Mrs J Williams v Ace Medical Services Ltd: 3201938/2023
JUDGMENT
The unanimous judgment of the Tribunal is as follows:[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.[2]The complaint of dismissal for making a protected disclosure is not wellfounded and is dismissed.REASONS
Reasons having been given to the parties orally on 12 December 2024 and written reasons having been requested at the hearing in accordance with Rule 62 of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:The issues
[1]The issues the Tribunal had to decide were discussed at the start of the hearing and the following list of issues was agreed. The List of Issues was typed up by the Judge and a copy sent to the parties at the end of the first day of the hearing.[1]Protected disclosure1.1 Did the Claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide:1.1.1 What did the Claimant say or write? When? To whom? The Claimant says they made disclosures on these occasions: On 19 September 2023 verbally in a meeting the Claimant raised concerns about her lack of training and stated that she believed that having a care certificate was a legal requirement and she did not have one;1.1.2 Did they disclose information?1.1.3 Did they believe the disclosure of information was made in the public interest?1.1.4 Was that belief reasonable?1.1.5 Did they believe it tended to show that:1.1.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;1.1.5.2 the health or safety of any individual had been, was being or was likely to be endangered;1.1.6 Was that belief reasonable?1.2 If the Claimant made a qualifying disclosure, was it a protected disclosure because it was made to the Claimant’s employer.[2]Detriment (Employment Rights Act 1996 section 48)2.1 Did the Respondent do the following things:2.1.1 Review and then fail her probation- the Claimant was informed on 22 September 2023 that she had failed her probation.2.1.2 Escort the Claimant form the premises on 22 September 2023.2.2 By doing so, did it subject the Claimant to detriment?2.3 If so, was it done on the ground that they made a protected disclosure.[3]Automatic unfair dismissal (ERA s 103A) 3.1 Was the reason or principal reason for dismissal that the Claimant made a protected disclosure? Evidence 2. The Tribunal was provided with two electronic bundles of documents, one from the Claimant and one from the Respondent. References below to page numbers in the bundle are to the Respondent’s bundle unless stated otherwise We heard evidence from the Claimant, Mrs Toni Wyatt, Dr Padmanabhan who had each provided written witness statements. 3. During the course of the hearing the Claimant disclosed that she is autistic (on day 1 during cross-examination of Toni Wyatt) and told us that she had sent a report to the Respondent before this hearing. The diagnosis was not disputed and we were not asked to look at the report. We took into account the Claimant’s autism diagnosis and considered that it explained why the Claimant had initially been unable to focus on her questions about the notes of the meetings in August and September as she had become fixed on the description of the meeting notes as minutes. During the course of the Claimant’s evidence we had already agreed that the documents prepared by Mrs Wyatt after those meetings would be referred to as notes and not minutes. We reminded the Claimant that she had been taken through each of the incidents recorded in the notes and asked if they were discussed at the meeting and it had been explained that she was being asked to agree or disagree with whether the incident had been discussed at the meeting not whether the note accurately reflected her recollection of what had happened in each incident. We adjourned the hearing early to resume at 10 am on 11 December to give the Claimant an opportunity to re-read the notes of meetings on 22 August and 19 September before finishing her cross examination of Mrs Wyatt. It was explained that the Claimant would need to put to Mrs Wyatt in her questions if she disputed that the notes have recorded what was said – i.e if she says the notes missed things out – or record things as being said that were not said at the meeting. The Claimant confirmed at the resumed hearing that she understood the distinction and was happy to continue.Findings of fact
[4]The Respondent is a small medical practice. The Claimant was employed by the Respondent as a trainee nurse associate. She was on a 2-year apprenticeship programme. She was provided with a placement with the Respondent by Mid Essex Trust. She worked for the Respondent from 2 February 2023. The Claimant entered into an apprenticeship agreement with the Respondent on the 19th of June 2023 [55-57] the apprenticeship was due to last until the 18th of July 2025 and was a partnership with London South Bank University. The Claimant signed a contract of employment as a trainee nurse associate on 23 June 2023 [73-80]; the contract included provision for a six-month probation period.[5]The training requirements included that the Claimant carry out 1150 hours of theory learning and practice with protected learning hours of 1150 hours. The apprenticeship agreement makes no reference to the Claimant requiring or being able to procure a Care Certificate.[6]The Claimant had a nurse supervisor assigned to her, namely Mrs Joanne Bushell, and was supported by a number of other clinical and non-clinical staff at the practice including the two GP partners Doctor Rai and Doctor Padmanabhan.