Miss JM Beresford v LeicestershirePartnership NHS Trust: 2601994/2016
EMPLOYMENT TRIBUNALS
Case No 2601994/2016
Between
Miss Jane Marie BeresfordClaimantLeicestershire Partnership NHS Trust PRELIMINARY HEARINGRespondent
Before
Employment Judge CampIn person for claimantJennifer Danvers (instructed by counsel) for respondentDate 4 September 2018
REASONS
[1]These are the reasons for the above Reserved Judgment & Order.[2]The claimant was employed by the respondent as a Community Nurse from 15 August 2016 until her summary dismissal, ostensibly for gross misconduct, effective on 15 November 2016. By way of background, I refer to the written record of the preliminary hearing that took place before Employment Judge Solomons on 23 January 2017 and to the Reasons, given orally on the day, for the above [unreserved] Judgment & Order. In light of that Judgment & Order, the only issues that were left to be decided by me were:2.1 should the claimant be permitted to amend her claim to add the whistleblowing dismissal complaint and, if so, should a deposit order [rule 39] be made in relation to that complaint?2.2 should the claimant be permitted to amend her claim to add the whistleblowing detriment complaints and, if so, should a deposit order be made in relation to any of those complaints?2.3 should the claimant be permitted to amend her claim to add the disability discrimination claim and the age discrimination claim and, if so, should a deposit order be made in relation to any of those complaints?[3]The issues related to amendment and making deposit orders, not to striking out pursuant to rule 37 for lack of prospects of success. The complaints with which I am concerned are not made in the claim form, which was presented on 28 November 2016 following the claimant’s dismissal on 8 November 2016 and a period of early conciliation from 27 October to 23 November 2016. The only direct or indirect reference to whistleblowing in the claim form is the single word “Whistleblowing” in section 8.1. There is no mention of disability discrimination and the only mention of disability is in section 12, in response to questions about whether the claimant has a disability. The only reference to age or age discrimination is a cross in the “age” box in section 8.1.[4]However, one of the issues that this hearing was set up to deal with was whether particular complaints should be struck out as having no reasonable prospects of success; and I anyway need to consider the merits of complaints the claimant is wanting to add by amendment in relation to deposit orders. There would be no point in me allowing an amendment to add a particular complaint if the complaint to be added was liable to be struck out as having no reasonable prospects of success. If any complaint the claimant wants to add by amending her claim would have no reasonable prospects of success, I shall simply not give permission to amend. If, on the other hand, a complaint the claimant wants to add by amendment merely has little reasonable prospects of 5 of 18 2402464 success, but the application to amend is otherwise sound, I think I should allow the amendment and then consider making a deposit order.[5]I also note that the claimant first sought to make these claims – or at least versions of them – in the case management agenda submitted on 13 January 2017 (“Agenda”).
Law
[6]So far as concerns whether I should permit the claimant to amend, my starting point is the guidance given by the EAT in the well-known case of Selkent Bus Co Ltd v Moore [1996] IRLR 661. I must take all relevant circumstances into account; time limits are important but not necessarily determinative. My focus must, though, necessarily be on the overriding objective set out in rule 2, which did not, of course, exist when Selkent was decided; albeit there is no conflict between the overriding objective and the Selkent guidance.[7]In assessing the prospects of success of the complaints the claimant wants to add by amendment, I take into account, in particular, paragraph 24, part of Lord Steyn’s speech, of the House of Lords’ decision in Anynanwu v Southbank Student Union [2001] ICR 391 and paragraphs 29 to 32 of the Court of Appeal’s decision in North Glamorgan NHS Trust v Ezcias [2007] EWCA Civ 330. When deciding whether a claim has “no reasonable prospects of success”, the test to be applied is whether there is no significant chance of the trial tribunal, properly directing itself in law, deciding the claim in the claimant’s favour. Subject to one proviso, in applying this test I must assume that the facts are as alleged by the claimant. The one proviso or qualification is that I do not make that assumption in relation to any allegation of fact made by the claimant so implausible that I think there is no significant chance of any tribunal, properly directing itself, accepting the allegation as true.[8]Striking out a tribunal claim – or, in this case, refusing the claimant permission to amend and effectively saying to her “you may not bring this claim” – is an exceptional thing to do and before I will do so the respondent has to cross a very high threshold indeed. Equally, however, the overriding objective is not served by permitting claims that are bound to fail to continue. Doing so benefits no one, least of all the claimant.[9]The law as to the meaning of “little reasonable prospects of success” in rule 39, which relates to deposit orders, is not as clear as perhaps it should be, but my understanding of the test I have to apply is that it is the same as that set out above in relation to “no reasonable prospects of success” but with the word “little” replacing the word “no” in the phrase “no significant chance”.[10]As mentioned above, time limits are an important factor for me to take into account in deciding whether to give the claimant permission to amend. The time limits governing the discrimination complaints are set out in EqA sections 123, which I refer to and which won’t set out here.[11]In terms of how, at trial, the “just and equitable” discretion under EqA section 123(1)(b) would be exercised, I remind myself that: all the circumstances must 6 of 18 2402464 be taken into account, usually including (suitably adapted so they make sense in an employment law context) the factors (a) to (f) set out in section 33(3) of the Limitation Act 1980 (“section 33”); an important, but not necessarily determinative, factor is likely to be the balance of prejudice; time limits are there to be obeyed; it is for the claimant to persuade the tribunal that it is just and equitable to extend time; if the claimant is ignorant of time limits this does not in and of itself justify extending time. I have sought to apply the law in relation to this as summarised in paragraphs 9 to 16 of the EAT’s decision in Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283.