company whose services we engage, Alison and she is willing to have a conversation with you if this is agreeable to you? There is no pressure for you to commit to anything beyond this but I thought that this may be helpful. Let me know. Many thanks, Jo.”

[104]Those involved in this email exchange for the respondent probably thought that it was pretty innocuous at the time. However, the claimant’s agreed List of Issues in this tribunal case included an allegation that Jo Booth subjected her to a detriment by sending the emails to arrange a mediation. This was said to be an example of the respondent trying to force the claimant to mediate, presumably against her will. In those circumstances Jo Booth had to prepare a witness statement, attend the tribunal hearing, and be cross examined. It was only after she had done so that the claimant withdrew this part of her case from the list of issues for the tribunal to decide. It had apparently dawned on the claimant that, looking at the course of events and the tone and content of Ms Booth’s communications, her allegation that she was being forced into mediation by Ms Booth was wholly unsustainable. The fact that this formed part of the claimant’s pleaded case for so long when it was, on the face of it, without merit adversely impacted upon the claimant’s credibility in this case as a whole. The claimant was able to turn an innocuous request for dates of availability into an allegation of detrimental treatment. If she genuinely thought it to be detrimental to her at the time, there is no hint of criticism of Jo Booth in the contemporaneous evidence. If she genuinely thought that she was being subjected to a detriment by Ms Booth this suggests that her subjective perception of events was unreliable. Her characterisation of this exchange as a detriment has the potential to undermine the reliability of her perception and characterisation of other events which formed the basis for her tribunal claim.

[105]Between 10 and 24 January the claimant emailed Eve Lightfoot regarding concerns about Nurse A. Eve Lightfoot then delegated the issue to David Smithson. This constituted protected disclosure 8, which was accepted by the respondent as a protected disclosure. In her initial email to Eve Lightfoot the claimant asked for guidance on where to get support regarding her recent raising of concerns about a colleague. She explained that she had been raising clinical concerns about the colleague’s practice and patient safety since May 2021 which had not been dealt with appropriately. She maintained that this had since been escalated to several different managers and clinicians. She explained that the colleague in question had been off sick since the end of November and was due to return to work on 11 January (i.e. the next day). She continued, “HR has supported her through this process and has requested mediation for us. I was alarmed at the email I received from Jo Booth last week regarding organising mediation so this colleague can share her thoughts and feelings with me. There has been no offer of support for me in this process, I mentioned this to Jo and how much stress I have been under throughout this process, I received no acknowledgement or offer of HR support. There have been many situations throughout this process where the real critical issues have been disregarded and replaced with accusations that I have a personal problem with this colleague and I’m influencing others in the process-these are very serious allegations. This is extremely concerning to me and I have felt very isolated in this process. I would really appreciate if you could advise me on how to manage this, and who to talk to, as I feel that I now need to go down a formal HR pathway in order to be listened to.”

[106]On reviewing this email the tribunal takes the view that it is not an entirely accurate summary of the events up to that date. Whilst concerns about the working relationship between Nurse A and the claimant had indeed been raised, the evidence does not suggest that the real concerns raised by the claimant had been disregarded or that they were being replaced by accusations that the claimant had a personal problem with Nurse A. Taken at its highest, the approach of the respondent’s management was to acknowledge that, in addition to the clinical and operational concerns, there were difficulties in the working relationship between the two nurses. Nothing that the tribunal has read indicates that the respondent’s managers had ascribed blame for the breakdown in the working relationship to the claimant. Indeed, she was thanked for having raised her concerns. Rather, the impression given is that the claimant was offended or hurt by the suggestion that the working relationship between the two nurses was one of the issues in the case. It appears that the claimant wanted the respondent to focus solely on the concerns that she had raised about Nurse A without considering the working relationship between them and whether support was required to improve that working relationship. It appears to the tribunal that once the issue of mediation and the working relationship was raised by the respondent, the claimant became somewhat fixated by it and was affronted by any reference to the need to improve her relationship with Nurse A. She seems to have been unable to accept that there was a relationship problem or that the respondent was acting appropriately in addressing Nurse A’s own concerns about her employment. This is part of what was referred to repeatedly during the hearing as the difficulties of managing both the Advanced Nurse Practitioners who were “at odds,” who disagreed with each other or who had “a sub optimal working relationship.” This meant that the respondent experienced difficulties if it tried to broach the subject with the claimant. Even if the claimant appeared to accept that the issue needed to be addressed, her underlying concern that she was being blamed for it would always subsequently resurface and was ultimately added to the list of grievances which the claimant has pursued during the course of this litigation. These sensitivities placed yet another roadblock in the path of the respondent as it tried to navigate towards a successful resolution of the issues raised in this case.

[107]In any event, the claimant’s email was forwarded to Mr Smithson. It appears that Mr Smithson spoke to the claimant on 12 January. The claimant explained her frustrations and the fact that she felt that her issues had not been adequately addressed. Given the length of time that this had been going on and the complexity of the issues to date, Mr Smithson wanted clarity from the claimant as to what her current concerns were before he explained the best next steps to take. He suggested that the claimant provide a summary of the issues and events to date, highlighting the specific matters that she felt were unresolved. They also discussed who would be responsible for looking into those concerns. They agreed that Mr Smithson would speak to Mrs Wrench and Ms Booth to make them aware that the claimant was providing him with her written summary and that Mr Smithson would then discuss with Mrs Wrench how those concerns could be addressed. Mr Smithson felt that Mrs Wrench was best placed to investigate the concerns given her position in the organisation. Mr Smithson’s evidence was that the claimant agreed to this approach and did not raise concerns about who was tasked to deal with her outstanding concerns. Mr Smithson also signposted the claimant towards support from the RCN (if she had been a member) and also the Employee Assistance Programme. He also said that she should contact him personally if she felt that he could offer further support. He followed up with an email which detailed their conversation and the agreed next steps. As well as asking the claimant for a summary of issues and events to date, Mr Smithson asked the claimant to indicate what her outstanding concerns were. What was still to be resolved and how did the claimant think that the outstanding issues could be resolved?

[108]On 24 January the claimant sent her account of the events to Mr Smithson, as requested. In her covering letter she indicated that she had unanswered concerns and questions which she summarised as:• I would like to know why Nurse A was shortlisted for the role that she didn’t have the training (ACP), or essential criteria for, and how this will be managed.

• I would like to know how the issues that I have raised with Nurse A’s practice will be actioned.

• I would like to know what plans will be put in place for the service going forward to ensure it can be safe and effective. The claimant then attached a more detailed document setting out her timeline of concerns. Mr Smithson forwarded that document to Mrs Wrench on the same day (with a copy to Ms Booth). Mr Smithson and Mrs Wrench spoke again around 25 January. Mr Smithson asked Mrs Wrench to treat the claimant’s written account in accordance with the respondent’s Raising Concerns/ Freedom to Speak Up Policy, to investigate them and then provide the claimant with a response.

[109]On 12 January there were emails between the claimant, Ms Burns, Dr Mitchell and Dr Salih regarding plans to cover key aspects of patient service.

[110]In the meantime, on 10 January, Ms Burns emailed the claimant and her colleagues regarding Nurse A’s return to work and the plans that had been put in place to cover aspects of the outpatient service. She concluded by noting that an ongoing plan would be communicated later that week.

[111]On 12 January the claimant responded to the consultant team and Ms Burns and Mrs Wrench. The opening part of her email read, “I do not find the ‘plans put in place to cover key aspects of the service in December to continue’ acceptable. Those plans have essentially transpired to me taking all outpatient queries plus supporting Sophie, Laura and Sarah in their attempts to do so. This cannot continue. I am exhausted-psychologically and physically unable to continue in the way that I am. I do not know how much clearer I have to make this … Nurse A is now back on a Tuesday and Thursday, so surely outpatient queries should go through Nurse A to discuss with whoever is supervising her that day. This will promote learning and help her develop appropriate plans for ad hoc management-which is exactly what is required. To update you on mediation, I have not refused this, but I’m sure you understand, that whilst Nurse A has had 6 weeks off to collect her thoughts and write a letter to me, I have been fire-fighting both the inpatient and outpatient service whilst supporting the team to the best of my ability. My reputation of “just carrying on” continues, that doesn’t mean I am not finding everything extremely difficult to deal with… Once I have had time to recover, and collect my thoughts I will be willing to share my thoughts and feelings with Nurse A also. With some alarming emails I’ve received about mediation last week from an HR representative, that had no sensitivity for my thoughts or feelings, no offer of support for me, I have had no choice to escalate my concerns about the dreadful management of this whole situation to Eve Lightfoot, who has thankfully now found me an appropriate HR representative.” Whilst the tone of this email may reflect the claimant’s level of stress and exhaustion, it is somewhat abrasive and accusatory. It is also, impliedly, a jibe at Nurse A for having had time off, albeit on sick leave. The remainder of the email chain between Dr Mitchell and Dr Salih indicates a recognition on their part that further improved plans needed to be put in place to provide appropriate support for the claimant and others to manage workloads and stress levels. PD9: 21 January 2022 first Datix report

[112]On 21 January 2022 protected disclosure number 9 took place. This is the first datix report. This has been conceded as a protected disclosure by the respondent. This is the incident where the claimant recorded that a patient was being booked for a procedure to insert a line. Nurse A had allegedly not contacted the patient beforehand to check if she was on anticoagulant treatment that would need to be stopped prior to the procedure. The referral had been cancelled and the claimant contacted the patient to rebook the procedure with the appropriate anticoagulant advice. The apparent error had been rectified and the patient in question had not come to any harm on this occasion. The claimant’s position was that this should not have happened in the first place and that the appropriate question should have been asked by Nurse A at the first opportunity.

[113]On 7 February Mrs Wrench sent the claimant the outcome to her investigation under cover of a letter dated 28 January. The letter set out Mrs Wrench’s response to the three questions that the claimant raised via Eve Lightfoot and Mr Smithson. The letter addressed the problem with shortlisting Nurse A in light of her qualifications/essential criteria for the role. It addressed the problem with shortlisting and it pointed out that, according to the relevant documents, it would be appropriate to shortlist Nurse A as meeting the necessary criteria. Once the interview took place, Mrs Wrench would have expected further questions to drill down into the nurse’s experience and ability to do the role. Mrs Wrench identified an action point that further work needed to be done in relation to job descriptions, essential criteria and processes at interview. The documents needed to be tightened up to ensure that shortlisting accurately determined whether the essential criteria were met in order for a candidate to get to interview. Mrs Wrench’s letter therefore answered the first of the three questions.

[114]In relation to the second of the claimant’s questions Mrs Wrench got an understanding of what had already taken place regarding the Mitchell/Clamp review, the results of that review, and what action plan had been put in place as a consequence. She then went on to specify steps that either had been put in place or would be put in place. This included a review of the audit and what needed to happen to address the issues raised; discussions with senior nurses to review gaps in knowledge and skills and consideration of further modules of training; a change in the role for the short term to ensure appropriate supervision and training; a plan to address the gaps in knowledge in the form of further training and support; a discussion with the medical team to look at how the service will continue to run during this time. The letter answered the second of the claimant’s questions.

[115]In relation to the third of the claimant’s questions, Mrs Wrench confirmed that there had been a couple of meetings with Dr Mitchell and Dr Salih to discuss but there was not yet a definitive answer. They understood that there needed to be changes to the service whilst Nurse A did further training. The letter indicated an intention to support all team members and reduce stress whilst still allowing the service to continue. Mrs Wrench had asked both Drs Mitchell and Salih to ensure that the team were informed of the plans to manage the service over the next few months as soon as decision had been made. As this was essentially a clinical decision, it was appropriate to give it to Drs Salih and Mitchell. The claimant was told to let Mrs Wrench know if it didn’t happen. Therefore, the third of the claimant’s questions was answered in so far as it was possible to do so at that point in time. Some of the issues were yet to be decided and some of them were out of Mrs Wrench’s hands. The letter was as full an answer to the issues as it was possible to give at that point in time.

[116]On the 11 February the claimant responded to Mrs Wrench’s letter [819]. It was evident that she was not wholly satisfied by the response that she had received from Mrs Wrench. In particular, she stated, “The clinical training issues are therefore being correctly managed, however, many of my concerns regarding other aspects of Nurse A’s practice, such as missed appointments, missing annotations, and not managing patients in the manner that she has claim to, her professional integrity brought into question, on many occasions over the last year. I am not sure whether clinical training will fix this, we can only wait and see, however as I’m sure you can understand, it makes me, and other members of the team extremely uneasy.” She noted the offer to meet up and discuss matters further with Mrs Wrench but she did not take her up on that offer at this point. Rather, she thought that it would be better to do this once she had a better idea of how the service would run for the next 2 ½ years. She indicated a desire to be involved in making those plans. She referred to feelings of ‘career suicide’ in raising these concerns.

[117]At this stage, therefore, the claimant was operating on a ‘wait and see’ basis to see what happened next. She did not, however, complain about the way that Mrs Wrench or Mr Smithson had handled the process or suggest that she had not been taken seriously. The issue appeared not to be that her concerns were ignored but that, until solutions had been agreed and put in place, the claimant would have nothing further to say about it. She did not go back to Mr Smithson at this point to say that she was dissatisfied with the response or give him an opportunity to follow up further.

[118]Between 1 and 8 March there were further emails between Mrs Wrench and the claimant regarding mediation. The email on 2 March formed part of the claimant’s pleaded case on whistleblowing detriment.

[119]On 1 March Mrs Wrench emailed the claimant to indicate that Nurse A had asked where they were up to with planning the mediation. Mrs Wrench thought that mediation would benefit both the nurses and the rest of the team and she indicated that the mediator was happy to meet with both nurses to go through this with them individually and discuss any concerns. She asked the claimant for her thoughts as this would need to be booked. The claimant responded the same day and started her email with outstanding questions and queries regarding patients and the team. She continued “I am not entirely sure what mediation is for. When I previously asked, I was told it was to work on our “relationship” going forward, therefore, I have sought some advice on this. I have been advised that mediation is there to amend relationships where there has been a disagreement at work. As far as I am concerned, there has been no ‘disagreement.’ I have raised concerns about Nurse A’s clinical competence for the role, her professional integrity and conduct. There has never been a situation that has been ‘heated’ situation/argument or disagreement between Nurse A and I. I have been advised, that raising concerns about a colleague, should not land me in a position where I have to discuss these directly with that colleague. Can you advise on this? I previously sent you a very long document of the challenges I have faced with Nurse A in the last year, yet none of this, has been acknowledged in your response to me, it is just the covering questions that have been answered, but not fully. Am I expected to tell Nurse A what I think of her clinical competence and professional integrity and conduct? I can’t imagine that will be received well, but equally, I am not convinced that discussing this directly with her, will change any of it. Have my concerns around professional integrity/conduct been discussed with Nurse A?”

[120]Unfortunately, in her response of 2 March Mrs Wrench got the claimant’s name wrong, calling her Rachel rather than Rebecca. The response dealt with a number of matters but in relation to mediation Mrs Wrench attached some information for the claimant to read and indicated again that the mediator could discuss matters further with her. She continued, “The mediation I suggest is to try to improve the working relationship between both you and Nurse A which you have both admitted has broken down. It is important that you work well together and mediation is a very good way of managing this in a supportive manner and this is important. If you do not want to take part in mediation then please let me know, as we have a team waiting for our response and I don’t want to drag this out any longer than necessary for individuals. Nurse A is very aware of the concerns raised and her current role has been altered according to her current knowledge and skills as I am sure you are aware. The rest of the team, I believe, have been made aware of the changes in Nurse A’s role until we can work on what needs to be done regarding training” (emphasis added.)

[121]Viewing this email from Mrs Wrench in context it should have been seen as relatively uncontroversial. Nurse A clearly felt that there were relationship issues which would be helped by mediation and the claimant herself had (at various points) seemed amenable to it. It was entirely appropriate for Mrs Wrench, as a manager, to want to know whether the mediation would be happening or not so that arrangements could be made or the mediator could be stood down. The claimant had been sending mixed messages as to whether she would go through with it or not and this would have to be resolved at some point. If the whole of Mrs Wrench’s email of 2 March is read it is impossible to conclude that she was forcing the claimant to enter into mediation. She clearly states that if the claimant doesn’t want to take part, then she should let Mrs Wrench know. This is clearly giving the claimant an option as to what she wants to do and it cannot reasonably be characterised as forcing her to do mediation. It is perhaps surprising that Mrs Wight maintained this allegation when she dropped the others from the list of incidents of forced mediation in the tribunal List of Issues. During the course of the hearing this allegation morphed into the suggestion that it should have been obvious to managers that the claimant was under stress and was reluctant to mediate and that, when she did not agree straight away, the matter should have been dropped immediately and not pursued further. In the tribunal’s view, this is looking at things with the benefit of hindsight. Although the respondent now knows that the claimant alleges that she was being forced into mediation, it did not know this at the time, particularly as the claimant had said she was willing to mediate at certain points in the chronology. It would only be if it was obvious that the claimant was feeling unfair pressure or was distressed by the proposal to mediate that a reasonable manager would think to drop the proposal altogether. Those were not the circumstances in which Mrs Wrench found herself. She could not reasonably have been expected to realise that the claimant would make this allegation. Therefore, it was entirely appropriate to ask the claimant to make a decision about what she wanted to do and to communicate it to the respondent. It was entirely within Mrs Wight’s own power to communicate her position to the respondent clearly i.e. that she did not want to mediate. Had she done this then the respondent would have dropped the idea, as it subsequently did. The reality is that the respondent did not know where it stood with the claimant on the issue of mediation for a considerable period of time and it did not force the issue initially. The claimant had time to think. In these circumstances it would be entirely unfair to characterise Mrs Wrench’s email as subjecting the claimant to a detriment.

[122]The claimant’s response to the 2 March email was somewhat snippy in tone and opened by correcting the name mistake (“It’s Rebecca, not Rachel, easy mistake I suppose”), and makes various allegations that the respondent was dragging heels based on Nurse A’s wishes and needs.

[123]There was a further response from Mrs Wrench on 3 March with an apology indicating that she was dealing with a lot of different matters, particularly as Ms Burns had now left the trust. The CAReGO service was only one of many things that needed her attention. She indicated she was doing the best that she could to try and sort matters out. She denied dragging her heels and suggested that she was doing her best to sort things out. She made the point that the plans were not her decision but were the team’s. She set out various issues and indicated that she found the tone of some of the claimant’s emails disrespectful and suggested that they meet face to face rather than communicate by email. In her response, the claimant apologised and indicated that her emails were not intended to be disrespectful but she could see why they could be perceived that way. In her further response of 8 March, Mrs Wrench acknowledged the claimant’s stress levels and indicated that she was happy to refer the claimant to occupational health. She also attached a stress risk assessment for the claimant to complete. She indicated that if the claimant could complete the stress risk assessment as much as she could, they could go through it when they met up.

[124]On 17 March 2022 there was a Teams meeting between the claimant and Mrs Wrench. A transcript of that is within the bundle although it appears to be incomplete. In the course of the meeting Mrs Wrench made clear the shortcomings with the job description which meant that Nurse A was properly/correctly shortlisted for interview given the information available, on paper, in the job description and the application. However, this was because the job description was not specific enough to pick up on the shortcomings in Nurse A's prior training and experience. It was, effectively, a design flaw in the job description. The process was applied as intended but the process was not sophisticated enough to pick up the fact, for example, that not all MSc degrees would provide the necessary training and expertise for this role. They also had a frank discussion about some of the incidents that the claimant was concerned about and how this related back to a lack of experience or training. The respondent could not wave a magic wand and sort this out overnight. Further steps would need to be taken to resolve the problem. Everyone concerned had to be realistic about time scales. Mrs Wrench pointed out that Dr Salih was going to have to agree with Nurse A what she was and wasn’t allowed to do in any given week and the claimant would need to liaise with Dr Salih to find out what had been agreed and what limitations there were (or were not) on Nurse A’s practice at a given stage.

