Miss C Evans v Springbank House Ltd T/a Cliff House Care Home: 2601192/2016

EMPLOYMENT TRIBUNALS

Case No 2601192/2016

Between

Miss C EvansClaimant

Springbank House Ltd T/a Cliff House Care HomeRespondent

Before

Employment Judge Milgate

Members

Mr A Beveridge

Ms H Andrews

Date 28 February 2018

JUDGMENT

[1]The Claimant was unfairly dismissed by the Respondent contrary to Section 103A Employment Rights Act 1996.

[2]The Claimant’s claim for breach of contract (notice pay) succeeds.

[3]The Claimant was subjected to the following detriments contrary to section 47B Employment Rights Act 1996 (‘ERA 1996’):-(a) moving her shift from the morning to the afternoon shift on 28 October 2015;

(b) withdrawal of her shifts for the week beginning 2 November 2015; Case number: 2601192/16

(d) provision of a misleading reference; and

(e) refusing the Claimant a right of appeal.

[4]The other claims alleging detriment contrary to section 47B ERA 1996 fail and are dismissed.

[5]Full reasons will follow shortly.

REASONS

FOR RESERVED JUDGMENT Judgment having been sent to the parties on 19 February 2018, upholding the majority of the Claimant’s claims, the Tribunal’s reasons are set out below. A The Claims

[1]By her claim form, presented to the Tribunal on 28 April 2016, the Claimant brings the following complaints which arise from her employment at the Respondent’s care home and her subsequent dismissal:-1.1 seven complaints that she had been subjected to a detriment by the Respondent contrary to Section 47B Employment Rights Act 1996 on the ground that she had made a series of protected disclosures; Page 1 of 40

1.2 a complaint that she had been automatically unfairly dismissed for by reason of making the said disclosures contrary to Section 103A Employment Rights Act 1996;

1.3 a complaint of “ordinary” unfair dismissal contrary to Section 94 Employment Rights Act 1996; and

1.4 a claim for wrongful dismissal (for notice pay). The issues to which these claims give rise are set out in parts D to H below.

[2]The claim form also contained a claim for holiday pay. This claim was conceded by the Respondent and a sum of £562.24 was paid to the Claimant during the hearing by way of settlement of this element of the claim. B Evidence

[3]The Tribunal heard evidence from the Claimant and from her union Representative, Mr Simon Cadman. For the Respondent we heard from Mrs Lisa Beech and Mrs Margaret Seldon. Mrs Beech was acting manager of the Cliff House care home, where the Claimant worked, and Mrs Seldon the owner. Mrs Beech attended the Tribunal pursuant to a witness order. Evidence in chief was presented in the form of witness statements which were taken as read. There was an agreed bundle of some 600 pages. We also viewed segments of CCTV footage of the ‘drugs round’ which took place on the morning of 30 October 2015, during which medication was dispensed to residents of the care home.

[4]Written submissions were provided by both representatives. These were supplemented by oral submissions on the last day of the hearing. Ms Hodgetts (for the Respondent) made detailed submissions to the effect that the Claimant’s evidence was unreliable. However we were not persuaded that this was the case. The Claimant stood up well to cross-examination and to the extent that there were any inaccuracies or discrepancies in her evidence (and we accept there were some) we felt these were minor and did not undermine her general credibility. The credibility of the Respondent’s witnesses is discussed below in relation to specific findings of fact.

[5]Judgment was reserved. Our conclusions were unanimous. C Findings of fact

Background

[6]The Claimant, who qualified as a nurse in 1996, started work for the Respondent at its Cliff House care home as a Registered Nurse on 12 June 2013. The registered owner of the care home was Mrs Margaret Seldon. Mrs Seldon liked to be involved in the day to day running of the home and was a ‘hands on’ presence, available to staff, residents and relatives to discuss queries and deal with any concerns. Mrs Seldon’s daughter and her son Paul were also involved in the running of the home. The home looks after about 35 elderly residents.

[7]Cliff House provided residential and nursing care. (There is a document in the bundle prepared by the Care Quality Commission (CQC) which suggests that the home was registered for residential care only. However we did not hear Page 2 of 40 evidence from the author of that document and preferred the sworn testimony of Mrs Seldon to the effect that both types of care were provided).

[8]The home employed care workers and registered nurses. The Tribunal accepted that, as a general matter, care homes have considerable difficulty recruiting qualified nurses. Cliff House was no different in that regard and used bank nurses as necessary.

[9]At the time of the events in this case Cliff House did not have any in-house legal or human resources function or advice. There was no whistle-blowing policy but the home did have a detailed disciplinary procedure. This provided, amongst other things, that:- ‘…no disciplinary action will be taken against an employee until… you [have been] informed in writing of the allegations of misconduct to be addressed at the disciplinary hearing…’ The policy provided for a hierarchy of sanctions (verbal warning, written warning, final written warning, dismissal with notice) for misconduct, culminating in summary dismissal if gross misconduct was established. Gross misconduct was stated to include:- ‘grossly negligent behaviour endangering the health and safety of employees, residents or other persons…’. The disciplinary procedure also provided as follows:- ‘You will be given every opportunity to offer an explanation for your failure to meet the required standards at a final disciplinary hearing… you will be offered the right of a witness and the right to appeal against the decision to terminate your employment… You will always be given as much information as possible regarding the allegations of misconduct or any documentation detailing the shortfall in performance… that will form the basis of the disciplinary hearing. You will also be given fair and reasonable notice of the date and time of the hearing… If you wish to exercise your right of appeal you should put your reasons in writing to the owner ..within five working days of receiving written confirmation of any disciplinary decision taken against you.’

[10]The Claimant took a period of maternity leave in 2014/15 and returned to work in March 2015. At this time the manager of the home was AB (whose identity has been anonymised under Rule 50 of the Tribunal Rules 2013). Shortly after the Claimant’s return, Mrs Lisa Beech commenced employment at the home as a registered nurse. The Claimant did not know Mrs Beech but over the summer of 2015 the two women developed a friendship and sent each other texts and Facebook messages in which they would frequently discuss workrelated issues. The Claimant starts to voice her concerns

[11]Following the Claimant’s return to the workplace she became increasingly concerned about AB’s management style and its impact on patient care. It is clear from the Facebook messages passing between the Claimant and Mrs Beech that Mrs Beech had similar concerns.

[12]Towards the end of July 2015 the Claimant asked to see Mrs Seldon to Page 3 of 40 discuss the situation. The meeting took place on the evening of 30 July 2015. There was a dispute of fact over what was discussed. However we accepted the Claimant’s evidence that she raised concerns about bullying and poor management of staff by AB and also disclosed the negative impact this was having on residents’ care, giving specific examples such as rough handling of residents. We found the Claimant’s evidence about the meeting convincing for two reasons. Firstly it was corroborated by documents written shortly afterwards (such as the email correspondence between the Claimant and Emma Ball of Derbyshire social services on 29 October 2015 and the email written by the Claimant to Mrs Beech on 30 October 2015). Secondly, although her concerns about residents’ care are not reflected in the minutes of the meeting, it was entirely plausible that she would refer to this issue as it was so closely connected to AB’s management style. She was therefore unlikely to refer to AB’s poor management without also voicing her concerns about the impact it was having on residents.

[13]During the meeting Mrs Seldon, who was about to go on holiday to Spain, told the Claimant that she had had her suspicions about AB’s behaviour and that she intended to deal with the matter when she returned from holiday. There was no evidence Mrs Seldon was angry with the Claimant for raising these issues. On the contrary she appeared to be pleased that the Claimant had come forward and provided her with evidence about the situation. Later that night the Claimant sent Mrs Beech a Facebook message expressing relief that ‘we both have Margaret’s [Mrs Seldon’s] back’.

[14]Whilst Mrs Seldon was on holiday the Claimant became concerned that AB had found out that she had complained about her. Shortly afterwards the Claimant went off sick, visiting her GP on 11 August 2015. At this consultation she relayed some of her concerns about AB’s behaviour to her doctor and he advised her that the appropriate course was to make a disclosure to the CQC. The Claimant agreed but, before contacting the CQC, she telephoned Mrs Seldon in Spain to let her know what she was proposing to do and to give Mrs Seldon the opportunity to return from Spain to deal with the situation should she feel it necessary. In the event Mrs Seldon decided not to return early. There was no evidence that Mrs Seldon tried to dissuade the Claimant from contacting the relevant authorities and it appears from a Facebook message that Mrs Beech sent to the Claimant on 6 August 2015 that at this stage Mrs Seldon was supportive of both the Claimant and Mrs Beech and was giving them her ‘full backing’.

[15]As well as contacting Mrs Seldon, the Claimant also informed Mrs Beech that she was going to contact the CQC. It is clear from their messages on social media that the two women were still united in their concerns about AB’s management style and that Mrs Beech supported the Claimant’s actions. The closeness of their relationship is demonstrated by an exchange of Facebook messages on 15 August 2015 during which the Claimant told Mrs Beech that what the home needed was ‘a decent positive firm fair manager’ and that ‘if u get the job I hope you have me back after all this’. Mrs Beech responded “Of course you’ll be back…I won’t let this place [lose] any more decent nurses!!’

[16]The Claimant duly contacted the CQC by telephone on or around 14 August 2015 raising her concerns. The CQC then passed the matter to Derbyshire Social Services and shortly afterwards the Claimant was contacted by Emma Ball who was part of the Derbyshire Social Services’ Adult Social Care team. Over a number of telephone calls with Ms Ball the Claimant relayed her Page 4 of 40 concerns about what she regarded as AB’s toxic management style. She expressed the view that this created low staff morale and an abusive environment towards residents. During these calls she mentioned several patients by name, outlining specific issues of concern.

[17]As a result of these disclosures the Adult Social Care team started an investigation, meeting with Paul Seldon (Mrs Seldon’s son) on 24 August 2015. Mrs Beech also began an internal investigation.

[18]The Claimant remained off sick during August 2015 and for the first few weeks of September 2015. During this period she was still in contact with Mrs Beech on social media. Work issues (including the progress of the internal investigation) continued to be a frequent topic of discussion between them. So for example on 5 September 2015 Mrs Beech told the Claimant that that AB had been deleting documents from the computer system: ‘I happened to find her statement for social services dated 4 September in the recycle bin today…I’ve managed to screen shot the statement and when it was deleted’. Later that evening she posted:- ‘She [AB] can’t plead ignorance, she’s the manager… she deleted documents.’ Mrs Beech therefore gave the Claimant the clear impression that AB had been concealing information and submitting false evidence to Derbyshire’s Adult Social Care team. She never corrected that impression.

[19]The next day, 6 September 2016, Mrs Beech assured the Claimant that AB would be dismissed once Mrs Seldon was back from holiday. The suspension of AB

[20]On 9 September 2016 Margaret Seldon and her daughter returned from Spain. On the following day AB was suspended and Mrs Beech was promoted to Acting Manager. Despite this promotion Mrs Beech continued to contact the Claimant on social media and their exchanges continued to be amicable and mutually supportive. We accepted the Claimant’s evidence (corroborated by a document she sent to Emma Stone at the beginning of November 2015) that their discussions included the issue of staff shortages at the home.

[21]On 14 September 2014 Mrs Beech sent the Claimant (who was still on sick leave) a number of text messages updating her about the progress of the home’s investigation into AB’s behaviour. At this stage Mrs Beech believed that AB had fabricated some of the evidence sent to Derbyshire Social Services by taking photographs of residents after the events in question. She shared this information with the Claimant, telling her: ‘There’s photos of [WW’s] arm (none were taken at the time, Sam confirmed that!)…’ Her text also confirmed some information that the Claimant had gleaned from other members of staff, namely that on 21 August 2015 AB had spent all day in the office with two care workers writing reports for the investigation being carried out by Derbyshire’s Adult Social Care team. Page 5 of 40 The Meeting of 16 September 2015

[22]On 16 September 2015 the Claimant was interviewed by Mrs Seldon and her daughter Amanda as part of the home’s investigation of AB. During the meeting the Claimant reiterated her concerns about AB’s management of the home. As before both Mrs Seldon and Mrs Beech were supportive of the Claimant, so much so that when the issue of the Claimant’s return to work was discussed both Mrs Seldon and Mrs Beech tried to be accommodating, asking the Claimant which shifts she preferred to work. When she said she wanted to work all day Wednesdays and Friday mornings as regular shifts (to enable her to organise childcare for her son at nursery) this was agreed in principle. Indeed Mrs Beech, who was responsible for drawing up the rota, assured the Claimant that she would make arrangements to move a fellow nurse named Irene, who was currently working some of these shifts, to let the Claimant have her desired working pattern. As a result the Claimant believed she was being given the set hours she had requested and so rang the nursery and arranged two settling in days for her son.