[7]In July and August 2023 a few clinical concerns came to light including that the Claimant was taking decisions and acting above her competence. There was a concern that this conduct was putting patients at risk. A meeting was held with the Claimant on the 22nd of August 2023 this meeting was described as an informal and supportive meeting by Doctor Padmanabhan and Mrs Wyatt. Notes of that meeting were in the tribunal’s bundle [157- 159]. Mrs Wyatt told us she had written handwritten notes during the meeting and typed them up within 24 to 48 hours of the meeting.[8]The Claimant initially denied that any of the matters noted as raised in that meeting were discussed with her, however when taken through the notes step by step she accepted that the matters had been raised with her, although she disputed that the matters discussed had taken place as described in the notes. When putting the document to the Respondent’s witnesses, the Claimant changed her position and disputed that all except for one line of the contents of the note had been discussed.[9]We accept the evidence of Mrs Wyatt and Doctor Padmanabhan that at that meeting on 22 August 2023 they discussed with the Claimant the three cases set out in Mrs Wyatt's notes. One of the concerns related to two urine cytology reports for children. The Claimant accepted in evidence that she had made a mistake in respect of the cytology report. Another concern was about a patient with high blood pressure and a headache, but where no appropriate actions were taken or advice sought, which was considered to be unsafe practice. The third case noted as being discussed was that the Claimant had documented an incorrect diagnosis of atrial fibrillation in the patient record by using a handheld ECG monitor.[10]Dr Padmanabhan told us in evidence that this handheld monitor was something the Claimant had brought with her into the practice; it was not a piece of equipment that was provided by the practice or used or authorised by the practice. The Claimant had brought the equipment in of her own accord and used it to take ECG readings without seeking approval first, when this had been discovered she was stopped and told that this should not happen again. Dr Padmanabhan told us that the ECG monitor was not approved and the reading was not accurate, it used two leads attached to a handheld monitor whereas the approved monitor used 12 leads. A wrong diagnosis had been record in the patient notes. The fact that the incorrect diagnosis had been recorded and had to be corrected was itself an issue as the patient would be able to see this on their notes and might have brought a complaint.[11]Dr Padmanabhan explained that if the incorrect reading and diagnosis had been missed and not been corrected this could have caused problems with the incorrect diagnosis remaining on the patient’s records and incorrect readings being referred to in future diagnosis. The issue also had potential huge implications for the practice’s insurance.[12]Dr Padmanabhan also told us that the concerns about the Claimant’s practice included that she seemed to be following the pro forma document simply as a checklist and not taking appropriate action.[13]Mrs Wyatt gave evidence that during this meeting the Claimant came across at not having understood the gravity of the clinical concerns and all the consequences of documenting incorrect information and also not documenting advice sought from other clinical clinicians. Dr Padmanabhan and Mrs Wyatt considered that the Claimant was not very receptive to the feedback.[14]We accept that Dr Padmanabhan and Mrs Wyatt’s concerns were genuine and that these matters were raised with the Claimant.[15]An assessment visit with the legacy nurses from the training hub was facilitated on the 6th of September 2023. We accept that this was facilitated in order to support the Claimant. We also accept Dr Padmanabhan’s evidence that at that meeting the Practice’s partners expressed their views on the progress of the Claimant’s training, including the clinical concerns and their view that the Claimant lacked insight; no notes have been provided of that meeting.[16]A further meeting was held on the 19th of September 2023. The purpose of the meeting was to discuss the Claimant’s rota, her ongoing training needs and, according to the Respondent, other concerns. Mrs Wyatt’s notes of that meeting are at [160-162]. The Claimant again disputed the accuracy of these notes which were not sent to her after the meeting. Mrs Wyatt’s evidence was that she wrote down to the best of her ability everything that was discussed.[17]In her evidence the Claimant accepted that the meeting started with the discussion recorded in the note; her rota and hours were discussed, protected learning to facilitate her learning requirements and meeting objectives set by the university and that the Claimant said she was happy with this.[18]The meeting notes move on to a discussion in respect of non-completion of the PAD submission and Doctor Sunitha [Padmanabhan] is noted as having explained to the Claimant that it was her responsibility to bring this document to work, make sure she completed it and had it signed off, not the surgery's responsibility. The note states that Jo [Bushell- Practice Nurse] also informed the Claimant that she was always available and flexible if needed. The notes also record that Doctor Padmanabhan explained that: “while the surgery is facilitating her apprenticeship and learning, [the Claimant] also has a responsibility as an adult learner. [The Claimant] must be proactive by making sure that she is up to date with her college course work and must be proactive in seeking support from Jo who is her nurse assessor as well as other members of the clinical team. Guidelines and protocols are put in place by the surgery of all clinicians to follow and if not followed it will raise safety concerns. Doctor [Padmanabhan] reiterated that because of the number of clinical concerns have been highlighted on several occasions and the implications on patient safety which had also been discussed before, [the Claimant] was not to work outside of her boundaries or on her initiative and if in doubt must approach Jo or Debbie (ANP) first.”