[12]Following the decision in Rathakrishnan, it is often suggested that the “just and equitable” discretion should almost always be exercised in the claimant’s favour unless the respondent can show significant prejudice. I disagree. If this were so: it would effectively mean it was no longer the claimant who has to persuade the tribunal to exercise its discretion but, instead, the respondent who had to persuade it not to; it would in practice make the limitation period for discrimination complaints significantly longer than 3 months, because a respondent is rarely, if ever, going to be able to demonstrate that it has been significantly prejudiced by a delay in bringing proceedings of less than a year or two.[13]So far as concerns the time limits issue in relation to the whistleblowing detriment complaints, I note: the wording of ERA sections 48(3) and (4); in relation to whether there was “an act [that] extends over a period” or “a series of similar acts or failures”, Arthur v London Eastern Railway Ltd [2006] EWCA Civ 1358. Whistleblowing dismissal[14]An important preliminary question is: what is the whistleblowing claim the claimant wants to bring? The full answer to that question did not become clear until this hearing. Indeed, the bulk of the hearing – which lasted a full day, to 4.45 pm – was spent trying to clarify with the claimant what her case is.[15]The claimant (“C”) wishes to rely on the following alleged protected disclosures:15.1 on or about 17 August 2016, she did a home visit on a particular child with a colleague called Jane Wright (“JW”). Afterwards, C asked JW if she had noticed anything in particular about the child. C said she was concerned about the child’s weight and noted that the child’s underwear was very dirty. JW did not respond, or otherwise show any interest in what C was saying. That is all that was said. I’ll call this “disclosure 1”;15.2 on or about 24 August 2016, C spoke to one of her managers, Louise Martin (“LM”). She told LM that she had a concern about a child she had seen with JW on 17 August, that JW would not talk to her about it, and that she wanted the matter looked into. She did not say what the concern was. LM said nothing more than something about there having been a breakdown in communication between C and JW and that communications between the two of them needed to be better. That was the extent of the conversation between them. I’ll call this “disclosure 2”. 7 of 18 2402464[16]Both alleged protected disclosures are relied on in relation to the proposed whistleblowing dismissal complaint.[17]The following arguments are put forward in opposition to the application to amend to add this complaint:17.1 the first time disclosure 2 was put forward as a relevant alleged protected disclosure was in the Particulars of Claim of 18 February 2017 (more than 3 months after the effective date of termination) and despite being ordered to do so by Employment Judge Solomons, the first time the claimant identified what the alleged protected disclosure(s) consisted of was orally, at the hearing before me, nearly a month later. She has put forward no explanation at all for her failure to provide this information sooner;17.2 it is difficult to identify – and the claimant has not really attempted to do so – what parts of ERA section 43B(1) are potentially engaged by the disclosures. If, in relation to disclosure 2, it is said to be subsection (b), what is the “legal obligation” that the claimant alleges she reasonably believed JW had failed to comply with?;17.3 protected disclosures come in all shapes and sizes. It is not necessarily the case – not remotely – that any protected disclosure of any kind made in any circumstances provides a possible motive for somebody to subject the maker of the protected disclosure to a detriment. If whistleblowers are persecuted it is almost always for one of two reasons: either they have caused some inconvenience or embarrassment, or something of that kind, by blowing the whistle and the person subjecting them to detriment is punishing them and/or making an example of them; or they have blown the whistle to a certain level and the person subjecting them to detriment is doing so by way of threat, with a view to dissuading them from blowing the whistle again and/or to other people such as senior managers within a company or the regulatory authorities. When asked by me why, in her view, either JW or LM would have wanted to get at her for making disclosure 1 or disclosure 2, the claimant didn’t really have an answer; indeed, she said she didn’t know. The best she could come up with was speculation that, perhaps, JW hadn’t liked being questioned by someone who had just started and that LM perhaps wanted to stick up for JW. She did not suggest there was any evidential basis for this speculation in relation to LM and, even putting the claimant’s case at its reasonable highest, there is barely any evidential basis for what she is alleging about JW;17.4 this is not a case where it is suggested the motive was a cover-up. And if this were being suggested, it would be highly implausible. If an employer wants to keep a whistleblower quiet, summarily dismissing her without compensation and a compromise agreement is almost the last thing to do. It is likely to be counterproductive if that is the aim;17.5 it doesn’t even seem to be the claimant’s case that the principal reason for dismissal – or a reason for any other alleged mistreatment – was the claimant ‘blowing the whistle’. Instead, what she appeared during the hearing to be saying was that she didn’t know why she had [allegedly] 8 of 18 2402464 been targeted for mistreatment and that she thought this could be the reason – but, equally, it might have been something else. I note that she suggested, at more than one point during the hearing before me, that JW appeared not to like her when they first met, i.e. before she made any disclosure – although she also, at other points during the hearing, suggested otherwise. What the claimant is really complaining about [it is said on the respondent’s behalf] is nothing more than allegedly unfair and unreasonable treatment. She is using the vehicle of a whistleblowing claim to get around the fact that she can’t bring an ‘ordinary’ unfair dismissal complaint because she had less than 2 years’ service with the respondent;17.6 the decisions to dismiss and, on appeal, to confirm the dismissal were not taken by JW or by LM. Nowhere in her claim does she make any specific allegations against the decision-makers. She doesn’t even make a general allegation that the decision-makers themselves were influenced by her ‘blowing the whistle’. Her case, to the extent I understand it, is that she was disliked by the people she worked with because she made disclosure 1 and disclosure 2 and that this caused them to make things up about her, things that ultimately led to her being disciplined and dismissed. Although claims of this type – so-called ‘Iago cases’ (see Cooperative Group Ltd v Baddeley [2014] EWCA Civ 658, at paragraph 42) – may be possible in theory, the present case couldn’t (it is said on the respondent’s behalf) succeed as a matter of law on the facts as alleged by the claimant.