[23]The next day, 17 September 2015, there was a discussion by text message between the Claimant and Mrs Beech about the Claimant’s shifts. The Claimant asked when the new rota would start, asking to be told as soon as possible so that she could sort out nursery arrangements. She made it quite clear to Mrs Beech that she could not finalise her application for a nursery place until she had a definite start date and that she could not afford a nursery place without having the set shifts. Mrs Beech gave no indication that there would be a problem and assured the Claimant that she intended to approach Irene in the next couple of days, giving every impression that she would implement the agreement reached in the meeting on 16 September 2015 and would accommodate the Claimant’s preferred shift pattern (all day Wednesday and Friday mornings) as soon as possible. The Claimant’s return to work

[24]The Claimant returned to work on 18 September 2015. For the rest of September she was given shifts compatible with temporary childcare arrangements she had managed to make, pending the introduction of the new shift rota. However it is clear from the Facebook messages between the Claimant and Mrs Beech that as the month progressed the Claimant was becoming increasingly exasperated that she had still not been told when the new rota would start.

[25]The Claimant also continued to have concerns about the standard of care being provided at the home. In particular she discovered that one resident, IS, had a severe bruise on her head and that this had been put down to a physical assault by another resident, JT. However the Claimant was sceptical about this explanation. In her experience it would have been out of character for JT to have behaved in that way. Moreover it appeared from IS’s care records that she had suffered a number of other unexplained injuries. The Claimant reported the matter to Mrs Beech. She also found that one very frail resident, PG, had not been placed on a pressure mattress whilst she had been off sick and had developed pressure sores to his sacrum and heels. As soon as she realised this was the case she ordered a new mattress.

[26]On 20 September 2015 AB resigned and subsequently got a job at another home in the area. Around the same time the two carers who had assisted AB to compile the reports for social services on 21 August 2015 also left Page 6 of 40 Cliff House and went to work at the same home as AB, as did another member of staff whom the Claimant believed had been involved in patient abuse. When the Claimant learnt of this she became concerned that these individuals would be free to continue their poor practice in another care home.

[27]Despite her return to work, the Claimant and Mrs Beech continued to contact each other via social media and by phone. On 22 September 2015 Mrs Beech repeated her allegation that AB had deleted documents from the system. One text message read as follows:- “We have recovered the documents that were deleted from the computer upstairs. I know for a fact the report about L [a resident] was altered. I have copies of all of the reports that were written on 21 August and sent to Social Services. They were deleted from the computer.” As a result of these exchanges the Claimant believed that AB had spent a day in the office falsifying statements assisted by the two care workers who had been with her that day. She also believed that Mrs Beech’s husband had been responsible for retrieving falsified documents and that these had then been stored on Mrs Beech’s home computer.

[28]The Claimant was troubled by this and on 22 September 2015 she sent Mrs Beech the following Facebook message:- “I want to ask you one question…When u said they [ie AB and the two care workers] have falsified statements to social services and they have been retrieved… is it true?’ Mrs Beech responded as follows:- “We have recovered the documents that were deleted from the computer upstairs… Why would I tell you something that isn’t true? I’ll put up with a lot Clare…but I won’t be called a liar…’ The Claimant then expressed her concern that neither the police nor Social Services appeared to have been informed about these matters. Mrs Beech responded that ‘social services have been informed about what happened’. When the Claimant went on to ask why in those circumstances AB and the two carers allegedly involved in writing the falsified statements were not being formally interviewed, Mrs Beech responded that Social Services “were informed by Margaret on Wednesday that [AB] had been suspended and others were going to be as well”. The Claimant took these comments as reassurance that Social Services had been kept fully in the picture.

[29]Until this point the text and Facebook messages between the Claimant and Mrs Beech had been amicable and mutually supportive However the exchanges on 22 September 2015 showed the first sign of strain in their relationship. However the next day the Claimant apologised to Mrs Beech. This appeared to resolve the matter and they continued to communicate amicably. The Claimant’s shifts

[30]A new shift rota was finally put in place for the week beginning 12 October 2015. By this stage the Claimant had secured a place for her son at nursery for Wednesdays and Friday mornings although, as Mrs Beech knew, she had had to pay the nursery a month’s fees (£306.00) in advance at the end of September Page 7 of 40 2015.

[31]For the next few weeks the new rota worked reasonably well. During the week beginning 12 October 2015 the Claimant was given the late shift on Wednesday 14th and the morning shift on Friday 16th. The following week she was allocated a full day shift on Wednesday 21st October and the morning shift on Friday 23 October, exactly in accordance with her wishes. The week afterwards she was allotted the afternoon shift on Wednesday 28 October and the Friday morning shift on October 30 2015. As this was not exactly what she had been promised she queried what was happening and was told by Mrs Beech that the rota would be sorted out by the following week. Indeed when the rota for the week beginning 2 November 2015 came out it showed the Claimant working all day Wednesday and Friday morning – just as agreed. It therefore appeared that Mrs Beech was making every effort to adhere to the agreement reached in the meeting on 16 September 2015 so that the Claimant could work all day Wednesday and Friday mornings as she had requested.

[32]On 16 October 2015 Derbyshire Adult Social Care team held a Concerns Meeting at the home at which staffing levels were discussed, including the fact that Mrs Beech was herself working very long hours. The same day the Claimant was observed dispensing drugs by representatives of the local care commissioning group. No concerns were raised about her practice as a result of that observation. Events of 26 October 2015

[33]On Monday 26 October 2015 the Claimant spoke to Emma Ball at Derbyshire social services. During that conversation she was informed that neither Social Services nor the CQC were aware of allegations that AB had falsified documents and patient records. She was shocked and upset to discover this. She believed that these were serious matters that called out for investigation. She also felt that Mrs Beech had misled her.

[34]Later that day the Claimant made a number of disclosures to Derbyshire Social Services. These included some specific allegations about resident care, such as her discovery that resident IS had suffered a head injury for which there appeared to be no adequate explanation and the fact that she had discovered that patient PG had not been placed on an appropriate pressure mattress. She also stated that managers at the home had failed to alert the authorities to evidence that AB and others had deleted documents from the computer system and had falsified statements and photographic evidence provided to social services. This was a clear criticism of both Mrs Beech and Mrs Seldon as she was effectively alleging that they had concealed information to protect themselves and to preserve the reputation of the care home. The Claimant requested that social services conduct a formal investigation into the matter. She was subsequently advised by Emma Ball to put her concerns in writing to Mrs Seldon, ahead of a meeting between Mrs Seldon and the Adult Social Care team.

[35]After her conversation with Emma Ball the Claimant contacted Mrs Beech. She expressed her anger and dismay that the home had failed to make full disclosure of the results of its internal investigation. She told Mrs Beech that she had now put social services in the picture, and had asked that the home’s failings be the subject of a formal investigation.

[36]It is clear from the tone of these messages that they marked a significant Page 8 of 40 deterioration in the relationship between the two women. Up until this point, as Mrs Beech conceded in cross-examination, the Claimant and Mrs Beech had been on good terms. Their messages had been friendly and mutually supportive. The only exception had been an exchange on 22 September 2015 which had been resolved by an apology from the Claimant. However there was now resentment on both sides. During a bad tempered exchange of text messages the Claimant told Mrs Beech that she would pursue the matter to the ‘bitter end’.

[37]Later that day Mrs Beech was instructed by the Derbyshire Adult Social Care team to stop contacting the Claimant about work matters on social media. Accordingly the social media exchanges between the two women ceased. Subsequently Mrs Beech changed her view about the veracity of much of the evidence provided to Social Services by AB. Whilst she still believed that certain timesheets had been falsified, she no longer took the view that AB had falsified other evidence (including photographic evidence). However, as Mrs Beech accepted in cross-examination, she did not share that change of opinion with the Claimant. As a result the Claimant still believed that evidence given to Social Services, including the photographs of residents, had been falsified. Changes to the rota and the events of 30 October 2015

[38]On Wednesday 28 October 2015, two days after her disclosures to Derbyshire social services, the Claimant went into work and became aware that, without any consultation, the rota for the first week in November had been altered so that her shift on the morning of Friday 6 November shift had been swopped to the afternoon. This created a real problem for the Claimant as she had no nursery cover for the afternoon shift and was also committed to paying nursery fees for the Friday morning. She left a note for Mrs Beech saying that she would be unable to work the Friday afternoon shift given her arrangement with the nursery.

[39]The Claimant was next in work on Friday 30 October 2015. She noticed that there had been a further change to the following week’s rota, again without any prior consultation. This time her Friday afternoon shift had been deleted (without giving her any work on the Friday morning) and in addition her Wednesday morning shift had also been removed, as had a further shift she was due to work on Saturday 7 November 2015. This meant that instead of working four shifts that week she was left with a single afternoon shift on the Wednesday.

[40]The Claimant was very concerned about the rota and when Mrs Beech arrived at the home at about 9:00 she brought up the issue. We accepted the Claimant’s evidence (corroborated by a memo she sent to Emma Ball of Social Services on 2 November 2015) that, to her horror, Mrs Beech had informed her she would not be getting set shifts after all. Instead nurse Irene would have the morning shifts as she could not sort out any childcare. By contrast the Claimant’s shifts would have no guaranteed pattern. The Claimant was very upset by this. As she explained in her evidence, Mrs Beech knew that without set shifts it would be impossible for her to work, given her childcare arrangements.

[41]The discussion between Mrs Beech and the Claimant occurred whilst the Claimant was in the middle of the morning drugs round. However as a result of their conversation she started to feel ‘distracted’ and overwhelmed and found it difficult to focus. She therefore decided she was not fit enough to work and would have to go off sick. We found her evidence on this issue entirely credible. Her relationship with Mrs Beech had deteriorated since her disclosures to Social Services on 26 October 2015. To make matters worse she was now being told Page 9 of 40 that she would not be guaranteed the Wednesday and Friday shifts she had been promised, despite arranging - and paying for - childcare. It was plausible that this would cause her considerable anxiety and affect her ability to perform the responsibilities of her job. She therefore informed Mrs Beech that she was going home sick. However she did not simply walk off shift. Instead she explained to Mrs Beech (as Mrs Beech acknowledged in a statement she gave on 31 October 2015) that she was partway through the drugs round and that some drugs still needed dispensing. She also locked the medicines trolley, taking the key to the office and putting it on the nurses’ station.

[42]The Claimant’s practice when dispensing medication was to put the drugs into little pots marked with the relevant patient’s name. Once she had done this she would sign what is known as the MAR (Medical Administration Record) chart i.e she signed the MAR chart once she had put the drugs into pots and before she had administered the drugs to the residents. If a resident then refused the medication she would indicate this on the MAR chart at the end of the round. Although the Claimant accepted that this was not standard practice, there was no evidence she had ever been challenged about this working method, either by managers at the home or by external regulators.

[43]Mrs Seldon gave evidence to the effect that the Claimant should have signed the chart only after the medication has actually been administered to the resident and claimed that the Claimant’s method of completing the MAR chart was contrary to basic nursing practice and company policy. However we were not persuaded, given the evidence before us, that this was the case. This was in part because neither the Respondent’s 2013 Medication Policy, nor the successor policy adopted in 2015, dealt with the issue – as might have been expected if it was such a fundamental part of good nursing practice, particularly when it is remembered that care homes are a highly regulated sector. Similarly the Respondent did not produce any written protocols – from the Nursing and Midwifery Council or elsewhere - governing how MAR charts are to be completed. We found this significant - if any such instructions had been in existence we would have expected them to have been included in the bundle, given the importance of this issue to the Respondent’s case. The absence of any such corroborative material suggested that the Claimant’s working method was not the egregious failing that Mrs Seldon claimed. Moreover the Claimant had dispensed medication in front of the local Care Commissioning Group during their visit in mid-October 2015 and no criticisms of her practice had been raised.

[44]As explained above, when the Claimant left Cliff House on the morning of 30 October 2015 she had not finished giving medication to the residents and so a number of pots containing medication had not yet been administered. These pots related to residents Mr F, Mr W and Mrs W. However in accordance with her usual practice the Claimant had signed the MAR chart on placing the drugs into the pots.

[45]Mrs Beech took over the administration of the remaining drugs after the Claimant left. There was CCTV footage of the handover. We took the view that this footage tended to support the Claimant’s case that she had not committed any serious errors so far as the MAR chart was concerned as Mrs Beech did not appear at all alarmed or flustered when taking over the medication round. On the contrary it appeared to be a routine operation, with Mrs Beech perfectly comfortable in dispensing the remaining medication. Certainly there is no CCTV footage of Mrs Beech checking the medication pots against the MAR chart before administering the remaining drugs (as the Respondent concedes). Mrs Beech Page 10 of 40 proceeded to complete the round.

[46]The events on the morning of 30 October 2015 meant the Claimant had now crossed a rubicon. She no longer trusted management at the home and felt she was being victimised for her disclosures.