[125]Mrs Wrench also summarised the discussion in an email to Mr Smithson. She recorded the claimant as feeling in a much better place personally, recorded the claimant as feeling that all of her concerns either had been or were being addressed. She was happy that the training issues were being addressed with Janelle York and knew that Mrs Wrench was having a meeting the next day. She felt that things were starting to de-escalate and was reassured that measures were being taken. She also confirmed that the claimant was happy to do mediation and asked Jo Booth to arrange it. She confirmed that the claimant was happy to draw a line under her previous concerns and knew that if she had new concerns, she could raise them to the team and Mrs Wrench. PD10 21 March 2022 datix

[126]On 21 March the claimant submitted another datix which triggered a 72 hour review. This is protected disclosure number 10. There was also a request for a disciplinary investigation into Nurse A and a report. The description of the incident was taken from the 72 hour serious incident review [902A]. It concerns issues connected to patient A and whether Nurse A had acted appropriately and assessed the patient correctly. The question was whether she should have admitted her as an inpatient due to new symptoms and whether there had been a change to the annotation on the patient records after the death of the patient. The records indicated that the Mortality and Morbidity Meeting on 18 March considered the case.

[127]Nurse A had reviewed the patient in a clinic on 11 November and the review annotation was dictated and the annotation typed on 24 November. The patient’s symptoms were described as stable but the review of the notes suggested that there were new symptoms which should have triggered an admission to hospital or an urgent face to face review. The patient’s relative had contacted the hotline for support on 13 November and the advice was to have the patient admitted to hospital. The patient died, when an inpatient at another hospital, on 14 November

[128]The Mortality and Morbidity Meeting raised issues with the review of the patient done on 11 November. There was an alleged failure to identify clear signs of the patient deteriorating and thus requiring hospital admission. It was alleged that the annotation of the review on 11 November was altered on the CWP system after the patient’s death, two weeks after the review. It was alleged that the change to the annotation appeared to imply a different clinical picture than the original notation.

[129]On 23 March Nurse A resigned from her employment with the respondent.

[130]On 24 March the ERG (“Executive Review Group”) considered the 72 hour review.

[131]Between 25 March to 25 April the claimant was signed off work on sick leave. There were emails and texts between the claimant, Mrs Wrench, Dr Mitchell and Dr Salih.

[132]On 26 April a management statement of case was produced related to the disciplinary investigation into Nurse A.

[133]In May 2022 Nurse A submitted a grievance about the claimant [975-1000]. 16 May meeting with Ms Marshall

[134]On 16 May 2022 there was a meeting between the claimant and Natalie Marshall. This was at the request of Eve Lightfoot and it was intended that the claimant would be able to discuss concerns she had raised in her email of 12 May about patient A [1011]. The claimant seemed to be asking for information about the investigation carried out by Mr Bilney. This was the disciplinary investigation into Nurse A. The claimant had asked Mrs Wrench for a copy of the report but had been told that it was confidential and could not be shared with her. The claimant wanted closure on her allegations and to see the basis on which the disciplinary conclusions had been reached. She felt that this information might help her to move on.

[135]Natalie Marshall had not had any previous dealings with the claimant. Ms Marshall thought that the claimant wanted to know if she could read the disciplinary outcome report and, if not, she wanted to understand why this was not allowed. I pause to note that disciplinary investigations and outcomes primarily relate to the person against whom the disciplinary allegation is made. They are entitled to know the case against them and the outcome, and if necessary to appeal. As this is to do with the individual employee’s contract of employment it is usually confidential to them. That is part of providing a fair disciplinary process for the individual employee at the centre of the disciplinary case. If all disciplinary investigations are shared outside of that tight circle, then it has a potential reputational impact on the employee concerned, whatever the conclusions of the disciplinary report. It is unusual, to say the least, for the outcome report to be published or shared with others. A disciplinary report is not that kind of report. It is not intended for wider dissemination.

[136]The respondent’s disciplinary procedure (which was the applicable policy for this part of the chronology) was contained in the tribunal hearing bundle. Certain portions of the procedure are of particular relevance in the circumstances of this case [emphasis added]:• “It is important throughout the process for the Case Manager and Investigating Officer to keep talking with both the employee and any other staff affected. Clear, regular and confidential communication can help make sure employees are kept informed of what is happening, have the opportunity to ask questions and can avoid stress and other mental health issues.” [2240]

• “The terms of the suspension and the employee’s obligations will also be provided in writing, which includes: not doing anything that could interfere with the investigation; treating the matter confidentially; seeking permission from the manager to contact colleagues… “[2242]

• “5.6 Investigation process. Confidentiality must be maintained throughout the investigation and any disciplinary process thereafter.” [2243]

• “5.9 Formal Disciplinary Hearing… The outcome of a disciplinary hearing will be communicated to the member of staff in a letter without delay… The letter must be copied to the Investigating Officer, Staff Side Representative (where applicable), Case Manager, Line Manager, and HR representative. In the interests of dignity and respect, witnesses will not be informed of the disciplinary hearing outcome. Where a witness is a complainant, they may be informed that an internal process has concluded.” [2246]

[137]The terms of the disciplinary procedure make it abundantly clear that people in the claimant’s position, who have made the complaint or allegation, or who are witnesses supplying information to the investigation, do not have a right to see the outcome. The procedure prescribes what they can be told. That is all that the claimant had a right to expect in the circumstances, whether that is something she agrees with, or not. (This is separate matter to the outcome of the 72 hour review.) The claimant was correctly viewed by Ms Marshall as akin to a witness, as she had provided some of the evidence to Mr Bilney which had supported his disciplinary investigation.

[138]Even though this was the claimant’s first meeting with Ms Marshall she chose to covertly record it. It is still unclear why she felt this was necessary as Ms Marshall can have given her no reason to believe that a recording was needed, still less a covert one. During the meeting Ms Marshall made it clear that the datix process was separate matter and should be discussed with others. During the meeting Ms Marshall explained the claimant’s role within the disciplinary process and why, as a witness, she could not see the disciplinary outcome report. She explained to the claimant that if recommendations were made as part of the disciplinary outcome which impacted on her (the claimant), then those recommendations would be shared with her (i.e. because she would need to know about them.) This would not entitle her to sight of the whole report. Ms Marshall acknowledged this was not the outcome that the claimant wanted and that she might find it frustrating or unfair.

[139]It is important that the Tribunal keeps sight of the type of procedure that this was in determining whether the respondent handled this appropriately. A disciplinary procedure relating to another member of staff is not the correct or appropriate forum for another member of staff to get information or vindication from reading the whole report. It is not a general enquiry into the organisation or a system review which all employees may have a stake in- it relates to the person facing the disciplinary allegations. I do not accept that Ms Marshall fobbed the claimant off, as she recognised how the claimant felt about this. She also recommended that the claimant speak to the Freedom to Speak Up Guardian who would be able, as an independent person, to explain and reassure the claimant that she was being provided with all of the information she was entitled to and needed.

[140]Fundamentally, the claimant did not agree with the outcome of the disciplinary procedure. She felt that Nurse A should have been subject to a sanction but that is not the claimant’s concern. It is not for the claimant to decide this. Nor is it part of the respondent’s duty of care to the claimant that it should provide her with this information. Unfortunately, and perhaps on the human level understandably, the claimant cannot accept this. She is, of course, focussed on her own role and part in the whole scenario. Indeed, she does not seem to accept, even now, that the respondent and its managers owe different duties of care to different people within the scenario. Sometimes this would mean that the claimant would not get the outcome that she wanted because this would be in breach of the respondent’s duty of care to another employee or, indeed, to a patient. The claimant repeatedly says in the transcript, “Don’t I have the right to know whether my concerns were valid or not?” This misses the point. That is not the function of the disciplinary procedure. The claimant has had the datix outcome. It is there that she finds out whether her concerns were valid or not. She also expresses concern about Nurse A continuing in practice but that is a regulatory matter for referral to the NMC. The NMC is the appropriate forum for that issue. The claimant could (and did) make an NMC referral in this case.

[141]I am also content that Ms Marshall got involved at this stage and had no prior involvement. Given that her explanation and decisions were based on the contents of the disciplinary procedure, I am satisfied that Ms Marshall would have said the same thing to anyone wishing to get a disciplinary report -whether they had made a protected disclosure or not.

[142]The day after the meeting the claimant emailed Ms Marshall highlighting that she still felt that she had had no feedback regarding the concerns she had raised. She reiterated her request for feedback. In response to this Ms Marshall contacted Sue Mejoob (who was the Freedom to Speak Up Guardian) to check Ms Mejoob’s interpretation of the correct process. Ms Mejoob’s response was that, unless there was something which was relevant to the claimant, she wasn’t entitled to see it [1031.] Ms Marshall then re-reviewed the investigation report to double check whether there was anything relevant to the claimant in it. Ms Marshall sent the claimant a further email on 18 May stating that the complaint had been appropriately and thoroughly investigated but that Ms Marshall could not share any more with the claimant. She told the claimant that there were recommendations in the report but that they did not relate to the claimant, they related to the dictation process so would not be shared with the claimant.

[143]In light of the above, it appears that Ms Marshall did not just refuse to give feedback but rather explained what she could and could not do in line with policy, checked her understanding with Ms Mejoob, and reviewed the report to see if any recommendations could be shared with the claimant in order to reassure her. I cannot see what else Ms Marshall could have done in the PD11

20 June 2022

[144]On 20 June 2022 the claimant made protected disclosure number 11 to Tom Hicklin. The respondent accepts that this was a protected disclosure. The claimant informed Tom Hicklin (in an MS Teams meeting) that the respondent had failed to investigate her concerns properly in relation to Nurse A’s clinical practice and the subsequent impact on patient safety. At the meeting Mr Hicklin says that he talked the claimant through the process that is used when a serious incident is raised. The claimant told Mr Hicklin that there were parts of the 72 hour review report that she felt were inaccurate, particularly in relation to the timeline of events, so he invited her to provide a marked up version to him. The marked up copy would have her comments on it so he could see where she felt there were inaccuracies. He invited her to make ‘tracked changes’ to the 72 hour review. The claimant also attempted to raise other issues regarding the HR process in which Mr Bilney was involved. Mr Hicklin made it clear that this was a separate matter and he was not the appropriate person to raise it with. Retraction of funding for extra 7.5 hours

[145]An issue arose in the claimant’s case in relation to the retraction of funding for an extra 7.5 hours’ work for the claimant. This is something that was an allegation in the List of Issues but was subsequently withdrawn during crossexamination. There had been concerns raised by the claimant on the 18 July about her contracted hours from September onwards. The claimant wanted confirmation that there was an extra 7.5 hours’ funding for her post. There had been changes to her contracted hours over time and these hours needed to be appropriately funded. By 10 August it appeared that the 7.5 hours was no longer available. Steps were taken by Mrs Wrench to find alternative sources of funding for the extra 7.5 hours. Some of the money would come from charity funds. This was approved by Professor Jayson. The fact that funding had been identified was conveyed to the claimant but she rejected it because she did not want any part of her pay coming from charitable donations. The efforts that were taken to secure the requested additional funding show that the respondent’s managers and clinicians valued the claimant highly and wanted her to stay and contribute to the team. This all happened quite late in the chronology at a stage when the claimant says the relationships had already broken down. However, the tone of the emails, particularly to Mrs Wrench, would suggest otherwise (i.e. that the relationship was still functioning.) In the original list of issues the claimant does not acknowledge the efforts that Mrs Wrench went to in order to accommodate her request and get the funding. She pursued this part of her case until day four of her own evidence to the tribunal at the final hearing. Claimant’s resignation

[146]On 12 September the claimant confirmed her intention to resign, although she wished to find alternative employment before tendering her formal notice.

[147]On 7 October the claimant did resign. She now had a firm job offer to take up. Nurse A’s Grievance

[148]During the course of these events Nurse A had raised a grievance about the claimant and had accused her of bullying. The outcome of that grievance was sent out on the 7 October, the same day as the claimant tendered her resignation.

[149]On 10 October the claimant emailed Mrs Wrench asking whether she could see the incidental findings that she had been informed were part of the grievance outcome. She had already received an outcome from the grievance, according to the email. There were letters within the hearing bundle explaining what the outcomes were. Mrs Wrench explained that she had received some findings but she would need further information and then she would meet the claimant to discuss matters further. The claimant and Mrs Wrench agreed and arranged to meet on 11 November to discuss this. That meeting included a return to work interview after a period of sick leave and a discussion of the most recent stress risk assessment. They also discussed the claimant’s welfare because Mrs Wrench and Mrs Dewberry were concerned about the stress that the claimant had been under. Mrs Wrench had offered the claimant the opportunity to work from home for the remainder of her notice period if she wanted to (given the likely stress experienced). The claimant agreed that this would be better for her wellbeing.

[150]During 11 November meeting they discussed the incidental findings from the grievance investigation. After that meeting the claimant emailed Mrs Wrench saying that she still wasn’t clear on the feedback. Reading that email [1599], the claimant seems to focus on finding out what parts of the process were not done properly that involved the claimant raising concerns, what the learning would be, and what actions were going to be taken to ensure that this never happened again. The information that she referred to does not sound like it is information which would come out of a grievance investigation which is examining allegations of bullying made against the claimant. Given the contents of the email, it is not clear that the claimant actually understood the scope of the report and the particular procedure that she was referring to. Rather, she focuses on the concerns that she had raised about Nurse A (and how they had been handled) rather than the grievances that Nurse A had raised about her (which was the actual subject matter of the report.).

[151]In her email the claimant suggested that she had been advised not to attend work during her notice period on the basis of welfare concerns. However, she did not identify who had advised her of that. The respondent assumed that it was her GP.

[152]The claimant asked for proper feedback in writing so Mrs Wrench replied the following day setting out as much detail as she felt she could [1597]. She noted that there was some feedback specifically around Nurse A’s support that was relevant for the respondent service management team and learning from that had been fed back to the divisional service managers. One of the things that the respondent felt would improve support for the disease group nursing teams was the recruitment of a lead nurse to directly manage these teams and provide the support needed. An individual had been appointed as Divisional Associate Chief Nurse. One of the outcomes (and an issue that the respondent had already looked at) was the recruitment process for ANPs to ensure that the job description was clear regarding training and education required for the role and to have the appropriate people with an understanding of the requirements of the role on the interview panel. She noted that the investigation team were not specifically looking into the concerns that the claimant had raised. However, there was some feedback for Mrs Wrench and the clinical team in relation to the investigation that took place when the claimant had raised concerns. Mrs Wrench pointed out that, as she had already discussed, she had arranged a meeting with the clinical teams to feed back to them on some of the recommendations from the investigation. This feedback was to include reference to delay in responding to the claimant’s concerns. There had been discussion around the medical team’s understanding in relation to HR processes and responding to concerns raised. Mrs Wrench felt that this was a general issue across the medical teams and the respondent needed to think about how it would address this. She noted that in this particular instance it would have been more appropriate for the teams to ask for support and advice from HR and the service manager. The recommendation also noted that the team was not fully aware of the extent of the concerns and that it would have been appropriate to gain more understanding of those concerns from the claimant and the rest of the team. It was recognised that the team did conduct an investigation and a review of patients that the claimant had concerns about. This wasn’t a formal investigation that could have taken place had HR had been alerted to the issues earlier. It was acknowledged that the team identified a shortfall in Nurse A’s knowledge following their investigation and action was taken to ensure that she did not practise independently and was supported during outpatient clinics. There was also a plan to address the shortfall in her knowledge. Mrs Wrench confirmed that she would be meeting with the team to look at what could have been done better in relation to the concerns raised. She confirmed that there had already been an acknowledgement that this could have been handled better and that they needed to ensure that this did not happen again.

[153]In short, there were learning points identified, things that were going to be dealt with within the clinical team and recommendations about how to handle concerns such as the claimant’s if they were to arise again in the future and the need to get further HR support at an early stage so that a proper investigation is done formally rather than informally.

[154]It is apparent from reading that email that Mrs Wrench was doing her best to provide meaningful feedback about what the respondent would learn from this experience. It is not clear what else she could say or what would have satisfied the claimant in the circumstances. Some of the improvements and learning points still needed to be discussed so that changes could be made and Mrs Wrench could not tell the claimant about measures that had not yet been decided upon. The email does take a balanced approach and recognises where others (i.e. not the claimant) could have done better and should do things differently in the future.

[155]In relation to the claimant working her notice period, the final paragraph of the email recorded that Mrs Wrench and the claimant had discussed it at the meeting on the basis of concern about the claimant’s wellbeing. She confirmed that the claimant had informed her that she had reflected on the conversation with Annie Dewberry and subsequent conversations with Mrs Wrench before they met and agreed it would be better for the claimant’s wellbeing to remain at home for the remainder of her contract and she had a number of things that she could be completing in that time. She continued, “We did also discuss that if you felt that you have changed your thoughts on this and wanted to come into work we could review the plan for this.” That final paragraph suggests that the respondent was being guided by the claimant in relation to how she wanted to complete her notice period. They were not seeking to impose working from home on the claimant. They left the door open to the claimant for her to change her mind if she so wished.

[156]The claimant’s reply to the email said that the claimant felt that the response was a “very watered-down version of what is clearly a catastrophic failing by multiple people with very serious consequences for patients, our clinical teams, for my own well-being – and now transitionally, my career.” She was clearly not satisfied with what she had been told but it is not true to say that she had been refused feedback. Rather, she was not satisfied that the feedback was good enough in the circumstances. She wanted to see a copy of the relevant sections of the report and read it for herself. She did not say, however, that she had changed her mind about working from home during her notice period.

[157]Mrs Wrench agreed to meet with HR to find out how much information she could give to the claimant about the incidental findings. After she had spoken to HR, she sent the claimant some further information on 22 November [1602.] She confirmed that, as the claimant knew, the concerns in the grievance were not upheld and the claimant had already received a letter with the findings of that grievance investigation. The recommendations that had been sent to Mrs Wrench were first, that the team should ensure effective processes to adequately assess the skills and experience of the CAReGO ANP candidates during recruitment processes. This may involve expert professional advice and support from outside the team for both shortlisting and interviewing. Secondly, line managers for the CAReGO ANPs should ensure that they were working closely with the CAReGO Clinical Lead with respect to ongoing management of the individual (thus involving them in the PDR process for these staff and review of probation period where necessary.) Finally, in situations where an employee is subjected to formal performance management processes, written documentation should accompany the process. This may include an informal plan or follow-up of highlighted issues in writing. Mrs Wrench confirmed that she had met with the clinical team the previous week and talked about getting HR and service manager support as early as possible and that they may have been advised to request an external review. Feedback from the investigating team was that they felt the clinical team were not given the appropriate level of advice and support with respect to this process. There was also discussion around formalising feedback to the claimant and Nurse A with clear outcomes which may have been more helpful.

[158]The claimant’s response to this email was to email with a series of points for Mrs Wrench to either confirm or refute. Mrs Wrench did not feel that this was an appropriate approach for her to take and she agreed to meet with the claimant on her final day of work, 13 December. NMC referral

[159]I note also that the claimant had referred Nurse A to the NMC shortly after her resignation. The respondent received a request for various documents on 19 October and Mrs Wrench gathered some of these documents from early November after a period of annual leave. She gathered and sent a number of documents to the NMC on a number of occasions and they are within the bundle.

[160]Following a meeting on 13 December 2022 the claimant emailed Mrs Wrench to ask whether she had sent the requested documents to the NMC. Mrs Wrench confirmed that anything that had been requested by the NMC had been sent to them and that Mrs Wrench had done it herself.

[161]The paper trail shows that Mrs Wrench did not refuse to send the information to the NMC regarding patient A. Rather, she sent the documents that were requested by the NMC. The NMC got the patient reference number wrong hence Mrs Wrench was initially asked to send the wrong documents.

[162]The claimant’s allegation is that, when she was asked about it, Mrs Wrench lied about it verbally and in the email of 13 December. It is alleged that she said she had sent documents when, in fact, she had not. This came to light because the claimant had checked the patient records for the correct patient and saw that Mrs Wrench had not accessed the records for that patient. She came to the conclusion that Mrs Wrench must have lied when she said that she had sent the NMC what was asked for.

