Mrs J Smith v Crown Care V Ltd: 2500057/2017
JUDGMENT
It is the judgment of the Tribunal that the claim of automatic unfair dismissal by reason of having made a protected disclosure contrary to section 103A Employment Rights Act 1996 fails and is dismissed.REASONS
[1]By claim form filed on 1 February 2017 the claimant brought to the Tribunal a claim of automatic unfair dismissal contrary to section 103A of the Employment Rights Act 1996 (“the 1996 Act”) arising out of her dismissal by the respondent on 10 October 2016. The claimant relied on an early conciliation certificate on which Day A was shown as 9 December 2016 and Day B as 9 January 2017.[2]By a response filed on 2 March 2017 the respondent denied liability to the claimant and asserted the claimant was dismissed (page 26) for “some other substantive (sic) RESERVED JUDGMENT Case Number: 2500057/2017 reason” namely the irretrievable breakdown of her relationship with her Line Manager Donna Dove. Within the response the respondent requested further particulars of claim from the claimant and these were provided on 28 March 2017.[3]On 30 March 2017 this matter came before Regional Employment Judge Reed when case management orders were made and in particular the claimant was ordered to provide further information to the respondent and to the Tribunal in relation to the alleged protected disclosures on which she sought to rely. Those further particulars (pages 31-33) were provided on 20 April 2017.[4]On 17 May 2017 the respondent filed an amended response to the claim (pages 34- 40). On 13 June 2017 the claimant made an application to amend the claim form namely the sixth paragraph of page 7 of the claim form (page 7) by deleting reference to the CQC and substituting reference to the Northumberland Clinical Commissioning Group. It was directed that that application should be dealt with at the start of the final hearing.[5]The matter came before me on 19-22 June 2017. The application to amend referred to above was made at the start of the hearing. There was objection from the respondent. I heard submissions from counsel. I considered the leading authority on amendment namely Selkent Bus Company Limited –v- Moore 1996 ICR 836. I balanced the prejudice and hardship of allowing or refusing the amendment and, having done so, determined that the balance lay in allowing the amendment. I announced that decision orally. The fourth day of the hearing concluded in the afternoon and I decided to reserve judgment given the detailed matters which I needed to review in order to reach a decision in this case. Accordingly this judgment is issued with full written reasons in accordance with rule 62(2) of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013. I explained to the parties that in light of my then forthcoming commitments, it would be some weeks before I could finalise this Judgment. I issue this Judgment with full reasons only after having carried out my full review of all matters raised. Witnesses[6]In the course of the hearing I heard from the following witnesses:- Claimant6.1 Jan Smith – the claimant.6.2 Jenny Nelson – a former colleague of the claimant when employed by the respondent and who herself worked with the respondent from January 2016 until her resignation in January 2017.6.3 Anne Fitzsimmons – who was a colleague of the claimant and who worked with the respondent from September 2016 until her resignation on 30 November 2016. Respondent6.4 Denise Ann Stephenson (“DS”) – a managing director of the respondent.[7]I had before me a bundle of documents which originally comprised 149 pages but as the hearing progressed additional pages were added and ultimately contained 187 pages. Any reference in this Judgment to a page number is a reference to the corresponding page within the agreed bundle.[8]Issues Factual issues8.1 There were various factual issues for me to determine in this matter and I do so in the findings of fact which follow. Legal issues8.2 The legal issues were identified as follows:- In respect of each of the seven alleged protected disclosures:-[1]What did the claimant disclose, to whom and when? Did anything disclosed amount to information?[2]If so, was the disclosure a qualifying disclosure? Did the claimant have a subjective belief that the disclosure was in the public interest and that it tended to show that one or more of the circumstances in section 43B(1)(a)-(f) of the 1996 Act was made out? Which paragraph of section 43B(1) is relied on in relation to each such disclosure?[3]If so, in relation to each subjective belief, was that belief objectively reasonable?[4]If the disclosure is a qualifying disclosure, did it become a protected disclosure by reference to one or more of sections 43C-43H inclusive of the 1996 Act?[5]The following were said to amount to protected disclosures:-5.1 In late August 2016 or within days of Donna Dove (“DD”) taking up her new role, a verbal disclosure by the claimant to Steven Massey (“SM”) that DD was not a qualified Nurse and that the claimant was the only member of staff with a nursing qualification;5.2 Within a few days of DD being interviewed in July 2016, verbal disclosure by the claimant to Denise Stephenson (“DS”) that DD was not a qualified Nurse;[6]On whom does the burden lie to prove the reason for dismissal? If the claimant, can the claimant show that the principal reason for her dismissal was one or more of the protected disclosures? Is it sufficient that the respondent erroneously believed that the claimant had made a protected disclosure to the Care Quality Commission (“CQC”) to found liability for the respondent under section 103A of the 1996 Act?If the burden of proof lies on the respondent, has the respondent proved its stated reason for dismissal being the irretrievable breakdown in the relationship between the claimant and DD which it labelled as” some other substantial reason”.[7]If the claimant was unfairly dismissed, what remedy does the claimant seek?[8]Has the claimant taken reasonable steps to mitigate her loss? If not, had the claimant taken reasonable steps to find employment, when within the period since dismissal would the claimant have obtained employment and at what rate?[9]Should there be any award for future loss? Was the decision for the claimant to surrender her registration with the Nursing and Midwifery Council reasonable? What effect does that have (if any) on any compensation to be awarded?[10]Given that the claimant resigned on 2 September 2016 and had to be persuaded to remain employed on 16 September 2016, would her employment have continued after the date of dismissal in any event? If so, for how long?