[18]I accept that for all of the above reasons, the claimant’s case is weak and I think she is very likely lose if she takes the case to trial. The whistleblowing dismissal complaint has little reasonable prospects of success, in other words. This is because the claimant would probably fail to satisfy the tribunal at trial that: either alleged disclosure was a qualifying disclosure; the reason for any mistreatment at the hands of JW, or LM, or anyone else at their instigation, was the making of any protected disclosure(s); the principal reason for dismissal was the making of any protected disclosure(s).[19]However, I give her permission to amend to add to her claim a whistleblowing dismissal complaint based on the two alleged protected disclosures set out in paragraph 15 above, mainly because:19.1 I am not satisfied it has no reasonable prospects of success;19.2 the claimant applied to amend at an early stage, and well within three months of the date of dismissal;19.3 the Agenda, which contained her first amendment application, included quite a lot of detail about her proposed complaint, even if it didn’t include everything it should have done.[20]I shall consider separately, below, whether to make a deposit order in relation to this or any other complaint. 9 of 18 2402464 Whistleblowing detriment[21]The claimant’s proposed whistleblowing detriment complaints are based on the same two alleged protected disclosures as form the basis of the whistleblowing dismissal complaint. The alleged detriments relied on are:21.1 on or about 17 August 2016, JW refused to give the claimant a lift in her car and told her she would have to make her own way;21.2 on the same date, JW ‘reported’ C to management for taking the bus to work;21.3 on or about 19 August 2016, C arrived at the Children’s Community House at Melton Mowbray. JW said she was not expecting C and did not want her to be there, and that C should go to Rutland. C was required to sit separately from JW and another nurse who was there with JW called Kim;21.4 on the same date, later in the day, every time C went to sit at a particular table, JW told her she couldn’t sit there, leaving C having to stand in the middle of the office;21.5 on or about 24 August 2016, shortly after allegedly making disclosure 2, LM shouted at C telling her she was “deaf” and had “memory problems”;21.6 from around this time, other staff began talking about the claimant behind her back and making allegations about her, referring unpleasantly to the number of grandchildren she had, about her grandson’s goldfish having died, about her not having a partner, having a memory problem, being deaf, not being ‘with it’, not being ‘on this planet’, being vacant, ‘zoning out’, having poor presentation and being unprofessional etc.121.7 on or about 25 August 2016, LM instructed C not to come back into work until she had a road-legal car and was driving;21.8 on or about 30 August 2016, LM again shouted to the claimant that she was deaf and had “a memory problem”, falsely accused her of having taken unauthorised absence on 26 August 2016, told C have to take unpaid leave; then, after a telephone call in which LM said of C – in an unpleasant way – “aahhh, she can’t live without her salary”, told C to take the afternoon of 31 August and the whole of 1 September as annual leave in order to sort her car out. More details of what was allegedly said are set out in page 8 of the Particulars of Claim;21.9 when C attended work on 1 September 2016, having sorted her car out, LM falsely accused her of having taken unauthorised absence the previous afternoon;21.10 on or about 2 September 2016, LM falsely accused C of not following instructions to attend the Children’s Community House that day, but in fact LM had instructed her to work elsewhere; 1 This, including the “etc.”, comes principally from the “Bullying, Victimisation, Stalking and Harassment” section of the Particulars of Claim, at the bottom of page 6 and the top of page 7. There is some cross-over between the complaints in this paragraph and those identified in paragraph 21.13. 10 of 18 240246421.11 on or around or after 2 September 2016, the respondent / LM falsely accused C of not having provided documents showing she had a roadlegal car, but in fact C had emailed them to LM on 31 August 2016 and gave originals to an administrator called “Mel” on 2 September 2016;21.12 making the allegations that led to the claimant’s suspension on 2 September 2016, and suspending her;21.13 making the allegations that led to the claimant being disciplined and ultimately dismissed, and, more generally, making the allegations that were made during the investigation that formed part of the disciplinary process (whether or not they were allegations that led to dismissal).[22]Much the same points can be made on both parties’ behalf about the whistleblowing detriment claim as about the whistleblowing dismissal claim. An additional point in the claimant’s favour is that most of the allegations of fact she relies on in relation to the detriment claim are made in the claim form. An additional point in the respondent’s favour is that for those allegations not in the claim form, there is potentially a limitation issue. My decision in relation to both claims is the same:22.1 the complaints of whistleblowing detriment have little, but not no, reasonable prospects of success because the claimant is very unlikely to satisfy the tribunal both that she made qualifying disclosures and that any disclosure was the reason for any mistreatment that she suffered2;22.2 I nevertheless give her permission to amend to add these complaints because all or almost all of the factual allegations she relies on were made in the claim form and/or in the Agenda, the claimant applied to amend at an early stage, and any time limits point seems to be a bad one because if the claimant succeeds on the facts, the detriments she complains about will almost certainly be “an act [that] extends over a period” or “a series of similar acts or failures”. Disability discrimination[23]What I am deciding is, again, whether the claimant should be given permission to amend. In light of the decisions I made at the hearing, recorded in the above [unreserved] Judgment & Order, the only potential disability discrimination complaint that I am considering is of harassment related to disability under EqA section 27, concerning comments allegedly made by LM about the claimant being “deaf” and having a “memory problem” that are referred to in section 5. of the Particulars of Claim.