[19]The Claimant disputes the accuracy of these meeting notes, however we accept the evidence of Mrs Wyatt and Doctor Padmanabhan that these matters were all discussed at that meeting. Protected disclosure[20]The Claimant’s case is that she made her protected disclosure at that meeting. The disclosure relied on by the Claimant is set out in her document at page 256 of her bundle which was provided in response to the orders made by Employment Judge Martin at a preliminary hearing. The disclosure relied on is as follows: “I stated, I did not feel like a genuine member of the NHS workforce, because after 8 months continuous employment I still hadn't been taken through the framework of the Care Certificate. This meant that I would not be considered for Bank NHS work, as I did not meet the standards required by the NHS and that because of this, I did not exist as a health care worker within the NHS. I also stated that I believed that the care certificate was a legal requirement for all NHS healthcare staff. I was told they weren't aware that the care certificate was a legal requirement and Practice Manager Toni Wyatt stated that she would investigate further and come back to me”[21]After the Claimant had provided this clarification of her protected disclosure the Respondent had put in an Amended Grounds of Resistance (Response) to the claim, as provided for in Employment Judge Martin’s orders, and that is the Response which is in the Respondent’s bundle.[20-31] We note this here because the Claimant appeared to rely on the content of the Amended Response to support her contention that these words must have been said at that meeting, however we are satisfied those words appear in the Amended Response as a quote from and as a result of the Claimant’s clarification of her case following the preliminary hearing.[22]Both Mrs Wyatt and Doctor Padmanabhan deny that the Claimant said any of the things that are quoted above; they specifically denied that the Claimant said during the meeting on the 19 September that she believed the care certificate was a legal requirement for all NHS healthcare staff. Doctor Padmanabhan had no recollection of the Claimant ever making reference to the requirement for a care certificate. Mrs Wyatt recalled that the Claimant had mentioned it to her informally on an earlier occasion and her response had been that she did not know that the care certificate was a legal requirement and that she would look into it and get back to the Claimant. Having looked into it Mrs Wyatt was satisfied that it was not a legal requirement. She told us that it did not take her long. She simply looked it up and found that it was not a requirement [296] . She does not recall getting back to the Claimant about it, she assumed she had done so but accepted that she may not have done; she thought that the Claimant was equally capable of finding this out herself.[23]Doctor Padmanabhan told us that if the Claimant had raised this at the meeting she would have pointed out that all the core elements covered by the care certificate were covered by the training provided to the Claimant in her induction in February, the only missing element being that the practice was not providing the actual certificate because it did not act as an assessor and had no intention of accrediting for that purpose.[24]It was not disputed that the practice was a recognised training practice and that Dr Padmanabhan had many years’ experience of training doctors and nurses. Dr Padmanabhan told us that she was satisfied that the practice’s training provision and protocols were robust and compliant with all regulatory obligations. Dr Padmanabhan did not accept that the Claimant required a care certificate. She told us that the Claimant was not training to be a care worker, she was a trainee nurse associate and at the completion of her training the regulatory route applicable to the Claimant was that she would be expected to register with the NMC and apply for a PIN.[25]We were taken to the Claimant’s training records [287 -290] which showed that she completed a number of training modules in February 2023 [289- 290]. The Claimant did not dispute that those were the core modules which would be covered by a care certificate.[26]We find that the Claimant had completed the core components training in February and was aware that she was subject to supervision by Joe Bushell and Doctor Rai on a daily basis and that she had access to support and supervision from other members of the clinical team if she needed it.[27]We were taken to an e-mail dated the 19 September 2023 from the Claimant to Sarah Lamb, who was described as a Mentor and Legacy Nurse [204]. It was agreed that the legacy nurse’s role was to support the Claimant through her apprenticeship and training, they were independent of the Respondent practice. The e-mail referred to the meeting held that day with the Claimant’s employer about the PAD completion and supported learning. In the email the Claimant stated that: “… the employer felt that the issue was hers for not mentioning the PAD, that's why it's not being completed, and they were new to this type of apprenticeship and how best to support students. They are looking to see if they can support this type of apprenticeship if they can't I will lose my university place and all this work until now will be in vain” The Claimant also stated the following in the email: “I don't have a care certificate and told them my research online makes me think it’s a CQC requirement and works well with a