[47]Once at home she sent an e-mail to the Respondent detailing the matters she had disclosed to Derbyshire social services on 26 October 2015 albeit Mrs Seldon had already been made aware of the situation by Mrs Beech. Later that day Mrs Beech and Mrs Seldon discussed the morning’s events. During that conversation Mrs Beech reported an allegation that the Claimant had given a key to the controlled drugs cabinet to one of the cleaning staff on 23 October 2015. The following day Mrs Beech provided a statement about the events on the morning of 30 October 2015. This stated, amongst other things, that the Claimant had informed her she was leaving her shift because she felt ill and that she had only partially completed the drugs round. The commencement of disciplinary action against the Claimant

[48]Events then began to move swiftly. A day later, on Saturday 31 October 2015, Mrs Beech’s husband delivered a letter to the Claimant’s home. The letter, sent by both Mrs Seldon and Mrs Beech, informed the Claimant that she was to be investigated for the alleged ‘harassment’ of colleagues on 27 October 2015 and for ‘unreasonable conduct’ whilst on shift on Friday 30 October 2015. No further information was given.

[49]A few days later, on 3 November 2015, a Concerns Meeting was held by Derbyshire Social Services at Cliff House to discuss the concerns raised by the Claimant on 26 October 2015. The meeting was attended by the Claimant and three members of the Derbyshire Adult Social Care team. Georgina Greensmith, a CQC Compliance Inspector, was also present. The Claimant went through her concerns about poor resident care and the falsification of documents.

[50]On 4 November 2015 the Claimant made a referral to the Nursing and Midwifery Council (‘NMC’) repeating her allegations. On 5 November she also confirmed her disclosures to the CQC via their website so that she could “rest assured” that the appropriate bodies would “deal with the events at the home”.

[51]The same day (5 November 2015) the Respondent sent the Claimant a letter stating that “following an investigation” she was required to attend a disciplinary meeting the next day. The letter warned that dismissal might be a possible outcome. However no further detail of the charges against the Claimant were given. As a result the only information available to her at this stage was that contained in the letter delivered on 31 October 2015, namely that she was being accused of ‘harassment of colleagues’ and ‘unreasonable conduct’ on particular dates. She was not provided with a copy of Mrs Beech’s statement. Nor was she given any other documentary evidence to enable her to prepare for the meeting. The Claimant protested that she could not possibly arrange representation for the disciplinary hearing in such a short period of time. The meeting was postponed to 13 November 2015. The meeting on 13 November 2015

[52]The meeting went ahead on 13 November 2015. The Claimant attended with her union Representative Mr Simon Cadman. Mrs Seldon chaired the meeting. The Claimant had still not been given any information about the charges against her beyond those contained in the letter of 31 October 2015. At Page 11 of 40 the insistence of her union Representative, the meeting was converted to an investigation meeting.

[53]The meeting was extremely short – 11 minutes in total. (So concerned was Mr Cadman at the brevity of the meeting that he made a contemporaneous note recording its length.) The Claimant was told that the meeting would focus on the events on Friday 30 October 2015 and that the issue relating to harassment of colleagues would be handled by Social Services. (In fact there was no evidence that Social Services ever embarked on such an investigation.) Discussion therefore turned to what had occurred on the morning of 30 October 2015. However within a few minutes and without warning Mrs Seldon switched her line of inquiry and asked the Claimant whether she had ever given the keys to the clinical room to an unauthorised member of staff. This was posed as a general question – even though Mrs Seldon was referring to the incident on 23 October 2015 which she had previously discussed with Mrs Beech. Despite this she did not give the Claimant any further details to help her to identify the incident (not even the date). The Claimant, who was unsure what Mrs Seldon was referring to, responded ‘not that I know of’.

[54]Discussion then returned to the events of 30 October 2015 and the handover of the drugs round. The exchange on this matter was brief. The Claimant told Mrs Seldon she had been ‘distraught’ that morning, had informed Mrs Beech she was going home sick and had also informed her how far she had got with the drugs round. The MAR chart for the round was then discussed. The Claimant (who had not been provided with a copy of the relevant chart) explained to Mrs Seldon that she was aware that by signing the MAR chart she was confirming that medication had actually been given and went on to suggest that some of the residents had refused their medications but she had had no time to record this on the chart. However she maintained that she had explained the situation to Mrs Beech during the handover, so that Mrs Beech was fully aware that not all the drugs had been administered. The meeting then concluded. (There is a dispute of fact as to whether the CCTV footage supports the Respondent’s allegation that the Claimant never tried to dispense medication to Mr W. However in the Tribunal’s view the footage does not resolve this issue and in any event does not undermine the Claimant’s evidence that she had explained to Mrs Beech before she left the shift that not all the drugs had been administered.) The complaint against the Claimant

[55]A few days after the meeting, on 17 November 2015, the home received a letter from the daughter of EF, a resident of Cliff House. The letter complained about the Claimant’s care of EF when administering an enema on 10 October 2015 and also when giving pain relief on a separate occasion. The letter began by stating “we understand [the Claimant] is not now employed by you” – suggesting that the family had been told that the Claimant was going to be dismissed at the investigation meeting on 13 November 2015.

[56]On 19 November 2015 Derbyshire Social Services held a further Concerns Meeting following on from the disclosure made by the Claimant. Emma Ball attended and Miriam Byrne, a representative of the CQC, gave her apologies. The meeting discussed, amongst other things, whether there was evidence of falsification of documents (Mrs Seldon having reported she could not find any) and the concern that Mrs Beech had been communicating with the Claimant about confidential matter on social media. Page 12 of 40 The disciplinary hearing

[57]Meanwhile the Respondent was proceeding with its disciplinary investigation of the Claimant. On 3 December 2015 Mrs Seldon arranged for statements to be taken from various members of staff relating to the events of 23 and 30 October 2015. The Claimant was then invited to a disciplinary hearing on 14 December 2015. The invitation letter, sent on 9 December 2015, set out five allegations against her:- ▪ Allegation 1: that on 23 October 2015 she had given the medication keys to a member of the cleaning staff to access the clinical room, thereby giving her unsupervised access to medication, including controlled drugs ; ▪ Allegation 2: That on 30 October 2015 she had left her shift without notice and without giving a safe handover to Lisa Beech; ▪ Allegation 3: That on 30 October 2015 she had signed the MAR chart for three residents stating that she administered their medications when in fact that was not the case ▪ Allegation 4: That on 10 October 2015 she had failed to administer an enema to patient EF as prescribed resulting in delay, pain and discomfort to the resident and distress to her relatives and that she had not documented the administration of the enema ▪ Allegation 5: That on 28 October 2015 she had given inaccurate information to the relatives of resident EF regarding pain relief and that she had not administered appropriate and timely pain relief to EF on that occasion

[58]The disciplinary hearing was subsequently postponed to 21 December 2015. In the meantime Lisa Beech placed an advert for ‘full time and part time nursing staff’ at the home.

[59]The disciplinary hearing went ahead on 21 December 2015. It was chaired by Mrs Seldon. The Claimant was supported by her union Representative Mr Cadman.

[60]The Claimant had not been provided with the minutes of the previous investigation meeting and although Mrs Seldon was asked to provide them she declined to do so. In addition the Claimant had not been given any details of the charges against her, beyond the bare allegations set out in the letter of 9 December 2015. For example she had still not seen a copy of the letter sent to the home by EF’s daughter so all she knew about the allegations relating to this resident were the scant details provided in the invitation letter.

[61]It became clear during the meeting that Mrs Seldon had taken statements about the events of 30 October 2015 from a number of staff. At first she refused to hand these over. It was only when the Claimant’s representative (Mr Cadman) complained that a few of the statements were provided. However the remainder were never disclosed, even though some of them tended to support the Claimant’s version of events (for example the statement from the Sue Umney, the utilities manager).

[62]During the disciplinary hearing the Claimant responded to the allegations against her as follows:- ▪ As soon as the Claimant was given details of the first allegation against her (giving keys to the clinical room to a member of the Page 13 of 40 cleaning staff) she was able to recollect the incident and accepted she had given the keys to the individual in question so that she could go and fetch some dressings. However she explained that this was in response to an emergency situation during which she felt it was unsafe for her to leave two particularly distressed residents. Her decision was therefore a judgment call made in difficult circumstances. She also pointed out that the cleaner to whom she gave the keys also worked as a carer at the home and that keys to the clinical room were always available to carers. Although Mrs Seldon had taken a witness statement about this incident from a senior carer who was on duty at the time (a Mrs Barleyman) the Claimant was not given a copy until after the allegation was discussed and the matter was never revisited. Mrs Barleyman’s statement included the following: ‘In my opinion me or [the Claimant] should have gone [to the treatment room]’. ▪ As far as the second allegation was concerned, the Claimant did not accept that she had left her shift without notice and without giving a safe handover. Mrs Seldon accepted at the hearing that the Claimant had been genuinely sick that day. She also conceded in cross- examination that she never explained to the Claimant what it was about the handover that was said to be unsafe. ▪ When the third allegation (which related to the Claimant’s method of completing the MAR charts) was discussed the Claimant was shown – for the first time - a redacted copy of the MAR chart for the morning of 30 October 2015. She was then asked to explain why she had signed the chart for patients ‘Mr F, Mr W and Mrs W’, thereby suggesting the drugs had been administered – even though that was not the case. She was also reminded that in the investigation meeting she had stated that these three residents had refused their medication. Now that the Claimant understood more about the allegation, she was completely frank and honest about her practice, stating that she signed the chart as she dispensed the drugs. She went on to explain that if a patient then refused their medication she would indicate that on the MAR chart - but only at the end of the round, by which time she would have had a number of chances to try and administer the medication successfully. She also explained that when she had suggested in the investigation meeting that some residents had refused medication she ‘couldn’t actually think at the time whose medications [they were]’. Despite this explanation Mrs Seldon continued to focus on the Claimant’s suggestion that she had attempted to administer the medication, pointing out that she was in possession of CCTV footage which showed that the Claimant had never attempted to administer the drugs to Mr W. However when the Claimant asked to see the CCTV footage, her request was refused. The following gives a flavour of the exchange:- “Margaret Seldon (MS) - I have CCTV footage. Claimant (CE) - (interrupted) yes and are you going to … MS - that contradicts what you’ve said. CE - well am I going to see it then? MS - not at this moment in time, no Equally when the Claimant indicated she was not even sure who resident Mr W was, Mrs Seldon refused to disclose his name. On Page 14 of 40 the basis of the very limited information available to her the Claimant suggested that she might not have got to the point where she had gone to his room to administer the drugs. However Mrs Seldon expressed considerable scepticism about the Claimant’s explanation, stating that it was apparent that she had never tried to administer the drugs to Mr W. ▪ Allegations 4 and 5 had not been mentioned at the investigation meeting on 13 November 2015 and so the only information the Claimant had about them were the scant details contained in the Respondent’s letter of 9 December 2015. As far the administration of the enema to Mrs EF on 10 October was concerned, the Claimant explained that the resident was incontinent and as a result ‘in discomfort and distress’. She had therefore delayed giving the enema as ‘she was a frail, dying lady and I gave her a little break and administered it later on the shift.’ During the discussion it became clear that, contrary to the allegation against her, the Claimant had documented the administration of the enema on the MAR chart. Upon learning this Mrs Seldon abruptly changed her tack and accused the Claimant of failing to record the enema in the care notes – even though this specific allegation did not appear in the disciplinary letter and the Claimant had not been given a copy of the care notes. ▪ As far as the events of the 28 October 2015 were concerned the Claimant was asked just a few questions about this issue. However these dealt solely with the allegation that she had given inaccurate information about pain relief to the resident’s family. The allegation that she had failed to provide appropriate or timely pain relief was not even referred to. The Claimant explained that she had discussed pain relief with the resident’s daughters and that at some point (she could not remember the date) she had discussed the administration of morphine, an explanation that receives some support from the care notes. This discussion went ahead without the Claimant having sight of the family’s letter of complaint. Indeed it was only at the very end of the meeting that a copy of the letter was handed over to the Claimant and even then she was given no opportunity to respond to its contents.

[63]Mrs Seldon gave evidence to the Tribunal that during the disciplinary hearing the Claimant issued blanket denials of allegations against her. She also claimed in a subsequent letter to the NMC that the Claimant was ‘dishonest and belligerent’ throughout the meeting. However we do not accept that that was the case. The minutes show that it was Mrs Seldon who adopted a confrontational approach, repeatedly interrupting the Claimant. As a result the Claimant was prevented from giving full answers to a number of the questions being put to her, leading her representative, Mr Cadman, to complain that the meeting was becoming hostile. Moreover the minutes demonstrate that the Claimant gave frank answers in so far as she was able, bearing in mind that she was in possession of very limited information about the allegations against her.

[64]The meeting was adjourned for about half an hour and then reconvened. The Claimant was told she was to be summarily dismissed with immediate effect as her explanations had not been good enough. No further elaboration was given.