[24]The relevant part of the claim form states, “I was told in a shouting, patronising manner, that, “You are deaf”, “You have a memory problem.”; but no complaint of disability discrimination is made. In the Agenda, the closest the claimant comes to alleging disability discrimination is, on page 8, under the heading “Discrimination”, stating, “Hearing – LMartin stating “you are deaf”, arranging 2 In a detriment claim, unlike in a dismissal claim, the claimant does not have to prove the principal reason for the mistreatment and can take advantage of ERA section 48(2), which reverses the legal burden of proof. Nevertheless, the claimant still has an evidential burden to discharge: see Ibekwe v Sussex Partnership NHS Foundation Trust UKEAT/0072/14/MC (20 November 2014). 11 of 18 2402464 OH appointments but then respondents cancelling appointment made for 7/12/16 prior to hearing level being established. Implied meaning issue with hearing but not established.” No disability discrimination claim was mentioned to Employment Judge Solomons at the case management preliminary hearing on 23 January 2017.[25]At the hearing before me, as explained above, C specified that LM allegedly made the relevant comments on 24 and 30 August 2016. No remotely clear disability discrimination complaint was put forward until the Particulars of Claim were presented, on 27 February 2017. Taking early conciliation into account, a complaint about something that happened on 30 August 2016 should have been presented to the tribunal on or before 26 December 2016. The claimant has never properly articulated a relevant application to amend. In so far as such an application was implicit in the Particulars of Claim, it was made over 2 months’ ‘late’. The claimant has put forward no explanation at all for not making it sooner, nor for not including the complaint in her claim form in the first place.[26]There is at least one further problem with the proposed disability discrimination claim, which may explain why the claimant did not originally bring it: is telling someone she is deaf and has a memory problem, even if done with a raised voice and in a patronising manner, disability-related harassment as a matter of law? LM evidently believed the claimant had or might have a hearing problem because she referred her to Occupational Health; and it turns out she was right – the claimant (so she told me) has something like 50 percent hearing loss. I query whether telling someone she is deaf in such circumstances would satisfy the test under EqA section 26(1)(b). In addition, I am very far from sure that either comment was “related to” disability. The comment about the claimant being deaf was related to a perception that the claimant was or might be hard of hearing, but that isn’t the same thing. The comment about a “memory problem” is alleged by the claimant to be malicious; she denies having any memory problems. Falsely alleging someone has “a memory problem” is very different from falsely alleging that they have a disability. I don’t think the memory problem comment can properly be said to be related to disability at all.[27]A further issue that potentially arises if a disability discrimination complaint of any kind is to be pursued is whether it would be necessary to investigate whether the claimant was actually a disabled person at the time the comments were made. My view is that it would not, because the claimant’s proposed claim is about her being perceived as having a disability, alternatively about trying to use the word and phrase “deaf” and “memory problem” as insults. I think the proposed claim is akin to claims by heterosexual people about homophobic abuse. However, I can envisage a different Employment Judge / tribunal seeing it differently.[28]For all these reasons, and notwithstanding the fact that the amendment application to add a disability discrimination claim is little more than a relabelling exercise, I refuse permission to amend. 12 of 18 2402464 Age discrimination[29]This, too, is a question of whether I give permission to amend. The proposed claim consists of complaints of direct discrimination because of age and/or harassment related to age under EqA sections 13 and 27 concerning the same alleged comments of LM and comments about a goldfish having died and about the claimant’s grandchildren referred to in section 5. of the Particulars of Claim. The claimant’s case is that LM and colleagues were trying to paint a picture of her as decrepit and incompetent due to her age.[30]Comparing the position relating to the proposed age discrimination claim with that relating to the proposed disability discrimination claim:30.1 age discrimination is expressly mentioned in the claim form, but the proposed amendment is significantly more than a simple relabelling exercise;30.2 the proposed age discrimination claim is, however, largely set out in the Agenda, on page 8;30.3 how the primary 3 month (plus an extension to take early conciliation into account) would apply to the proposed age discrimination claim is less clear-cut, in that the claimant may possibly be complaining in part about written comments made after she was suspended. Most of what she is complaining about, however, occurred in late August 2016 and the primary time limit would have expired in late December. Taking the date of the Agenda as the date when I deem the claimant to have made the relevant application to amend, she therefore made it about 2 weeks’ late. Once again, there is no explanation for the failure to set this claim out in the claim form, nor for the delay in applying to amend;30.4 it is difficult to see how the comments the claimant complains about have anything to do with her age, or with age more generally. Her case is that people were nasty to her and about her because she ‘blew the whistle’, not because of her age. In examining whether there was any less favourable treatment, in accordance with EqA sections 13 and 23, the tribunal at trial would have to ask itself whether another person, similarly disliked (whether because she blew the whistle or otherwise) would have been more favourably treated. The answer to that question is almost certainly “no”. Talking about someone having lots of grandchildren and about one of their grandchildren in particular, commenting on them being deaf (particularly when they do in fact have significant hearing loss) and falsely alleging they have memory problems isn’t really anything to do with age, to my mind.[31]By the narrowest of margins, I have decided to give the claimant permission to amend to add this claim. An age discrimination claim was raised in the claim form, part of the facts relied on in relation to that claim were also in the claim form, and particulars of that claim were provided in the Agenda, which came, at worst for the claimant, only 2 weeks or so after the expiry of the primary limitation period. Although I think it highly improbable that the claimant will win this claim, and think it has little reasonable prospects of success (for the reasons set out in paragraph 30.4 above), I am, on balance, not satisfied that it 13 of 18 2402464 has no reasonable prospects of success. If the claimant proceeds with the whistleblowing detriment claim, the tribunal at trial will be considering the allegations of fact on which the age discrimination claim is based anyway. Adding this age discrimination claim is therefore unlikely to add significantly to the length and complexity of trial, and having to deal with such a claim is unlikely to put the respondent to significant extra time, trouble, and expense. Deposit orders[32]The next question for me is: having decided that various complaints have little reasonable prospects of success, would it be in accordance with the overriding objective for me to make one or more deposit orders? The short answer is: yes. I can think of no reason why, having assessed the complaints’ prospects of success as I have, it would not be appropriate to make such orders in this case. No such reason has been suggested to me.