pad for apprenticeship, they said they had never heard of that. I did go online at the beginning and mentioned the care certificate but I was never encouraged to complete. …”[28]The Claimant in this e-mail does not clearly distinguish between what was raised earlier ‘at the beginning’ [of her employment or apprenticeship] and what was said at the meeting on 19 September 2023. We considered the lack of reference to the Claimant having mentioned not having a care certificate and that she thought it was a legal requirement in the note made by Mrs Wyatt. We were taken to other notes prepared by Mrs Wyatt which she accepted contained some inaccuracies, for instance the note of the meeting on the 20 September 2023 which recorded Sadie Deprez as being present when it was accepted that she was not; the note stated that the meeting was with the Claimant when it was about the Claimant.[29]Having carefully considered the evidence on this point, on balance we accept that the Claimant made reference in the meeting on the 19 September to not having the care certificate and that she believed it was a legal requirement and this was what she was referring to in her email sent to Sarah Lamb the same day.[30]Having heard from Mrs Wyatt we satisfied that We accept Mrs Wyatt’s explanation that the inaccuracies in the notes of 20 September 2023 occurred due to simple human error.[31]It was suggested by the Claimant that the omission of the Claimant’s reference to a care certificate was deliberate. We carefully considered whether there was something more than human error in the case of the notes of the 19 September meeting and whether there was a deliberate omission of a reference to the CQC certificate. We do not find that is what happened here. We find that it was an oversight on Mrs Wyatt’s part and are satisfied that the lack of inclusion of any reference to CQC or care certificate is an indication that little weight was given to that comment in the meeting.[32]We also accept that Doctor Padmanabhan gave her honest recollection of the meeting when she said she did not recall that being said and again we find that consistent with there being little significance or weight given to that being mentioned in that meeting. Decision to terminate the Claimant’s employment and apprenticeship[33]We accept that following the meeting on the 19th of September Doctor Padmanabhan, as an experienced trainer, was extremely concerned about the Claimant’s understanding of her own responsibilities towards her training as an adult learner. Her concerns included that the Claimant appeared not to have taken on board the previous feedback from August; concerns about the Claimant’s attitude to feedback and that she was working beyond the boundaries of her competence. Dr Padmanabhan reached the view that this could not continue.[34]Doctor Rai had not been able to attend the meeting and Dr Padmanabhan had a discussion with him later that day. He had experience of a closer daily supervision of the Claimant and confirmed that Doctor Padmanabhan's concerns were in line with his experience and the verbal feedback he had received from Jo Bushell the Claimant’s Clinical Supervisor and Practice Assessor and Debbie Sams the Advanced Nurse Practitioner.[35]Dr Padmanabhan and Dr Rai reached the decision that the Claimant’s probation period should be brought to an end due to their concerns and the implications for patient safety. They decided they should have a meeting with the legacy nurses to explain the decision.[36]The Claimant was invited to a meeting on the 22nd of September where she was informed of the decision to terminate the relationship. The note of that meeting is a page 163 of the bundle. The notes were taken by Mrs Wyatt, they were not provided to the Claimant after the meeting and are described as an internal note. Somewhat confusingly it was stated in the notes that this was not a dismissal or disciplinary. Mrs Wyatt’s note records that it was explained that, “the programme was not working between the employee and employer and it would not be advisable to carry on the apprenticeship.” The Claimant was informed that she could contact the Legacy Nurses for further guidance. Mrs Wyatt noted that she asked the Claimant not to speak to staff on leaving the surgery and that she accompanied the Claimant while she cleared her desk and took her belongings out of the kitchen and left the surgery.[37]We find that the Claimant was accompanied from the premises following the termination of her employment. Mrs Wyatt accepted that she also stayed in the doorway while the Claimant collected her belongings. Mrs Wyatt was asked about her reason for doing this and explained that this was the Respondent’s usual procedure, it was something that they automatically did when someone was being asked to leave in any work environment. She had just given the Claimant news that she was not happy with and it is a human reaction to be upset and because the Claimant had access to the Respondent’s computer system the Respondent’s policy is to stay with the person and accompany them until they have left the premises. We accept her explanation.Relevant law
[38]There was no dispute as to the relevant legal provisions we had to consider. The claims were brought under s 43 B and s 103A of the Employment Rights Act 1996. The issues we had to decide were set out in the agreed list of issues (as set out above). We set out our findings on each of the issues below. Conclusions Disclosure of informationConclusions