[163]The tribunal does not accept that Mrs Wrench acted in bad faith in the way that the claimant alleges. Firstly, Mrs Wrench had never refused to send information to the NMC. She may have sent the wrong information to start with but that is not her fault if the request from the NMC referred to the wrong patient. At most, it was an innocent error. During the hearing the claimant zoned in on the question she had asked in her email [at 1617] and how it had been responded to by Mrs Wrench. The claimant’s email has two component parts. It starts with confirmation from the claimant that the NMC had said they had not received any of the information that they had requested regarding patient A (i.e. the correct patient.) It continues, “You said to me that you have indeed sent this, and cc’d Janelle Yorke into the email.” Mrs Wrench’s response could be taken as saying that she had sent the information requested (which related to patient A). Alternatively, she could be read as saying that she sent the information requested by the NMC without checking that it was patient A (i.e. the correct patient.)

[164]The second part of the claimant’s email asked, “Is this correct? All documentation requested by the NMC has been handed to them?” This is the claimant asking Mrs Wrench whether she has sent the NMC what the NMC has asked for. The wording of Mrs Wrench’s response is actually, “I can confirm that anything that has been requested from the NMC has been sent to them.” All she is actually confirming is that she has complied with the NMC’s actual request. She is not confirming that the request was for the correct case in the first place and that she has therefore sent the NMC the information for the correct patient. During cross examination the claimant focussed on the fact that the question in her own email referred to patient A. She seemed to suggest that if Mrs Wrench responded in the affirmative then she must have been lying and saying that patient A’s details had been sent to the NMC when they had not.

[165]Having reviewed the documents and the witness evidence I have concluded that Mrs Wight’s interpretation and reading of this exchange is not a fair one. It is clear to me that Mrs Wrench is merely confirming that she has sent what she has been asked for. This is not an attempt to mislead or deceive the claimant. The fault, insofar as there is one, lies with the NMC who have asked for the wrong documents. This is subsequently confirmed in the documents at [1622] when the NMC confirms that they had asked for the notes for the wrong patient. There has clearly been a mix up and a miscommunication here but the claimant has sought to put the worst possible interpretation on it and wrongly accuses Mrs Wrench of refusing to provide information to the NMC and wrongly accuses Mrs Wrench of lying. PD12

7 November 2022

[166]The respondent concedes that the claimant made a protected disclosure at a CQC forum at the respondent’s premises. The claimant says that during the forum she informed two people from the CQC that the respondent had compromised patient safety by its failure to fully investigate her concerns. Mrs Dewberry was present at the meeting and recalls the claimant raising this type of issue, although not the precise details of what she said. The claimant also raised concerns that higher grades within the workforce were present at the forum and that this in some way prevented free speech from more junior colleagues. This was raised and checked at the time and the CQC nevertheless decided to continue the focus group with all the Band 8’s in attendance.

[167]The 31 December was the effective date of termination of the claimant’s employment with the respondent. The BBC issues

[168]There are a series of issues involving the BBC and the protected disclosures and detriments asserted there. The respondent first received contact from the BBC on 11 May 2023. Mr Spencer, the respondent’s Chief Executive, confirmed that the BBC said that they would be broadcasting a report on the 12 May following the CQC’s inspection as the rating of the respondent had been changed from ‘Outstanding’ to ‘Good’. The email from the BBC stated that the claimant would be interviewed in the broadcast and she would say that Trust leaders had infiltrated CQC forums for clinical staff as a means of intimidating staff to prevent them from speaking up. The email from the BBC was within the Tribunal hearing bundle and it confirms what the BBC said they would report and what the claimant’s contribution to this was said to be [1633-1634].

[169]The respondent’s Deputy Chief Executive (Mr Harrison) took a decision not to respond directly to the report as it related to the conduct of the CQC inspection, which was a matter for the CQC to respond to rather than the Trust. Mr Spencer’s evidence was that the situation would have been different if the broadcast had raised issues with patient safety. His evidence was that it is important that patient confidence is maintained so that treatment plans are not jeopardised. If patients have concerns, they may cancel scheduled treatments and appointments and this may adversely affect their treatment and, ultimately, their health outcomes. He explained that there are good ‘patient safety’ and ‘patient outcome’ reasons why the respondent would respond to such items in the media.

[170]The claimant pointed out that there had been a respondent statement published and she referred to [1635.] However, this was a screenshot from a North West Tonight programme whereas the subject matter of the earlier email exchange in the witness statement of Mr Spencer related to Newsnight. That said, page 1635 did seem to refute allegations regarding the CQC forums (albeit it was very a brief statement) rather than allegations that were to do with patient safety or patient confidence in the respondent’s service.

[171]There was subsequent period of interaction with the BBC, which contacted the respondent again on 6 September 2023. The email stated that the BBC planned to broadcast a further report regarding the treatment of whistleblowers at the Trust. The email stated that the claimant had been interviewed on camera and that she had confirmed that patients had come to harm at The Christie due to a colleague’s failures and they had been left at home when they should have been admitted to hospital. She had also alleged that patient notes had been altered after a patient’s death. The email gave the respondent the opportunity to respond by the end of that week. Emails were produced to the tribunal. The BBC email indicated that in the ‘on camera interview’ that the claimant had given she told them:• Patients came to harm as a result of this colleague’s failures, that they weren’t getting the right kind of care and were left at home when they should have been brought into hospital.

• She felt dismissed by senior managers who repeatedly asked her what she wanted to gain personally from attempting to whistle blow.

• She personally investigated her colleague and discovered that patient notes had been altered by the colleague after their death to paint the colleague’s actions or inaction in a better light.

• Rather than undertake training and support, her former colleague resigned when confronted with the allegations against her.

[172]It is important to note that at this stage the respondent was entirely reliant on the BBC’s account of what the claimant had said to them and what would be broadcast on the TV programme. It had no other way of knowing exactly what the claimant had said. It had to base its response on what the BBC told it.

[173]A further email from the BBC [1651 to 1652] informed the respondent that another participant in the programme had told the BBC that Rebecca Wight’s description of how (in her opinion) reputation was put before patient safety had echoes of what happened to Helene Donnelly at Mid Staffordshire Hospital.

[174]The respondent’s position in relation to this was that because the allegations related to patient harm, they intended to respond to the BBC. The matter was escalated to Mr Spencer, the Chief Executive. The Deputy Chief Executive provided Mr Spencer with a draft response and a briefing note by email on 7 September. The draft response set out the steps taken by the respondent to investigate the concerns raised and remedy any defects. It was stated that, whilst some errors in management were found, no patients came to harm as a result. The draft gave details as to how The Christie responds to such allegations and its reporting culture. The draft maintained that all of the claimant’s concerns were thoroughly looked into by senior oncologists. The email set out the steps taken to provide supervision, support and training to Nurse A. The draft set out the findings in relation to the changing of patient A's medical records. The respondent pointed out that the claimant’s concerns had been taken seriously and that the claimant had not taken up the suggestion that she should approach the respondent’s Freedom to Speak Up Guardian if she was still concerned.

[175]The draft response to the BBC was also passed through NHS England’s regional team and amendments were made to it.

[176]The version of the statement, which was sent to the BBC, dated 8 September, was at [1691.] It was accompanied by “Notes to Editors” at [1692.]

[177]The detrimental treatment relied upon by the claimant in this part of her tribunal claim includes the statement from The Christie which was aired on Newsnight on 11 September. She maintains that the detrimental treatment subjected her to personal and professional character damage by denying the content of her protected disclosure, which had been broadcast by the BBC on 11 September 2023.

[178]I have reviewed the contents of the statement and the Notes to Editors. The respondent’s statement to the BBC needs to be read in full in order to be properly understood and put in context. Any suggestion that it subjected the claimant’s character to damage must be considered taking the statement as a whole. The statement narrated concerns that the claimant had raised and how she had raised them. It set out the investigations that the respondent had undertaken and the conclusions it had reached. In particular, it stated that senior consultants had concluded that no patient involved in the clinical practice of concern had suffered harm. It continued, “The care and safety of our patients is our priority, and we take any clinical concerns raised extremely seriously and ensure staff know how to speak up and are supported when doing so. Some errors in patient care were identified and immediate changes were made to how the specific service is organised. Additional clinical supervision was also provided along with training and support to the nurse at the centre of this review.” It is apparent that the statement focused on the nature of the concerns and the respondent’s response to them rather than on the claimant herself. The statement continued, “We are grateful that RW raised her concerns which we took very seriously and used to improve the service. When RW raised concerns with her consultants, changes were made to the service and additional supervision was provided. Concerns that were raised through the incident reporting system were assessed and an investigation was carried out in line with our procedure. This process included the chief nurse and medical director to ensure any learning points are clearly identified and improvements to practice swiftly implemented which included changes to practice, additional training, and supervision. We regularly report potential patient safety matters to our public board and constantly strive to improve our system including ensuring that those who raise concerns receive timely feedback.”

[179]It appears that the statement to Newsnight itself made little direct reference to the claimant. It was not critical of her. The Note to Editors set out the background to the respondent’s reporting procedures and harm rates. The Notes to Editors provided further background and expressed further thanks to the claimant for having raised her concerns. It did not make any critical comments in relation to the claimant or suggest that she was anything less than truthful or suggest that she had any improper motivation in raising her concerns.

[180]The other part of the detriment relating to Newsnight relied on by the claimant is the content of the internal staff briefing which was sent to staff at the respondent. This was initially sent to staff members on 8 September and was brief. It notified employees that Newsnight was planning to broadcast another report featuring the respondent, that the report featured a second interview with the claimant who was a nurse within GMO. The internal statement confirmed that the respondent had sent a statement to the media to rebut the claims but also made clear that the respondent was fully supportive of staff raising concerns and ensured they were investigated, findings reported and, where necessary, actioned. It contained the following, “We are disappointed that The Christie is once again the subject of untrue allegations made by Mrs Wight.” It went on to confirm that the respondent listened and took concerns seriously. Patient safety was a priority. It gave details on the Freedom to Speak Up Policy.

[181]The claimant was particularly concerned by the suggestion that her allegations were untrue and that this had happened once before. However the statement did not say that the claimant was a liar and did the minimum required to make it clear that the respondent did not agree with the substance of the claimant’s allegations (as the respondent then understood them to be.) The briefing confirmed that the respondent considered that the allegations (that they had been led to believe the claimant would make) were untrue. Their concern was preventing any harm to patients under their care and Mr Spencer considered that it was important that the respondent took steps to reassure the workforce and refute the allegations of patient harm to protect the patients under their care.

[182]The BBC did not actually feature the broadcast with the claimant on 8 September. The respondent was then told that it would be broadcast the following Monday, 11 September. The respondent provided an updated briefing to staff on 11 September in preparation for the Newsnight broadcast that they were anticipating that evening. That internal bulletin is set out in the second half of [1693.] The statement was subtly modified to the limited extent that it clarified that the respondent had issued a statement which strongly rebutted the claims that the claimant’s concerns were not taken seriously and that patients came to harm. (It was therefore a little more specific than its predecessor.) It did repeat the sentence questioned by the claimant (“We are disappointed that The Christie is once again are the subject of untrue allegations about patient harm made by Ms Wight.”) Again, this was updated to reflect the fact that allegation about patient harm were on the show. It was made more specific in this regard. It also added in the gratitude of the respondent that the concerns were raised in the first place.

[183]The BBC contacted the respondent again on 11 September with a list of questions that the respondent was to respond to by the end of the same day. The questions included questions about the timeline between the claimant raising concerns and the review being undertaken, questions about how many staff raised concerns, questions about the respondent’s cooperation with the NMC, and questions relating to the status of the patient in question (Patient A).

[184]In its response the respondent acknowledged that the claimant had raised concerns on three occasions. The response repeated that, as a general point, the respondent had reviewed the concerns raised by the claimant and that it had concluded, as a result of its investigation, that there was no patient harm. The email concluded, “We are clear that Mrs Wight raised legitimate concerns and was correct to do so. On each occasion these were raised within the Trust they were taken very seriously, fully investigated and appropriate action taken.” [1648, 1649].

[185]I have taken the opportunity to compare the substance of the press statement and the internal bulletin with the allegation set out at D6, paragraph 5.2.1 of the list of issues. I am not particularly persuaded that the statements by the respondent did, in fact, subject the claimant to personal and professional character damage. Read fairly (and in their totality) they make clear that the claimant was right to raise concerns, but that the respondent did not accept that all the allegations were true or accurate. In short, they summarised the position that some of the claimant’s allegations were not substantiated by the internal investigation, most particularly the allegation of patient harm. It was a summary of the respondent’s factual position. The refence to untrue allegations by the claimant was made solely within the workforce bulletin and not to the press. The expression of disappointment and the suggestion that this was not the first time that the claimant had made untrue allegations was unfortunate, particularly as the claimant was offended by it when she came to know of it. However, from the respondent’s point of view (and based on its own investigations) some of the allegations that she was making were untrue

[186]I also note that Mr Spencer was keen to reassure himself that the statements provided to the BBC and staff were fair and accurate. Hence Dr Bayman, the respondent’s Medical Director, reviewed all concerns prior to the statements being published and he engaged relevant clinical people to understand and make sure that all concerns had been investigated. He had also reviewed the outcomes to make sure that no risks or concerns regarding patient harm were valid. The respondent had followed up the incident reporting process and Dr Bayman re-reviewed that process as an extra step. Mr Spencer had, therefore, concluded that there was sufficient evidence to confirm that the allegation that patients came to harm was untrue and that to allege patient harm was reckless in relation to the care of current and future patients of the respondent.

[187]In the end, the broadcast on 11 September was significantly different to the story that the respondent had been pre-warned about. It was a more general segment focussing on concerns raised within the NHS and the treatment staff receive as a result of raising those concerns. The claimant featured, but as a guest in the studio after pre-recorded footage had been shown. A transcript was available to the tribunal and was considered in detail [1726-1736]. A relevant extract follows: Intro: “We reveal how one senior nurse says her life was ruined by the world renowned cancer hospital, The Christie in Manchester, when she attempted to blow the whistle about a colleague she alleges allowed patients to come to harm….” The claimant says in her contributions that: “I was met with a huge amount of resistance when speaking up…I didn’t realise that approaching my manager and raising concerns would cause such distress and such detriment to my life. I never envisaged it would take this long to get answers.” “I was repeatedly asked by senior managers what I wanted out of raising concerns. What was it that I wanted to gain out of this raising of concerns, as if it was some kind of personal gain for me.” “I think people were unwell for longer than they should have been. I think people were left at home when they should have been in hospital. I think patients just didn’t get the care that they required.” The interviewer referred to the claimant being met with a wall of indifference and hostility and the interview was punctuated by recordings referring to the Mid Staffordshire NHS Trust. The claimant continued: “It was still a very very tough process that was marred with intimidation, silencing and just brushing my concerns under the carpet.” … “The most important thing is their reputation. No matter what cost, they will try and retain that.” Contributions were then made by others on the panel. The claimant then said: “There’s no accountability when it comes to decision making at the top. For those that get it drastically wrong and that’s uncovered, usually they move on to bigger and better things for doctors and nurses. We sit under a regulatory body. We have someone to answer to, whereas managers have nobody to answer to, and they protect each other.” The interviewer then referred to the respondent’s response and said, “The Christie Hospital told us we are grateful that Rebecca Wight raised concerns on three occasions. We are clear that she raised some legitimate concerns and that by raising them, enabled improvements in the service to be made. On each occasion, they went on, the concerns were taken very seriously, fully investigated, acted upon, and she was informed of actions taken. Assessment by senior clinicians is that none of the cases identified by Rebecca Wight reached the level of a serious clinical incident, but that there was scope for improvement and learning for the nurse in question and the service as a whole. The assessment is that patient harm was not caused. On the allegation of altered patient records. They told us the updating of the records was found on investigation, not to have made a material difference to the way in which the patient’s condition was described and was part of the normal signing off of records following dictation and typing, where amendments can be made in a transparent and auditable way. The trust also said that they are cooperating fully with the investigation by the Nursing and Midwifery Council.”

[188]The claimant was also shown in the studio alongside Sir Robert Francis. She participated in the studio based segment of the programme. She discussed her worries about raising concerns at work. She said that she expected to go to her managers with concerns and expected to be engaged with. She expected them to follow their policies and protocols but said that none of that happened in her case for many many months. She described being ‘met with a brick wall.’ She talked about the personal impact upon her of her experiences.

[189]Towards the end of the programme the presenter said, “As a result of our story. The Christie knew you were appearing on Newsnight tonight and the CEO sent an internal bulletin around to thousands of your former colleagues at The Christie, essentially accusing you of lying. I’m quoting now, “We strongly rebut the claims. We’ve also made clear how we are fully supportive of staff raising concerns and ensure any issues are investigated, findings reported and, where necessary, actioned. We are disappointed The Christie is once again the subject of untrue allegations made by Mrs Wight.” Then the presenter asks the claimant, “Are you a liar?” The BBC interviewer put it to the claimant that the respondent had essentially accused her of lying. However, that is not actually what the respondent had said. This was the wording used by the BBC, not by the respondent. The respondent’s briefing stated that the allegations were untrue, not that the claimant was a liar. The respondent’s position was that the claimant was mistaken in her beliefs and that the respondent needed to say so in order to respond to the concerns about patient harm and to reassure current patients and staff.

[190]The List of Issues in this case sets out (at 3.8.1.1 to 3.8.1.3) the substance of the disclosures in the case. Whilst it may not match the contents of the broadcast word for word this is certainly a meaning conveyed during the course of the transcript in the hearing bundle.

[191]On Monday the 11 September the claimant sent an email to Mr Spencer providing information about a patient she believed had died in a local hospital because of failures. The email from the claimant was in fairly strident terms accusing the respondent of making her out to be a liar and choosing to protect its reputation rather than patient safety. She indicated she would forward this to her legal team and considered that it amounted to defamation. She forwarded this email to some of her former colleagues.

[192]The respondent’s data protection officer/company secretary acknowledged receipt. It was suggested that the claimant meet with Mr Spencer directly in order to discuss her concerns. This was arranged for 29 November. The claimant attended with her husband. Mr Spencer attended with Yvonne Summers, Consultant in Medical Oncology. The claimant also asked that Mr Spencer speak with its investigator before the meeting to get a summary of the relevant events that had occurred whilst the claimant was employed by the respondent. It was confirmed that he had met Jane Rogan. Root Cause Analysis

[193]In the intervening period the Executive Review Group (“ERG”) carried out a “Root Cause Analysis” review into the allegation regarding the patient. This review was contained within the hearing bundle [1755-1776]. The analysis concluded that no harm had been identified and that the changes that had been made to the patient notes did not materially change the content. There was no evidence to suggest that actions were intended to cause harm. It was concluded that there were no neglectful omissions and that there was no evidence to indicate that the change to the annotations was made to deliberately falsify the patient records. The claimant’s meeting with Mr Spencer

[194]The claimant’s meeting with Mr Spencer took place on 29 November and lasted almost two hours. During the meeting the claimant became upset. Mr Spencer apologised for the distress that the events had caused her. A transcript of the meeting was within the hearing bundle and the meeting seems to have concluded cordially. Towards the end of the meeting Mr Spencer explained that the respondent would review the concerns that she had raised to ensure that it had considered everything, including what they could learn from the experience. He apologised for what she considered she had experienced at the Trust.

[195]After this meeting Mr Spencer commissioned two reviews in response to the concerns that the claimant had raised. He asked Chris Harrison to review the recordings and transcripts of his discussion with the claimant and to advise, from the information available, what else was appropriate. That feedback was provided in a review of 18 March 2024 [1814]. It covered various clinical matters in some detail. It covered the five patients that had been described in the transcript. Mr Spencer was assured that no patient safety incidents had been identified by the ERG (the relevant review body) and that care on all occasions was provided in line with patient wishes and individual factors/clinical decision-making. In relation to the handling of the claimant’s concerns, Mr Harrison concluded that the email correspondence and notes that he had seen showed that the concerns were taken seriously, were investigated, action was taken and feedback was given to the claimant where it was considered possible, given confidentiality constraints. In relation to the feedback provided to the claimant following the investigation into the amendments to patient notes, Mr Harrison concluded that the correspondence available showed a considered approach was taken by the respondent in trying to balance the competing priorities to provide transparent feedback and yet respect the confidentiality of the other nurse involved. He notes that advice had been taken from the Freedom to Speak Up Guardian and had been taken and acted on accordingly. Mr Harrison had also considered the claimant’s concerns regarding feedback provided after the investigation into a complaint that Nurse A made about the claimant. Mr Harrison concluded that emails from the time showed that on 7 October the claimant and Nurse A both received outcome letters from the investigator. The investigator also met with the claimant to provide feedback and told her that she had included some incidental findings in her report on the investigation. Whilst the full investigation report into the colleague’s complaint had not been shared with the claimant, the learning recommendation had been shared. The respondent had explained to the claimant at the time why the full report could not be shared with her (it contained information relevant to an investigation into Nurse A’s actions). In response to the claimant’s concerns regarding provision of information to the NMC, Mr Harrison concluded that the correspondence confirmed to him that the information requests from the NMC had been appropriately complied with and that a misunderstanding had been caused by a mistake which was made by the NMC.