[65]The decision was confirmed by a letter written the same day, which stated Page 15 of 40 that the Claimant was to be dismissed on the grounds of gross misconduct. The letter detailed the five allegations against her but gave little indication of why Mrs Seldon had decided that all the allegations were proven. The only light thrown on the matter was in connection with allegation 3, where the following comment was made:- ‘You stated in interview that the residents had refused these medications, this is a false statement’. When it came to allegations 4 and 5 (which related to her care of EF) there was no longer any mention of the Claimant’s care causing pain or distress to the resident. The findings were simply that the Claimant had not administered an enema at the correct time, had not documented the matter properly and had given misleading information to EF’s relatives. The letter confirmed that the Claimant’s effective date of termination was 21 December 2015 and informed her that she had a right of appeal which she would need to exercise within 5 working days of receipt of the dismissal letter. Events after the Claimant’s dismissal

[66]The Claimant wrote to the Respondent by email on the day of her dismissal, informing the Respondent that she would ‘definitely be appealing against your investigation and the outcome as your proceedings only started following whistleblowing about yourselves’. She asked the Respondent ‘to liaise with my union regarding further proceedings’, clearly anticipating that a date for the appeal could be agreed. She also asked for disclosure of various pieces of evidence which she had still not seen, including the CCTV evidence of 30 October 2015 and her nursing notes in relation to EF for 28 October 2015.

[67]On 5 January 2016 Paul Seldon responded to the Claimant’s request for copies of the evidence against her on behalf of the home. His letter stated that a fee of £10.00 would have to be paid before her request could be processed.

[68]On 15 January 2016 the Respondent provided a reference for the Claimant to Capita, a prospective employer. This stated quite inaccurately that the home had referred the Claimant to the NMC. In fact no such reference had been made at this stage. The reference also stated that the Claimant had been dismissed for 5 counts of gross misconduct. As a result on 25 January 2016 Capita withdrew their job offer to the Claimant.

[69]On 28 January 2016 Mrs Seldon referred the Claimant to the NMC, in relation to her fitness to practice as a nurse. Such a referral was mandatory, given the findings of gross misconduct against the Claimant. The referral went through the allegations that had formed the disciplinary case against the Claimant and, unlike the dismissal letter, set out Mrs Seldon’s reasons for finding against the Claimant on all counts. However the referral was neither balanced nor fair. For example Mrs Seldon stated that the Claimant had failed to give an ‘adequate reason’ for the administration of the enema to Mrs EF on 10 October 2015, when in fact the Claimant had explained very clearly in the disciplinary meeting that it was the frailty of Mrs EF coupled with the fact the resident was evidently distressed by her incontinence that had caused the delay. She also stated that the Claimant had denied the allegation about the clinical room keys during the investigation meeting only to admit to it in the disciplinary hearing. This was quite unfair given that when this issue was referred to during the investigation meeting the Claimant was not at all clear what Mrs Seldon was talking about. In addition, when the matter was discussed at the disciplinary Page 16 of 40 hearing, far from admitting to any wrongdoing, the Claimant had explained her actions had been motivated by patient safety. The referral also included prejudicial information drawn from the staff statements taken on 3 December 2015 which had never been disclosed to the Claimant.

[70]On 29 January 2016 Mr Cadman wrote to the home on behalf of the Claimant asking why they had heard nothing about an appeal date and asking for a date within seven days. Mrs Seldon told Mrs Beech to phone Mr Cadman to inform him that there would be no appeal hearing. Her son subsequently confirmed this position in writing stating that no appeal had been received ‘in any form’ and that the ‘time frame to appeal’ had expired ‘as per ACAS Code of Practice’. He also stated that the Claimant had been dismissed on grounds of gross misconduct arising from incidents on 28 and 30 October 2015 and that the Claimant had admitted to each incident at the disciplinary hearing on 21 December 2015, a totally misleading version of events. Whilst the Claimant had agreed she had signed the MAR chart as soon as she had dispensed the drugs into pots, she had certainly not admitted that this was poor practice. Nor had she admitted that she should not have handed over the clinical room keys on 23 October 2015 or that the handover on 30 October 2015 had been unsafe. Equally she had not conceded that she had been at fault either in her dealings with EF’s relatives or in her administration of pain relief to EF. On the contrary she had defended her actions as being in in the best interests of the residents. The NMC’s letter

[71]The NMC considered Mrs Seldon’s referral regarding the Claimant’s fitness to practice and on 15 March 2016 the NMC informed the Claimant they would not need to investigate her any further. Their letter stated as follows:- ‘The following are significant factors which must be considered relevant to your case. Firstly this referral was not lodged with the NMC until after you raised your concerns. Secondly it appears that you and the referrer have had quite an acrimonious falling out…. Thirdly you have… had no competence issues raised before this referral. Notwithstanding the allegations contained in the referral those must be tempered and balanced with the matters raised above as observations. Having applied those balances, in reality whilst there may have been a few minor errors, this appears to be a dispute that does not really raise significant public protection or any public interest issues. Even if a contrary position was taken it is highly unlikely that these matters would lead to a finding of misconduct and no panel would find that there was current impairment.’

[72]On 21 April 2016 Mrs Seldon wrote to the NMC expressing her concern that they were not going to investigate the Claimant any further. Her letter, which is very hostile towards the Claimant, deals with the all the disciplinary allegations against the Claimant and, like her initial referral, gives an insight into Mrs Seldon’s attitude towards the Claimant. For example she stated that the Claimant was ‘dishonest and belligerent’ during the disciplinary process and that she had “vehemently denied” all of the allegations against her and then ‘eventually admitted all six incidencies’. Yet, as noted above the minutes of the disciplinary hearing show that this was simply not the case. Furthermore she stated that when the Claimant was informed of the identity of the residents to whom drugs should have been administered on the morning of 30 October 2015 ‘she eventually admitted that she had not attempted to administer the medications’. However once again the minutes show these statements to be misleading. At all Page 17 of 40 stages the Claimant answered the questions put to her as fully and as frankly as she could and the only admission made by the Claimant was that she had signed the MAR chart in respect of a number of drugs even though they had not been administered to the residents. Even then she did not concede that this practice was unsafe and she certainly did not admit that she had lied about attempting to administer the medication. Indeed one of her complaints during the disciplinary meeting was that it was very difficult to recall her actions as she was unsure which of the residents Mrs Seldon was referring to.

[73]Notably Mrs Seldon’s letter to the NMC stated that she did not consider that Allegation 1 (relating to the incident with the keys) was severe enough in isolation to warrant a referral. She also stated that the Claimant had lied to the relatives of patient Mrs EF telling them that she had administered the enema. It is not clear where that allegation originated – it certainly does not appear in the letter of complaint from the resident’s family. Events after August 2016

[74]In August 2016 Cliff House was subject to a CQC inspection. The home achieved a ‘requires improvement’ rating.

[75]In December 2016 Mrs Seldon made a statement for the purposes of a fitness to practice investigation by the NMC in relation to Mrs Beech. The letter was very supportive of Mrs Beech but - like the letter of 21 April 2016 – extremely critical of the Claimant. So for example the letter describes the Claimant as ‘an evil girl’ and a ‘compulsive liar’ who was ‘unbalanced and manipulative’ with ‘enormous mental health problems’, although we were presented with no evidence to justify such damning remarks. The letter also states that the Claimant ‘bombarded’ Mrs Seldon with telephone calls during her holiday in Spain, whereas in cross-examination Mrs Seldon accepted that in fact the Claimant had spoken to her on just one occasion whilst she was away. Equally there are some comments in the statement that are completely misleading, such as Mrs Seldon’s claim that the Claimant did not raise concerns about patient care in the meeting on 30 July 2015. Towards the end of the letter Mrs Seldon refers to the disclosures made by the Claimant in 2015 as follows;- ‘All of these complaints by Clare have almost polished me off. They cost me a lot of time and worry… she has caused many hours of work for myself, my staff and Adult Care…. I believe she is making further claims to yourselves to cause as much inconvenience and stress as she possibly can…’

[76]At this stage relations between Mrs Seldon and Mrs Beech were good. However subsequently their relationship deteriorated, so much so that Mrs Beech was unwilling to give evidence at the Tribunal without a witness order. In crossexamination Mrs Seldom described Mrs Beech as ‘cruel, vile and malicious’.

[77]The home was sold by the Respondent in the summer of 2017. D. The whistleblowing claims: did the Claimant make any protected disclosures?

[78]The majority of claims in this case are what are referred to as ‘whistleblowing’ claims. Sections 47B and 103A Employment Rights Act 1996 (ERA 1996) afford protection to whistleblowers as follows: Page 18 of 40 47B Protected disclosures (1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. 103A Protected disclosure 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.

[79]As noted above, the Claimant alleged that she had been unfairly dismissed contrary to section 103A ERA 1996. She also brought seven claims that she had subjected to a detriment contrary to section 47B ERA 1996. Fundamental to all these claims was the requirement that the Claimant show she had made a ‘protected disclosure’. The relevant law: what is a protected disclosure?

[80]The law in this area is set out in the ERA 1996. Under section 43A a ‘protected disclosure means a qualifying disclosure… which is made by a worker in accordance with any of sections 43C to 43H’. A qualifying disclosure is then defined (so far as relevant) as follows: 43B (1) …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… (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject… (d) that the health or safety of any individual has been, is being or is likely to be endangered…. (f) that information tending to show any matter falling within one of the preceding paragraphs has been or is likely to be deliberately concealed.’

[81]Sections 43C to 43H ERA 1996 then detail the circumstances in which a qualifying disclosure attracts protection. These include disclosures made directly to the employer under section 43C ERA 1996 and disclosures to a ‘prescribed person’ within section 43F ERA 1996. The Claimant’s case and the issues for determination

[82]The Claimant alleged that the following disclosures satisfied the statutory definition:- Disclosure 1: to Derbyshire Social Services on 26 October 2015 Disclosure 2: to Mrs Beech on 26 October 2015 Disclosure 3: to Mrs Beech and Mrs Seldon on 30 October 2015 Disclosure 4: to Derbyshire Social Services on 3 November 2015 Disclosure 5: to the NMC on or about 4 November 2015 and Disclosure 6: to the CQC on 5 November 2015

[83]The Respondent disputed that these were protected disclosures on two grounds. Firstly it did not accept that the Claimant had the necessary reasonable belief that the information she disclosed tended to show one of the relevant Page 19 of 40 failings as required by section 43B(1). Secondly, although there was no dispute that the disclosures to both the CQC and NMC amounted to disclosures to prescribed persons within section 43F, the Respondent did not accept that the two disclosures to Derbyshire Social Services fell within the statutory definition of a ‘prescribed person’. The Respondent did not contest any other aspects of the statutory definition and so accepted, for example, that the Claimant held a reasonable belief that her disclosures were made in the public interest. Did the Claimant have the necessary reasonable belief?

[84]We considered first of all whether the Claimant had the necessary reasonable belief. It is clear from the case-law that the statutory test has both subjective and objective elements. So far as the subjective element is concerned, section 43B(1) ERA 1996 refers to the belief of ‘the worker making the disclosure’. The focus is therefore on what was in the Claimant’s mind, rather than what anyone else might or might not have believed in the same circumstances.

[85]However section 43B(1) also requires that the belief of the worker is a reasonable one. There is therefore an objective component to the test, so that rumours and unfounded suspicions will not suffice. Instead there must be some substantiated basis for the worker’s belief so that his or her (subjective) belief is (objectively) reasonable.

[86]In applying this test it is clear that the Tribunal must consider the individual circumstances of the whistleblower. Judge McMullen QC put it this way in Korashi v Abertawse Bro Morgannwg University LHB [2012] IRLR :- ‘So in our judgment what is reasonable in s 43B involves of course an objective standard – that is the whole point of the use of the adjective reasonable – and its application to the personal circumstances of the discloser… many whistleblowers are insiders. That means that they are so much more informed about the goingson of the organisation of which they make complaint than outsiders, and that insight entitles their views to respect. Since the test is their “reasonable” belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing.’ This approach has been endorsed by subsequent case-law.

[87]We therefore accepted the Claimant’s submission that the Tribunal must consider the issue of reasonable belief from the standpoint of an experienced nurse, like the Claimant, with knowledge of pre-existing concerns about resident care at Cliff House and who, over the summer of 2015, was being fed details of the home’s investigation into AB’s management style by Mrs Beech.

[88]Finally case-law establishes that a belief can be reasonable, even if it is not actually true. As a result a disclosure may amount to a qualifying disclosure even if it subsequently transpires that the information was factually incorrect (see Darnton v University of Surrey

[2003] ICR 615

, paras 29-30 and Babula v Waltham Forest College

[2007] IRLR 346

, CA, para 75). What is required is an assessment of what the Claimant understood and believed at the time.