[33]Since the ‘new’ (2013) rules came into force, the purpose of making a deposit order has been two-fold: first, to focus the mind of the claimant, and make her really think about whether it is really worth her while pursuing a claim that at least one independent Employment Judge thinks she is very unlikely to win, with all the stresses and strains and time and expense involved; secondly, to change the normal costs rules that apply in the tribunal and put her at significant risk of having to pay some or all of the respondent’s legal costs if she pays the deposit, takes the case to trial, and then loses.[34]In the present case, the claimant seemingly has no significant earnings, savings, or assets at all, and (unless there were a dramatic change in her circumstances), even if a costs order were made in the respondent’s favour against the claimant, it is doubtful whether the respondent would derive any benefit from enforcing it. I assume – and this is just my assumption and the claimant should not rely on it – this would mean the respondent would probably not enforce any order made.[35]However, the first of the potential reasons for making a costs order that is mentioned above is very much in play. I would urge the claimant to discuss her claim with close friends and family, and if possible take some expert independent advice (perhaps from a Citizens Advice Bureau), and think about how she would feel, and what the effect on her health would be, if she were to pay the deposits, take her whistleblowing and age discrimination claims to trial, and then lose – which is what I think would happen. I have deliberately specified a date some weeks into the future for her to pay the deposits, if that is what she decides to do, in order to give her ample time to think, to discuss things, and to take advice.[36]The amount of the deposit orders needs to be enough as to give the claimant real pause for thought, but not so much as to be punitive or prohibitive. To achieve this, as set out in the above Reserved Judgment & Order, I have made deposit orders of £10 each for the three types of claim to which the orders relate: whistleblowing dismissal; whistleblowing detriment; age discrimination. 14 of 18 2402464[37]As is emphasised on the face of the deposit order, if the claimant pays something but pays less than £30 she MUST inform the tribunal in writing which of the complaints her payment relates to. If she doesn’t do this, the tribunal will have no way of knowing which complaints she is pursuing and which have been dismissed.[38]I should like to make clear to the claimant that although I take the view that her claim is weak, I don’t for a moment mean to suggest she has been treated well or reasonably and/or has no legitimate cause for complaint against the respondent; nor that she does not genuinely believe everything she has said and written about her case. What I mean is no more and no less than that I don’t think she will win the whistleblowing and age discrimination claims she has put before the employment tribunal. For example: she may well, through no fault of her own and for no good reason, have been badly treated by many people, but she will only win her employment tribunal claim if the reason for this mistreatment was something to do with her age or with her ‘blowing the whistle’. Notice pursuant to rule 38(1)[39]The ‘unless’ order I made on 17 March 2017 – paragraphs (6) and (7) of the above [unreserved] Judgment & Order – was not complied with by the relevant date (24 March 2017), or at all. Although the claimant emailed some further information about her holiday pay claim to the tribunal on 20 March 2017, the information was not what I ordered her to provide. In so far as I can make sense of the information she provided, it seems to be information to support a claim I dismissed as having reasonable prospects of success, namely a claim relating to the period after 13 December 2016. (To remind her: the reason that claim had no reasonable prospects of success is that the respondent had a contractual right, come what may, to terminate her contract of employment by giving her 4 weeks’ notice; the reason I made an ‘unless’ order was that a significant amount of time had already been spent trying to get to the bottom of the holiday claim, the claimant was unable fully and properly to explain it to me, and I had asked her to get together with respondent’s counsel at lunch time to discuss it and, despite counsel’s best efforts, the claimant had not done so). The order therefore took effect first thing on 25 March 2017. This means that all of the claim in respect of holiday and/or holiday pay – including any claim, whether for breach of contract or otherwise, for compensation for accrued but untaken holiday – has been dismissed pursuant to rule 38, apart from a claim for, or for compensation for, 7.63 hours at the rate of £9.83 per hour – £75.00. Summary & conclusions[40]I have given the claimant permission to amend to add particular complaints of whistleblowing dismissal, whistleblowing detriment, and age discrimination; but I have made deposit orders in relation to all of those complaints. 15 of 18 2402464[41]If the deposit orders are not paid, the claimant’s only remaining complaints will be:41.1 a claim for £75 holiday pay / compensation for accrued but untaken annual leave;41.2 a claim for wages for the period 9 to 15 November 2016;41.3 a claim for 4 weeks’ notice pay. 2601994/2016 30 March 2017 EMPLOYMENT JUDGE CAMP ..................................................................................... ...................................................................................... 16 of 18 2402464 NOTE ACCOMPANYING DEPOSIT ORDER Employment Tribunals Rules of Procedure 2013 1. The Tribunal has made an order (a “deposit order”) requiring a party to pay a deposit as a condition of being permitted to continue to advance the allegations or arguments specified in the order. 2. If that party persists in advancing that complaint or response, a Tribunal may make an award of costs or preparation time against that party. That party could then lose their deposit. When to pay the deposit? 3. The party against whom the deposit order has been made must pay the deposit by the date specified in the order. 