[11]Were any protected disclosures made by the claimant made in good faith? If not, is it just and equitable to reduce any award to the claimant by no more than 25%? Findings of fact 9. Having considered carefully the written evidence and the cross examination of the various witnesses and having considered the way in which that evidence was given and having considered the documents to which I was referred, I make the following findings of fact on the balance of probabilities:-9.1 The claimant was born on 28 September 1963. The claimant is a very experienced nurse having worked within a hospice and as a Community Staff Nurse and a District Nursing Sister. Amongst many other qualifications, the claimant holds two B.Sc. degrees in nursing.9.2 The respondent company is a family run established operator and developer of care homes for the elderly which owns approximately 17 such homes. The respondent acquired the site of what became the Royal Hampton Care Home (“the Home”) in 2011 and the Home opened for business in February 2016.9.3 The respondent company has a Code of Conduct and Disciplinary Procedures (pages 46a-46i) but at no time was the claimant ever subject to such procedures.9.4 The claimant began work for the respondent on 4 January 2016 after a successful interview in September 2015. The claimant was employed as Deputy Manager of the Home. The Home provided both residential care and also nursing care to those residents in need of such care including residents suffering from dementia and other mental impairments. The claimant was employed from 4 January 2016 until her dismissal on 10 October 2016. The claimant had relatives living in the Home and thus was a customer/user of the respondent as well as being an employee.9.5 The claimant had a written contract of employment (pages 60-70) which provided that the claimant had to work a probationary period for six months and continued (page 63):- “Your employment may be terminated by the company during or at the end of the probationary period upon providing you with one week’s notice and without reference to RESERVED JUDGMENT Case Number: 2500057/2017 the disciplinary and grievance procedures. The probationary period may be extended by the Company for the better assessment of your performance”. The claimant completed her probation period in early July 2016 and the period was not extended. No issues were ever raised in relation to the quality of the claimant’s work which was accepted by all parties as outstanding.9.6 On taking up her post, the claimant first she worked with the Annette Denson who was the first manager of the Home and she did so without difficulty. The Home was newly built with excellent facilities and the claimant shared the aim of the manager to make the Home “like no other”. In June 2016 Annette Denson resigned due to ill health and for a period of some weeks the claimant acted up as manager until a temporary manager was appointed namely Shiva Sheikholeslami (“SS”) with whom the claimant also enjoyed a good working relationship.9.7 On 21 July 2016 (page 71) the claimant sent an e-mail to ML supporting SS and seeking to persuade ML to retain SS as Manager at a time when her temporary appointment was coming to an end. By that time a new permanent manager of the Home - DD- had been appointed and was due to start work at the Home on 23 July 2016 and did so. SS then ceased to work at the Home.9.8 On 1 August 2016 or thereabouts Steven Massey (“SM”) was appointed a managing director by the respondent company and took on responsibility for the respondent’s homes in the North East of England including the Home. SM worked closely with DS who became a managing director of the respondent with responsibility for the homes in Yorkshire and elsewhere.9.9 DD took up her duties on 23 July 2016 and at a staff meeting in early August 2016 she introduced herself as the new Manager of the Home and took over from the claimant the preparation of the staff rotas. DD made changes to those rotas and in particular the level of staff assigned to each shift without any consultation with the claimant or the then existing staff. DD made regular use of agency staff to cover gaps in the rota and the residents of the Home began to complain that they did not like so many new faces appearing in the Home. The Home was newly opened and it had capacity for 73 residents across residential and nursing beds but at all material times – given that the Home was newly opened - the residents numbered no more than 20.9.10 During the early part of August 2016 the claimant had a conversation with SM during the course of which the claimant advised SM that DD was not a qualified Nurse and that she (the claimant) was the only member of the senior team within the Home with a nursing qualification in a care home with residents with specific and complex medical needs on the nursing floor. By this time the relationship between the claimant and DD had become strained and already within the Home, concerns were being expressed by staff and residents alike about the management style of DD. DD had overruled the claimant’s nursing assessment in respect of at least one patient and the claimant objected to that, given that DD was not a qualified Nurse.9.11 In August 2016 and at a point in time prior to the conversation with SM referred to above, the claimant had a conversation with DS during which she made similar complaints which she was later to make to SM as referred to in paragraph 9.10 above.Findings of fact
[12]The law Protected Disclosure Dismissal Claim - Section 103A of the 1996 Act12.1 I have reminded myself of the detailed provisions set out in Part IVA of the 1996 Act in relation to protected disclosures.12.2 In particular I have reminded myself of the provisions of section 43B (1) of the 1996 Act which read:- "(1) In this part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker making the disclosure, (is made in the public interest and) tends to show one or more of the following - (a) that a criminal offence has been committed, is being committed or is likely to be committed; (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject; (c) that a miscarriage of justice has occurred, is occurring or is likely to occur; (d) that the health or safety of an individual has been, is being or is likely to be endangered; (e) that the environment has been, is being or is likely to be damaged; or (f) that information tending to show any matter falling within any one the preceding paragraphs has been or is likely to be deliberately concealed".12.3 The definition of a qualifying disclosure breaks down into several elements which the Tribunal must consider in turn. Disclosure12.4 I have reminded myself of the decision in Cavendish Munro Professional Risks Management Limited - Geduld 2010 IRLR 37 (“Cavendish Munroe”) and the guidance from Slade J to the effect that there is a distinction to be drawn between "information" being provided and an "allegation" being made. The latter will not qualify as a disclosure for the purposes of section 43(B)(1). I note the distinction between these two concepts has been diluted somewhat by the decision in Kilraine -v- London Borough of Wandsworth 2016 IRLR 422 and I must be careful not to be too easily seduced into asking whether the alleged disclosure was one or the other given that they are often intertwined. I remind myself that simply voicing a concern, raising an issue or setting out an objection is not the same as disclosing information. I note that a communication - whether written or oral - which conveys facts and makes an allegation can amount to a qualifying disclosure.