[89]We therefore needed to determine whether the Claimant held the necessary reasonable belief as set out in section 43B(1) ERA 1996. Our findings in relation to the individual disclosures were a follows. (i) Mrs Beech had failed to disclose an investigation she had conducted in August Page 20 of 40 and early September 2015 (referred to in disclosures 1-6)

[90]It is clear from our findings of fact that the messages sent to the Claimant by Mrs Beech over the summer of 2015 gave the Claimant the clear impression that Mrs Beech’s investigation had revealed that AB had been concealing information and submitting false evidence to social services. That impression was never corrected. Then, during September 2015, the Claimant became concerned that neither the police nor social services had been informed. The two women had an exchange on Facebook on 22 September 2015 during which Mrs Beech assured the Claimant that social services had been told about what had happened. The Claimant therefore assumed that all was in order and apologised to Mrs Beech the following day. However her conversation with Emma Ball on 26 October 2015 – during which she became aware that neither social service nor the CQC had been informed that evidence may have been falsified – was a turning point. As a result she completely lost confidence in Mrs Beech’s assurances, believing that the authorities had not been informed of serious malpractice. We concluded that in these circumstances it was reasonable for her to believe that the information she was disclosing tended to show that there had been deliberate concealment of wrongdoing at the home so as to amount to a qualifying disclosure within section 43B(1). (b) AB had written the response to the Social Services investigation with the assistance of two carers, and the response had not been factually correct (part of disclosures 1- 6)

[91]There is no dispute that the Claimant had been told by Mrs Beech and other members of staff that AB had spent the day on 21 August 2015 with two carers, drafting reports for social services. Moreover Mrs Beech had confided in her that AB had been deleting documents and falsifying evidence (see paragraph 28 above). In those circumstances it was reasonable for her to believe that the information she disclosed to the authorities tended to show that deliberate concealment of wrongdoing – including risks to the health and safety of residents – had taken place. She had no reason to believe otherwise. (c) AB had taken photographs of the residents on 21 August 2015 and not at the time of the earlier incidents (part of disclosures 1-6).

[92]It is clear from our findings of fact (see paragraph 21 above) that Mrs Beech had told the Claimant that AB had falsified photographic evidence. Mrs Beech never disabused the Claimant of this idea and so the Claimant had no reason to doubt that this was the case, particularly as Mrs Beech was closely involved in the home’s internal investigation. We therefore decided that the Claimant held a reasonable belief that the information she disclosed tended to show the relevant failings. Moreover, following Darnton, the fact that this information may not have been accurate does not undermine that finding. (d) AB had deleted documents and records from the computer (part of disclosures 1-6)

[93]For similar reasons we decided that the Claimant had the requisite reasonable belief about this information. Mrs Beech had told her via Facebook that this was the case and the Claimant was never given any additional information to cause her to doubt it. Once again whether this information was factually accurate is irrelevant, given that the Claimant had no reason to disbelieve what she was being told. Page 21 of 40 (e) Mrs Beech’s husband had retrieved the deleted documents (including care records and statements and other evidence) from the hard drive of the work’s computer and stored them on his home computer as evidence to be presented to Mrs Sheldon on her return from holiday (part of disclosures 1-6).

[94]There was no dispute that these documents were retrieved by Mr Beech during the summer of 2015 and then stored, awaiting Mrs Seldon’s return from holiday. There was also no dispute that the matter had been the subject of various communications between the Claimant and Mrs Beech. Whilst it transpired for the first time during Mrs Beech’s oral evidence that the retrieved documents were in fact stored at Cliff House, rather than at Mrs Beech’s home, this was a minor matter and did not detract from the thrust of the disclosure which was to the effect that information about the health and safety of residents had been deliberately concealed. Overall there was no evidence to suggest that the Claimant did not have the requisite belief about this information and in our view it was a reasonable belief, given the information conveyed to her by Mrs Beech. (f) that AB had been suspended and that she and some of the carers were working together in another nursing home (part of disclosures 1,3, 4, 5 and 6)

[95]Again there is no dispute that this information was factually accurate. In assessing whether the Claimant had the relevant reasonable belief we noted that she had already expressed concerns about the poor practice of members of this group and the serious impact it had had on residents’ care. In addition Mrs Beech accepted in cross-examination that the Claimant was genuinely concerned that those involved in wrongdoing had been able to move elsewhere, leaving them free to carry on their behaviour. In those circumstances we accepted that she had a reasonable belief that this information tended to show that the health and safety of residents at the Worksop home was likely to be endangered. (g) Poor staffing levels (part of disclosures 1,4, 5 and 6) In considering this issue we noted that as a general matter Cliff House, like other care homes, had difficulty recruiting qualified staff. Indeed staffing levels were discussed at the Concerns Meeting held on 16 October 2015, which shows the issue was serious enough to be monitored. So far as the Claimant’s understanding of the situation was concerned, we know that Mrs Beech had discussed staffing shortages with the Claimant during their exchanges in the summer of 2015 (see paragraph 20 above). The Claimant’s view was also fortified by her own experience of working at the home. In those circumstances we accepted that the Claimant genuinely believed there was an issue with poor staffing levels and that this information tended to show that the health and safety of residents was likely to be endangered. In our view, given her insight as an experienced nurse with detailed knowledge of the workings of the home (see Korashi), her belief was entirely reasonable. (h) That a resident had an unexplained severe head injury in suspicious circumstances, and that she had checked other reports showing similar unexplained marks (part of disclosures 1, 4, 5 and 6).

[96]The Claimant was alerted to this matter upon her return to work after sick leave. The injury was serious and, although it had been put down as the result of an assault by a fellow resident, the Claimant’s experience of the residents at the home called her to question that explanation. Moreover there were other Page 22 of 40 unexplained injuries. In that situation it was reasonable for the Claimant to believe that the matter had not been fully investigated and that without such an investigation the health and safety of resident IS had been and/or was likely to be endangered. She was not provided with any additional information between 26 October 2015 and 5 November 2015 to lead her to change that belief. (i) That the pressure sores of a terminally ill resident had deteriorated significantly and he was not placed on a pressure mattress(part of disclosures 1, 4, 5 and 6).

[97]As with the injuries to IS, the Claimant discovered the plight of patient PG when she returned from sick leave. In our view, given she was an experienced nurse with knowledge of the implications for PG’s health, it was entirely reasonable for her to believe that this information tended to show that the health and safety of resident PG had been and/or was likely to be endangered. Again she was not provided with any additional information between 26 October 2015 and 5 November 2015 to lead her to change that belief.

[98]We therefore find that the Claimant held the requisite reasonable belief in respect of all six disclosures. Were the disclosures to Derbyshire Social Services disclosures to a ‘prescribed’ person?

[99]We therefore turned to consider the second protected disclosure issue, namely whether the disclosures to Derbyshire Social Services were disclosures to a prescribed person. The starting point for consideration of this issue is section 43F ERA 1996 which provides as follows: (1) A qualifying disclosure is made in accordance with this section if the worker- (a) makes the disclosure…to a person prescribed by an order by the Secretary of State for the purposes of this section, and (b) reasonably believes – (i) that the relevant failure falls within any description of matters in respect of which that person is so prescribed, and (ii) that the information disclosed, and any allegation contained in it, are substantially true.

[100]A number of orders have been made by the Secretary of State pursuant to this section. The relevant one for our purposes is the Public Interest Disclosure (Prescribed Persons) Order 2014 (the ‘2014 Order’). This contains a schedule which sets out a list of the persons who are prescribed for the purposes of section 43F ERA 1996 and a description of the matters for which they are so prescribed.

[101]So far as the list of prescribed persons is concerned there is no dispute that the list clearly includes “local authorities which are responsible for the enforcement of health and safety legislation”. The schedule then goes on to identify the matters for which such local authorities are prescribed in the following terms:- “Matters which may affect the health or safety of any individual at work; matters, which may affect the health and safety of any member of the public, arising out of or in connection with the activities of persons at work.” Page 23 of 40

[102]It is therefore necessary to determine whether Derbyshire Social Services, acting through its Adult Social Care team, had responsibility for enforcing health and safety legislation at the care home so as to bring it within the provisions of the schedule.

[103]The answer to this question appears to lie in the footnotes to the 2014 Order. The relevant footnote in this case refers us to The Health and Safety (Enforcing Authority) Regulations 1998 No. 494 (‘the 1998 Reguations’). These Regulations re-enacted, with amendments, earlier legislation which made local authorities responsible for enforcing the Health and Safety at Work Act 1974 and various associated statutory provisions at certain types of non-domestic premises. Regulation 3(1) provides: ‘Local authorities to be enforcing authorities in certain cases 3(1) Where the main activity carried on in non-domestic premises is specified in Schedule 1, the local authority for the area in which those premises are situated shall be the enforcing authority for them…’ Under Schedule 1, paragraph 5 the definition of ‘main activity’ (which determines whether the Local Authority will be Enforcing Authority) includes ‘the provision of permanent or temporary residential accommodation…’

[104]Accordingly it appears that local authorities are the enforcing authority, and so a prescribed person, at least for the purposes of residential care homes. This conclusion is supported by Guidance issued by the HSE on the meaning of ‘residential accommodation’ in this context, available at http://www.hse.gov.uk/foi/internalops/og/og-00073.htm#summary. This states as follows:- ‘Paragraph 5 - Residential accommodation Premises obviously falling within this paragraph are hotels, guest-houses, hostels, residential care homes… In England all privately run residential care homes or centres are registered with the Care Quality Commission (CQC), and their website can be used to establish whether a care home is either registered to provide care with or without nursing care… Homes registered with the CQC… as providing nursing care only will automatically be allocated to [the Health and Safety Executive], as their main activity will be the provision of nursing or medical care. Home registered with CQC as providing care without nursing will automatically be allocated to [the local authority], as their main activity will be the provision of residential accommodation… HSE will be the enforcing authority for all residential care homes owned/operated by an LA.’

[105]As a result we take it to be clear that if, contrary to our finding at paragraph 7, Cliff House is registered to provide residential care only, then the local authority is the prescribed person for the purposes of determining whether there has been a protected disclosure and so the Respondent’s challenge on this ground fails.

[106]However that was not our finding. We found that Cliff House provided both nursing and residential care. In this situation the HSE Guidance provides as follows:- Page 24 of 40 ‘Dual-registered care homes The provision of qualified nursing care distinguishes a nursing home from a residential care home so, when determining the most appropriate enforcing authority, it is necessary to consider carefully the main activity - this should focus on the main purpose for which an organisation uses a premises. The time spent caring for patients or residents, or the number of beds, cannot be the sole indicators of allocation, however, they are factors which may need to be taken into account.’ It therefore appears that where a care home is dual registered, a balancing exercise has to be carried out to determine whether the local authority is the appropriate enforcing authority. If it is not, disclosures should be made to the HSE (which is the enforcing authority for any activities in non-domestic premises which are not included in Schedule 1).

[107]We are satisfied on the evidence before us that in the case of Cliff House that balancing exercise had been resolved in favour of Derbyshire Social Services (acting through its Adult Social Care team). We make this finding for the following reasons:-(i) all the witnesses who appeared before us (including Mrs Seldon and Mrs Beech) accepted that it was Social Services who had oversight of the home in relation to health and safety matters. So, for example, Mrs Seldon agreed during cross-examination that if concerns were raised about the care of residents at the home then the obligation on the home was to refer the matter to the local authority’s Adult Social Care team. She added that she could not recall the home ever having to refer an issue of patient care to the HSE;

(ii) when the Claimant initially contacted the CQC in mid-August 2015 her concerns were immediately passed to the Adult Social Care team at Derbyshire Social Services, suggesting that this was the appropriate enforcing authority;

(iii) there was no suggestion at any of the formal Concerns Meetings held at Cliff House to discuss residents’ care that the HSE was the responsible body. On the contrary it appears to have been assumed throughout that the local authority, acting through its Adult Care team, was responsible for the enforcement of health and safety legislation at the home. That conclusion is reinforced by the fact that representatives from the Derbyshire Adult Social Care team were present at the Concerns Meetings. There were no representatives from the HSE.

[108]Our primary finding is therefore that when the Claimant made her disclosures to Derbyshire Social Services she did so to a ‘prescribed person’ for the purposes of section 43F ERA 1996. The agency argument

[109]For completeness we should add that if we are wrong on this point and a local authority such as Derbyshire County Council is not prescribed in its own right then we accept the Claimant’s subsidiary argument that in this case the CQC (which is clearly a prescribed person for the purposes of section 43F) delegated its enforcement responsibilities in respect of health and safety at Cliff House to Derbyshire Social Services. As a result when the Claimant made her disclosures on 26 October and 3 November 2015 she was effectively making those disclosures to the CQC acting through the agency of Derbyshire’s Adult Social Care team. Page 25 of 40

[110]In coming to this conclusion we found it significant that when the Claimant initially contacted the CQC in mid-August 2015, the CQC immediately put the matter into the hands of Derbyshire Social Services. As a result the Claimant was telephoned shortly afterwards by Emma Ball from Derbyshire Adult Social Care team and it was that team which led the investigation into her concerns. In addition, whilst a representative of the CQC was invited to the concerns meetings held at the home to consider the Claimant’s disclosures, they did not always attend. For example at the meeting on 19 November 2015 the CQC representative gave her apologies, apparently content for the Derbyshire Adult Social Care team to take the lead and keep her abreast of developments, again suggesting delegation of the CQC’s responsibilities.

[111]Having resolved both these issues in the Claimant’s favour, we therefore concluded that the six disclosures referred to above were protected disclosures within the statutory definition. We then went on to consider the detriment and unfair dismissal claims. E. The detriment claims

[112]As noted above, section 47B ERA 1996 provides that a worker has the right not to be subjected to any detriment by any act by his employer done on the ground that the worker has made a protected disclosure. In this case there were seven detriment claims:-(i) Moving the Claimant’s shift from the morning to the afternoon on 28 October

(ii) Withdrawing her shifts for the week commencing 2 November 2015

(iii) Placing an advert for her role at Cliff House on 15 December 2015

(iv) The handling of the disciplinary process during November and December

(v) The provisions of a misleading reference on 25 January 2016

(vi) Referring the Claimant to the NMC on 28 January 2016

(vii) Refusing the Claimant a right of appeal

[113]Miss Hodgetts, on behalf of the Respondent did not accept the factual basis of claim (iii), namely that the Claimant’s role was one of those being advertised on 15 December 2015. In addition she argued that the requisite causal link (that the acts were done on the ground that the Claimant had made protected disclosures) had not been established in respect of any of the claims.

The relevant law

[114]It is clear from section 48(2) ERA 1996 that it is ‘for the employer to show the ground on which any act, or deliberate failure to act, was done’. As a result, once it is established that there has been a protected disclosure, that there has been detriment and that it was the Respondent who subjected the Claimant to that detriment then the burden of proof switches to the employer to show on the balance of probabilities that the protected disclosure did not materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower. So much is clear from the Court of Appeal’s decision in Fecitt v NHS Manchester

[2011] EWCA Civ 1190

) where Elias LJ stated as follows:- ‘Once an employer satisfies the tribunal that he has acted for a particular reason [in the Fecitt case this was trying to remedy a dysfunctional situation] that necessarily discharges the burden of showing that the proscribed reason played Page 26 of 40 no part in it. It is only if the tribunal considers that the reason given is false (whether consciously or subconsciously) or that the tribunal is being given something less than the whole story that it is legitimate to infer discrimination… the better view is that section 47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer’s treatment of the whistleblower.’

[115]As is clear from this passage, in coming to its decision the Tribunal may need to consider both the subconscious as well as the conscious motivation for the treatment. In addition, as direct evidence of the employer’s motivation may be in short supply, the Tribunal may draw inferences from its findings of fact as to the real reason for the employer’s actions in appropriate circumstances. Detriments 1 and 2: Moving the Claimant’s shift for Friday 6 November 2015 from the morning to the afternoon and withdrawing shifts for the week commencing 2 November 2015

[116]The shift changes were plainly to the Claimant’s detriment and so the only question for our consideration was whether the necessary causal link had been established. We decided this issue in the Claimant’s favour. In coming to this conclusion we noted that :-(i) Until 26 October 2015 the relationship between the Claimant and Mrs Beech had been cordial, friendly and supportive;

(ii) At the meeting on 16 September 2015 both Mrs Seldon and Mrs Beech had agreed in principle to the Claimant’s preferred shifts;

(iii) If the Claimant was to receive the shifts she wanted she needed Mrs Beech’s goodwill, as it was Mrs Beech who drew up the rota. For the first few weeks of October Mrs Beech did her best to accommodate the Claimant. Indeed when the Claimant queried why she had not been given a full day shift on Wednesday 28 October 2015 Mrs Beech assured her it would be sorted out and then ensured the Claimant was given the shifts she wanted for the following week. However once Mrs Beech became aware of the Claimant’s disclosures to Social Services on 26 October 2015 there was a marked change. The Claimant was now being told that Irene’s childcare needs were to be put first and that she could not be given any set hours.

(iv) In explaining this position Mrs Beech claimed in cross-examination that she never committed to set shifts for any of the nurses – a statement we found to be completely implausible, particularly as this was the first time such a statement had been made. At another stage she maintained that the shifts given to the Claimant were part of a trial period. However this statement also lacked credibility, particularly as there was no mention of a trial period in any of the messages exchanged between the Claimant and Mrs Beech on the subject. In our view this unsatisfactory evidence considerably undermined the Respondent’s case that the Claimant’s disclosures had no material influence on Mrs Beech’s treatment of the Claimant .

(v) We also noted that the disclosures made by the Claimant on 26 October 2015 were of a different character to those that had gone before. The Claimant’s previous disclosures had focused on AB and there had been no direct criticism of either Mrs Seldon or Mrs Beech. (Indeed Mrs Seldon had been pleased that as a result of the Claimant’s initial disclosures she had evidence to justify an investigation of AB’s management style.) However the disclosures at the end of October 2015 were different. The Claimant was now alleging a cover up by the Page 27 of 40 home in its dealings with the regulatory authorities. That was a serious matter. The integrity of Mrs Beech, as acting manager, was now at stake in a way it had not been before and, as the messages between the Claimant and Mrs Beech demonstrate, this caused a rupture in their relationship.

[117]In light of all these matters we decided that the Respondent had not satisfied the burden of proof on this issue and that it was possible to infer that as a result of the disclosures on 26 October 2015 Mrs Beech’s goodwill towards the Claimant had evaporated and she was no longer willing to accommodate the Claimant and give her the shift patterns she wanted. We therefore find that the changes to the Claimant’s shift pattern were materially influenced by the protected disclosures made on 26 October 2015. Detriment 3: Advertising the Claimant’s role at the home on 15 December 2015

[118]In considering this claim we noted that, like many care homes, Cliff House had problems recruiting qualified staff, that a number of nurses had left in the autumn of 2015 (including AB) and that Mrs Beech was herself working very long hours, including some nursing shifts, in September/October 2015. In addition Mrs Beech’s evidence - to the effect that the home was genuinely facing a shortage of staff and that this was the only reason for the advert - was credible and stood up to cross-examination. In these circumstances we accepted Ms Hodgetts’ submission that the advertisement did not relate to the Claimant’s role. In any event we were not persuaded that the decision to advertise was influenced by the Claimant’s disclosures. It was, as the Respondent maintained, simply a routine advertisement for more staff. This aspect of the claim fails. Detriment 4: The handling of the disciplinary process, initially a disciplinary hearing, converted to an investigation meeting. Predetermination. Failure to provide evidence at the hearing.

[119]As explained in paragraphs 146 below, we take the view that Mrs Seldon was determined from the outset to get rid of the Claimant, that she was not prepared to give the Claimant a proper chance to defend herself and so subjected the Claimant to a process that incorporated many serious failings. However Mrs Seldon had not always been so hostile to the Claimant. On the contrary, prior to the protected disclosures on 26 October 2015, Mrs Seldon had supported the Claimant, not least by agreeing to her shift pattern in the meeting on 16 September 2015. However once the Claimant made her disclosures on 26 October 2015, thereby turning the spotlight directly onto Mrs Seldon and Mrs Beech, things changed. Within a matter of days the Claimant was informed that she was to be the subject of a disciplinary investigation. Moreover once that investigation got underway it became clear that the Respondent’s disciplinary procedure was to be ignored, significant pieces of evidence against the Claimant were to be withheld and she was not to be given a fair opportunity to state her case. Calling her to a disciplinary hearing on just one day’s notice, as detailed in paragraph 51 above, is but one example of the many failings in the process.

[120]In addition the referral of the Claimant to the NMC (which was made only a few weeks after the decision to dismiss) is, in our view, good evidence of Mrs Seldon’s attitude to the Claimant. As we state in our findings of fact it was neither balanced not fair, demonstrating a clear bias against the Claimant - in marked contrast to the supportive approach taken by Mrs Seldon prior to the disclosures on 26 October 2015. Moreover Mrs Seldon was a poor witness and did not stand up at all well to cross-examination about her conduct of the disciplinary process. Page 28 of 40 She admitted, for example, that a number of the allegations against the Claimant were never fully explained and that vital evidence was withheld, yet she could offer no justification for such egregious failings.

[121]In light of these matters we concluded that the Respondent had failed to persuade us that the protected disclosures had no material influence on Mrs Seldon’s conduct of the disciplinary process. On the contrary we felt able to infer that the disclosures prompted the disciplinary proceedings and were the reason why the process was conducted in such a cavalier and unfair manner. The Claimant was regarded as a troublemaker and Mrs Seldom wanted her gone. Detriment 5: provision of a misleading reference

[122]We accepted that the reference provided to Capita was misleading in two respects. In the first place it was wrong to say that the Claimant had been referred to the NMC. That did not happen until two weeks later. Secondly the statement that the Claimant had been dismissed on five counts of gross misconduct was also inaccurate. In fact, as Mrs Seldon accepted in her letter to the NMC of 21 April 2016, Allegation 1 would not have warranted a referral to the NMC in its own right. Accordingly it must be presumed that this allegation could not on any basis amount to gross misconduct. Nor was there any reference to the fact that the Claimant had indicated she wished to appeal the decision to dismiss. The Claimant was therefore unfairly painted in the worst possible light.

[123]We then turned to consider whether there was the necessary causal link between the protected disclosures and the provision of the reference. A number of factors were important in our decision. Firstly the Respondent’s evidence on this issue was wholly unsatisfactory. Mrs Seldon claimed in cross-examination that the reference had been written by Mrs Beech. This was at odds with her witness statement which stated that ‘when we were asked to give a reference for the Claimant we did so honestly’. In addition Mrs Beech did not refer to the reference anywhere in her witness statement, as might have been expected if she had indeed been the author. We therefore concluded that, contrary to her sworn evidence, Mrs Seldon was the author. However she could offer no explanation for the inaccuracies in the reference. Secondly it was clear from the letter Mrs Seldon wrote to the NMC in December 2016 that she was still, a year after the Claimant’s dismissal, extremely angry with the Claimant for raising complaints with the regulatory authorities and capable of being extremely vindictive towards the Claimant, for example describing her as an ‘evil girl’ and a ‘compulsive liar’. Thirdly provision of the reference followed a number of acts of detriment which, as explained above, had been materially influenced by the Claimant’s disclosures, so that there was a pattern of negative behaviour towards the Claimant that was motivated by her disclosures. Taking these factors together we decided that the Respondent had not satisfied the burden of proof on this issue. It was simply not credible that the protected disclosures had had no material influence on the content of the reference. Detriment 6: Referring the Claimant to the NMC

[124]In considering this claim we noted the evidence of both Mrs Seldon and Mrs Beech to the effect that the Respondent was bound to refer the Claimant to the NMC, in light of the fact she had been dismissed for gross misconduct. That evidence was not challenged in cross-examination and we had no reason to believe that it was incorrect. In light of this, even though the Claimant’s protected disclosures had materially influenced the Respondent’s prior conduct, leading to Page 29 of 40 a situation in which a referral was necessary, we decided that it could not be said that the disclosures materially influenced the Respondent’s actions in relation to the referral itself. The Respondent had no choice in the matter - a referral had to be made. The necessary causative link was therefore missing and this complaint therefore fails. Detriment 7: refusing the Claimant a right of appeal

[125]The right to an appeal against dismissal is a basic component of a fair process. It was abundantly clear from the Claimant’s email of 21 December 2015 that she wished to exercise that right. It was also clear that the ground for her appeal was that that the disciplinary proceedings had only been started because she had acted as a whistle-blower. As discussed in more detail below, to ignore that letter and deny her an appeal was a serious failing. To do so on the basis of a technicality – that she had not given formal notice within the 5 day time limit – was in our view completely disingenuous and nothing Mrs Seldon said in evidence persuaded us otherwise. (Indeed Mrs Seldon’s evidence on this topic was completely unconvincing, particularly her statement that ‘it was not my place to appeal for her’.) We therefore decided that the Respondent had not satisfied the burden of proof and that we were entitled to infer that this was vindictive behaviour, designed to disadvantage the Claimant because she had made the protected disclosures. Accordingly this claim succeeds. Detriment claims: the time limit point

[126]A further issue arises. As a general rule, a complaint that a worker has been subjected to a detriment for making a protected disclosure must be presented to an employment tribunal within three months of the act giving rise to the complaint. Applying that rule to the instant case, any complaints arising out of acts that occurred before 19 December 2015 are prima facie out of time. There is therefore a time limit issue in relation to the first two detriment claims, concerning the Claimant’s shifts. (Miss Hodgett’s conceded that the claim relating to the conduct of the disciplinary process was in time.)

[127]We therefore turned to consider section 48(3)(a) ERA 1996 which provides as follows:- ‘(3) An employment tribunal shall not consider a complaint under this section unless it is presented- (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates, or where that act or failure is part of a series of similar acts or failures the last of them…’ (emphasis added). The Claimant relies on section 48(3)(a) to argue that her first two detriment claims were linked to subsequent acts of detriment and so formed ‘part of a series of similar acts’ with the result that those claims were in time.

[128]Guidance on the scope of the exception in section 48(3)(a) was given by Mummery LJ in Arthur v London Eastern Railway Ltd

[2006] EWCA Civ 1358

in the following terms:- ‘The provision can therefore cover a case where… the complainant alleges a number of acts of detriment, some inside the three month period and some out of it. The acts occurring in the three-month period may not Page 30 of 40 be isolated one-off acts, but connected to earlier acts or failures outside that period. It may not be possible to characterise it as a case of an act extending over a period within section 48(4) [which provides that the phrase ‘date of the act’ in section 48(3)(a) cover acts which ‘extend over a period’] … but there may be some link between them which makes it just and reasonable for them to be treated as in time… Section 48(3) is designed to cover such a case. There must be some relevant connection between the acts in the three month period and those outside it. The necessary connections [have been] correctly identified… as(a) being part of a ‘series’ and

(b) being acts which are similar to one another… In order to determine whether the acts are part of a series some evidence is needed to determine what link, if any there is between the acts in the three month period and the acts outside the three month period… It is necessary to look at all the circumstances surrounding the acts. Were they all committed by fellow employees? If not, what connection, if any, was there between the alleged perpetrators? Were their actions organised or concerted in some way? It would also be relevant to inquire why they did what is alleged…Depending on the facts I would not rule out the possibility of a series of apparently disparate acts being shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure.’

[129]Lord Justice Lloyd took issue with the last of Mummery LJ’s propositions, stating that if the necessary link could be established simply by showing that the acts had all been done on the relevant ground then the use of the word ‘similar’ in section 48(3) would be otiose. However Lord Justice Sedley favoured the approach of Mummery LJ, not least because in a ‘classic tale of harassment at work’ the only link may be ‘the inferred motive of the aggressors’. In his view ‘it is possible that a series of apparently unconnected acts will all be found – using the statutory language – to have been done to the claimant on the ground that he had made a protected disclosure. The difference between such a finding and a finding of detrimental acts linked by a common motive may be no more than semantic. In either case I would consider it within the statutory purpose to treat the history as constituting a series of similar acts.’

[130]We therefore considered the arguments made by the parties on this issue. Miss Musgrave, for the Claimant, maintained that there was a sufficient connection between the decisions about the Claimant’s shifts and the subsequent acts of detriment to bring the claims within section 48(3)(a). Miss Hodgetts, for her part argued that the shift allocations were single one off acts with no connection to the disciplinary process that followed, so that the exception in section 48(3)(a) simply fails to engage.

[131]In coming to our decision we noted that the decisions to alter the Claimant’s shift allocations, the conduct of the disciplinary process, the allocation of a misleading reference and the denial of an appeal were all done because the Claimant had made protected disclosures. According to the majority view in Arthur, that could in itself amount to a sufficient connection between the acts to bring them within section 48(3). However in our view there was additional evidence which supported a link between the decisions about the Claimant’s shifts and the subsequent acts of the Respondent. Firstly Mrs Beech was responsible not only for the Claimant’s shift allocation but was also closely involved in the instigation of the disciplinary process against the Claimant. So for example her name appeared alongside that of Mrs Seldon in the letter of 30 Page 31 of 40 October 2015 inviting the Claimant to a disciplinary hearing. Moreover it was Mrs Beech’s husband who delivered that letter to the Claimant’s home. It is therefore incorrect to say, as counsel for the Respondent argued, that Mrs Beech had no involvement in the disciplinary process beyond that of witness. Secondly it is clear that although Mrs Seldon chaired the disciplinary meetings, Mrs Beech had been closely involved in the formulation of the allegations against the Claimant. Her version of events was crucial to the allegation that the Claimant had walked off shift on 30 October 2015. She was also the person who reported that the Claimant had given the keys to the clinical room to a cleaner on 23 October 2015. Thirdly Mrs Seldon was actively involved in the day to day running of the home and in our view it was inconceivable in those circumstances that Mrs Seldon and Mrs Beech would not be working closely together so far as the treatment of the Claimant was concerned, given that they were respectively the owner and acting manager of the home. We therefore find that there was a sufficient connection between the shift allocation claims and the other successful detriment claims. As a result the shift allocation claims are not time-barred and so they succeed. F. The Unfair dismissal claims The relevant law: ‘ordinary’ unfair dismissal

[132]Generally speaking, where it is agreed that the Claimant was dismissed, a Tribunal considering an unfair dismissal claim must consider whether there is a potentially fair reason for dismissal and if so whether the employer acted reasonably in all the circumstances in dismissing for that reason: see section 98 ERA 1996.

[133]A list of potentially fair reasons is set out in Sections 98(1)(b) and 98(2) of the ERA 1996. This includes a reason which “relates to the conduct of the employee”: see Section 98(2)(b). Case-law establishes that the ‘reason’ for dismissal refers to ‘the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee’: see Abernethy v Mott Hay &Anderson

[1974] ICR 323

. It is also well established that when considering the reason for dismissal we are concerned with the reason that was present in the employer’s mind at the time of the decision to dismiss.

[134]Where the Respondent is able to show that there was a fair reason for dismissal, attention then turns to section 98(4) ERA 1996. This provides: “The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating [conduct] as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case”. The burden of proof on the issue of fairness within section 98(4) is neutral.

[135]When considering the employer’s conduct under Section 98(4), cases such as Iceland Frozen Foods -v- Jones

[1982] IRLR 439

, Foley -v- Post Office

[2000] ICR 1283

, Sainsbury’s Supermarkets -v- Hitt

[2003] IRLR 23

and Turner v East Midlands Trains

[2013] IRLR 107

remind us that the Tribunal has to recognise that different employers may reasonably react in different ways to a Page 32 of 40 particular situation. This means that the Tribunal must not ask what it would have done had it been in the Respondent’s shoes and then substitute it’s own view for that of the Respondent. Instead the question is whether the Respondent acted within the range of reasonable responses open to a reasonable employer both in terms of the actual decision to dismiss and the procedure by which that decision is reached.

[136]Where the reason for dismissal is conduct the Tribunal is also guided by the well known principles set out in British Home Stores -v- Birchell

[1978] IRLR 379

, EAT namely that when coming to its decision on the fairness of the dismissal the tribunal should consider in particular(i) whether the employer had a genuine belief in the guilt of the employee at the time of the decision

(ii) whether that belief was based on reasonable grounds and

(iii) whether those grounds were arrived at after such investigation as was reasonable in the circumstances. Those guidelines were recently quoted with approval in Orr v Milton Keynes Council

[2011] IRLR 317

, CA.

[137]The Claimant also drew our attention to the case of Roldan v Royal Salford NHS Foundation Trust

[2010] IRLR 721

in which the Court of Appeal accepted that the severity of the consequences to the employee of a finding of guilt may be a factor in determining whether the thoroughness of the investigation justified dismissal. The principle was cited with approval in Monji v Boots Management Services Ltd

UKEAT/0292/13

. Automatically unfair dismissal under section 103A ERA 1996

[138]Certain reasons for dismissal are regarded as ‘automatically unfair’ with the result that if such a reason is established the claim will succeed - regardless of the reasonableness of the decision making process. Such a reason is found in section 103A ERA 1996 which provides that an employee will be 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’. Liability for unfair dismissal under section 103A therefore arises only where the protected disclosure is the employer’s sole or principal reason for dismissing the employee – a markedly different test to that applied to detriment claims under section 47B ERA 1996, as discussed above.

[139]It is important to appreciate that even where the Claimant is alleging that there is an automatically unfair reason for dismissal, the burden of proving the reason still falls on the employer. The effect is that whilst the employee has to produce some evidence to show that the real reason was the automatically unfair reason, the burden of proving the reason for dismissal remains firmly with the employer. However where a tribunal rejects the reason for dismissal advanced by the employer it is not bound to accept the reason put forward by the claimant. (see Kuzel v Roche Products Ltd

[2008] ICR 799

, CA).

[140]Often there will be little direct evidence of the employer’s motives in deciding to dismiss the employee. In such circumstances a Tribunal ‘should consider the evidence as a whole’ and ‘make findings… on the basis of direct evidence or by reasonable inferences from primary facts’ so as to determine the real reason for the employer’s actions (see Kuzel, para 58).

[141]Miss Musgrave, on behalf of the Claimant, drew our attention to the case of El-Megrisi v Azad University

EAT/0448/08

. In that case the EAT held that where there has been more than one protected disclosure, a tribunal should ask whether the cumulative impact of the multiple disclosures was the reason or principal reason for dismissal. As Underhill P explained:- Page 33 of 40 “… in a case where a claimant has made multiple disclosures section 103A does not require the contributions of each of them to the reason for the dismissal to be considered separately and in isolation”. Applying the laws to the facts of this case. The section 103A claim

[142]It is the Claimant’s case that the principal reason for dismissal was the fact that she had made a number of protected disclosures. The Respondent, for its part, argues that the real reason was the Claimant’s gross misconduct, As noted above, it is the Respondent that bears the burden of proof on this issue.

[143]In considering whether this was a conduct dismissal we noted that Mrs Seldon was a poor witness and that her evidence in cross-examination on this issue was entirely unconvincing. Moreover, as discussed in more detail in paragraph 146 below, there were extensive failings in the disciplinary process, leading us to conclude that there were no reasonable grounds for finding that the Claimant had been guilty of gross misconduct. We also found that the disciplinary process lacked independence and impartiality and that Mrs Seldon was determined to dismiss the Claimant from the outset (see paragraph 146(iv). In those circumstances we were not persuaded that this was a misconduct dismissal – misconduct was merely a pretext for dismissal, it was not the real reason.

[144]We then considered whether the principal reason for dismissal was the fact the Claimant had made a number of protected disclosures (viewing them as a whole in accordance with the El-Megrisi case). We decided that there was sufficient evidence to support such a finding. The following factors were particularly important in coming to this decision:-(i) Mrs Seldon’s marked change in attitude towards the Claimant once she had made the protected disclosures on 26 October 2015. The Claimant no longer had her support. Instead, within a matter of days, the Claimant was being invited (initially on just one day’s notice) to a disciplinary hearing, the outcome of which might be dismissal.

(ii) There was a vindictive quality to the initial allegations against the Claimant. The letter delivered to the Claimant’s home on 31 October 2015 included an allegation that she had been involved in the harassment of colleagues. Subsequently, at the investigation meeting on 13 November 2015, Mrs Seldon informed the Claimant that this matter was to be investigated by Social Services, a statement that was calculated to cause the Claimant great concern. However there was no evidence that Social Services ever embarked on such an investigation and in cross-examination Mrs Seldon struggled to explain her behaviour in relation to this issue, accepting that she should probably never have used the term ‘harassment’ in this situation.

(iii) The fact that Mrs Seldon failed to give the Claimant any explanation for rejecting her explanation of events either at the disciplinary hearing or in the dismissal letter but then felt able to produce a very unfair and unbalanced summary of the evidence against the Claimant when referring the Claimant to the NMC.

(iv) The fact that, in addition to being dismissed, the Claimant was subjected to a number of detriments as a result of making the protected disclosures. There was therefore a pattern of vindictive behaviour towards the Claimant, following her complaints to the authorities. Page 34 of 40

(v) Mrs Seldon’s poor performance when giving evidence to the Tribunal. We were unanimous that Mrs Seldon proved to be a most unsatisfactory witness. Her evidence on the reason for dismissal was particularly unconvincing. Not only did she claim – falsely - in her witness statement that the Claimant ‘admitted to her actions in the [disciplinary] meeting’ she did not stand up well to crossexamination, so much so that when it was put to her that the real reason for dismissal was the Claimant’s disclosures to social services, her denial was simply not credible.

[145]In light of these matters we decided that the evidence entitled us to infer that the reason for dismissal was the cumulative effect of the protected disclosures made by the Claimant. Those disclosures had turned the spotlight on the management of the home and as a result Mrs Seldon had turned against the Claimant and wanted her gone. The claim under section 103A ERA 1996 therefore succeeds. The claim of ordinary unfair dismissal

[146]For completeness we should add that even if the Respondent had been able to establish that the reason for dismissal related to the Claimant’s conduct we would nonetheless have found her dismissal to be unfair, applying the test in section 98(4) referred to above. Our reasons are as follows:-(i) Mrs Seldon failed to carry out a reasonable investigation and in our judgment never had any intention of doing so. So much is clear from the Respondent’s letter to the Claimant of 5 November 2015 which shows that initially Mrs Seldon intended to proceed to a disciplinary hearing on a single day’s notice without holding any kind of investigation meeting with the Claimant or providing her with any details of the allegations against her – in clear breach of the ACAS Code and the Respondent’s own disciplinary policy. Indeed at this stage Mrs Seldon had not even collected any witness statements. It was only when the Claimant and her representative protested, that the meeting was postponed and converted to an investigation meeting. Even then the meeting was woefully short, lasting just eleven minutes – far too brief to be a meaningful investigation. The meeting was also manifestly unfair, as the Claimant had no real idea what was being alleged against her. Accordingly she had little opportunity to put forward a considered response. In addition the questioning at the meeting was misleading. Having told the Claimant that she would be questioned ‘purely about the happenings on 30 October, Mrs Seldon proceeded to ask the Claimant whether she had ever given the treatment room keys to an unauthorised member of staff. This question alluded to an incident on 23 October 2015 – although this was never made clear to the Claimant. The Claimant answered ‘not that I know of’, which was the best she could do, given the limited information available to her. There was therefore no proper exploration of this matter. Indeed it was not until part way through the disciplinary hearing, on 21 December 2015, that the Claimant fully understood this allegation, whereupon she agreed that she had given the keys to the individual in question and explained her reasons (which focused on the safety of the residents) for doing so. It was never made clear to the Claimant why Mrs Seldon deemed this explanation, which on the face of it was coherent and plausible, to be inadequate.

(ii) The conduct of the disciplinary hearing was just as bad. Even at this late stage the Claimant had not been provided with the totality of the evidence against her. As a result the Claimant was never in a position to prepare properly for the hearing and had to respond ‘on the hoof’ as details of the allegations became clearer. In addition although some documents were provided during the course of the meeting, significant evidence was withheld from her. This included Page 35 of 40 the CCTV footage, the letter of complaint about EF (which was only handed to her at the end of the meeting by which stage there was no opportunity for her to address its contents) and Mrs Barleyman’s statement about the keys incident – which was only handed to the Claimant after that incident was discussed. Similarly the Claimant was not provided with all of the statements dealing with the events of 30 October 2015 even though, as Mrs Seldon’s referral of the Claimant to the NMC makes clear, Mrs Seldon relied on comments in those statements when justifying her decision. Equally the Claimant was not provided with the identities of the residents who were the subject of allegation 3 (relating to the MAR charts), even though by this stage almost two months had passed since the events in question and the Claimant was clearly struggling to identify the residents who had not been given their medication when she went home sick. The failure to provide her with this information was in clear breach of both the Respondent’s own disciplinary policy (which provides that an employee will always be given as much information as possible regarding the allegations that form the basis of the disciplinary hearing) and the ACAS Code. As a result the Claimant was simply not in a position to be able to respond fairly to the allegations against her. Moreover when she did try to explain herself she was interrupted and not an adequate opportunity to respond. She never stood a fair chance of establishing her innocence. This was unreasonable on any basis but particularly egregious given the impact that a dismissal for gross misconduct would have on the Claimant’s nursing career (mandating a referral to the NMC to consider her fitness to practice).

(iii) There were no reasonable grounds for concluding that the Claimant had been guilty of gross misconduct. So for example Mrs Seldon conceded in her letter to the NMC of 21 April 2016 that allegation 1 (relating to the incident with the keys) was not severe enough in isolation to warrant a referral, thereby suggesting that this matter did not amount to gross misconduct. Yet this incident was included in the dismissal letter as one of five instances of gross misconduct on the Claimant’s part. Moreover, having admitted in cross-examination that the Claimant’s decision in relation to the keys was a matter of professional judgment, Mrs Seldon could not provide a satisfactory explanation as to why she preferred the opinion of Mrs Barleyman (who was not a nurse) to that of the Claimant on this issue. Equally although Mrs Seldon asserted in evidence that the Claimant’s actions in respect of the keys incident were in ‘breach of company policy’ she gave no explanation during the disciplinary process or at the tribunal hearing to justify that statement. Similarly when dealing in her evidence with allegation 2 (concerning the handover of the drugs round on 30 October 2015) Mrs Seldon was unable to explain what it was about the handover that made it unsafe. We also noted that Mrs Beech’s statement of 30 October 2015 confirmed that the Claimant had told Mrs Beech she was leaving the shift because she felt ill, that she had left her keys at the nurses’ station and had told Mrs Beech that she had only partially completed the drugs round. In those circumstances - and in light of the fact that the CCTV footage showed Mrs Beech completing the drugs round apparently without incident - it is difficult to see how any reasonable employer could have concluded that the Claimant had left her shift ‘without notice and without giving a safe handover’. There were similar problems with allegation 3, which concerned the MAR charts. Firstly there was no evidence that the Claimant’s practice breached company policy or was in breach of any nursing or other regulatory guidelines. Secondly from the outset, when questioned about this issue at the investigation meeting, the Claimant openly accepted that when she signed the MAR chart she was Page 36 of 40 confirming that medication had been given to a resident. She then went on to say that she believed that on the morning in question some of the residents had refused their medication when she went to administer it. However at the time she made this statement the only information she had about the allegation was that she had been guilty of ‘unreasonable conduct’ on 30 October 2015. She was therefore in the wholly unsatisfactory position of having to answer questions on the spot entirely from memory, some two weeks after the events in question, having had no chance to think about the matter beforehand. Nonetheless Mrs Seldon latched onto this answer at the disciplinary hearing stating that the CCTV footage showed that she had never attempted to administer the drugs to Mr W. The Claimant was at a huge disadvantage when dealing with this allegation because she had not seen the CCTV footage nor was she sure even who Mr W was – and Mrs Seldon refused to enlighten her. The Claimant therefore suggested that perhaps she had not got to the point where she had attempted to administer the drugs. Despite this answer Mrs Seldon’s decision letter recorded ‘You stated in interview that the residents refused these medications, this is a false statement.’ On our view, given the circumstances, there were no reasonable grounds for such a categoric and damming conclusion. Similarly we were not persuaded that there were reasonable grounds to justify the allegations relating to patient EF. Although Mrs Seldon concluded that the Claimant had not documented the administration of the enema on 10 October 2015, the MAR chart before the Tribunal suggested otherwise. In addition Mrs Seldon was all too ready to prefer the family’s letter of complaint over the Claimant’s explanation, even though the Claimant’s explanation is to some extent supported by the care notes. In these circumstances it is unsurprising that the dismissal letter of 21 December 2015 contained no explanation for the findings of gross misconduct. There were simply no reasonable grounds for those findings.

(iv) The disciplinary process lacked independence and impartiality. Mrs Seldon took the witness statements, carried out both the investigation and disciplinary hearings and made the decision that there would be no appeal hearing. She therefore led the entire disciplinary process, despite the fact that paragraph 6 of the ACAS Code on Disciplinary and Grievance Procedures (the ‘ACAS Code’) states that in misconduct cases ‘where practicable, different people should carry out the investigation and disciplinary hearing’ and paragraph 27 suggests that an independent person should determine the appeal. In addition Mrs Seldon’s cavalier approach to the disciplinary process, during which she ignored even the most basic elements of natural justice, suggest that her mind was already made up and that she was determined to dismiss the Claimant from the outset (a conclusion supported to some extent by the letter of complaint from EF’s family which assumes, nearly a month before the Claimant‘s disciplinary hearing, that she had been dismissed in early November 2015).

(v) Mrs Seldon’s decision that the Claimant’s conduct warranted summary dismissal fell outside the band of reasonable responses. The evidence simply did not justify such a conclusion and no reasonable employer would have imposed such a severe sanction in these circumstances. In coming to this conclusion we noted that the NMC, in their response to the highly partial and prejudicial referral by Mrs Seldom, categorically rejected any suggestion that the Claimant’s conduct could amount to a finding of misconduct, let alone gross misconduct.

(vi) The failure to offer an appeal was another egregious failing, taking the dismissal outside the band of reasonable responses. It was obvious that the Claimant was asking for an appeal when she wrote to the Respondent on 21 Page 37 of 40 December 2015, but there was never any attempt to consider this matter in good faith. Given the deficiencies in the disciplinary process (many of which were conceded by Mrs Seldom in cross-examination) this was a very serious failing, in clear breach of both the Respondent’s disciplinary policy and paragraph 26 of the ACAS Code. In addition Mrs Seldon’s involvement in this decision breached paragraph 27 of the ACAS Code.

[147]In light of these various findings we had no hesitation in concluding that the dismissal was both substantively and procedurally unfair. G The Breach of Contract Claim

[148]The Claimant also brought a separate claim for wrongful dismissal, alleging that the Respondent was in breach of contract when it dismissed her without notice. Case law makes it clear that an employer is entitled to terminate the contract without notice if it can show that the employee was guilty of gross misconduct amounting to a repudiatory breach of contract. (This is an application of the general rule of contract law that following repudiatory breach the innocent party has the option to terminate or affirm the contract.) However we were not persuaded that the Claimant was guilty of repudiatory conduct. Firstly we did not accept that she had committed any acts of gross misconduct as our conclusions at paragraph 146(iii) make clear. Those conclusion are supported by the NMC’s letter of 15 March 2016 which stated that it was ‘highly unlikely’ that the allegations against the Claimant would lead to a finding of misconduct, that there were only ‘minor errors’ and that ‘no panel would find there was a current impairment’. Secondly we did not accept that the Claimant’s conduct during the disciplinary process contributed to a repudiatory breach, as Ms Hodgetts argued. Far from giving ‘misleading answers’ the Claimant answered as honestly and openly as she could, given the limited information available to her. Accordingly, the claim for breach of contract succeeds. H Matters relevant to remedy Polkey Reduction

[149]We then considered whether it would be just and equitable to reduce any compensatory award to reflect the fact that the Claimant might have been dismissed fairly at a later date or if a fair procedure been followed (following the principles set out in Polkey v AE Dayton Services Ltd

1988 ICR 142

.) The Respondent argued for a 100% reduction on this ground on the basis that, by walking off her shift on 30 October 2015, the Claimant demonstrated that she expected preferential treatment over nurse Irene, and that this attitude indicated that the employment relationship was inevitably doomed, thereby justifying a Polkey reduction. We rejected that argument. There was absolutely no evidence to support the idea that the Claimant expected preferential treatment. Her distress that morning was created by the Respondent’s failure to abide by the agreement reached at the meeting on 16 September 2015, as a result of which she had committed to pay for a place at nursery for her son. Moreover, as Mrs Seldon accepted, the Claimant was genuinely unwell and simply not up to completing her shift.

[150]That argument having failed, there was no other basis on which to reduce any compensatory award under this head. The charges of gross misconduct had no substance to them. In those circumstances had a fair process had been followed it is extremely unlikely that the Claimant would have been dismissed. We therefore agree with the Claimant’s submission that any reduction on this basis would be quite unjust. Page 38 of 40 Contributory conduct

[151]We then considered whether any compensation to be awarded to the Claimant should be reduced on account of her conduct. The relevant statutory provisions are found in section 122(2) and 123(6) ERA 1996. These sections are worded slightly differently. Section 123(6), which applies to the unfair dismissal compensatory award, provides that where the Tribunal finds the dismissal was to any extent caused or contributed to by any action of the Claimant then it has to reduce the compensatory award by such proportion as it considers just and equitable. Case-law has established that the Claimant's actions must be culpable or blameworthy to bring the section into play (see Nelson v BBC

[1980] ICR 110

[152]In this case we did not accept that the Claimant's actions were either culpable or blameworthy. As noted above, there were no reasonable grounds for concluding that the Claimant was guilty of gross misconduct. In our view the explanations the Claimant gave for her actions were both plausible and reasonable and demonstrated that she was a caring and compassionate nurse. In particular, although the Claimant accepted that her practice in respect of the MAR charts was not standard procedure, we were not persuaded that this amounted to culpable or blameworthy conduct. This is for three reasons. Firstly the Claimant had been observed doing the drugs round very recently by the local care commissioning group and no issues about her practice were raised. Secondly we were presented with no written evidence to show that her practice breached company or nursing guidelines. Thirdly although this allegation was particularised in the referral to the NMC, the NMC rejected the notion that the Claimant was guilty of any misconduct.

[153]In addition we did not accept that the Claimant contributed to her dismissal because she lied about attempting to give medication to patient W, as the Respondent alleged. The evidence simply does not support such a conclusion. Her initial response in the investigation meeting was made without knowing the full details of the allegations against her. She responded as best she could, given the limited information available to her. Later on in the disciplinary hearing the Claimant made it clear that she was unsure who Mr W was, later stating that she may not have got round to administering his drugs. In those circumstances we were not prepared to find that she lied, so as to justify a reduction in her compensation. Nor did we accept that in going home on the morning of 30 October 2015 she had done anything wrong. She was genuinely distressed and unwell and so in no fit state to complete the drugs round. She acted appropriately in the circumstances.

[154]We also considered whether to reduce the basic award under section 122(2). This section allows a reduction where the Tribunal considers that any conduct of the Claimant prior to dismissal is such that it would be just and equitable to make a reduction. The section gives the Tribunal wide discretion and we decided that no such reduction should be made for the reasons set out in the preceding paragraphs. Increase for failure to comply with the ACAS Code

[155]Finally the Tribunal considered whether it would be appropriate to increase any compensation awarded to the Claimant on the basis that the employer had failed to comply with the ACAS Code. Under section 207A(2) Trade Union and Labour Relations (Consolidation) Act 1992 compensation awarded for wrongful Page 39 of 40 dismissal and detriment claims and the unfair dismissal compensatory award can all be increased on this basis provided the Tribunal finds that the failure was unreasonable and also considers that it is ‘just and equitable in all the circumstances’ to make such an adjustment.

[156]However, having checked our notes, we could find no submissions from Miss Hodgetts on this issue, no doubt by way of oversight on her part. Although this is regrettable, we noted that section 207A allows us to make a substantial increase under this head (up to 25 per cent). In those circumstances we decided that it would not be in accordance with the overriding objective, which requires us to deal with the case fairly and justly, to make a determination without first hearing from the Respondent. This matter will therefore have to be left for the remedy hearing. For the avoidance of doubt, although we have identified some breaches of the Code in this judgment, this list is not necessarily comprehensive and further findings may therefore need to be made at the remedies hearing on this issue. Remedy hearing

[157]The matter is in the course of being listed for a remedy hearing at the Nottingham tribunal. If in the meantime the parties are able to settle this matter they should inform the Tribunal as soon as possible.