4. If the deposit is not paid within that time, the complaint or response to which the order relates will be struck out. What happens to the deposit? 5. If the Tribunal later decides the specific allegation or argument against the party which paid the deposit for substantially the reasons given in the deposit order, that party shall be treated as having acted unreasonably, unless the contrary is shown, and the deposit shall be paid to the other party (or, if there is more than one, to such party or parties as the Tribunal orders). If a costs or preparation time order is made against the party which paid the deposit, the deposit will go towards the payment of that order. Otherwise, the deposit will be refunded. How to pay the deposit? 6 Payment of the deposit must be made by cheque or postal order only, made payable to HMCTS. Payments CANNOT be made in cash. 7. Payment should be accompanied by the tear-off slip below or should identify the Case Number and the name of the party paying the deposit. 8. Payment must be made to the address on the tear-off slip below. 9. An acknowledgment of payment will not be issued, unless requested. Enquiries 10. Enquiries relating to the case should be made to the Tribunal office dealing with the case. 11. Enquiries relating to the deposit should be referred to the address on the tear-off slip below or by telephone on 0117 916 5015. The PHR Administration Team will only discuss the deposit with the party that has been ordered to pay the deposit. If you are not the party that has been ordered to pay the deposit you will need to contact the Tribunal office dealing with the case. 17 of 18 2402464 ---------------------------------------------------------------------------------------------------- DEPOSIT ORDER To: HMCTS Finance Support Centre Spur J, Government Buildings Flowers Hill Brislington Bristol BS4 5JJ Case Number _____________________________________ Name of party _____________________________________ I enclose a cheque/postal order (delete as appropriate) for £__________ Please write the Case Number on the back of the cheque or postal order 18 of 18
THE FACTS
[42]The subsequent internal investigation was undertaken by Ms Collette Towey who has now retired from the Trust. Ms Towey began her investigation on 7 September ending it on 19 September. It is by any standards a very detailed and comprehensive investigation.[43]The results of the investigation led to the Claimant being placed into disciplinary proceedings. A disciplinary hearing was held on 8 November 2016. Prior to it the Claimant lodged a grievance. A disciplinary hearing took place on 8 November 2016 chaired by Mr Mark Roberts at which the Claimant chose not to attend. In her absence the Claimant’s conduct was considered carefully and in some detail. It was decided that the Claimant would be dismissed summarily without notice.[44]Ms Beresford subsequently lodged an appeal which was dealt with by Ms Rachel Billsborough, Director of Community Health Services. Ms Beresford did not attend the appeal hearing either. In a letter dated 3 January 2017 the appeal was dismissed.[45]Earlier, on 27 October 2016 the Claimant had engaged in early conciliation with ACAS.[46]On 28 November 2016 she presented her ET1. THE ALLEGATIONS[47]The allegations of detriment from the alleged whistleblowing are set out at paragraph 21 of the Order of Employment Judge Camp made at the Preliminary Hearing and are as follows: -47.1 That on or about 17 August 2016, Miss Wright refused to give the claimant a lift in her car and told her she would have to make her own way;47.2 That on the same date, Miss Wright ‘reported’ the Claimant to management for taking the bus to work; Page 9 of 1647.3 That on or about 19 August 2016, the Claimant arrived at the Children’s Community House at Melton Mowbray. Miss Wright is alleged to have said she was not expecting the Claimant and did not want her to be there and that C should go to Rutland. The Claimant was required to sit separately from Miss Wright and another nurse who was there;47.4 That on the same date, later in the day, every time the Claimant went to sit at a table, Miss Wright told her she could not sit there leaving C having to stand in the middle of the office;47.5 That on or about 24 August 2016, shortly after allegedly making disclosure 2, Miss Martin shouted at C telling her she was “deaf” and had “memory problems”;47.6 That from around this time, other staff began talking about the claimant behind her back and making allegations about her, referring unpleasantly to the number of grandchildren she had, about her grandson’s goldfish having died, about her not having a partner, having a memory problem, being deaf, not being ‘with it’, not being ‘on this planet’, being vacant, ‘zoning out’, having poor presentation and being unprofessional etc.47.7 That on or about 25 August 2016, Ms Martin instructed the Claimant not to come back into work until she had a road-legal car and was driving;47.8 That on or about 30 August 2016, Ms Martin again shouted to the claimant that she was deaf and had “a memory problem”, falsely accused her of having taken unauthorised absence on 26 August 2016, told the Claimant have to take unpaid leave; then, after a telephone call in which Ms Martin said of the Claimant – in an unpleasant way – “aahhh, she can’t live without her salary”, told the Claimant to take the afternoon of 31 August and the whole of 1 September as annual leave in order to sort her car out.47.9 That when the Claimant attended work on 1 September 2016, having sorted her car out, Ms Martin falsely accused her of having taken unauthorised absence the previous afternoon;47.10 That on or about 2 September 2016, Ms Martin falsely accused the Claimant of not following instructions to attend the Children’s Community House that day, but in fact Ms Martin had instructed her to work elsewhere;47.11 That on or around or after 2 September 2016, the respondent and/or Ms Martin falsely accused the Claimant of not having provided documents showing she had a road-legal car, but in fact the Claimant had emailed them on 31 August 2016 and gave originals to an administrator called “Mel” on 2 September 2016;47.12 Making the allegations that led to the claimant’s suspension on 2 September 2016, and suspending her;47.13 Making the allegations that led to the claimant being disciplined and ultimately dismissed, and, more generally, making the allegations that were made during the investigation that formed part of the disciplinary process (whether or not they were allegations that led to dismissal).” Page 10 of 16
THE LAW