[196]Mr Spencer was assured by Mr Harrison’s report that no patient harm had been identified and that the claimant’s concerns had been appropriately addressed. Mr Spencer provided feedback to the claimant in his letter dated 29 April [1820]. He also offered the claimant the opportunity for a further internal review if she was dissatisfied with the feedback. There is nothing to indicate that the claimant asked for such a review. Allegation regarding Janelle Yorke

[197]There was also an allegation made in this case regarding Janelle York, the Chief Nurse and Executive Director of Quality. She had supported the claimant in her Pre-Doctoral Fellowship. Professor Yorke and the claimant met on 24 June 2022. The claimant was upset and stressed during the meeting. During this meeting it is alleged that Janelle York told the claimant that she should ‘draw a line under’ the concerns she had raised in relation to the inaccuracies that she had identified in the timeline related to the 72 hour review. She also alleged that Professor Yorke said to her, “you have too many opportunities.” This changed from “you had too many opportunities” in the List of Issues to “you have too many opportunities” during the tribunal hearing. Professor Yorke did not completely deny saying these things. Rather, she just said that she did not recall saying them. She made the point that she wouldn’t dismiss patient safety concerns in this way and that the comment about ‘drawing a line’ under matters would not make any sense at the relevant point in the chronology given that the claimant had just been invited to submit her amended timeline of events to Mr Hicklin at that stage. Thus, it would not be an obvious stage in the chronology to suggest that the claimant ‘draw a line under’ anything as the claimant was, at that time, getting a second opportunity to put her timeline and her associated concerns before the relevant committee and decision makers.

[198]On balance (and when viewed in context) I prefer Professor Yorke’s evidence on this issue, for the reasons that she has explained. The claimant’s allegation and version of events is not plausible given the point in time in the chronology when the claimant says it occurred. It is not plausible given the identity of the person who is alleged to have said it. This witness had no personal motivation to say anything so dismissive to the claimant. If Professor Yorke did say anything to the claimant about ‘drawing a line’ under matters, it is much more likely to have been in the context of trying to help the claimant to get her concerns addressed and then to move on (i.e. a pastoral care matter of explaining that, once she had raised with the issue there was nothing more she could do for the patients so she needed to prioritise her own wellbeing and move on from the issue.) Up until this point in the chronology Professor Yorke had been seen as something of an ally for the claimant. She had taken steps to support the claimant’s professional development. She was also far enough removed from the process and procedures that were in train that she would have no personal motivation to say anything dismissive to the claimant.

[199]The second comment which the claimant attributes to Professor Yorke (about having too many opportunities) makes no real sense. The claimant has never really explained what she thought was meant by this comment. It does not really fit with Professor Yorke having been someone who had actively supported the claimant’s career aspirations. It is hard to understand in what context she could or would say this to the claimant. The fact that the claimant herself does not really make sense of this comment also suggests that it cannot have registered clearly with her as being detrimental at the time. Otherwise, she would be able to explain clearly how she understood the comment and why she considered it to be a detriment. The only potential explanation is that it is a suggestion that the claimant had had a number of opportunities to get feedback and report her concerns which has been misinterpreted by the claimant as somehow rebuking her. It is more likely that Professor Yorke sought to put the claimant’s experience of raising concerns in its proper context. The claimant clearly felt that she was not getting an adequate response after raising concerns. Professor Yorke may have attempted to explain what the ‘usual’ or ‘normal’ expectation would be so that the claimant could understand and accept that her continued requests for input and information were outside the range of what would normally be expected (for example, having the opportunity to submit an amended time line to the ERG.) Certainly, this would fit with the number of different ways that the respondent had looked at the claimant’s allegations (the Clamp/Mitchell review, the datix process, the 72 hour review, ERG consideration (twice), disciplinary investigation into Nurse A and Root Cause Analysis). It is also relevant that the claimant had expressed to Professor Yorke that she was angry about Nurse A’s grievance. Professor Yorke is likely to have advised the claimant to keep calm and get through the process given that Nurse A had already resigned.

[200]On balance, I don’t accept that the claimant’s allegations about this verbal exchange are accurate or properly characterised by the claimant. I do not accept that the claimant has proved her factual allegations in relation to this encounter or that the words actually said during this exchange should be given the meaning and interpretation that the claimant seeks to place upon them. Professor Jayson not talking to the claimant

[201]The claimant alleged that between July 2021 and April 2022 Professor Jayson stopped talking to her and provided her with no eye contact when discussing patients. My findings, as set out above, demonstrate that I already have misgivings about the accuracy and reliability of the claimant’s subjective perception of events. If she felt that Professor Jayson had stopped talking to her, this does not automatically mean that this was an accurate assessment of what was happening. Dr Mitchell (with whom the claimant seems to have had a good relationship) does not accept that there was this change of approach or that Professor Jayson treated the claimant in this way. Dr Clamp was rarely in the same room at the same time as the claimant and Professor Jayson but he had not witnessed Professor Jayson (or anyone else) behave rudely towards the claimant or treat her differently. Dr Salih did not attend the tribunal hearing so her witness statement essentially has hearsay status but she also says that Professor Jayson did not treat the claimant in the way the claimant alleges. Dr Hasan did not attend the hearing for cross examination but he was going to do so until the claimant withdrew the allegations that she made against him. Again, in his witness statement he indicates that he didn’t see anyone treat the claimant differently as a result of her raising concerns.

[202]Professor Jayson denied the allegation and he provided a table of messages between himself and the claimant to show the amount of contact that he had with her during the relevant period. He also explained that he had reduced his presence on the wards since the Covid pandemic in order to minimise infection risks to his wife (who was considered vulnerable). Thus, the opportunities for him to speak to the claimant or to ignore her would have been reduced in number. There were also changes to his working pattern which, again, reduced his interaction with the claimant but this was not because of the claimant’s concerns. The claimant alleged that he stopped talking to her, not that he spoke to her less.

[203]On balance, I prefer Professor Jayson’s evidence to the claimant’s evidence on this issue. His account fits more comfortably with the overall picture painted by the contemporaneous records. The records show considerable interaction between them in emails and messages during this period. Mrs Wight somewhat overstates her case when she speaks in terms of absolutes, of not talking at all and no eye contact (rather than a reduction in communication or eye contact.) During this period Professor Jayson was continuing to share professional opportunities with the claimant and indeed, later on the claimant shared the good news of a recent publication with him. This gives a clear indication as to the continuing nature of their professional relationship and the ongoing communication between them. In short, I find that the claimant has not proved her allegation in this regard. Allegations about Dr Mitchell, Dr Clamp and Dr Hasan

[204]In the list of issues the claimant alleged that Dr Mitchell did not offer her support until September 2022. The claimant withdrew this allegation during the course of the hearing.

[205]In the list of issues the claimant alleged that Drs Clamp and Hasan did not attempt, at all, to discuss how the claimant was feeling given that they knew she had raised concerns. Again, the claimant withdrew these allegations during the course of the Tribunal hearing.

[206]In the list of issues the claimant alleged that on 28 April 2022 Dr Hasan acknowledged that the team had handled the claimant’s concerns badly and suggested that the claimant accept the outcome of the investigation into Patient A’s death. Once again, this allegation was withdrawn by the claimant during the course of the final hearing. Allegation regarding Professor Jayson not contacting the claimant about ward patients via the CWP.

[207]In the list of issues it is alleged that between November 2021 and April 2022 Professor Jayson did not contact the claimant about ward patients under his care via the CWP. The claimant alleged that he would contact her regularly via CWP prior to her raising her concerns.

[208]This allegation was withdrawn during the course of the hearing. The hearing bundle showed CWP exchanges between the claimant and Professor Jayson. The fact that this evidence is available also further undermines her allegation (referred to above) that he stopped making eye contact with her or talking to her face to face on ward rounds. Sending messages via CWP (and communicating regarding other issues) would seem to be an indication that Professor Jayson was prepared to speak to the claimant face to face and make eye contact too. Stress risk assessments

[209]The claimant alleges that on 27/05/22, 24/08/22, 09/09/22 and 12/12/21 Mrs Wrench asked her to complete stress risk assessments but that these served no purpose. The claimant expected Mrs Wrench to arrange regular meetings to provide and offer support to the claimant and to provide feedback in relation to her concerns.

[210]The claimant’s view on this seemed to alter. At some points she seems to have felt that this provided no assistance at all whereas at other points she felt she should have had further follow ups in order to make this meaningful. She felt she should have got more out of this process than she actually did.

[211]The documentary evidence shows that the claimant must have been sent a risk assessment by Mrs Wrench at some point prior to 8 March 2022 because there is a reference to it in the emails around that time. At that point Mrs Wrench was offering a referral to occupational health and access to the Employee Assistance Programme [1628]. On 11 March Mrs Wrench was offering to meet the claimant face to face and, as part of the meeting, to go through the claimant’s risk assessment.

[212]On 30 May Mrs Wrench sent the claimant the updated stress risk assessment with some action points to consider and take forward [1056-1052]. In September there was a further updated stress risk assessment and further suggestions that the claimant make use of the EAP (and a further catch up meeting with Mrs Wrench, if the claimant felt this would be helpful.)

[213]These offers may have been of limited benefit taken in isolation, but they were only one part of the respondent’s approach to managing the claimant over this period of time. Sending the risk assessments and asking the claimant if she wanted a meeting to discuss them was hardly subjecting the claimant to a detriment. The assessments were discussed as and when appropriate with the claimant and the overall chronology shows that these were not the only meetings and feedback that Mrs Wrench offered to the claimant. Indeed, the claimant seemed to change tack during the hearing to suggest that she wasn’t given proper stress risk assessments (i.e. that they were not followed up and discussed with her). This again put the respondent in a difficult position in terms of knowing what it should do for the best in order to satisfy the claimant. Allegation against Mrs Dewberry

[214]There was an allegation against Mrs Dewberry that she had warned the claimant (during a meeting on 8 December) that by raising concerns she would be accused of bullying. The claimant cross examined Mrs Dewberry in relation to this allegation but then subsequently withdrew it. Allegation about Professor Jayson on 9 September

[215]The claimant alleged that on 9 September Professor Jayson emailed her saying that circumstances had been miserable for her due to the concerns she had raised and that he admitted to being conflicted in this and this was the reason why he was/is unable to provide support to the claimant.

[216]On 9 September Professor Jayson sent the claimant an email [1175-1176]. It included comments such as, “Under normal circumstances I would hope that you would feed back to me if something I said/did caused you upset/frustration/irritation. Maybe all of this reflects the tough time that we have all had over the last 18 months. You know all of the details so there is no need to review them here but my view is that I believe you acted out of good conscience and equally important Zena, as a consultant colleague, felt the same. While I find it all very upsetting as I worked with Nurse A on a day to day basis for 7-8 years, I greatly respect you, your clinical skills and insight...While I couldn’t see the issues re Nurse A that were highlighted I believe you acted out of good conscience. This was my conflict over the last 18 months….,I understand from Zena that things have been really miserable for you over the last year. I am really sorry to hear that. Under normal circumstances I would have been more around and able to support you but I like both you and Nurse A and have found it very difficult as well. Also, because of my wife’s and parents’ health I have had to go part time and have dropped Mondays which was when you and I used to run into each other on the ward round… Zena mentioned to me that this has affected your home life and I feel that this is too high a price for you to be paying… importantly Zena as a consultant, agreed with your opinion. I am just conflicted and find it difficult to provide the support that I would usually offer…. I would really like you to stay but in the end your family should come first… I did say to Zena that if it helped maybe you and I should meet… Believe it or not I have great respect for your clinical skills, judgment and all you have achieved on the ward.”

[217]The tone of the email was emollient and supportive and included comments relating to the respect that he had for the claimant, his belief that she had acted out of good conscience, and his difficulties in trying to be supportive of two nurses (who he respected and appreciated) and the difficulties of trying to maintain professional relationships with both of them. It is apparent that the email was intended to be supportive. It is not an admission that he was subjecting the claimant to a detriment, rather he was pointing out the difficulty he faced in trying to support both of the nurses in his team. He was being pulled in two directions at once and he found this difficult to manage. He was attempting to explain this dynamic to the claimant and why this made it difficult to provide the sort of support that he would intend to provide in such THE LAW Unfair dismissal

THE LAW

[218]Employees with qualifying service have a right not to be unfairly dismissed. Section 95 Employment Rights Act 1996 deals with the concept of dismissal. A dismissal includes where (section 95(1)(c)): “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

[219]An employee alleging constructive dismissal must show that the employer committed a serious or repudiatory breach of contract (serious enough to justify the employee resigning), that she resigned in response to that breach (not for some other unconnected reason), that she did not delay too long or acquiesce in relation to the breach or affirm the contract notwithstanding the breach.

[220]The employee is only entitled to treat herself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The fundamental (or repudiatory) breach of contract may be based on an express or an implied term of the contract of employment.

[221]One of the central implied terms of any contract of employment is the ‘implied term of mutual trust and confidence.’ This is the implied term that the parties will not, without reasonable and proper cause, conduct themselves in a manner which is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee (see Malik and Mahmud v Bank of Credit and Commerce International SA

[1997] ICR 606

). Any breach of the implied term of mutual trust and confidence will be considered to be a fundamental breach of contract given the central and fundamental nature of this implied term to the existence of the contract of employment.

[222]As stated in Woods v WM Car Services (Peterborough)

[1981] ICR 666

: “To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract: the tribunal’s function is to look at the employer’s conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it.”

[223]Reasonableness of the respondent’s actions may be evidence as to whether there is a fundamental breach (and a constructive dismissal) but the test nevertheless remains contractual (Lewis v Motorworld Garages Ltd

[1985] IRLR 465

, also Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

). It is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment.

[224]Where it is alleged that an employee resigned in response to a ‘last straw’ event London Borough of Waltham Forrest v Omilaju

[2005] IRLR 35

reminds us (per Dyson LJ): “14 The following basic propositions of law can be derived from the authorities: 1. The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment. 2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence between employer and employee: see, for example, Malik v Bank of Credit and Commerce International … 3. Any breach of the implied term of mutual trust and confidence will amount to a repudiation of the contract…The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship. 4. The test of whether there has been a breach of the implied term of mutual trust and confidence is objective. As Lord Nicholls said in Mahmud at page 610H, the conduct relied on as constituting the breach must ‘impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.’ 5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put at para [480] in Harvey on Industrial Relations and Employment Law: ‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the “last straw” which causes the employee to terminate a deteriorating relationship.” … 15. The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd

[1986] ICR 157

. Neill LJ said (p167C) that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said at p169F: ‘(3) The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular, in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term?...This is the “last straw” situation. 16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim “de minimis non curat lex”) is of general application. … 19. ….The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase “an act in a series” in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. 20. I see no need to characterise the final straw as “unreasonable” or “blameworthy” conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred. 21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.''

[225]When resigning and claiming to have been constructively dismissed, an employee who is a victim of a continuing cumulative breach of the implied term of trust and confidence is entitled to rely on the totality of the employer’s acts, notwithstanding a prior affirmation, provided the later act forms part of the series (Kaur v Leeds Teaching Hospitals NHS Trust

[2019] ICR 1

[226]The claimant in this case relies on two further alleged terms of the contract as part of her claim of constructive dismissal:(a) An implied term that the respondent would care for the claimant’s physical, financial and psychological welfare.

(b) An implied term that the respondent would reasonably and promptly afford a reasonable opportunity for the claimant to obtain redress of any grievance the claimant may have.

[227]In the first of these putative implied terms the claimant is alleging a duty of care from employer to employee in relation to various aspects of the employee’s welfare. So, for example, case law has shown a duty on employers to provide a safe place of work. (For example, in Waltons and Morse v Dorrington

[1997] IRLR 488

the EAT held that it was an implied term of the contract of employment that 'the employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties'). However, in light of the case law indicating that the test remains contractual (and not simply a test of reasonableness) any such implied term to care for an employee’s physical, financial and psychological welfare cannot be without limitation both in scope and in relation to any standard of care imposed. There cannot be an absolute duty to care for the employee’s welfare in all these areas as this clearly goes outside the scope of an employer/employee obligation and the employment context. Nor would it take account of the other duties of care owed by an employer to others which may conflict with the interests of the particular employee (and indeed the employer’s own business.) It may be that such an implied term does not, in reality and most cases, take matters much further than the implied term of mutual trust and confidence. Trust and confidence is likely to cover all those areas of employee welfare within the employment context and is likely to provide a suitable and sufficient standard of care also.

[228]In terms of the employee’s financial welfare I note that, in University of Nottingham v Eyett

[1999] IRLR 87

the implied term (of mutual trust and confidence) did not extend to a positive obligation on an employer to warn an employee, when proposing to exercise important pension related rights, that the way he was proposing to exercise them might not be the most financially advantageous to him.

[229]The point made above in Eyett was taken up in Crossley v Faithful & Gould Holdings Ltd

[2004] IRLR 377

where it was held that: - there was no standard obligation implied by law as a term of all contracts of employment which required an employer to take reasonable care for the economic well-being of his employee; - that there was no reason of public policy to impose on employers a general duty to safeguard an employee's economic well-being, particularly where there might be a conflict of interest between employer and employee and where to do so would impose an unfair and unreasonable burden on employers; - that a court should, therefore, be astute only to imply a precise term in carefully circumscribed circumstances; - that the defendant employer had not assumed any responsibility for giving financial advice to the claimant which could give rise to any contractual duty to take care in giving that advice; There is no special sub-set of trust and confidence requiring an employer to advise an employee positively as to his or her best interests. (See also the Supreme Court in James-Bowen v Commissioner of Police for the Metropolis

[2018] UKSC 40

[2018] 1 WLR 4021

[230]It has been accepted in case law that there is an implied term in the contract of employment that 'that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have' (see W A Goold (Pearmak) Ltd v McConnell

[1995] IRLR 516

, also Waltons and Morse v Dorrington

[1997] IRLR 488

.) This is arguably merely a specific manifestation of the general duty of co-operation but it is potentially an important application of it in the employment context. Although there is an implied duty on the employer to address workplace grievances promptly there are practical limits to this obligation. For example, it will be necessary for the employee to articulate the relevant grievance properly to the employer before any such obligation in relation to redress is triggered.

[231]If the employer does commit a fundamental or repudiatory breach of contract, the employee must resign in response to that breach. The breach of contract need not be the sole cause of the resignation but it must be an effective cause of the resignation.

[232]The employee must not affirm the contract, whether by prolonged delay before resigning or, by implication, by an equivocal election or by conduct that is consistent only with the continued existence of the contract.

[233]In a constructive dismissal case which is said to be automatically unfair on the basis that it was because of the claimant’s protected disclosures, the claimant must also establish that the reason (or principal reason) for the fundamental breach(es) of contract relied upon was the protected disclosures in question.