[39]We have found that on 19 September 2023 verbally in a meeting the Claimant raised concerns about her lack of training and stated that she believed that having a care certificate was a legal requirement and she did not have one. We are satisfied that this was a disclosure of information. We do not find that she gave the explanation about not being able to work in the NHS as a bank worker during the meeting on the 19th of September Did the Claimant believe the disclosure of information was made in the public interest[40]We do not find that the disclosure of information made by the Claimant was made in the public interest. We are satisfied that at the time the Claimant made the disclosure she was thinking about, or had in mind, her own private interests in respect of pursuit of her apprenticeship and evidence to support her training and her PAD. We find that in the Claimant’s mind there was a possibility that she would be able to do NHS Bank work in the future if she had the care certificate and that as well as supporting her own training qualification it would be a helpful addition to have the certificate. We find that she had in mind her own private interests when making the statement that she made.[41]We do not find that at the time she made that statement she had patient safety in mind. We therefore do not find that the Claimant had the health and or safety of members of the public in mind. Was that belief reasonable?[42]We accept that at the relevant time the Claimant had a genuine belief that having a care certificate was a legal requirement, we considered whether this was a reasonable belief for her to hold and concluded that it was not. We took into account that having looked into the matter the Claimant no longer contends that it was a legal requirement and that when she raised it with Mrs Wyatt she was told Mrs Wyatt would look into it. We also took into account that when Mrs Wyatt looked into it she quickly established that it was not a legal requirement; the Claimant was not employed as a healthcare assistant she was taken on as a trainee nurse associate and was being trained as a nurse associate; there was no reference to the requirement to obtain a care certificate in her apprenticeship agreement. We are satisfied that had the Claimant addressed her mind to the question of required training it would have become obvious to her that she did not require the certificate to carry out her role.[43]In any event, we do not find that it would have been reasonable for the Claimant to believe that in the circumstances there was a danger to the health or safety of patients. The Claimant had completed the core components training in February and was aware that she was subject to supervision by Jo Bushell and Doctor Rai on a daily basis and that she had access to support and supervision from other members of the clinical team if she needed it. Alleged detriment[44]The Claimant relies on the Respondent’s review of, and the decision she had failed, her probation and being escorted from the premises on 22 September 2023. We have found that the Claimant’s apprenticeship was brought to an end, her employment was terminated and she was escorted from the premises. We are satisfied that this is capable of amounting to a detriment. Was this done on the ground that she had made a protected disclosure?[45]We considered the reason for reviewing and then terminating the Claimant’s apprenticeship and are satisfied that the reasons were those given in the evidence of Mrs Wyatt and Doctor Padmanabhan, namely the genuine concerns about clinical incidents and concern as to the Claimant’s apparent lack of understanding of her responsibility as an adult learner to take responsibility for her own learning. We accept that Doctor Padmanabhan had initial concerns in relation to the Claimant’s approach to feedback and lack of insight following the meeting on the 19th of August and that following the meeting on the 19th of September she had serious concerns that the Claimant did not understand what was expected of her, and that she did not appear to have taken the earlier feedback on board. As a result Dr Padmanabhan was not satisfied that the Claimant would not continue to work outside her boundaries and therefore would be putting patients at risk. She discussed those concerns with Doctor Rai and based on his experience of daily supervision of the Claimant he agreed with those concerns.[46]We are satisfied those concerns were the reason for reviewing the apprenticeship and for bringing the apprenticeship and employment to an end when they did. We find that the Claimant providing information in respect of her belief that a care certificate was a legal requirement did not have any bearing on the decision made by Doctor Padmanabhan and Doctor Rai. We find that Doctor Padmanabhan did not give it any weight or attach any significance to it and Doctor Rai was not present at the meeting when this was said and was not aware that it had been said.[47]We also find that the information had no bearing on Mrs Wyatt’s decision to escort the Claimant from the premises. We accept that Mrs Wyatt did this because she considered it to be normal practice in circumstances when someone is being asked to leave work. Was the reason or principal reason for dismissal that the Claimant made a protected disclosure?[48]We find that the principal reason for the decision to dismiss the Claimant was the genuine concern that there was an ongoing danger of the Claimant working outside her competence, resulting from the lack of understanding shown by the Claimant in relation to her responsibilities toward her training as an adult learner and her inability to accept the feedback and act on it. We are satisfied that the Claimant’s information in respect of the requirement for a care certificate played no part in or had no influence on that decision whatsoever.[49]For the reasons set out above the claims under s 47B and s103A are not well founded and are dismissed