[48]Section 43B ERA 1996 sets out circumstances in which there can be a qualifying disclosure and states: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—(a) that a criminal offence has been committed, is being committed or is likely to be committed,(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,(d) that the health or safety of any individual has been, is being or is likely to be endangered,(e) that the environment has been, is being or is likely to be damaged, or(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. (5) In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).”[49]Section 43C ERA 1996 sets how a qualifying disclosure becomes a protected disclosure: “(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith—(a) to his employer, or(b) where the worker reasonably believes that the relevant failure relates solely or mainly to— (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person. (2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part as making the qualifying disclosure to his employer.”[50]Section 47B ERA 1996 prohibits detriment for making a protected disclosure and states: “(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. (2) … this section does not apply where—(a) the worker is an employee, and(b) the detriment in question amounts to dismissal (within the meaning of Part X).”[51]Section 103A ERA 1996 deals with automatic unfair dismissal in relation to whistleblowing and states: Page 11 of 16 “An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”
CONCLUSIONS
[52]In her e-mail of 14 June 2018 the Claimant confirms that her allegations of a qualifying disclosure are brought under Section 43B(1)(a), (b), (d) and (f) ERA 1996.[53]The legislation requires the disclosure to be that of information, not merely an allegation. The lines between information and allegations are not always easy to draw (see Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436). However, in this case it is difficult to see that the Claimant is doing either, that is either making an allegation or providing information. Some of the difficulties that the Claimant would have in establishing a whistleblowing claim were set out in Employment Judge Camp’s order of 17 March 2017 at paragraph 17.2 to 17.6. It is not proposed to repeat them here. In our judgment the Claimant was not disclosing any information on 17 or 24 August.[54]In relation to the incident on 17 August 2016, the facts are against the Claimant. We have been presented with the red book of the relevant child. The Claimant did take issue with the identity of the child but it became clear that it was the same child under discussion. That being so the relevant entries in the child’s red book are within the bundle.[55]The entries show quite clearly that at the time the readings were logged by Ms Wright, the child’s weight was increasing and not decreasing. There is only one occasion when the child’s weight dips ever so slightly below the lowest centile but it is not true to say, as the Claimant does in one of her accounts of the incident that “3 months after the baby was referred to a dietician, the weight was still falling”.[56]The Claimant’s position in relation to what she believes occurred on 17 August has changed several times. The Claimant’s account in the further and better particulars is at variance with her account in her witness statement which is at variance with her closing submissions. In fact there is an escalation over time with the degree of seriousness as to the incident increasing with the passage of time.[57]In her written closing submission, Ms Beresford says: “There were other concerns that I had on that day, however, at the trial I felt it inappropriate to discuss the baby’s physical signs of abuse.”[58]At no stage did the Claimant prior to the point of closing submissions indicate that she had discussed any signs of physical abuse. The allegation is wholly unfounded and without substance.[59]We are satisfied that there was no protected disclosure made by the Claimant on 17 August or 24 August 2016 or indeed at any point. That would be sufficient to dispose of the case but we have nevertheless gone on to deal with the specific detriments alleged in this case. Our findings (adopting the same numbered paragraph as the allegations above) are as follows:-59.1 This is factually incorrect. The Claimant did receive a lift from Ms Wright.59.2 This is factually incorrect. In any event, the Claimant was given a lift by Page 12 of 16 Ms Wright.59.3 The Claimant turned up at the wrong venue. It is possible that she did not hear the instructions but there is no doubt they were given. They were overheard by Ms Amanda Taylor of the Respondent. They have nothing to do with anything that happened on 17 August. The Claimant was not required to sit separately. She was sitting in a computer room where there was a chair.59.4 This has already been dealt with above.59.5 The Claimant was not shouted at but it is quite possible that someone spoke louder than usual so that the Claimant could hear. There were discussions about her hearing and memory problems but the Claimant was not called ‘deaf’ by anyone. The accounts of several staff, none of whom were aware even on the Claimant’s own case of the alleged disclosures, was that the Claimant was having hearing and memory problems. If those staff members were unaware of the disclosures, the comments could not have been because of any disclosure.59.6 As mentioned in the preceding paragraph none of the staff who are alleged to have made the remarks are, even on the Claimant’s own case, were aware of the alleged disclosures.59.7 We prefer the evidence of Ms Martin to that of the Claimant in relation to the events of 25 August. Whilst with hindsight Ms Martin may have been advised to tell the Claimant not to return to work until she had a road legal car, the fact is that she did not say that to the Claimant at that time.59.8 This allegation needs a little context. As at 25 August, the Claimant had a car which had by then its tyres replaced, which had non-business use insurance and required some minor repairs. The car also needed an MOT as this had expired. In the contemporaneous e-mail exchange, the Claimant says she was having repairs carried out on her current car and was thinking of changing that car. That as we have already mentioned was untrue. The vehicle had in fact been SORN’d. The Claimant was misleading the Respondent into believing that this state of affairs had only arisen recently. The MOT had expired some time ago. In the e-mail exchanges the Claimant simply ducks the issue of the MOT and instead seeks to send a document by way of an attachment in relation to insurance by doc.hub which the Respondents were unable to open. The Claimant later presented the MOT document to the Respondent on 2 September but there was still no evidence of business use insurance. Precisely why the Claimant went to the lengths that she did remains unexplained even now. The amount of work required to put the vehicle in a roadworthy condition does not appear to have been substantial. The Claimant at an early stage had a tyre or tyres replaced. The remaining work to put the Nissan through the MOT was relatively minor. The Claimant said in evidence that she could not find a garage which would undertake an MOT which we find difficult