[234]Where there is a constructive dismissal which is not for an automatically unfair reason (such as a protected disclosure), the dismissal may nevertheless be found to be a fair dismissal if the respondent can show that the reason for dismissal was one of the potentially fair reasons permitted by the Employment Rights Act 1996. In the context of a constructive dismissal, the Tribunal will be concerned with the reason, or principal reason, for the fundamental breach of contract. If a potentially fair reason for dismissal is established, then the tribunal will go on to consider whether the dismissal was fair, applying the range of reasonable responses test to both the substance of the dismissal and the procedure adopted by the respondent. The tribunal will consider whether, applying the test of fairness in section 98(4), the respondent acted reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant. The respondent in this case did not seek to argue that there was a fair reason for any dismissal, rather that there was no constructive dismissal in the first place. Protected Disclosures

[235]A protected disclosure is defined by section 43A Employment Rights Act 1996 as a qualifying disclosure made by a worker in accordance with any of sections 43C to 43H.

[236]Section 43B of the Employment Rights Act 1996 (so far as relevant in this case) defines a qualifying disclosure thus: (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. …

b. …

c. …

d. that the health or safety of any individual has been, is being or is likely to be endangered,

e. …

f. … …. (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).

[237]All of the protected disclosures relied upon by the claimant in this case are said to fall within s43B(1)(d) as being concerned with dangers to health and safety.

[238]As set out in Williams v Brown AM

UKEAT/0024/19

there are five separate stages to applying the necessary tests: “First, there must be a disclosure of information. Secondly, the worker must believe that the disclosure is made in the public interest. Thirdly, if the worker does hold such a belief, it must be reasonably held. Fourthly, the worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). Fifthly, if the worker does hold such a belief it must be reasonably held.”

[239]In order to make a disclosure an employee simply has to communicate the information by some effective means in order for the communication to constitute a disclosure of that information.

[240]There must be a disclosure of sufficient information of sufficient factual content and specificity so as to be capable of showing one of the matters listed in s43B (1). ‘Information’ in the context of section 43B is capable of covering statements which might also be characterised as allegations (Kilraine v London Borough of Wandsworth

[2018] ICR 1850

). ‘Information’ and ‘allegation’ are not mutually exclusive categories. However, a statement which is general and devoid of specific factual content cannot be said to be a disclosure of information tending to show a ‘relevant failure.’ The decision in Kilraine stressed that the word ‘information’ in section 43B(1) has to be read with the qualifying phrase ‘tends to show’. The worker must reasonably believe that the information ‘tends to show’ that one of the relevant failures has occurred, is occurring or is likely to occur. In order for a statement or disclosure to be a qualifying disclosure, it must have sufficient factual content to be capable of tending to show one of the matters listed in section 43B(1)(a)–(f).

[241]The context of any disclosure may also be relevant in determining the content of the disclosure. Meaning can be derived from context. Disclosures may also have to be looked at cumulatively. Information previously communicated by a worker to an employer could be regarded as ‘embedded’ in a subsequent communication. Two or more communications taken together can amount to a qualifying disclosure even if, taken on their own, each communication would not (Norbrook Laboratories (GB) Ltd v Shaw

[2014] ICR 540

). Whether two communications are to be read together is generally a question of fact (Simpson v Cantor Fitzgerald Europe

[2021] ICR 695

[242]A qualifying disclosure does not have to relate to a relevant failure of the employer that employs the worker making the disclosure. It may relate to the relevant failure of a colleague, a client or other third party.

[243]Section 43B (1) requires that, in order for any disclosure to qualify for protection, the disclosure must, in the ‘reasonable belief’ of the worker: 1. be made in the public interest, and 2. tend to show that one of the six relevant failures has occurred, is occurring, or is likely to occur.

[244]The employee has to have a reasonable belief that that the information she disclosed tends to show one of the six relevant failures. This has both a subjective and an objective element. If the worker subjectively believes that the information she discloses does tend to show one of the listed matters, and the statement or disclosure he or she makes has a sufficient factual content/specificity that it is capable of tending to show that listed matter (the objective element), then it is likely that her belief will be a reasonable belief.

[245]The worker’s reasonable belief must be that the information disclosed tends to show that a relevant failure has occurred, is occurring, or is likely to occur, rather than that the relevant failure has occurred, is occurring, or is likely to occur. The worker is not required to show that the information disclosed led him or her to believe that the relevant failure was established, and that that belief was reasonable. Rather, the worker must establish only reasonable belief that the information tended to show the relevant failure.

[246]The focus is on what the worker in question believed rather than on what a hypothetical reasonable worker might have believed in the same circumstances. This does not mean that the test is entirely subjective. Section 43B (1) requires a reasonable belief of the worker making the disclosure. This introduces a requirement that there should be some objective basis for the worker’s belief. In Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, EAT it was held that reasonableness under section 43B (1) involves applying an objective standard to the personal circumstances of the discloser, and 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. The subjective element is that the worker must believe that the information disclosed tends to show one of the relevant failures and the objective element is that that belief must be reasonable (Phoenix House Ltd v Stockman

[2017] ICR 84

). The EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board stated that the focus on ‘belief’ in section 43B establishes a low threshold. However, the reasonableness test clearly requires the belief to be based on some evidence. Unfounded suspicions, uncorroborated allegations etc will not be enough to establish a reasonable belief. In the current case, the nature of the claimant’s job role and her considerable experience in that role are of relevance.

[247]There can be a qualifying disclosure of information even if the worker is wrong (Darnton v University of Surrey

[2003] ICR 615

). Truth and accuracy are still relevant considerations in deciding whether a worker has a reasonable belief. Determining the factual accuracy of the allegations may help to determine whether the worker held the reasonable belief that the disclosure in question tended to show a relevant failure. It may be difficult to see how a worker can reasonably believe that an allegation tends to show that there has been a relevant failure if she believes that the factual basis of the allegation is false.

[248]The worker must reasonably believe that his disclosure tends to show that one of the relevant failures has occurred, is occurring or is likely to occur. Likely should be construed as requiring more than a possibility or a risk, that an employer or other person might fail to comply with a relevant legal obligation. The information disclosed should “in the reasonable belief of the worker at the time it is disclosed, tend to show that it is probable or more probable than not that the employer will fail to comply with the relevant legal obligation’ (Kraus v Penna Plc and anor

[2004] IRLR 260

[249]The public interest element of the test is also qualified by the requirement of ‘reasonable belief.’ The person making the disclosure must have a ‘reasonable belief’ that the disclosure ‘is made in the public interest.’ The reasonable belief has both subjective and objective elements (genuine belief and reasonable grounds for that belief.) The necessary reasonable belief in that public interest may arise on later contemplation by the employee and need not have been present at the time of making the disclosure

[250]There is no statutory definition of the public interest. The focus is on whether the worker reasonably believed that the disclosure was in the public interest rather than on the objective question of whether the public interest test was in fact satisfied.

[251]In Chesterton Global Ltd (t/a Chestertons) and anor v Nurmohamed (Public Concern at Work intervening)

[2018] ICR 731

the Court of Appeal rejected the argument that for a disclosure to be in the public interest it must serve the interests of persons outside the workplace and that mere multiplicity of workers sharing the same interest was not enough. The essential point was that to be in the public interest the disclosure had to serve a wider interest than the private or personal interest of the worker making the disclosure. Even where the disclosure relates to a breach of the worker’s own contract of employment there may still be features of the case that make it reasonable to regard disclosure as being in the public interest. The following factors might be relevant:(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

(d) the identity of the alleged wrongdoer. The number of people sharing the interest is not determinative. The fact that at least one other person shared the interest was insufficient in itself to convert it into a matter of public interest. Conversely, it was wrong to say that the fact that it was a large number of people whose interests were served by the disclosure of a breach of the contract of employment could never, in itself, convert a personal interest into a public interest.

[252]In Underwood v Wincanton Plc

EAT/0163/15

the EAT held that it was arguable that the public interest test was satisfied by a group of employees raising a matter specific to their terms of employment. ‘The public’ can refer to a subset of the general public, even one composed solely of employees of the same employer. In Morgan v Royal Mencap Society

[2016] IRLR 428

it was held that it was reasonably arguable that an employee could consider a health and safety complaint, even one where the employee is the principal person affected, to be made in the wider interests of employees generally.

[253]There may be a difference between a matter of public interest and a matter that is of interest to the public, and that there may be subjects that most people would rather not know about that may be matters of public interest (Dobbie v Felton t/a Feltons Solicitors 2021 [IRLR] 679, EAT). A disclosure could be made in the public interest even though the public will never know that it has been made, and a disclosure could be made in the public interest even if it relates to a specific incident without any likelihood of repetition.

[254]For a disclosure to qualify the worker need only have a reasonable belief that his or her disclosure is made in the public interest. The tribunal does not have to determine the objective question of what the public interest is, and whether a disclosure served it. The tribunal has to consider what the worker considered to be in the public interest; whether the worker believed that the disclosure served that interest; and whether that belief was held reasonably. As reasonableness is judged to some extent objectively, it is open to a tribunal to find that a worker’s belief was reasonable on grounds which the worker did not have in mind at the time. Tribunals should be careful not to substitute their own view of whether the disclosure was in the public interest for that of the worker (Nurmohamed). That does not mean that it is illegitimate for the tribunal to form its own view on that question as part of its thinking but only that that view is not, as such, determinative. The necessary belief is simply that the disclosure is in the public interest and the particular reasons why the worker believes that to be so are not of the essence. A disclosure does not cease to qualify simply because the worker seeks to justify it after the event by reference to specific matters which the tribunal finds were not in his or her head at the time. A tribunal might find that the particular reasons why the worker believed the disclosure to be in the public interest did not reasonably justify his or her belief but nevertheless find it to have been reasonable for different reasons which he or she had not articulated at the time: all that matters is that her (subjective) belief was (objectively) reasonable.

[255]A disclosure does not have to relate to a failure by the employer, it will be sufficient if the disclosure relates to wrongdoing by a third party. The health and safety matter in question need not necessarily fall under the control of the employer. Complaining about instances of harassment or bullying may constitute a qualifying disclosure under s43B(1)(d) e.g. Fincham v HM Prison Service

UKEAT/0925/01

[256]In order to be a protected disclosure, the qualifying disclosure must be made in the correct manner as set out in sections 43C-43H. A worker who makes a disclosure to their employer has fewer hurdles to get over than one who makes the disclosure to an outsider. A disclosure made to a worker’s employer will be a protected disclosure s43C(1)(a).

[257]In relation to one of the disclosures in this case it is relevant to consider disclosures made to someone other than an employer. The relevant provision is section 43G Employment Rights Act 1996 which states (so far as relevant):(1) A qualifying disclosure is made in accordance with this section if- (a) … (b) the worker reasonably believes that the information disclosed, and any allegation contained in it, are substantially true, (c) he does not make the disclosure for purposes of personal gain, (d) any of the conditions in subsection (2) is met, and (e) in all the circumstances of the case, it is reasonable for him to make the

(2) The conditions referred to in subsection (1)(d) are- (a) that at the time he makes the disclosure, the worker reasonably believes that he will be subjected to a detriment by his employer if he makes a disclosure to his employer or in accordance with section 43F, (b) that, in a case where no person is prescribed for the purposes of section 43F in relation to the relevant failure, the worker reasonably believes that it is likely that evidence relating to the relevant failure will be concealed or destroyed if he makes a disclosure to his employer, or (c) that the employee has previously made a disclosure of substantially the same information- (i) to his employer, or (ii) in accordance with section 43F

(3) In determining for the purposes of subsection (1)(e) whether it is reasonable for the worker to make the disclosure, regard shall be had, in particular, to- (a) the identity of the person to whom the disclosure is made, (b) the seriousness of the relevant failure, (c) whether the relevant failure is continuing or is likely to occur in the future, (d) whether the disclosure is made in breach of a duty of confidentiality owed by the employer to any other person, (e) in a case falling within subsection (2)(c)(i) or (ii), any action which the employer or the person to whom the previous disclosure in accordance with section 43F was made has taken or might reasonably be expected to have taken as a result of the previous disclosure, and (f) in a case falling within subsection2(c)(i), whether in making the disclosure to the employer the worker complied with any procedure whose use by him was authorised by the employer.

(4) For the purposes of this section a subsequent disclosure may be regarded as a disclosure of substantially the same information as that disclosed by a previous disclosure as mentioned in subsection (2)(c) even though the subsequent disclosure extends to information about action taken or not taken by any person as a result of the previous disclosure.

[258]I heard some specific legal argument in relation to the circumstances surrounding PD13 (the alleged protected disclosure made through the BBC broadcast.) this alleged disclosure is qualitatively different in nature to the others in this case. There are legal arguments which are only relevant to PD13 and not the other 12 PDs. A discussion and statement of the applicable legal principles relevant to this particular alleged disclosure are set out in the conclusions section below as they are more straightforwardly understood and considered in context and alongside the specific allegations in this case with my conclusions set out directly below the statement of the law [see paragraphs 316 onwards below.] To that extent, I have deliberately departed from the standard format of separating the statement of legal principles from the conclusions section in these written reasons. Detriment

[259]Section 47B of the Employment Rights Act 1996 provides that a worker has the right not to be subjected to any detriment by his or her employer, a colleague acting in the course of employment or an agent acting with the employer’s authority on the ground that the worker made a protected disclosure. The requirements for a successful claim are that:a. the claimant must have made a protected disclosure;

b. he must have suffered some identifiable detriment;

c. the employer, worker or agent must have subjected the claimant to that detriment by some act, or deliberate failure to act; and

d. the act or deliberate failure to act must have been done on the ground that the claimant made a protected disclosure.

[260]Section 47B(1) does not apply where the worker is an employee and the detriment complained of amounts to dismissal. Any such complaint instead falls under section 103A which renders a dismissal automatically unfair if the sole or principal reason for it was that the employee made a protected disclosure. The exclusion under section 47B

(2) is only triggered if the claimant is an employee.

[261]A detriment is unlawful under section 47B if done ‘on the ground’ of a protected disclosure, whereas dismissal is unfair under section 103A only if the protected disclosure is the reason or principal reason for it. A section 47B claim may be established where the protected disclosure is one of many reasons for the detriment, whereas section 103A requires the disclosure to be the primary motivation for a dismissal.

[262]Section 47B provides protection from any detriment. There is no test of seriousness or severity. It is not necessary for there to be physical or economic consequences for it to amount to a detriment. What matters is that the complainant is shown to have suffered a disadvantage of some kind. The term 'detriment' is not defined in the Act but it is a concept that is familiar in discrimination law. It has long been argued that the term should be construed in a similar fashion, in which case a detriment will be established if a reasonable worker would or might take the view that the treatment accorded to them had in all the circumstances been to their detriment. This argument was eventually expressly accepted by the Court of Appeal in Jesudason v Alder Hay Children's NHS Foundation Trust

[2020] EWCA Civ 73

[2020] IRLR 374

. The court's judgment approves the application of this mixed subjective/objective test. It states: ''In order to bring a claim under section 47B, the worker must have suffered a detriment. It is now well established that the concept of detriment is very broad and must be judged from the view point of the worker. There is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment. The concept is well established in discrimination law and it has the same meaning in whistle-blowing cases. In Derbyshire v St. Helens MBC

[2007] UKHL 16

;

[2007] ICR 841

, paras. 67-68 Lord Neuberger described the position thus: ““…. In that connection, Brightman LJ said in Ministry of Defence v Jeremiah

[1980] ICR 13

at 31A that 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment'. That observation was cited with apparent approval by Lord Hoffmann in Khan

[2001] ICR 1065

, para 53. More recently it has been cited with approved [sic] in your Lordships' House in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. At para 35, my noble and learned friend, Lord Hope of Craighead, after referring to the observation and describing the test as being one of 'materiality', also said that an 'unjustified sense of grievance cannot amount to “detriment”'. In the same case, at para 105, Lord Scott of Foscote, after quoting Brightman LJ's observation, added: 'If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice'.”” Some workers may not consider that particular treatment amounts to a detriment; they may be unconcerned about it and not consider themselves to be prejudiced or disadvantaged in any way. But if a reasonable worker might do so, and the claimant genuinely does so, that is enough to amount to a detriment. The test is not, therefore, wholly subjective.''

[263]The protection is against acts and deliberate failures to act. A deliberate failure to act shall be treated as done when it was decided upon (section 48(4)(b)).

[264]Causation under section 47B has two elements:(i) was the worker subjected to the detriment by the employer, other worker or agent?

(ii) was the worker subjected to that detriment because he or she had made a protected disclosure?

[265]The question of causation is to be applied to the employer’s act or omission not the ensuing detriment. What was the reason for the respondent’s act or omission? (Not, what was the reason for the detriment?)

[266]In any detriment claim it is for the employer to show the ground on which any act, or deliberate failure to act, was done (section 48(2)). This does not mean that, once a claimant asserts that she has been subjected to a detriment, the respondent must disprove the claim. Rather, it means that once all the other necessary elements of a claim have been proved on the balance of probabilities by the claimant (i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment) the burden will shift to the respondent to prove that the worker was not subjected to the detriment on the ground that he or she had made the protected disclosure.

[267]If the tribunal has rejected the reason advanced by the employer, the tribunal is not then bound to accept the reason advanced by the employee: it can conclude that the true reason for dismissal was one that was not advanced by either party (Kuzel v Roche Products Ltd

2008 ICR 799

, Ibekwe v Sussex Partnership NHS Foundation Trust EAT 0072/14).

[268]It may be appropriate to draw inferences as to the real reason for the employer’s action on the basis of the tribunal’s principal findings of fact. The EAT summarised the proper approach to drawing inferences in a detriment claim in International Petroleum Ltd and ors v Osipov and ors EAT 0058/17:(a) The burden of proof lies on a claimant to show that a ground or reason (that is more than trivial) for detrimental treatment to which he or she is subjected is a protected disclosure that he or she made.

(b) By virtue of section 48(2), the employer (or worker or agent) must be prepared to show why the detrimental treatment was done. If it (or he or she) does not do so, inferences may be drawn against the employer (or worker or agent) (see London Borough of Harrow v Knight

2003 IRLR 140

, EAT)

(c) However, as with inferences drawn in any discrimination case, inferences drawn by tribunals in protected disclosure cases must be justified by the facts as found.

[269]In order for liability under section 47B to be established the worker must show that the detriment arises from the act or deliberate failure to act by the employer. Only then can the worker say that he or she has been ‘subjected to’ the detriment in question.

[270]Section 47B will be infringed if the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistle-blower (Fecitt and ors v NHS Manchester (Public Concern at Work intervening)

[2012] ICR 372

). There is a different test in detriment cases from dismissal cases under section 103A. The ‘material influence’ test is to be applied in section 47B detriment cases whereas in a section 103A unfair dismissal case the test is still to ask what the sole or principal reason for the dismissal actually was. This is the consequence of the two causes of action being placed in different parts of the Employment Rights Act 1996 (Part V and Part X).

[271]It is not necessary to consider how a real or hypothetical comparator who has not made a protected disclosure was or would have been treated when determining whether the protected disclosure was the ‘ground’ for the treatment complained of (even though it may be a useful exercise).

[272]The motivation need not be malicious. It does not matter whether the employer intends to do the whistle-blower harm, so long as the whistle-blower has, as a matter of fact, been subjected to a detriment on the ground of the protected

[273]In a detriment claim, the starting point is that it is necessary to examine the thought processes of the alleged wrongdoer. Does the person who actually subjects the worker to the detriment know of the protected disclosure so that the protected disclosure can have materially influenced his decision to subject the claimant to the detriment? The tribunal must generally focus on the mental processes of the individual decisionmaker and so cannot find an unlawful detriment if the decisionmaker did not know about (and so could not have been influenced by) the protected disclosure.

[274]An employee’s conduct in making a protected disclosure may, in certain circumstances, be separable from the disclosure itself (Bolton School v Evans

[2007] ICR 641

, Kong v Gulf International Bank (UK) Ltd

2022 EWCA Civ 941

). The employer can act lawfully if it relies only on the non-protected aspects of a whistle-blower’s conduct even when that conduct is closely connected with the protected disclosures themselves. For example, in Panayiotou v Chief Constable of Hampshire Police and anor 2014 ICR D23 EAT the reason for the detriments and dismissal was not the fact that the claimant had made protected disclosures but rather the manner in which he pursued his complaints. The tribunal found that he would ‘campaign relentlessly’ if he was dissatisfied with the action taken by his employer following his disclosures and would strive to ensure that all complaints were dealt with in the way he considered appropriate. As a result the employer had to devote a great deal of management time to responding to his correspondence and complaints. However, in some cases it will be impossible to draw a line between the disclosure and the manner of that disclosure. Protected disclosure dismissal: section 103A

[275]Section 103A of the Employment Rights Act 1996 states: “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.

