Mr C Waters v Unified Care Services Ltd: 2500100/2024
JUDGMENT
[1]The claimant’s complaint of automatic unfair dismissal pursuant to s.103A Employment Rights Act 1996 is dismissed upon withdrawal by the claimant.[2]The claimant’s complaint of detriment pursuant to s.47B Employment Rights Act 1996 is not well founded and is dismissed.REASONS
[1]By claim presented on 21 January 2024, the claimant made a complaint of automatic unfair dismissal, and detrimental treatment on the ground that he had made a public interest disclosure. The case management hearing on 30 May 2024, the claimant confirmed that his complaint was confined to the circumstances of his dismissal, and he withdrew his other complaints.[2]The issues for the Tribunal to determine were discussed at the outset of the hearing and agreed as set out in the appendix.[3]The tribunal received written and oral evidence from the claimant and for the respondent from Gillian Crake Head of Operations and Martyn Campbell (Managing Director). The hearing bundle was agreed and comprised of 345 pages.[4]Neither party sought reasonable adjustments to the procedure but were offered and took breaks when sought. Both parties consented in writing to the matter being heard by a Judge sitting alone.Background
[5]The claimant commenced employment as a support worker for the respondent on 5 June 2023. The respondent provides a specialist service caring for and supporting young people with complex needs including those displaying aggressive tendencies and behaviours and who are unable to find other integration methods that support their individual needs. Case Number: 2500100/2024[6]The claimant was placed in a team of 4 support workers supporting AB. His job was to take AB to school and pick him up after school, and with others in his team, engage him in after-school activities before returning him home. The claimant’s wife, LW, who had commenced a month or so earlier, was engaged on the same team. The claimant and his wife are retired police officers. The claimant had received training during his police career in cycling, police driver training and health and safety. He had no qualifications in safeguarding but had recent experience in mentoring children with complex needs.[7]By mid-November, Dale Ganning (‘DG’) had joined the team; he was appointed team manager, in place of LW who stepped down from her role as deputy manager.[8]By 20 November, 2023, DG reported difficulties in his relationship with the claimant and LW, complaining to a member of the management team, Tanya Westgarth (‘TW’), that LW was seeking to undermine him; TW noted that she and another manager were receiving reports from the staff that the claimant was creating ‘bad feelings’. She reported this to Martyn Campbell (‘MC’) on the same day.[9]On 28, 29 and 30 November 2023, the respondent held one of a number of 3-day training courses for its workers. The course included discussion about identifying and maintaining professional boundaries as well as basic training in whistleblowing. The format of the course followed that provided to the respondent by its contract provider, Newcastle City Council (‘the Council’). TW and Gillian Crake (‘GC’) were the trainers for the event. As well as Head of Operations, GC was the respondent’s Head of Compliance and Safeguarding. The claimant attended the course with 6 other colleagues, who were not carers of AB.[10]TW was the facilitator on the first day of the training, being Tuesday 28 November 2023. During the group discussions, the claimant attempted to raise his concerns about service user AB. He was cut short by TW, who invited him to take any specific concerns about AB to GC safeguarding issues. He retorted loudly ‘this is a safeguarding issue and you need to listen to me’. On the claimant’s own account TW appeared very annoyed and irritated with him.[11]Outside, the claimant remonstrated with GC maintaining that he was making a valid point and that he was presenting a learning opportunity. He told GC that he did not appreciate being shut down by TW. GC reminded the claimant of the need for confidentiality and that if he had concerns about a young person, they should have been raised elsewhere / before. GC later described the claimant to MC as being agitated and unable to accept the guidance that he should not discuss AB inside the group setting. They discussed AB’s younger sister, whereupon GC reminded the claimant that he did not work in the home. The Case Number: 2500100/2024 claimant informed GC that he could do her job ‘standing on his head’. The claimant also said that he had the utmost respect for GC. The claimant commented about his attempts to upskill his wife, whereupon GC responded that he should not be speaking about her, either. The conversation continued with GC agreeing to speak to TW about another, unconnected matter before asking the claimant if there was anything else to discuss. The claimant said he found it difficult to deal with TW because of her managerial style, using his own wife as an example of a member of staff who was unhappy with TW. He told GC that he had been a sergeant in the police and could do TW’s job better than her, and that he was prepared to assist TW with her interpersonal skills if she asked him to.[12]Later that same day, during the training session conducted by GC, she noted that the claimant appeared to be disrespectful and condescending in his attitude, talking over other participants, pushing back on their contributions, and wanting to talk about his own specific experiences with AB.[13]The purpose of the training on the first day was to show that adults do not always understand children, especially those with learning disabilities who have difficulties expressing their needs verbally and may demonstrate their emotions in a different way. Topics for discussion were designed to explore emotional connections between the staff and young people. The object was to prompt staff to recognise the emotional and behaviour of young people in care, including by recognising their own behaviour to enable them to attune to the signs of behaviour in a young person. Specific discussion topics included: “look at situations where boundaries been crossed in the past (personally or professionally) . . What sort of behaviour really winds you up? . . What situations do you lose your cool and get angry?”[14]All attendees were encouraged to participate in the discussion points, one of whom was ST. She made comments during the group session and continued to do so during the break time. The comments were made in front of colleagues, including TW, but not in the presence of GC. ST had a previous career, in the military, though this was her first role since leaving and, like the claimant and his other colleagues, she had passed an enhanced DBS check in order to take up her post.[15]On the evening of Wednesday 28 November 2023, MC conducted a telephone meeting with TW and GC, to discuss the day’s training. They discussed various participants. Of the claimant, TW informed MC that the claimant was not engaging and was being deliberately obstructive. GC reported to him that the claimant had told her that he could carry out the training better than her, that he had informed her that his wife could not do her job and that she had informed him that that was inappropriate for him to say. She told MC that she felt she had to defend her position and that she was unhappy with the claimant’s attitude Case Number: 2500100/2024 towards her. GC reported that TW was unhappy with his negativity and was bringing the training down.[16]GC confirmed her intention to speak with the claimant in the morning. They were concerned that the claimant was demonstrating that he was unreceptive to training and reflection. It was important to the senior management team that members of staff are able to work cohesively, under high pressure circumstances since division amongst them can impact on the service user.[17]MC took the view that the claimant resisted being managed, was domineering and inflexible. AB was due to transfer to another setting and he did not want the claimant to be placed with another child because of the claimant’s attitude towards senior management. Having taken on board the views of TW and GC, MC decided that the claimant could not continue in his post and that he would report to the finance director regarding his decision to terminate the claimant’s contract, to allow him to prepare for the payroll implications of his decision. He directed that the senior management team was to review the rotas in the morning to identify the claimant’s final shift.[18]MC made a contemporaneous note of the discussion in his Outlook application; in evidence GC confirmed it reflected their discussion. In his own evidence, the claimant confirmed that he did not challenge the contents of the note, albeit subsequently when the significance of the note was explained to him by the Tribunal, he asserted his opinion that it had been fabricated for the purposes of the litigation. Having heard from two of the three persons involved in the meeting (the third, TW, having since left employment), I am satisfied that the note is a genuine and contemporaneous note.[19]It was a further 7 days before the claimant was informed of the decision to dismiss him, however. I am satisfied that the reason for the delay was that management time was stretched to capacity; they were occupied in delivering the training courses, finalising Christmas staffing rotas and managing the current staffing rota with depleted staff numbers.[20]GC did not, in fact speak to the claimant the following morning. Instead, at 6:40pm on Thursday 29 November 2023, the claimant sent an email to GC headed ‘Behaviour’. He stated that his colleague ST had made several comments in front of both TW and GC, and criticised the response he said TW made to those comments. He stated ‘I know we discussed the whistleblowing policy and I feel this disclosure may well [fall] within it as it will have a detrimental impact on how I’m treated if it were to be mentioned that I was the source’.[21]In agreed evidence, GC opened the email the following morning, 30 November 2023, during training and within sight of the claimant. During a break in the Case Number: 2500100/2024 training delivered by TW, GC asked the claimant to have a discussion with her and he confirmed he was happy to discuss the contents of the email.[22]The claimant stated that his concerns related to ST’s swearing, which he did not like. He said he felt everyone should have challenged her a lot more, when asked to specify in relation to what exactly his concerns were in relation to the swearing. GC confirmed she had not been present to hear the swearing, because some participants remained in the training room during the break. GC confirmed that the purpose of the training was to explore emotional connection and to ensure that people felt relaxed enough to connect with and express their emotions to try to understand a young person’s perspective. She confirmed that ST would be spoken to that same morning. He said he now understood the context in which the comments were made and he shook GC’s hand. When asked whether he wanted to speak to anyone further, he replied no; in evidence the claimant confirmed that his view was that whatever the respondent wished to do with the information was a matter for them. When asked whether he was sure, he said yes. He said he respected GC and that she had helped his wife. GC believed the matter had been resolved to the claimant’s satisfaction.[23]GC made a contemporaneous note of the discussion; the claimant does not dispute that GC made a note of their discussion. The note bears an erroneous date, 30 December, rather than 30 November, because GC at the time was in the process of designing the Christmas rotas. In any event, when taken through the note, line by line, the claimant did not disagree with the relevant parts of its contents and nor does it materially differ from a note of that conversation that the claimant made several days later and in which, it is of note, that the claimant says he again made several detailed observations about the apparent shortcomings of the training course, the trainers, their apparent lack of qualification and preparedness.[24]On 6 December 2023, MC received further information from DG. He said the claimant had been ‘bragging about giving senior management both barrels . .and how the training was ridiculous and that he himself has a strong background in training and it was embarrassing to see unqualified people taking these training sessions’. He said the claimant told him on numerous occasions that things ran smoothly before DG arrived on the team. DG’s colleague said that she found the claimant ‘very intimidating’ and that he made her uncomfortable, ‘pushing knowledge onto you and he has no respect for senior management’. She said she preferred not to work the same shift as him. The information confirmed MC’s decision.[25]On 6 December, MC and TW called C to inform him of the decision. The claimant, whose wife had been dismissed some hours earlier, decided to covertly record the conversation for reasons that were not compelling. Case Number: 2500100/2024[26]MC said that he had made the decision to let him go because of his conduct and that there was ‘too much conflict’. The claimant responded, in a manner that MC later described as akin to an ‘interrogation’, by pressing MC ‘man to man’ to accept, repeatedly, that the reason for the decision was that the claimant had, in his opinion, made a public interest disclosure. MC repeatedly denied it.[27]For the avoidance of doubt, no part of the respondent’s decision to dismiss the claimant was about his ability to care for AB which, as MC and GC explicitly acknowledged in their evidence, was good.[28]The day after the claimant was dismissed by MC, he sent a lengthy email to the Local Authority Designated Officer (‘LADO’) at Newcastle City Council. He said he did not know whether he was raising a safeguarding issue. It contained several matters that were at variance with what he told his employer or what was contained in his claim form and his witness statement.[29]The referral by the claimant triggered two investigations by the respondent, both at the Council’s request. Four people were interviewed in addition to ST, GC and TW. In the first investigation, when general questions were asked of the participants about whether they observed any inappropriate conduct, the majority of them responded with a reference to the claimant’s conduct. In the second investigation, when three specific matters were asked of them, there were varying states of recollection, but no one understood ST to be making comments outside of the training context, or presenting anything to give rise to concern. Several ‘additional comments’ were made however, about the claimant’s conduct as well as a comment praising GC’s handling of the claimant’s repeated attempts to intervene by raising matters specific to AB. ST’s suspension was eventually lifted, NCC having endorsed, eventually, the recommended outcome.The Law
[30]Section 43B Employment Rights Act 1996 defines when a disclosure amounts to a protected disclosure.[31]Section 103A provides that an employee who is dismissed is to be regarded as automatically unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.[32]The reason for a dismissal is the set of facts known to, or beliefs held by, the employer which cause him to dismiss: Abernethy v Mott, Hay and Anderson [1974] IRLR 834, CA.Discussion and conclusions
[33]It is for the claimant to prove that he made protected disclosures; it is for the respondent to prove that the principal reason for the dismissal was not that the Case Number: 2500100/2024 claimant had made a protected disclosure. For the reasons that follow, I have not considered it necessary to make any findings as to whether any disclosures made by the claimant were protected disclosures.[34]On the findings of fact above, the decision to dismiss was arrived at a day before the email which he contends contains public interest disclosures was sent by the claimant and two days before it was read by GC. The Outlook note confirms the finality of the decision that I have found was made on the evening of 28 November 2023, whereas the email that the claimant claims contained public interest disclosures was not sent until the evening of 29 November 2023 nor read until the morning of 30 November 2023. For that reason alone, any subsequent public interest disclosure (if made) could not have operated on the mind of MC, when he made his decision to dismiss the claimant on 28 November 2023.[35]A week passed, however, between the decision to dismiss being made and that decision being communicated to the claimant; he was not informed of the decision until 6 December 2023. I considered whether the reason had changed in the intervening time; after all, the claimant had possibly made a public interest disclosure in the meantime. The respondent has satisfied me that its decision to dismiss, even when communicated to the claimant on 6 December 2023, remained untainted by any public interest disclosure made by the claimant by email on 29 November 2023 (assuming the email contained such a disclosure). First, whatever the claimant and GC believed was contained in the email of 29 November, when specifically asked, the claimant said he was concerned about the level of swearing by ST and the lack of any challenge to it, and each of them in their evidence confirmed that by the end of their discussion, they were individually satisfied that the matter had been resolved to the claimant’s satisfaction. Second, by the time the call was made to the claimant, DG produced further information which, as MC confirmed in evidence, served to confirm the reason for his decision. Finally, during the call on 6 December 2023, MC was repeatedly asked by the claimant to accept that there was a connection between his (alleged) disclosures and his dismissal; despite being unaware of the claimant’s recording of the call, MC maintained that the two were entirely unconnected. Indeed, nowhere in the transcript produced by the claimant, was he able to identify any passage or phrase used by MC which might undermine the respondent’s case.[36]In summary, I conclude that the reason for the claimant’s dismissal, on the date the decision was made i.e. 28 November 2023 and on 6 December 2023, being the date on which the decision was communicated to the claimant was wholly and exclusively about the claimant’s reported inability to work harmoniously with his own colleagues and without undermining management.[37]In the circumstances, it is not necessary to consider whether the contents of the claimant’s email on 29 November 2023 amounted to one or more protected Case Number: 2500100/2024 disclosures, although I was satisfied that all the comments made by ST were made in the context of a training session in which attended were invited to explore their emotional boundaries.[38]The reason for the decision to dismiss the claimant, when made on 28 November 2023 and also when communicated to him on 6 December 2023, was not that he had made a public interest disclosure. The complaint is not well founded. _____________________________ Employment Judge Jeram _____________________________ Date: 17 December 2024 Case Number: 2500100/2024 Appendix – List of Issues Dismissal as a DetrimentDiscussion and conclusions
[1]R accepts that C was a worker at all material times.[2]R accepts it dismissed C and that this amounts to a detriment.[3]Was the dismissal done on the ground that C made one or more of the following alleged protected disclosures? Protected Disclosures Disclosure 1Discussion and conclusions
Discussion and conclusions
[1]C to identify what was written on 29 November to GC: She mentioned her 5-year old niece that she would happily slap as she is annoying.[2]C to establish that those words amount to a disclosure of information: That RB may assault service users.[3]C is to establish that:a. He believed that a criminal offence1 has been committed, is being committed or is likely to be committed; andb. His belief was reasonable.[4]Alternatively, C is to establish:a. he believed the disclosure tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation2; andb. his belief was reasonable[5]Alternatively, C to establish thata. He believed that the disclosure tended to show that the health and safety of any individual has been, is being, or is likely to be endangered; andb. His belief was reasonable;[6]C must establish thata. He believed that the disclosure was made in the public interest; andb. His belief was reasonable;[7]The parties agree that any disclosure, if found, was made to C’s employer. Disclosure 2Discussion and conclusions
Discussion and conclusions
[1]C to identify what was written on 29 November to GC: The second occasion was her self-confessed inability to self-control with road rage incidents. Happily, she has stopped punching walls after she turned 30 but still finds herself getting out of the car to remonstrate with drivers who eff her off.[2]C to establish that those words amount to a disclosure of information? RB still gets out of her car to remonstrate with drivers who eff her off[3]C to establish that: a. He believed that a criminal offence3 has been committed, is being S.39 CJA 1988 S.11 CA 2004[3]S.39 CJA 1988 (has been committed and is likely to be committed, only), s.5 POA 1986 (is likely to be Case Number: 2500100/2024 committed or is likely to be committed; and b. His belief was reasonable.[4]C to establish that:a. he believed the disclosure tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation4; andb. his belief was reasonable[5]Alternatively, C to establish thata. He believed that the disclosure tended to show that the health and safety of any individual has been, is being, or is likely to be endangered; andb. His belief was reasonable;[6]C must establish thata. He believed that the disclosure was made in the public interest; andb. His belief was reasonable;[7]The parties agree that any disclosure, if found, was made to C’s employer. Disclosure 3Discussion and conclusions
[1]C to identify what was written on 29 November to GC: Today on two occasions she has made inappropriate and concerning comments that yourself and Tanya didn’t challenge at the time[2]C to establish that those words amount to a disclosure of information: GC failed to act on concerns communicated to her[3]C to establish either thata. he believed the disclosure tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation5; andb. his belief was reasonable[4]Alternatively, C to establish thata. He believed that the disclosure tended to show that the health and safety of any individual has been, is being, or is likely to be endangered; andb. His belief was reasonable;[5]C must establish thata. He believed that the disclosure was made in the public interest;b. His belief was reasonable;[6]The parties agree that any disclosure, if found, was made to C’s employer. Disclosure 4Discussion and conclusions
[1]C to identify what was written on 29 November to GC: Today on two occasions she has made inappropriate and concerning comments that yourself and Tanya didn’t challenge at the time / This was laughed at by Tanya / This was greeted with a ‘don’t let me get into a car with you’ by Tanya[2]C to establish that those words amount to a disclosure of information: Tanya committed, only) S.11 CA 2004[5]S.11 CA 2004 Case Number: 2500100/2024 failed to challenge RB when RB made inappropriate comments 3. C to establish either thata. he believed the disclosure tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation6; andb. his belief was reasonable 4. Alternatively, C to establish that a. He believed that the disclosure tended to show that the health and safety of any individual has been, is being, or is likely to be endangered; and b. His belief was reasonable; 5. C must establish that a. He believed that the disclosure was made in the public interest; and b. His belief was reasonable;[6]The parties agree that any disclosure, if found, was made to C’s employer. Disclosure 5[1]C to identify what was written on 29 November said to GC on 30 November 2023: It will have a detrimental impact on how I’m treated if it were to be mentioned that I was the source[2]C to establish that those words amount to a disclosure of information: All members of staff heard both comments and no staff member did anything about it[3]C to establish either thata. he believed the disclosure tended to show that a person had failed, was failing or was likely to fail to comply with a legal obligation7; andb. his belief was reasonable[4]Alternatively, C to establish thata. He believed that the disclosure tended to show that the health and safety of any individual has been, is being, or is likely to be endangered; andb. His belief was reasonable;[5]C must establish thata. He believed that the disclosure was made in the public interest; andb. His belief was reasonable;[6]The parties agree that any disclosure, if found, was made to C’s employer. 6 S.11 CA 2004 S.11 CA 2004