to accept as most garages will no doubt undertake an MOT as the worst that will happen is that it will fail but later she said that the car had failed its MOT. The Claimant’s evidence has been inconsistent. Her actions were puzzling because she had funds to have the repair work undertaken or to purchase another vehicle whilst keeping the Nissan. The Claimant was clearly aware of the fact that the job required her to have her own transport. She was not told that she should not return to work until she had a road legal car because she continued to work after 25 August when she did not have a road legal car. The Claimant was told on 30 August to take unpaid leave while she found a suitable car but that was in different circumstances and entirely Page 13 of 16 justified. This allegation as to the comment attributed (“ahhhhh, she cannot live without her salary”) is inconsistent with the Claimant’s own contemporaneous note at the time where she records that Ms Martin said “aahhhh, I know”.59.9 The Claimant was not falsely accused of having taken unauthorised absence. She sent an e-mail at 1:00 pm telling Ms Martin that she looked forward to seeing her later but in fact the Claimant rang Ms Martin’s mobile phone at 3:45 pm to say that she was sorting out her new car. The Claimant was absent and the absence was unauthorised.59.10 The Claimant clearly disobeyed the instructions sent to her by e-mail.59.11 There is no record of the Claimant having sent the documents. The Claimant has sent several documents by doc,hub which the Respondents were unable to open. 59.12. The suspension was clearly unrelated to any protected disclosure. It was for the reasons the Respondent gives as set out above. 59.13 The dismissal was genuinely and quite properly for misconduct.[60]We do not find that the Claimant had a reasonable belief in the making of any alleged disclosures. The allegations have evolved over time. We are satisfied the allegations are not made in good faith.[61]For the reasons given, the complaints of whistleblowing, automatic unfair dismissal and detriment are all dismissed.[62]In relation to holiday pay and an unlawful deduction of wages, the Claimant has had several opportunities to set out the basis of the claim or how any sum is calculated but has failed to do so. The Respondents have paid two sums of £422.60 and £39.31 totalling £461.91. In the absence of any evidence that the sums paid are short of what is due, the complaints are dismissed for lack of evidence.[63]Finally, we deal with the complaint of breach of contract. We are satisfied that the Claimant committed several repudiatory breaches which evidenced an intention not to be bound by the terms of the contract. The Claimant knew that she needed a road-legal car at but did not have one in the early stages and later failed to provide evidence of MOT and then of business use insurance. She was clearly aware that she did not have business use insurance as evidenced by the recordings of the conversations between her and her insurers unearthed by the Financial Ombudsman.[64]The Claimant committed several repudiatory breaches namely: -64.1 Commencing employment knowing that she would not be able to comply with her contractual obligation to have a road worthy vehicle;64.2 Commencing employment knowing that she would not be able to comply with her contractual obligation to have a car which was insured for business use;64.3 Disobeying reasonable management instructions to attend work;64.4 Disobeying reasonable management instructions to attend work at specific locations; Page 14 of 1664.5 Being untruthful or misleading her employer as to the documentation regarding her vehicle;64.6 Having unauthorised absence from work.[65]For those reasons, we are satisfied that the Respondent was entitled to dismiss the Claimant summarily without notice. COSTS APPLICATION[66]Following the announcement of our decision the Respondent made an application for costs.[67]The Claimant was ordered to pay a deposit of £30 in respect of the complaints of age discrimination, £10 in respect of the unfair dismissal and £10 in respect of the whistleblowing detriment. She did not pay the £10 for age discrimination and therefore that complaint was struck out. She has paid £20 deposit for the other two complaints.[68]We have found against the Claimant for substantially the same reasons as given in the deposit order and by virtue of Rule 39(5) of the Employment Tribunal Rules of Procedure 2013 the Claimant is to be treated as having acted “unreasonably”.[69]We have gone on to consider whether we should exercise our discretion to make an order for costs. We are satisfied that we should. The Claimant has used these present proceedings as a way of airing her grievances against those whom she felt had complained of her and who had been critical of her rather than for genuine believing that the conduct was because of whistleblowing. The allegations have not been made in good faith and were bound to fail. She has at various stages referred to backstabbing, being libelled and so on. Clearly, her pride was hurt but these proceedings were not the solution. She could not have been in any doubt about her prospects of success given the clear comments by Employment Judge Camp. However, she has doggedly pursued these unmeritorious allegations which since the date of the deposit order have resulted in costs to the NHS in excess of £20,000. There are substantial costs prior to the deposit order.[70]The Claimant has little or no money. She has now sold her vehicles and the proceeds have gone on a deposit for rented accommodation. She has earning capacity and therefore will have the ability to pay something though it will not be a great deal. This will be no doubt be seen as something of a pyrrhic victory for the Respondent. Quite why the Trust regarded Ms Beresford as the preferred candidate when she does not appear to have held down any job for longer than a few months in the last 9 years remains something of a mystery. It is puzzling as to why at no point during the selection process the Claimant’s hearing problems were not identified and why, given the long gap between the conditional offer of employment and the Claimant starting work, there was no inspection of her MOT and insurance documents to ensure that she was able to fulfil her duties before she actually started. In relation to the latter, the point was put to Mr Roberts and he acknowledged that dismissal could have taken place sooner. However, the fact that it did not do so does not affect the Respondent’s justifiable decision in dismissing the Claimant later.[71]In the circumstances, we consider that having regard to the Claimant’s potential future earning capacity, which exists but is somewhat limited, that a Page 15 of 16 relatively nominal costs order of £250 is appropriate.[72]As the Claimant has already paid a £20 deposit, that sum should be paid out to the Respondent and the balance payable by the Claimant will be £230.