CONCLUSIONS

[276]In the paragraphs which follow I set out the conclusions I have reached in this case by applying the law to the facts as found. I adopt the numbering in the agreed List of Issues [99-109]. ‘Ordinary’ constructive unfair dismissal

[277]The matters which are said to amount to a fundamental breach of contract for the purposes of the constructive dismissal were set out at paragraphs 2.2.1- 2.2.5 of the list of issues.

[278]At paragraph 2.2.1 the claimant alleged that the respondent did not comply with Appendix 6 of the Freedom to Speak Up Policy because Victoria Burns did not:a. Acknowledge the claimant’s concerns, raised on 21 September 2021 and 10 November 2021, within two working days in accordance with part 7 of the grading matrix.

b. Initiate an investigation into the claimant’s concerns, raised by her on 21 September and 10 November 2021, within 25 working days in accordance with part 7 (page 8 of 27) of the grading matrix.

[279]The version of the written policy quoted in the list of issues is version 06.01. The version referred to during the course of the hearing was version 6. There are apparently some differences in numbering and pagination between the versions. However, my findings of fact at paragraphs 25-30 above have addressed the relevant sections of the policy as referred to during the course of the hearing and which appear to be the relevant portions of the policy as quoted at paragraph 2.2.1 of the List of Issues.

[280]Having reviewed the evidence, I am not satisfied that the policy in question was actually engaged at this stage in the chronology as alleged by the claimant. Even if it were engaged, the claimant made a verbal complaint rather than a written one. This is relevant to the level at which it should be categorised within the respondent’s policy and the extent to which the strict requirements of the policy would need to be adhered to.

[281]In substance, the complaint was acknowledged within the two days referred to in the policy. It was actually registered at a meeting and was acknowledged there and then. It was also discussed there and then. It would, in my view, be overly formalistic to require a written acknowledgment in such circumstances where the complaint is verbal and has already been discussed verbally. This part of the policy is aimed at ensuring that issues raised by employees are not ignored by management. The issues raised should be acknowledged and allocated to a manager to address. In fact, that is what happened in the claimant’s case. In this case the claimant’s concerns were not ignored but were discussed straight away during the meeting.

[282]Whether a 25 day period for investigation is required will depend on the level of the policy which is applicable in the circumstances of a given case.

[283]Paragraph 6(b) of the policy says that an employee should raise the issue with a line manager, with the intention of resolving or addressing the concern quickly and informally. By raising the issue verbally with Vicki Burns (who was the claimant’s direct line manager) the claimant engaged at paragraph 6(b) of the procedure [2140]. The policy provides that if the issue is not resolved to the employee’s satisfaction, she has the option to escalate it further. The flowchart at appendix 1 shows that if the issue is not resolved by the departmental manager, it can be raised and escalated to a designated senior manager or Freedom to Speak Up Guardian. This would require acknowledgement within 2 working days, a conversation within 10 working days and an outcome within 25 working days (according to the flowchart). However, the claimant did not take that route (certainly when she had the meetings with Vicki Burns which are quoted at paragraph 2.2.1 of the list of issues.)

[284]The grading matrix at part 7 is used to categorise the level of seriousness of the issue raised i.e. “query”, “concern”, or “formal concern”. Part 8 makes it clear that “Timescales may be amended if during investigation it becomes clear further time is required.”

[285]In this particular case, the claimant had not engaged or referred to the policy and had not looked at it herself by this stage in the chronology, even though it was available to her on the respondent’s computer systems (as she conceded.) The claimant did not state that she was intending to raise concerns in line with the respondent’s procedure. She did not invoke the policy. In such circumstances, where the claimant makes no reference to the policy or to her expected timescales, it is rather difficult for Ms Burns to realise that the policy has actually been engaged.

[286]In any event, I have considered the substance of the events which followed to see if, in substance, the respondent complied with the policy or materially departed from it. The claimant’s concerns were looked into. If the claimant was dissatisfied with the timescales, she could have raised this with Ms Burns but she did not do so. In reality, the respondent did look into the concerns which the claimant raised. It was open to the claimant to escalate matters further if she was dissatisfied with that approach. She did not do that. This rather suggests that, at the time, the claimant was content with the approach which the respondent took. It is only with the benefit of hindsight that she has become dissatisfied with events at this early stage of the chronology.

[287]Looked at in their proper context, I do not consider that the matters referred to at paragraph 2.2.1 were a breach of the implied term of mutual trust and confidence. Indeed the respondent is unlikely to have acted materially in breach of its own written policy, when viewed as a whole and in its proper context. It certainly was not in breach of the spirit and meaning of that policy. Nor do I consider it to be the start of a series of incidents which would amount, cumulatively, to a breach of the implied term following a ‘last straw’ event. Furthermore, Ms Burns’ actions could not be said to be ‘without reasonable and proper cause.” Nor could they be said to be calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence.

[288]The allegation at 2.2.2 is that Ms Burns called the claimant’s character into question when she asked for colleague feedback for the purposes of the claimant’s PDR. As stated above, I do not accept that characterisation of the events. Given the evidence that I have heard I do not accept that this was an instance of anyone at the respondent “calling the claimant’s character into question.” Ms Burns acted with reasonable and proper cause. I accept that she was attempting to replicate a 360° review in an informal way following her own recent experience of such a procedure. Whether the claimant considers this to have been appropriate or standard procedure is not the point. I am looking for matters which, either separately or cumulatively, amount to a repudiatory/fundamental breach of contract. This is not such an event. I accept that this was nothing more than a management procedure. It did not subject the claimant to a detriment and does not contribute to a breach of the implied term of mutual trust and confidence.

[289]I also note that it is not directly relevant whether the respondent undertook the same procedure for Nurse A because Nurse A was in a different situation to the claimant when she approached her PDR because concerns and feedback (of a negative variety) had already been raised with management. Nor do I accept that Ms Burns was singling the claimant out for poor treatment. In fact, all of the feedback was positive and Ms Burns had no reason to suspect or expect that the feedback would be in any way negative. Based on what Ms Burns knew at the time, it is not reasonable to conclude that she was attempting to ‘set the claimant up for failure.’ There were too many unknowns and variables in such a plan for it to be her intention. She had no control over the outcome (i.e. the substance of the feedback). It would not be an effective way of targeting the claimant in a negative fashion. Indeed, Ms Burns never did call the claimant’s character into question. All the evidence suggests that the claimant was a highly regarded and respected practitioner in her field.

[290]It is also relevant to note that the claimant was not apparently offended by the request at the time. She complied without question. This rather suggests that she did not view it as ‘calling her character into question’ until some later point in the chronology of events.

[291]In short, this was a normal management process. It did not subject the claimant to detriment. It did not contribute to a breach of the implied term of mutual trust and confidence and it certainly did not constitute such a breach by itself.

[292]This part of the case relates to the alleged exclusion of the claimant from emails on 5 January. As stated above in my findings of fact, this factual allegation was not proven. It therefore cannot form part of a repudiatory breach of contract for the purposes of the constructive dismissal claim. The claimant could not establish any emails that she says she was excluded from on that date. She certainly has not proven that she was deliberately excluded from matters where she should have been included or that this would have had any impact on the implied term of mutual trust and confidence in her contract of employment. The evidence suggests that when Ms Burns had this issue drawn to her attention, she apologised immediately on the basis that this would have been an oversight and not at all intentional. In light of the foregoing, this part of the claim of constructive unfair dismissal falls away.

[293]This allegation concerned the respondent trying to force the claimant into a mediation process with Nurse A. Most of the subparagraphs in the list of issues had already been withdrawn or dropped by the claimant by the time the hearing reached its conclusion. The sole survivor from the original list was paragraph 2.2.4.4 which referred to an email from Mrs Wrench sent on 2 March 2022.

[294]Having reviewed all of the evidence surrounding this issue, I have to conclude that the allegation in this paragraph is a mischaracterisation of what actually took place. The claimant’s perception is that the respondent had labelled the problem as a clash of personalities between the claimant and Nurse A. Consequently, she took this as being impliedly dismissive of her genuine concerns about the practice and competence of Nurse A. However, reviewed dispassionately and objectively that is not what the respondent was actually doing. The respondent’s managers had already recognised that there was more than one ‘limb’ to the problem. Part of the issue consisted of the concerns about patient safety and nurse A’s competence. The other part of the issue related to the respondent attempting to improve the working relationship between the claimant and Nurse A given that at least one of them (Nurse A) felt that there were relationship problems which needed to be resolved in order for the service to operate effectively going forwards. The respondent had a duty of care to both the ANPs and needed to manage both of them. Thus, proposing mediation was in furtherance of the respondent’s duty of care to both nurse employees.

[295]Most importantly, the claimant was not, in fact, forced into it. The emails in question put absolutely no obligation on the claimant. Rather, the claimant just had to let the respondent know if she did not wish to participate so that the mediator in question could be “stood down” or taken off standby. This should have been relatively uncontroversial.

[296]Whatever the claimant’s subjective feelings about it, I have to look at what the respondent actually did and consider whether it amounted to (or was a component part of) a breach of the implied term of mutual trust and confidence. Having performed that task, I have concluded that this did not form part of a breach of the implied term of mutual trust and confidence either on its own or cumulatively. The respondent was acting in furtherance of a reasonable and proper cause and did not subject the claimant to detrimental treatment in exploring the option of mediation in this way.

[297]The allegation at paragraph 2.2.5 related to funding for the claimant’s work. She alleged that the respondent had retracted the funding for an extra 7.5 hours of work. This allegation remained part of the claimant’s case up until the final hearing, despite the fact that she had had the opportunity to consider the relevant documentation after the process of disclosure was completed. She had also had the opportunity to read the respondent’s witness statements which explained what had, in fact, happened. It became clear that the funding for the extra 7.5 hours was sourced and was offered to the claimant. She rejected it because she did not wish to be funded (even partially) by public donations. This was a matter for her. However, as the claimant subsequently realised, this allegation was not sustainable and could not contribute in any way to a finding of a repudiatory breach of contract by the respondent. Paragraphs 2.3 and 2.4: repudiatory breach of contract.

[298]In answering the question posed in paragraph 2.3 of the list of issues based on my findings, I cannot find that these events, either individually or cumulatively amounted to a breach of mutual trust and confidence in this case. Nor can I find that there were fundamental or repudiatory breaches of the other implied terms that the claimant seeks to rely on.

[299]Any duty of care for the claimant’s physical, financial or psychological welfare cannot be absolute in nature. It does not impose an absolute duty on an employer to care for an employee’s physical, financial and psychological welfare without regard to its other, potentially competing, duties of care to other employees and, indeed, the public. I find that, in acting as the respondent did, it was clearly trying to take account of the claimant’s own needs and interests albeit not necessarily to the level and extent that the claimant would personally wish. The respondent and the Tribunal have to consider not only the existence of a duty of care but also the standard of care which it imposes to see if the respondent is in breach. In reality this alleged implied term does not take the claimant’s case any further than her reliance on the implied term of mutual trust and confidence.

[300]Likewise, the duty to afford a reasonable opportunity for redress of grievances does not take matters any further in the claimant’s favour. An implied term requiring an employer to afford reasonable and prompt redress of an employee’s grievances has been recognised as forming part of the employment contract in the relevant case law. However, the existence of such term does not assist the claimant in this case. The factual allegations relied upon for the ordinary constructive unfair dismissal claim do not, in large part, relate to the redress of the claimant’s grievances as such. As pleaded, this would be most likely to apply to the first allegation (relating to the Freedom to Speak Up Policy.) However, in acting as the respondent did, it did not breach the implied term or fail to provide prompt redress of grievances. Rather, the claimant was given an initial, informal opportunity to raise the grievances and have them considered, with an option to pursue them down a more formal route should she not be satisfied with the outcome. Likewise, the attempts at mediation did not constitute a failure to provide prompt redress of grievances. Rather, it was an offer of an alternative method of dispute resolution which was intended to run alongside any investigation into patient safety concerns and nurse competence. In summary there was no fundamental breach of contract in relation to this contractual term. Indeed the respondent took reasonable steps to discharge any such duty of care to the claimant. Ordinary unfair dismissal conclusion

[301]I have been unable to identify a fundamental or repudiatory breach of contract in this case that would entitle the claimant to resign and treat herself as dismissed. Thus, the claimant’s ‘ordinary unfair dismissal’ claim would have to fail.

[302]A further issue was raised by the respondent in relation to the gap between the last event relied on (2 March 2022) and the resignation in October 2022, seven months later. Had the claimant established a fundamental breach of contract, she would still have faced difficulties in relation to affirmation of the contract/waiver of the breach. The claimant provided no good explanation for the delay between the last event relied upon and her resignation. The claimant did not provide an explanation which could have kept the fundamental breach ‘alive’ for seven months. During this period the claimant was fully engaged in her employment contract. There was no issue of her “working under protest or duress.”

[303]In such circumstances the ordinary unfair dismissal claim must fail and be dismissed. There was no fundamental breach of contract and no relevant last straw event. Further, the delay would have meant that the claimant had affirmed the contract. The claimant’s claim of constructive ordinary unfair dismissal will therefore be dismissed. Protected disclosures

[304]The claimant relied upon 13 separate protected disclosures. The respondent conceded that some of the matters amounted to protected disclosure but denied others. By the time the I came to deliberate on my judgment three of the thirteen disclosures were still contested by the respondent and ten disclosures were conceded as amounting to protected disclosures within the meaning of the Employment Rights Act 1996. I therefore had to reach conclusions in relation to the three outstanding disclosures: PD5, PD7 and PD13.

[305]In relation to each of the protected disclosures the claimant said that they came within the ambit of section 43B(1)(d) Employment rights Act 1996 (i.e. the health and safety subsection.) PD5: email dated 22 November 2021 to Burns, Clamp, Jayson, Mitchell, Hasan and Salih.

[306]The claimant says that this was the email where the claimant requested that an external review of her concerns be carried out due to the professional relationship between Professor Jayson and Nurse A being compromised.

[307]The first question is whether it falls within the relevant section of the Act as disclosing information tending to show that the health and safety of any individual has been, is being or is likely to be endangered. The email raises clinical concerns and asserts that they have not been appropriately addressed. She says that her concerns have been wrongly categorised as a personality clash and she requests an external review. I have concluded that this does indeed disclose information and, taken at its highest, that information tends to show a risk to health and safety (i.e. clinical concerns that have not been addressed appropriately). I also conclude that the claimant would have a reasonable belief that this was in the public interest given that it related to patient care and patient safety.

[308]However, I note that the email itself does not allege that there was a compromised professional relationship between Professor Jayson and Nurse A which meant that an external review of the claimant’s concerns was appropriate. That is missing from the disclosure itself even though it forms part of the case in the list of issues. However, that is not necessarily critical to the decision as to whether this is a protected disclosure.

[309]I have concluded that this is a protected disclosure. The issue of Professor Jayson and Nurse A’s professional relationship is a side issue. It is not a necessary component part of the protected disclosure. Applying the statutory test, the email is a disclosure which has sufficient specificity to disclose information. The claimant reasonably believed that it tended to show a risk to health and safety. Both the subjective and objective elements of that test are satisfied. The fact that the claimant asserts that her concerns have been wrongly labelled as a personality clash is not accepted by the respondent. The respondent says there was no such mislabelling. However, the claimant does not have to be correct about her assertion in order for it to constitute a protected disclosure. There is an objective basis to the claimant’s belief because the respondent’s alleged focus on the concerns regarding the working relationship between the claimant and Nurse A may get in the way of the clinical concerns being properly addressed. Furthermore, there is sufficient within the disclosure to demonstrate a reasonable belief that it is made in the public interest. If a risk of harm to patients is going to go unresolved because of a focus on an alleged personality clash/difficult working relationship between the two nurses, then the claimant would reasonably believe she was making the disclosure in the public interest. The disclosure was plainly made to an employer and therefore is protected within the statute.

[310]I therefore conclude that PD5 does constitute a protected disclosure within the meaning of the Act. PD7: On or around 10 January 2022 during a planned MS Teams business case meeting, the claimant informed Professor Jayson that the CAReGO service was not meeting its goals.

[311]PD7 relates to an alleged meeting conducted by Microsoft Teams on 10 January 2022. The claimant says that she attended this business case meeting and informed Professor Jayson that the CAReGO service was not meeting its goals. This was elaborated on in the claimant’s evidence.

[312]I cannot be satisfied, based on the evidence that I have heard, that there was such a meeting on 10 January.

[313]If such a meeting did actually take place, I am satisfied that the claimant may well have said that the CAReGO service was not meeting its goals. Even Professor Jayson conceded that the service was not, in fact, meeting its goals that the relevant time. The claimant withdrew her allegation that she also said that using the data in question for the business case was fraudulent. If she had maintained this allegation, I would not have been satisfied that she actually made an allegation of fraud during the meeting in question. Nor am I satisfied that Professor Jayson said that she should stay quiet or be positive. That is not in keeping with the tenor of the relationship between them. Nor is it in keeping with Professor Jayson’s attempts to set up the CAReGO service as a meaningful and helpful contribution to patient care for a particular cohort of patients. He had been trying to develop the service for a number of years and I find that he would want to ensure that it was working and that the claimant and her colleagues were able to do what was necessary to make the service effective. In any event, this aspect of the claimant’s factual allegation is not part of the pleaded protected disclosure.

[314]Whether this amounts to a protected disclosure or not hinges on the disclosure that the service was not meeting its goals. By saying that the service was not meeting its goals the claimant was making an evaluative statement but she was not disclosing information which tended to show a relevant risk to health and safety. The service in question (given its stated purpose) could be failing to meet expectations without actually posing a risk to health and safety. A service can fail to meet its goals without necessarily putting anybody at risk. This was a statement of opinion but it did not actually disclose information which tended to show the relevant health and safety risk. It has insufficient specificity. Taken in the round I cannot be satisfied that such a statement is one that in the claimant’s reasonable belief would tend to show the relevant health and safety breach within the meaning of the Act. As a corollary of that, it would lack the relevant element of public interest.

[315]In light of the above, even if this factual allegation were proved (as alleged in the list of issues), I have concluded that it would not constitute a protected disclosure. PD 13: the disclosures on 11 September 2023 made by the claimant via the BBC Newsnight Programme.

[316]The protected disclosure relied upon for protected disclosure 13 is the disclosure that the claimant made to the media via the BBC on the Newsnight programme which was broadcast on 11 September. That is the date of the protected disclosure relied on i.e. the contents of the broadcast. In the list of issues the contents of this disclosure are said to be:3.8.1.1 She had experienced resistance, hostility, intimidation and attempted silencing from managers who tried to cover up and address the concerns she raised about nurse A. In particular, the claimant disclosed that patients were left at home too long and didn’t get the care the required and therefore coming to harm. She disclosed that nurse A (although nurse A’s name not disclosed on the Newsnight broadcast) amended medical records following a patient death to cover up mistakes.

3.8.1.2 Claimant concerns raised about nurse A were not investigated and the respondent “brushed the matter under the carpet;” and

3.8.1.3 Correct processes to investigate concerns were not followed and no feedback was provided to the claimant in relation to her concerns. Although the specific policy was not confirmed on the Newsnight broadcast, the claimant is referring here to the Freedom to speak up/raising concerns policy (appendix 2-Raising concerns at work policy. Doc ref: HR05 page 16 of 27-details outcomes and feedback-part c and e)

[317]It is in response to the disclosure from the claimant via the broadcast on 11 September that the respondent is said to have subjected the claimant to a detriment. (The alleged detriment is misnumbered D6, it should be D8.) The actions which are said to have subjected the claimant to a detriment are specified as: the respondent’s statement (as aired on Newsnight as part of the whistleblowing segment of the programme); together with the publication of the internal bulletin to staff on 8th September.

[318]Leaving aside for the moment whether there was a protected disclosure (in law) and whether the alleged detriment is properly characterised as a detriment, this part of the claimant’s claim has a fundamental flaw in terms of causation. The chronology ‘does not work.’ In order for such a complaint to succeed, the claimant must be subjected to detriment by an act or omission of the respondent done ‘on the ground that’ the claimant made the protected disclosure. It is the disclosure which must be the cause of the detrimental treatment, not the subject matter of the disclosure in a broader sense. An employee cannot be subjected to a detriment on the grounds of/because of a disclosure which she has not yet made (as of the date of the detrimental treatment.) As a matter of common sense, the protected disclosure must come before the detrimental treatment in order for the relevant causation to be present.

[319]The list of issues clearly sets out the detriment which the claimant relies on in relation to this protected disclosure. She relies on the respondent’s statement to the media of 11 September and the respondent’s internal bulletin on 8 September. Whilst the respondent knew that a broadcast was due to take place when it issued its statement to the media and its internal bulletin, the actual broadcast (and therefore the relevant protected disclosure) had not yet been made by the claimant. The respondent had not seen the disclosure at the time it did the acts which are relied on as the detrimental treatment. It had not been shown the pre-recorded element of the broadcast and, by definition, had not seen the claimant’s contributions which were made ‘live’ from the studio. The only information that it had at the time it issued the relevant statement and bulletin was what the BBC had communicated to it via email. The BBC’s email was not the protected disclosure relied upon by the claimant. Furthermore, as set out above, the BBC’s communications did not match the claimant’s disclosures in the programme itself.

[320]In reality, the protected disclosure was not made/communicated until the programme was aired on the evening of 11 September. The detrimental acts, as alleged by the claimant, took place before the broadcast. They were preparatory to it. They pre-dated the protected disclosure. The claimant’s allegation in relation to this protected disclosure and this detriment cannot work as pleaded in the list of issues. Causation cannot be established the given the correct chronology of events.

[321]Furthermore, the respondent did not know the exact nature of the disclosure that would be made on the programme. It could only respond to the information that it had been given in advance (which was not the protected disclosure itself). The respondent had to know of the substance of the protected disclosure in order to act and subject the claimant to a detriment because of it. The alleged detrimental treatment was not materially influenced by the alleged protected

[322]I should point out that the issue relating to the timeline of events and the correct configuration of disclosures and detriments (referred to above) was raised with the claimant during the tribunal hearing. The claimant took time during an adjournment to consider whether she wished to amend the issues pleaded to rectify the apparent problem. She decided not to do so. Consequently, I must decide her case based on the case as pleaded and summarised in the list of issues.

[323]In any event, notwithstanding the causation issue, there are other legal issues which the claimant would have to overcome in order for this part of her case to succeed.

[324]The substance of the alleged protected disclosure is contained in paragraphs 3.8.1.1-3.8.1.3 of the list of issues. I have reviewed the transcript of the broadcast. I conclude that, whilst the pleaded disclosure may not match verbatim the contents of the broadcast, all of the points of substance conveyed in the List of Issues were also conveyed within the transcript of the broadcast. In short, the claimant proved the facts she relies on. She proved her factual case in relation to the contents of the disclosure. The disclosure which was made is the one which is summarised in the list of issues for the tribunal proceedings.

[325]I am asked to consider whether I have jurisdiction to entertain this complaint of protected disclosure detriment on the basis that the protected disclosure was made long after the termination of the claimant’s employment and the associated detriment was also suffered by the claimant after the termination of her employment. The disclosure was made through the media after the end of employment rather than more obviously in the context of the claimant’s employment relationship with the respondent.

[326]Although the paradigm case here is of a detriment imposed by the current employer during the employment in relation to a protected disclosure made to that employer during that employment, courts and tribunals have applied a purposive interpretation to the protection intended to be given to whistleblowers, resulting in the 'reach' of the legislation being extended beyond that paradigm.

[327]The relevant principles established by the case law are:a. The detriment in question must be suffered ‘in the employment field’ or in the employment context (i.e. as an employee or a former employee, not in some other capacity.) For example, as in Tiplady, if the claimant suffers a detriment as a home owner rather than as an employee, then this will not be a detriment within the meaning of the relevant Employment Rights Act provisions. (In Tiplady v City of Bradford Metropolitan District Council

[2020] IRLR 230

) the respondent was both the claimant’s former employer and also the relevant local authority for the home owned by the claimant. The claimant in that case suffered detriment ‘as home owner’ not ‘as employee/former employee.’)

b. A detriment which is suffered after the termination of the individual’s employment can still form part of an Employment Tribunal detriment claim (see Woodward v Abbey National Plc No1

[2006] ICR 1436

, in line with the approach in Section 26 Equality Act 2010 and Rhys-Harper v Relaxion Group Plc

[2003] ICR 867

in relation to discrimination arising out the employment relationship even after termination of the employment.)

c. Just as a post-termination (of employment) detriment can be relied upon, so can a post termination disclosure (Onyango v Berkeley (trading as Berkeley Solicitors

UKEAT/407/12

.) There is nothing in the statute to prevent that (although it was not definitively determined as part of the Onyango appeal.)

[328]What is less clear is whether the claimant’s disclosure has to be made in connection with the employment status (i.e. ‘in the employment field’ or ‘the employment context.’) In Onyango the protected disclosures were the ‘letter before action’ (in Employment Tribunal proceedings) and report to the Legal Complaints Service (i.e. the regulator related to the field of employment with which he was concerned.) The respondent has referred me to a first instance decision in the long running litigation surrounding Dr Day v Lewisham and Greenwich NHS Trust in 2019 (case number 2300819/10). My reading of that case is that the protected disclosures took place during the period of the claimant’s employment, it was only the detrimental treatment which post-dated the claimant’s employment. The argument in that case was about whether the detriments were in the employment context, not whether the disclosures were in the employment context. In that context the majority of the Tribunal found that comments made by the claimant in the context of litigation were not in the employment context but in the context of being a crowdfunded litigator (see paragraphs 182- 186). The minority judgment was that it was in the employment context (paragraph 191.)

[329]In the case before me, the claimant’s employment had ended before both the protected disclosure and the detriment. Furthermore, the Employment Tribunal litigation had also started several months before the protected disclosure was made. The parties were already opponents in litigation when the protected disclosure was made and the alleged detriments were suffered by the claimant. The same argument can be made as in the Day case: ‘but for’ the former employment relationship, the claimant would not have made the disclosure and would not have suffered the detriment. However, I am satisfied that she did not make the disclosure in connection with employment but as a litigant/whistleblowing campaigner. This alone would be enough basis, in my view, for me to conclude (if it had been necessary to do so) that the protected disclosure and the detriment did not arise in the employment field/context, but rather in the litigation/media context. I would therefore have concluded that this was not a protected disclosure within the meaning and jurisdiction of the relevant provisions of the Employment rights Act 1996.

[330]If (contrary to my conclusion above) that jurisdiction issue had been resolved in the claimant’s favour, I would have concluded that the claimant did reasonably believe that the disclosure tended to show the relevant risk to health and safety within section 43B(1)(d). I would then have had to consider the requirements of section 43G. I would have been satisfied that the claimant reasonably believed that some of the information disclosed was substantially true (i.e. the risk of patient harm) (section 43G(1)(b) ERA). There was a legitimate difference of professional opinion about whether Nurse A had left patients at home when they should have been admitted, such that they may have experienced increased distress or pain. (The claimant does not have to be correct about that in order to have the relevant reasonable belief.) There were, however, some elements of the disclosure that she could not reasonably have thought were substantially true (for example, the assertion that Nurse A was not investigated and that concerns were ‘brushed under the carpet,’ that correct processes and procedures for investigation were not followed or that no feedback was provided to the claimant.) Such beliefs were contrary to the facts of the matter and objectively unreasonable. It was also a matter of personal perception whether the claimant felt that she had experienced resistance from managers etc. I am not convinced that she had any objective grounds for that subjective belief.

[331]Moving on to section 43G(1)(c), I do not consider that the claimant made the disclosure for personal gain (save insofar as being known as a campaigner on these issues might possibly be seen as a personal gain, albeit non-financial.) I was further satisfied that the claimant had previously disclosed substantially the same information to the respondent in its capacity as her employer (section 43G(2)(c)).

[332]Having said all of the above, I do not think that the claimant would have satisfied the requirements of section 43G(1)(e) (i.e. that in all the circumstances of the case it was reasonable for her to make the disclosure.) The following matters are particularly relevant here:a. The claimant had already had the respondent look into this issue.

b. The claimant had already raised this issue with the NMC. The NMC was the relevant regulator who had control over nurse A’s continued practice as a nurse. Raising this issue again on television would make no positive contribution in relation to this aspect of the case.

c. By making this disclosure on Newsnight (in fairly intemperate terms) all the claimant did was to potentially undermine patient confidence in the safety of the care that they would receive at the respondent trust such that effective treatment of patients might be jeopardised (e.g. if they cancelled scheduled appointments.)

d. Nurse A had already left her employment with the respondent by this stage in the chronology of events.

e. The respondent had investigated the concerns and had taken steps to improve Nurse A’s practice whilst she was still in the respondent’s employment. In light of the above I would have concluded that the test at section 43G(1)(e) was not met by the claimant in this case.

[333]In line with the above, I was unable to conclude that the claimant’s disclosures at PD13 met all the legal requirements to be considered to be protected disclosures within the meaning of the Employment Rights Act 1996.

[334]Nor would I have been entirely satisfied that the claimant was subjected to a detriment as alleged at D8. The detriment in question was not experienced in the employment context. The respondent was just putting its account of the issues on the record in line with its own investigative findings. To that extent, the employment context was irrelevant. If the allegations had been made by a patient’s family member or someone who had never been an employee, the respondent would still have issued substantially the same response to the broadcast (or what it had been told to expect in the broadcast.)

[335]Nor am I satisfied that the statements made on behalf of the respondent subjected the claimant to personal and professional character damage. In reality, they just made clear that the claimant’s allegations had been investigated by the respondent and were not substantiated by those investigations.

[336]There is an additional causation issue. I was referred to Jesudason v Alder Hey Children’s NHS Foundation Trust

[2020] IRLR 374

. The headnote summarises the decision thus: Both the tribunal and the EAT had erred on the issue of detriment. A detrimental observation about a whistleblower could be made in a letter whose purpose was to put the employer’s side of the story. It did not cease to be a detriment because of the employer’s purpose or motive. That purpose was relevant to the issue of causation when the question was whether the detriment was by reason of the protected disclosures, but it was irrelevant to the question whether a detriment was suffered at all. However, the trust’s objective was, so far as possible, to nullify the adverse, potentially damaging and, in part at least, misleading information that the claimant had chosen to put in the public domain. That both explained the need to send the letters and the form in which they were cast. The trust was concerned with damage limitation; in so far as the appellant was adversely affected as a consequence, it was not because he was in the direct line of fire. Although sending letters in the way they were drafted did constitute a detriment to the claimant, it was not a detriment on the grounds that the claimant had made a protected disclosure or disclosures.

[337]Had I been called upon to determine the point directly, I would have concluded that the principles in Jesudason were equally applicable here and I would have concluded that causation was not made out in this aspect of the case.

[338]The tribunal is concerned that the respondent should be able to communicate with its workforce what its view of the factual situation was without fear that this would be construed as subjecting the claimant to a detriment on the grounds of her protected disclosure. Could the respondent legitimately be precluded from disagreeing with its own employee in public? The respondent had been put in a difficult position by the claimant’s interactions with the BBC. It needed to put its own case out into the media and to its workforce to rebut the allegations where necessary and appropriate and ‘set the record straight’ in line with its own investigations. Taking the evidence as a whole and putting these communications in context, I am satisfied that the respondent’s communiqués fell on the right side of the line. I do not accept that the respondent was precluded from putting its own investigation findings into the public domain. Nor do I accept that the respondent was precluded from communicating its position to its own workforce.

[339]For all the reasons set out above, I find that the claimant’s complaint of protected disclosure detriment based on protected disclosure 13 and detriment D8 must fail and is dismissed. Detriments

[340]In addressing each allegation I have considered both whether the respondent subjected the claimant to a detriment within the meaning of the Act and also whether the necessary causation has been established. D1: calling the claimant’s character into question when asking for colleague feedback

[341]The claimant alleges that this was a way of subjecting her to a detriment. I am not satisfied that this is the case. As set out above in relation to ordinary unfair dismissal, this was not detrimental treatment. It was a management technique which could legitimately and normally be used by managers. It may have been something of an innovation in this particular employment relationship. However, just because it was new does not mean that it was detrimental. The request for feedback was just as likely to produce positive feedback and strengthen the claimant’s reputation within the organisation, as indeed it did. It did not in any way call the claimant’s character into question or otherwise subject her to a detriment. There was no detriment.

[342]Furthermore, I conclude that Ms Burns’ actions in this regard were not caused by any of the protected disclosures in this case. There had been one protected disclosure to Ms Burns by this stage in the chronology (PD3 on 21 September) but there is nothing to suggest that this in any way caused Ms Burns’ approach to change in any way. The protected disclosure had no material influence on Ms Burns’ actions. I have accepted that the reason that Ms Burns gave for the request for colleague feedback was genuine and was the sole reason for her actions. She was attempting to learn from her own recent experiences as an employee and to informally replicate the 360 degree review in what she considered to be the most efficient way.

[343]The case in relation to detriment 1 therefore fails and is dismissed. There was no detriment and further, the relevant causation was not established. D2: composite allegation of being subjected to a hostile environment (paragraphs 5.1.2.1-5.1.2.15)

[344]The claimant alleged that during ward round meetings from July 2021 to April 2022 Professor Jayson stopped talking to her and provided her with no eye contact when discussing patients.

[345]As set out above, the claimant has failed to prove her factual allegation. She has not established that the respondent subjected her to a detriment in this way. There is no evidence of the sort of hostility by Professor Jayson towards the claimant that this sort of action would imply. The contemporaneous documents show Professor Jayson’s respect for the claimant and indicate that, even if he found it hard to believe that Nurse A was incompetent, he would not ‘take this out on’ the claimant. Documents show that he continued to be supportive of the claimant and her career aspirations throughout the period under consideration. Indeed she wrote to tell him about her first publication right at the end of the chronology of events.

[346]Furthermore, causation would also have been a problem. Professor Jayson gave evidence of the other reasons why his interactions with the claimant on the ward would have reduced over time (e.g. reducing his workload and protection of his clinically vulnerable wife). None of these related to the claimant’s protected disclosures. The claimant would not have established the necessary causation in these circumstances. The protected disclosures did not materially influence the respondent’s treatment of the claimant in this regard.

[347]The allegations in relation to Drs Mitchell, Hasan and Clamp not offering the claimant support or not offering to discuss how the claimant was feeling (5.1.2.2.1 and 5.1.2.2.2) were withdrawn by the claimant during the course of the hearing and are therefore dismissed.

[348]Likewise, the allegation at 5.1.2.2.3 (that Dr Hasan acknowledged that the team had handled the claimant’s concerns badly and suggested that the claimant accept the outcomes of the investigation into the circumstances of Patient A’s death) was withdrawn the claimant during the course of the hearing. It is therefore dismissed on withdrawal.

[349]This paragraph concerned an allegation that Professor Jayson didn’t contact the claimant about ward patients under his care via the Clinical Web Portal. This allegation was also withdrawn by the claimant during the course of the hearing. It is therefore dismissed on withdrawal. 5.1.2.4 Ms Burns providing no support to the claimant throughout the period that she raised concerns.

[350]The claimant’s allegation is that Ms Burns gave her no support whereas the evidence shows some support, just that the claimant was not satisfied with the level of support which was offered. The Tribunal has to be satisfied that there were acts or omissions which subjected the claimant to a detriment. That is not the same as saying that there is only one right way to manage the situation or that if the claimant does not receive exactly the support that she wants (when she wants it) that she has been subjected to a detriment by the respondent’s acts and omissions. The evidence in this case demonstrates that the claimant wanted matters to be handled in a very particular way which she considered to be ‘the right way.’ She did not consider that there were other reasonable ways of handling the situation. She took the view that if matters were not handled as she asked, then she was being subjected to a detriment. However, I do not accept that the respondent subjected the claimant to detriment if it did not address matters in the way that the claimant wanted.

[351]In the findings of fact above I have set out the steps taken by Ms Burns to address the claimant’s concerns. The findings show the ‘touchpoints’ where Ms Burns did meet up with the claimant and provide support of one form or another. A set of examples from the chronology (non-exhaustive) includes:a. 21 September 2021 the claimant had a meeting and raised issues with Ms Burns.

b. On 28 October 2021 the claimant asked for a catch up and this was arranged for 10 November. Mediation was offered. This was a form of support for the claimant even though the claimant did not view it as such.

c. In November 2021 Ms Burns sent emails to the claimant updating her as to what was being done with the concerns that she had raised (e.g. the meetings that had taken place.)

d. On 22 November there was a meeting which acknowledged the claimant’s emailed concerns and which explained what was going on in relation to them. There was also a follow up email.

e. The claimant’s 22 November email referred to the claimant suffering from stress and anxiety. This alerted Ms Burns to this particular issue and Ms Burns suggested scheduling some time around the claimant’s PDR in order to talk about the ways that Ms Burns could offer her support [399].

f. Ms Burns then had some time off work and returned on 25 November.

g. On 6 December Ms Burns and Dr Mitchell met with the claimant to feedback the Clamp/Mitchell review findings.

h. In early December the claimant asked to be assigned a different manager and Ms Burns effectively stepped aside after this point.

[352]It is notable that the claimant’s complaint concerns a period of just over two months’ duration. I have to take a balanced view of the level of action and support that Ms Burns could reasonably be expected to offer the claimant in the context of the concerns and in the context of her other line management responsibilities. I note that Mrs Burns left her role in February 2022. I also note that Ms Burns was line managing both the main protagonists and had a duty of care to both of them (the claimant and Nurse A). Whilst she had to provide normal management support to the claimant, she could not automatically favour the claimant over Nurse A or assume straight away that the claimant was ‘in the right’ and Nurse A was ‘in the wrong.’ This had to be established rather than assumed. It is also notable that a lot of the decisions to be made for the respondent required clinical knowledge. As Ms Burns was not employed as a clinician, she would not be able to make those sorts of decisions. Ms Burns’ role would be more to allocate tasks to the clinicians who would look at the substance of the concerns that the claimant had raised in order to establish if they were substantiated. Ms Burns was not in a position to decide that for herself given the nature of her job role.

[353]I do not accept that the claimant’s concerns about Nurse A were dismissed by Ms Burns at the meeting on 21 September. Nor do a find that she said anything about Nurse A having ‘a hard job,’ or that she did not know anyone else who could do Nurse A’s job. Nor did Ms Burns dismiss the issue as just a personality clash. What Ms Burns did identify was that, in addition to concerns about patient safety/nurse competence (which needed to be addressed), there was an issue relating to the working relationship between the claimant and Nurse A which also needed to be addressed. By mentioning the working relationship issue Ms Burns was not thereby ignoring the patient safety/clinical concerns issue. It was not an ‘either/or’ situation. In fact, Ms Burns did take steps to get the patient safety issues considered.

[354]In light of the above, my findings of fact do not support a conclusion that the claimant was subjected to a detriment as set out at paragraph 5.1.2.4 of the list of issues.

[355]Furthermore, if the claimant had successfully established that she was subjected to a detriment in the manner alleged, causation would likely have been a difficulty. There were a number of explanations for the way that Ms Burns approached the issue and none of them was the fact that the claimant had made protected disclosures. I was not satisfied that the protected disclosures materially influenced Ms Burns’ treatment of the claimant in this regard. For example, Ms Burns was not employed as a relevant clinician so there was a limit on which decisions she was qualified to make for herself. She was not qualified to make the clinical decisions relating to patient safety concerns. She had to refer matters to the relevant clinicians and experts. She cannot be held directly responsible and accountable for what those clinicians then did or did not do. She was not in a position to make changes to the way that the clinical service was run. Ms Burns was the managerial face of this process but she could only manage the claimant based on what others were saying about the claimant’s concerns. When issues were raised, she explained that she would go to Dr Salih and the clinicians to address them. The validity of the claimant’s patient safety concerns had to be established by others with the relevant knowledge.

[356]Ms Burns had to line manage and provide support to both of the nurses. She could not ignore Nurse A’s requests for support either. A lot of the claimant’s case seems to have focused on her perception that Nurse A was preferred over the claimant but the reality is that Ms Burns had a duty to try and manage both nurses appropriately. She also had line management responsibilities which extended beyond the employees that I have already referred to. There were 50 consultants, 20 other doctors 15 nurses and administrative department for Ms Burns to manage.

[357]As already noted, I am considering a period of around two months. It is reasonable to conclude that there were limits on the amount of time and opportunity to offer further support to the claimant when taking account of the other demands on Ms Burns’ time. Further, she did not seem to seek HR advice and support in determining how the whole issue should be handled. She does not seem to have had a particular procedure to work to or know what was expected of her. Whether that is a feature of a lack of experience or a lack of managerial competence is irrelevant in the context of this case. Neither would relate to the protected disclosures. If the claimant viewed Ms Burns as a poor manager that was not connected to the fact that claimant had made protected disclosures.

[358]Ms Burns had also had a career break between May and September 2021. When she returned to work the issues had already arisen and she needed to get up to speed with them. She had not been dealing with these issues from the start and cannot be held responsible for any lack of progress up until the point when she took over conduct of the issue. It is also true to say that there would have been a limit on the amount of information about nurse A which Ms Burns could share with the claimant because of issues of confidentiality and the line management relationship she had with Nurse A as well as with the claimant.

[359]For all the reasons set out above, the allegation of protected disclosure detriment at 5.1.2.4 in the list of issues fails and is dismissed. 5.1.2.5: Ms Burns praising Nurse A’s resilience in a phone call and meeting with her to provide support

[360]I am not satisfied that this alleged phone conversation took place. Nor am I satisfied that the claimant would have overheard it well enough to know what was being said, and why. Even if this did happen as the claimant alleges, praise for nurse A’s resilience is not the same thing as concluding that her performance in the role is adequate or that Claimant’s concerns are misplaced. Nor does it imply views about the claimant’s resilience (or lack thereof). The claimant does not come into it at all. Just because a view is expressed about Nurse A, this does not by necessary implication mean that a view is also being expressed about the claimant (whether positive or negative). One does not follow from the other. Praising one person’s resilience for coming into work is just that. It is a recognition of the stresses that one person is facing but still attending work. Somehow the claimant has managed to make this into a comparison between herself and Nurse A in which the claimant comes off worse. That is not what was actually happening, even on the claimant’s version of events. The claimant does not figure in the conversation at all. Ms Burns expressing compassion for Nurse A does not imply a lack of compassion for the claimant. It does not mean that Ms Burns lacks impartiality or has decided to defend Nurse A to the claimant’s detriment. The claimant may genuinely believe that this conversation has something to do with her or subjected her to a detriment but as a matter of objective fact, it did not. The tribunal does not accept the claimant’s characterisation of this. Even of this conversation happened as alleged, I am not satisfied that it constituted subjecting the claimant to a detriment and it was not part of making the claimant subject to a hostile environment, as alleged.

[361]Nor do I accept that Ms Burns met with Nurse A on the dates alleged solely to offer her support. There will have been a number of legitimate reasons for her to meet with Nurse A, who was line managed by Ms Burns. Ms Burns’ discharging her duties towards Nurse A does not mean that Ms Burns was subjecting the claimant to a detriment. Ms Burns had to line manage both the nurses and had a duty of care to both. The claimant did not suffer a detriment purely by Ms Burns discharging her duty of care to the claimant’s colleague.

[362]For the reasons stated I do not find that this was a detriment to the claimant. Nor did it have any link to the protected disclosures.

[363]This alleged detriment also encompassed the way that annual leave over the Christmas period was handled. As set out above, this could probably have been handled better. The contemporaneous documents show that there was a misunderstanding regarding who had agreed to what leave. This misunderstanding was rectified once it was identified. It was not an intentional detriment to the claimant. It was not a question of honouring this leave without discussion with the team. Rather, she expected the team to inform her what they had agreed amongst themselves. This is not an instance or an example of the claimant being subjected to a hostile environment. The evidence suggests that the issue of leave was handled in the way that it was more due to oversight or lack of competence on the manager’s part in communicating effectively with the whole team. There is nothing to suggest that it is in any way a response to a protected disclosure. The relevant causation is absent.

[364]As part of paragraph 5.1.2.5 the claimant also alleges that she was left to manage both inpatient and outpatient services from 23 November to March 2022 without adequate support despite telling Ms Burns how stressed she was. However, my understanding, from the evidence presented, was that the system reverted to the hotline and outpatient clinics were cancelled when Nurse A was unable to do the clinics herself. The claimant will have had to cover some extra work during Nurse A’s absence (or when steps were being taken to address performance concerns) but it is not correct to say that the claimant was doing both the inpatient and the outpatient ANP jobs during this period. I am not sure what else the respondent could have done to address this particular issue whilst Nurse A was still employed in the post and was being supported. To a large extent, this is a side effect of the concerns being raised about Nurse A’s work. All staff were going to have to pick up some of the work which was not being covered by Nurse A in this period. Nor am I satisfied that this is in any way causally related to the protected disclosures.

[365]In summary, I do not consider that the claimant was subjected to a detriment by an act or omission as described at 5.1.2.5. Nor do I think there was any causal link to the claimant’s protected disclosures. The reasons why Ms Burns handled these matters as she did have nothing to do with the protected disclosures. 5.1.2.6 stress risk assessments.

[366]Stress risk assessments may not have been a complete solution but they were never supposed to be. They were part of a range of steps that could be taken to address the issues. Asking the claimant to complete the stress risk assessment is not subjecting her to a detriment. Nor is it true to say it was done once and then forgotten- they were revisited over time. In addition, Mrs Wrench offered referral to Occupational Health and the services of the Employee Assistance Programme. The claimant says she expected regular meetings but regular oneto- ones were taking place.

[367]Mrs Wrench got involved in mid December 2021. She had a meeting with the claimant on 17 December to discuss matters. She then liaised with various people via email to check what plans were in place and tried to keep the claimant updated on that. Then the claimant escalated concerns and the issues were referred to Mrs Wrench (via Mr Smithson) around 24 January. She dealt with those on investigation. She also tried to explore mediation. So, it is not true to say that Mrs Wrench was doing nothing to support the claimant at this time. She agreed to meet with the claimant on 17 March to do her PDR, to discuss issues and to look for solutions. When the claimant came back to work in late April she expressed some concern about how Professor Jayson would act towards her and Mrs Wrench agreed to speak to him and support the claimant if she felt that she needed it. There was also a meeting on 25 May to do the PDR and catch up after sickness absence. I could continue but, suffice to say, there are plenty of contact points between the claimant and Mrs Wrench during the relevant chronology to demonstrate that Mrs Wrench was actively trying to support the claimant through a difficult period.

[368]In light of the above, I do not accept that the claimant was subjected to a detriment by Mrs Wrench as alleged in the list of issues. Nor do I accept that the way this was handled was due to the claimant having made protected disclosures. Rather, Mrs Wrench did what she could, when she could, consistent with other people carrying out their part of the process and consistent with her other workload demands. She used the available resources to the best of her ability.

[369]The allegation at 5.1.2.7 concerned Annie Dewberry. It was withdrawn by the claimant part way through the hearing. Consequently it is dismissed on withdrawal. 5.1.2.8: EPROMS meeting

[370]The allegation is that Professor Jayson was rude and obstructive towards the claimant at the meeting on 21 December 2021. Whilst the claimant’s subjective perception may have been that she was singled out because of who she was and/or the fact that she made protected disclosures, this does not reflect reality, based on the totality of the evidence. I accept Professor Jayson’s explanation for his behaviour and his account of what caused him to act in this way during the meeting. He acted as he did due to lack of sleep and the fact that there was a genuine disagreement about EPROMS on its own merits. The claimant was not singled out and this had nothing to do with the protected disclosures. I accept that the claimant left the meeting early but the meeting was conducted by Teams and so Professor Jayson would not necessarily have known whether the claimant was upset when she left the meeting. The claimant argued back on the topic of EPROMS and that is why Professor Jayson disagreed with her rather than with Sophie. There is no evidence to suggest that this had anything to do with protected disclosures or the concerns that the claimant had raised about Nurse A. The claimant accepted in cross examination that Professor Jayson’s concerns about EPROMS pre-dated the protected disclosures in this case. He had always been relatively negative about the proposal. There was a professional difference of opinion. Professor Jayson was not obliged to accept that the claimant was right about the topic under consideration. They were entitled to disagree with each other. The substance of the interaction/disagreement was not a problem. Professor Jayson’s tone/grumpiness/rudeness was the problem.

[371]In short, the only detriment here was the tone of voice, the rudeness in the way that Professor Jayson spoke to the claimant, not the substance of what was said or the substantive disagreement about clinical and procedural issues. I am not satisfied that the tone of the conversation was in any way linked to the protected disclosures. Rather, it was the combination of a genuine difference of opinion on a clinical matter where the claimant did not back down and where Professor Jayson was overtired and overstressed due to his father’s ill health and the associated lack of sleep. Whether the incident constituted a detriment or not is open to question but in any event, this part of the claim would fail for lack of the relevant causation. 5.1.9 Professor Jayson’s email to the claimant on 9 September 2022

[372]The detrimental treatment is said to be the sending of the email at [1175.] When the whole of that email is read then it is difficult to see it as an action which subjects the claimant to a detriment. It did the following things:a. Recognised that the claimant had been upset about an email interaction in relation to the treatment of a particular patient and to clarify that he had not intended to upset her. (I do not know what that email itself said and whether the claimant was justified in being upset by it. Either way, he said that he had taken the claimant’s comments on board as he very much respected her point of view.)

b. Contextualised how busy both he and the claimant were with their work and that each day threw a lot of challenges at both of them.

c. Asked the claimant not to take matters too much to heart when it was just a functional conversation about how to treat a particular patient.

d. Hoped that the claimant would feel able to tell him if something he said or did caused upset or frustration.

e. Recognised how tough the last 18 months had been for everyone.

f. Made the point that he felt that the claimant had acted in good conscience because her concerns about Nurse A were genuinely held.

g. Recognised the difficulties of raising concerns about a nurse that he had worked with for 7-8 years without difficulty but at same time acknowledged that he respected the claimant’s clinical skills and insight.

h. Tacitly admitted that he struggled to see any shortcomings with Nurse A but recognised that this was ‘his problem’ not the claimant’s.

i. Said that there was a good plan to get Nurse A’s skills and training up to standard but that it did not work out.

j. Acknowledged that Nurse A’s grievance about the claimant had been going on for too long and tried to get it resolved ASAP. Again he hoped that this would help the claimant so that it was no longer ‘hanging over her.’

k. Recognised the difficulties of being caught between managing two nurses and being fair to both of them.

l. Recognised that his hours at work had reduced and so he had not seen the claimant as much or been as available to support her as he would have been when he worked more hours. He explained the rationale for stepping back and letting Dr Salih ‘become indispensable.”

m. Recognised that the claimant’s home life may be suffering and that this was not acceptable.

n. Expressed the hope that the claimant did not go for another job, not least because it would not make best use of her intellect and clinical skills.

o. Suggested time off to recuperate and offered his support with HR.

p. Offered to meet to get things back to normal (with or without Dr Salih present.)

[373]I do not accept that this amounted to subjecting the claimant to a detriment. It was intended to support the claimant and, if read fairly, does so. It is respectful, supportive, complimentary and recognises that Professor Jayson is a human being and that he was doing his best in a difficult situation (as were a number of other individuals.) Nor do I accept that there was the necessary causal connection between the protected disclosure and the sending of this letter. The reality is that the letter was designed to address perceived difficulties within the team which arose from two nurses raising concerns or making complaints about each other and the knock-on effect this had on the team. Whether the contents of the concerns raised were protected disclosures or something else, the letter would have been sent to the claimant in order to try and smooth things over and reset the department. The fact that the claimant had made protected disclosures was not a material factor. Rather, it is the unsatisfactory atmosphere within the workplace and the fact that he was aware that the claimant was upset that led to him sending the email. 5.1.2.10 Failure of Wrench/Smithson to fully respond to the claimant’s concerns

[374]Mr Smithson asked the claimant to provide summary of events and issues and highlight those issues that she felt were unresolved. It was reasonable to see the claimant’s covering letter (which contained three questions) as being the portion of the documents which highlighted what remained unresolved and what the claimant still wanted answers to. Whilst this did not mean that the more detailed document was to be ignored, it did mean that the focus of any response would reasonably be on the three outstanding issues rather than responding to the whole of the longer document. (Particularly as some of those other details in the longer document had already been resolved and were clinical issues.) The covering letter indicated that the attachment was her narrative account of events.

[375]Whether Mrs Wrench’s s response to the concerns was exactly what the claimant wanted is not really the issue. The question is whether Mrs Wrench’s response subjected the claimant to a detriment. It did not. It provided the claimant with the answers to her questions insofar as it was possible to do so. Where steps remained outstanding this was explained and respondent’s plans to resolve the remaining issues were set out.

[376]Paragraph 5.1.2.10 of the list of issues goes on to describe the claimant’s concerns regarding dishonesty etc. but these were not the questions that Mrs Wrench was asked to respond to. If the claimant had had outstanding questions regarding dishonesty etc she could have added them to the three bullet point questions set out in the covering letter. (They are not even spelt out in the initial email to Eve Lightfoot.)

[377]In short, I do not accept that Mr Smithson or Mrs Wrench failed to fully respond to the concerns that the claimant raised on 24 January and indicated that she needed a response to. The claimant was not happy with the response but that does not mean that it was an act which subjected her to a detriment. The respondent set out its plan to deal with issues concerning Nurse A. 5.1.2.11 Janelle Yorke

[378]For the reasons set out above, the claimant’s factual allegation is not proven. She has not established her version of events and that aspect of her claim is dismissed. 5.1.2.12 Natalie Marshall

[379]The allegation as pleaded relates to feedback under the Freedom to Speak Up policy. However, on the facts as found, what Ms Marshall was actually being asked for was details of a disciplinary investigation into Nurse A. The claimant’s rights and legitimate expectations in relation to another employee’s disciplinary process would differ from those in relation to the Freedom to Speak Up Policy.

[380]Ms Marshall did not completely refuse to give feedback. Rather, she was limited in what she could say given the disciplinary nature of the process (as set out in the findings of fact above.) Ms Marshall referred the claimant to the Freedom to Speak up Guardian and checked the correct position with Sue Mejoob herself. That is to say, she checked whether her interpretation of what she could share with the claimant was correct. She would only share recommendations which were directly relevant to the claimant.

[381]In light of the above, I do not consider that the claimant was subjected to the detrimental treatment she alleges. Some feedback was given, consistent with duties of confidentiality. Feedback was not refused but there were limitations on what Ms Marshall could do in the circumstances.

[382]In any event, causation was not established. I am satisfied that Ms Marshall would have acted in the same way irrespective of whether the disciplinary investigation had been triggered by protected disclosures or by something else entirely. She was following the requirements of the policy. There is no causal link between the protected disclosure and the alleged detriment. 5.1.2.13 Jackie Wrench and the outcomes of the investigation into Nurse A’s grievance

[383]The claimant had received an outcome letter in relation to Nurse A’s grievance [1198]. This told her that there was no case to answer and that it would go no further. For example no further action, such as a disciplinary, would be taken against the claimant. The outcome letter told the claimant what she needed to know and what she had a right to know. Apart from this, it was Nurse A’s grievance and the full outcome was for her, as the person raising the grievance.

[384]The claimant said that she wanted the outcome of investigation [1599] but she had received that. The claimant said that she wanted to know about any action that would be taken. However, as the grievance was not upheld it was apparent that no action would be taken in relation to the grievance. In reality, the claimant seemed to seek feedback in relation to the management response to her whistleblowing and a commentary on what mistakes were made. But that is not what Nurse A’s grievance was about.

[385]In any event, Mrs Wrench set out the incidental findings in writing and this is what was discussed at the meeting. Therefore, it is not true to say that Mrs Wrench refused to share the outcomes of the investigation with the claimant at the meeting. She confirmed the next steps to improve the response to concerns if they were raised in future. However, given the purpose of the grievance investigation, it is perhaps not surprising that this was all that there was for her to share with the claimant. Mrs Wrench spoke to HR for advice and confirmed anything what else she was at liberty to share with the claimant. At the same time the claimant was shifting focus from Nurse A’s grievance to her own complaints about how her protected disclosures had been addressed.

[386]In light of the above I do not accept that Mrs Wrench subjected the claimant to a detriment. Some feedback was provided both at the meeting and, later, in writing. This was done in line with what HR had said Mrs Wrench could do. I also find that the necessary causation is not established. Mrs Wrench took this approach because this is what HR told her was in line with the purpose and scope of the policy and consistent with duties of confidentiality. The fact that the claimant had made protected disclosures did not have any impact on the amount of feedback. The feedback was governed by policy and the fact that this was Nurse A’s grievance, not the claimant’s. 5.1.2.14 refusal to submit information to the NMC

[387]As set out above, there was no refusal. Mrs Wrench provided the information that she was asked for when she was asked for it. She did not lie about it. The claimant’s factual allegations have not been proved. Consequently, the detriment asserted by the claimant has not been established.

[388]The only reason Mrs Wrench did what she did was because she was acting in accordance with the NMC’s request. She was providing what she thought she was being asked for. I have no reason to think that Mrs Wrench would have withheld the correct information if the NMC had got the terms of its request correct. I am satisfied that she would have done as she was asked by the NMC, irrespective of any protected disclosures by the claimant. (Indeed, Mrs Wrench was still a nurse with her own NMC registration too.) 5.1.2.15 Asking the claimant what she wanted to achieve

[389]I refer to the transcript and my findings of fact. The wording used is different to that alleged by the claimant. The meaning of Mrs Wrench’s comment is clear, even without amplification. Mrs Wrench was asking what the claimant’s preferred resolution was. The is a common question to ask when someone initiates a complaint or raises concerns. It is an open question in an attempt to understand what the claimant wanted from the process. What resolution or outcome was she looking for? It cannot be seen as a detriment.

[390]In light of the above, I have concluded that none of the detriment complaints listed under “D2” succeed. All are dismissed.

[391]There was no “D3” in the agreed list of issues. D4: exclusion from emails on 5 January 2022

[392]In line with my findings of fact as set out above, this factual allegation was not proven. Consequently this allegation must fail and be dismissed. D5: 7.5 hours of funding

[393]As noted above, the claimant withdrew this allegation part way through the final hearing. Therefore, this complaint of detriment must be dismissed on withdrawal. D6: Told to work her notice from home.

[394]This is the allegation that the claimant was told, during a phone call on 9 November, that she should not attend work any longer and that she should work her notice from home.

[395]The findings of fact I have made above do not support any suggestion that there was an instruction or an unwelcome suggestion from the respondent to the effect that the notice period should be worked from home. Rather, the respondent was showing concern for the claimant’s wellbeing and this was in accordance with what the claimant said she wanted. Further, the claimant could choose to come back into work if she wanted. The respondent sought to accommodate the claimant’s preference. It is not a detriment and it is not caused by a protected disclosure. Rather, it was a response to the claimant’s indicated state of health and wellbeing at the relevant time. D7: handing in the resignation

[396]As a matter of law, this detriment is more properly considered in the automatically unfair dismissal claim, applying the applicable legal principles for automatic unfair dismissal rather than protected disclosure detriment. I do not address this further in this section of the tribunal’s reasons. D8 the detriments connected to Newsnight

[397]I have already addressed this part of the case in my conclusions above in relation to the protected disclosure itself. In light of my conclusions there, this part of the claim must fail and be dismissed. Automatically unfair dismissal because of protected disclosures

[398]For clarity, the claimant has not established that there was a constructive dismissal in this case. Nor has she established the protected disclosure detriments that she relies upon. Any alleged repudiatory breach of contract has not been established and nor has the link between any repudiatory breach of contract and the alleged protected disclosures. In such circumstances, the claimant’s claim of automatically unfair dismissal cannot succeed. Approved by: