Mrs V Darlington v Heart and Home Living Ltd: 3300643/2024

EMPLOYMENT TRIBUNALS

Case No 3300643/2024

Between

Mrs V DarlingtonClaimant

Heart and Home Living LtdRespondent

Before

Employment Judge R Wood; Mrs L Gaywood; Mrs W Smith

In person for claimant

Date 6 June 2025

JUDGMENT

[1]The Claimant was not subjected to detriment as a result of making protected disclosures.

[2]The Claimant was not automatically unfairly dismissed on the grounds of having made protected disclosures.

[3]The Claimant was not wrongfully dismissed.

REASONS

[1]This is a claim which involves allegations that the claimant, Mrs Darlington, was dismissed and suffered detriment as a result of making protected disclosures to her employer between 31 July and 3 October 2023. The Respondent provides residential care facilities in the UK. The claimant was employed at Orion House, 106 Dunkirk Avenue, Desborough near Kettering (“Orion House”). She was employed as a Senior Therapeutic Team Leader (“Senior”). She started her employment with the respondent at Orion House on 3 July 2023, and was dismissed on the grounds of gross misconduct on 22 October 2023.

[2]During the course of her employment, the claimant alleges that she made three protected disclosures to the respondent which are set out at paragraph 2.1.1 of the list of issues (see below). In general terms, these disclosures are alleged to have related to concerns that she had about a fellow employee who we will refer to as BX. In summary, it is suggested that she was worried about his level of experience and his ability to form appropriate relationships with the children at Orion House. In differing ways, she says that she expressed these concerns to her employer in the form of what she asserts were protected disclosures pursuant to Employment Rights Act 1996 (“the Act”). It is her case that she believed that the matters referred to gave rise to the likelihood of either a breach of an legal obligation on the part of the respondent, and/or the risk that one of the children would be endangered.

[3]The respondent denies that such disclosures were made; that they were disclosures of information; and/or that they amounted to disclosures that were protected under the Act. Further, it denies that anything done by the respondent was the result of protected disclosures made by the claimant.

[4]The documents in this appeal were confusing at times.The initials of the said co-worker are CB. He has the same initials as one of the children at Orion House, and who is prominent in the narrative of this claim. For the sake of clarity, we will refer herein to the children by their actually initials, and the co-worker by the initials BX. We have taken the view that it is appropriate to maintain the anonymity of the children and BX. It has certainly not been necessary to name them for the purposes of making a fair decision in this matter. Procedure, Documents and Evidence Heard

[5]The Hearing took place on 5-7 March 2025 when the hearing was adjourned part heard. The case resumed on 2 May 2025 when the evidence was completed. The Tribunal reserved its judgment and directed that written submissions be presented by both parties. Both Mrs Darlington and Mr Radu submitted written documents pursuant to that direction, which we have taken in account when making our decision. The panel met again on 13 May to deliberate and make its decision.

[6]The hearing was conducted with the parties attending by video. The Tribunal first of all heard testimony from the claimant, Mrs Darlington. We then heard from the claimant’s witness, Mrs Jessica Male. Mrs Male could not offer any direct evidence as to the events relevant to the issues we had to decide. Instead, she gave evidence which was in effect a character reference on behalf of the claimant, and also what we regarded as expert evidence in respect of certain legal issues. While evidence as to character was relevant (and we had regard to this aspect of her witness statement), it was our judgment that Mrs Male was not competent to give evidence in respect any applicable legal framework and that her evidence was largely inadmissible on that basis. We accepted that it was well intended, but we directed that we were likely to give it little if any weight when considering the claim. In those circumstances, Mr Radu did not ask her any questions.

[7]We also heard from the respondent’s witnesses: Ms Tanya Humphries (self employed consultant ‘responsible individual’); and Ms Ruth Kalmanovich (Managing Director of the respondent company). Each of the aforesaid witnesses who provided oral testimony adopted their witness statements and confirmed that the contents were true. All of the witnesses (save for Mrs Male) answered questions in cross-examination.

[8]The documents in the case were problematic and proved to be an obstacle to the Tribunal focusing on the key issues They were provided to us in piecemeal fashion. We received an agreed bundle of documents at the start of the hearing which comprises 155 pages (“B1”). During the course of the hearing, we received a number of individual documents at various intervals. Then on 2 May 2025, we received a supplemental bundle which comprised 57 pages and which contained entirely new documents. At the conclusion of that hearing, I directed that the respondent produce a supplementary bundle which contained all of the material which was not in bundle B1. This was provided to the Tribunal on 5 May and comprises 135 pages (“B2”). My understanding is that all relevant documents are in either B1 or B2. As stated above, we also received helpful written submissions from the claimant and Mr Radu between the end of the hearing on 2 May and our deliberations on 13 May.

[9]In coming to our decision, the panel had regard to all of the written and oral evidence submitted, even if a particular aspect of it is not mentioned expressly within the decision itself.

Legal Framework

[10]The relevant legislation in respect of the allegations of detriment arising out the making of protected disclosures is to be found within the Employment Rights Act 1996 (“the Act”). Section 47B(1) requires that ‘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’.

[11]As to what amounts to a protected disclosure, section 43B states: ‘43B Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of 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, is being or is likely to be deliberately concealed.’

[12]In Kilraine v Wansworth London Borough Council

[2018] EWCA Civ 1436

, it was stated that the concept of information in section 43B(1) of the Act was capable of covering statements which might also be characterised as allegations, although not every statement involving an allegation would constitute information and amount to a qualifying disclosure. In order for a statement to be a qualifying disclosure, it had to have a sufficient factual content and specificity capable of tending to show one of the matters listed in paragraphs (a)—(f) of section 43B(1). The ordinary meaning of giving “information” was to convey facts. Further, a disclosure had to be more than a communication. Whether any particular statement met that standard would be a matter for evaluative judgment by a tribunal in the light of all the facts and the particular context in which it was made.

[13]It is a question which is likely to be closely aligned with the other requirement set out in section 43(B)(1) of the Act, namely that the worker making the disclosure should have the reasonable belief that the information she discloses does tend to show one of the listed matters. This has both a subjective and objective element. If the worker subjectively believes that the information she disclosed does tend to show one of the listed matters and the statement or disclosure she makes has sufficient factual content and specificity such that it is capable of tending to show that listed matter, it is likely that her belief will be a reasonable one.

List of Issues

[14]Prior to, and at the outset, of the hearing, the parties made clear that there there was an agreed list of issues for the Tribunal to consider. They were as follows (in so far as they are relevant to this decision): “2. Protected disclosure2.1 Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will decide: 2.1.1 What did the claimant say or write? When? To whom? The claimant says she made disclosures on these occasions:

2.1.1.1 On 31st July in a supervision with Sioux Heithus, and shortly thereafter in conversation with Ruth Kalmanovich. The Claimant raised concerns about Adult CB’s inability to provide emotional support to children in his care and suggested that this would be damaging for the children.

2.1.1.2 On 2nd October 2023 in a WhatsApp message to Ruth Kalmanovich, where the Claimant noted that Adult CB had failed to give child CB his medication on time, and that Adult CB required constant supervision as he was unable to work on his own initiative, and that he did not follow management instructions.

2.1.1.3 On 3rd October in an email to the Responsible Individual – Tanya Humphries – where the Claimant reiterated the content of her previous concerns about Adult CB.

2.2 Did she disclose information?

2.3 Did she believe the disclosure of information was made in the public interest?

2.4 Was that belief reasonable?

2.5 Did she believe it tended to show that:2.5.1 a person had failed, was failing or was likely to fail to comply with any legal obligation;

2.5.2 the health or safety of any individual had been, was being or was likely to be endangered;

2.5.3 information tending to show any of these things had been, was being or was likely to be deliberately concealed.

2.6 Was that belief reasonable?

2.7 If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer. 3. Detriment (Employment Rights Act 1996 s.47B)

3.1 Did the respondent do the following things:3.1.1 29th September 2023: Failure by Tanya Humphries to arrange a 1-2-1 training meeting with the Claimant as had been agreed.

3.1.2 2 nd October 2023: Failure to provide the Claimant with a copy of her contract of employment upon request during discussions about hours of work and overtime.

3.1.3 10th October 2023: Training for ‘Senior Tasks’ being offered to a newly appointed Senior; this training had not been provided to the Claimant in spite of many requests. Further, the response to the Claimant on the public WhatsApp group was humiliating.

3.1.4 12th October 2023: At a meeting with an external independent psychologist, the Claimant was undermined when Tanya Humphries publicly stated that ‘a new member of staff would be joining my team as a senior and this was due to my weaknesses, and they would be the senior when I had left’.

3.2 By doing so, did it subject the claimant to detriment?

3.3 If so, was it done on the ground that she made a protected disclosure? 4. Unfair dismissal

4.1 Was the claimant dismissed?

4.2 Was the reason or principal reason for dismissal that the claimant made a protected disclosure? If so, the claimant will be regarded as unfairly dismissed. 5. Wrongful dismissal / Notice pay

5.1 What was the claimant’s notice period?

5.2 Was the claimant paid for that notice period?

5.3 If not, did the claimant do something so serious that the respondent was entitled to dismiss without notice?”

Findings

[15]Based on the evidence that we heard and read, the Employment Tribunal made the following primary findings of fact relevant to the issues that we had to determine.

[16]The claimant set out in her witness statement and various other documents that she is aged 36 and has been involved in the care industry for over 20 years. The claimant’s mother also worked in the sector for many years. Prior to working for the respondent, she had worked with vulnerable children as social worker. She had taken her social workers degree in 2019. She was therefore considerably skilled and experienced to carry out the role she took up for the respondent in 2023.

[17]Orion house had only recently opened when the claimant commenced her employment with the respondent. It was the Tribunal’s view that there was a certain amount of ‘bedding in’ of staff and processes going on at the time. The manager of Orion house was a person called Luke. We did not hear much about Luke who appears to have been absent for much of the relevant period in this case. It was unclear to us whether he left or was absent due to illness. It is not necessary for us to make a finding about this.

[18]The claimant’s immediate line manager was Ms Sioux Heithus. We did not hear from Ms Heithus, about which were were surprised, given her prominent role at Orion House. Of course, it is a matter for each party as to who they call to give evidence, and we do not speculate as to why she might not have provided a witness statement. Above Ms Heithus was Tanya Humphries who was the responsible individual (“the RI”) for the home. She was not employed by the respondent but was a self employed consultant. It was our understanding that the RI was a significant post in the context of the considerable regulatory framework surrounding the running of a home like Orion House.

[19]Orion House was a small residential home, with only 2-3 children at any one time. For most of the relevant period in this case, the home was occupied by a girl called CB (about 14 years old) and a boy called RJM (about 7 years old). The care provided was 1:1. The children were vulnerable and could often exhibit demanding behaviours. CB had global developmental delay meaning her emotional age was said to be that of an 8 year old. RJM had severe ADHD which was managed with medication. We heard evidence from the claimant and Ms Kalmanovich that the relationships between staff and residents were often challenging. We were told that there was a hard balance to achieve between building trust with the child so that it was possible to help them develop, but avoiding giving in to the child requests which could be associated with their negative behaviours. We accepted this evidence and that it was always a possibility that ‘unhealthy’ relationships might develop between child and staff members but that this risk had to be managed both proactively and reactively.

[20]The claimant was often on duty with BX. He was a support worker. His previous experience of caring for children was limited to work as a swimming instructor with children. We find that he therefore had very limited experience and skills relevant to the challenging environment at Orion House. The respondent has at various times sought to portray BX as having experience in the care sector. It is our judgment that this was an interpretation of his CV which was difficult sustain with any credibility.

[21]We also find that the claimant had originally applied to the respondent for the post of support worker. However, she was invited by the respondent to apply for the role of Senior Therapeutic Support Worker. This required her to manage two support workers. She did so and was successful. One of the people under her supervision was BX. We accept that the claimant had very limited experience or training in supervising or leading a team. She explained this to the respondent at the outset of her employment.

[22]At the beginning of her employment, the claimant attended a three week induction course with all of the other staff at Orion House. This incorporated a range of training which included aspects of administering medication, the Children Act, safeguarding and whistleblowing procedures. We accept that there was no, or very limited, dedicated training provided to the claimant in respect of leadership or staff supervision. We accept the evidence we heard from Ms Kalmanovich on this point. She referred to the training agreement at [B1-73]. She explained that the training listed under ‘section 1’ of the agreement was not all provided at the outset. Training under the final two bullet points (i.e. that which related to supervision and management) was to be provided after 6 months of employment. She explained that this was for financial reasons. The agreement was that employees who left within 12 months of the start of the training program would be required to reimburse at least some of the cost of training undertaken. We note that the claimant signed this document on 11 June 2023.

[23]It was the claimant’s case that in general terms she did not receive sufficient training. This criticism covered a number of facets of her duties, including dealing with certain administrative tasks to be performed online; supervision of staff; and her leadership role. It is our view (in so far as we need to make findings about it) that the claimant lacked skills and experience to perform her role efficiently. She was clearly skilled in relation to working in the care sector, but it was clear to us, and must have been apparent to the respondent, that she struggled with the management aspects of her employment. The claimant suggests that she should have been given more training in this regard. However, we note what Ms Kalmanovich told us about the gradually roll out of some of the training, and that the claimant had been in post only about three and half months when she was dismissed. We find that there had been very little time in which to provide all of the training that the claimant may have ideally required.

[24]The claimant’s case is that within a short time of commencing her employment with the respondent she had concerns about the competence of BX. She set out in her witness statement that he seemed unable to set appropriate boundaries with the children despite being instructed to do so by her as his line manager. As a result, she observed that the children would only respond to him and not other staff. The claimant also alleged that BX refused to work to the individual care plans for each child. She said she had made reports to Ms Heithus, Ms Humphries and Ms Kalmanovich, but that they had done nothing.

[25]The first time that there is anything in writing about these matters is the ‘Employee Attributes Assessment’ at [B1-97]. This was conducted on 28 July 2023, which was about 4 weeks into the claimant’s employment and a few days after the induction training. We find that this was the first time that the claimant put anything into writing about BX and the concerns that she she says she had. The document is based on questions put by the claimant and answers provided by BX. It is written out by the claimant. At paragraphs 27-29 of her witness statement, she gave an account of the meeting she had with BX. In short she stated that she tackled him about the shortcomings in his performance that she perceived, that his behaviour was impacting on the children and on the ability of his colleagues to carry its their roles.

[26]In our judgment, the document at [B1-97] does not reflect such a discussion. It looks more like a record of an appraisal. We can see no criticism of BX in the document. Further, whilst there may be one or two comments attributed to BX which might be regarded as unusual, we could see nothing which might be the cause of serious concern. It was signed by both the claimant and BX on 31 July 2023. It was our judgment that the claimant’s recollection of this meeting incorporated a gloss which was not apparent from the contemporaneous records. This was in keeping with a number of other aspects of her case.

[27]The claimant had a discussion with Ms Heithus on the same day, 31 July. This is recorded at [B1-109]. It is headed ‘senior supervIsion’. This is, of course, the first alleged protected disclosure by the claimant (para. 2.1.1.1 of the list of issues). We do not know who instigated the discussion or whether, as suggested by the claimant, it was prompted by her concerns about BX. What we do find is that the meeting appeared to be consistent with the normal process of supervision of the clamant by her line manager.

[28]What is clear is that the claimant does raise the subject of BX. In general terms, the note of the meeting records that the claimant said she was “OK”. She said she was worried about BX and went through the Employee Attributes Assessment (“the assessment”) with Ms Heithus. The claimant indicated that the assessment suggested that BX lacked empathy, and had a “dis-attachment to emotions”. If these observation arose out of the answers provided in the assessment, then it was our view that the grounds for such a conclusion were weak. It is not what BX said about hImself. Neither do we think that the claimant was in a position to draw such inferences. It is our view that the claimant was not sufficiently experienced or qualified to reliably draw such conclusions. Of course, she was entitled to engage in an evaluative exercise of the aptitudes of a member of staff under her supervision and to explore issues arising. To go further than that was overreach in our judgment.

[29]The note at [B1-108] records that the claimant was spoken to by Ms Heithus about how she could support BX moving forward and as to how she could improve her own relationships with the children. Significantly, the claimant was asked if she had any safeguarding concerns and whether she knew how to ‘whistleblow’. The claimant responded by saying she had no safeguarding concerns and that she knew how to report matters if there were any issues. This answer is in contrast to the claimant’s witness statement about this meeting when she suggests that “…[BX]’s behaviour and lack of willingness to change would inflict emotional harm to already hurt children…”. In our judgment, if at the time the claimant had genuinely believed that there were safeguarding issues arising from BX’s conduct, then she could and would have said so. The note at [B1-109] was not challenged in cross-examination by the claimant. Indeed, perhaps surprisingly, the document was not expressly referred to at all during the hearing by either party.

[30]It is our view that this was evidence of the claimant attempting to engage with a member of her team in her supervisory capacity, and also seeking help from her own line manager in respect of a management concern. Looked at in context, it was our judgment that she was not attempting to raise safeguarding issues. In this sort of case, there is a distinction to be made between discussions about a problematic member of staff, and alerting the respondent to safeguarding risks to the children. We feel that this was a distinction which the claimant sometimes found difficult to recognise. We find that as of 31st July, the claimant was not suggesting that the children were being put at risk; that BX was ‘psychopathic’; or that BX was angry or in any other way unbalanced emotionally. However, there was an understandable recognition that he needed guidance and training in the light of his relative inexperience in the sector.

[31]On 11 September 2023, again Ms Heitus engaged in supervision with the claimant. This is recored at [B1-110]. The claimant had just returned from annual leave. It was noted that BX had upset a few people with his comments and his “brashness”. There was no express note of a discussion about risk to any of the children. There was a discussion about how the team could work better together. Again, the claimant confirmed that there were no safeguarding concerns and no whistleblowing issues. In our view, this appeared to be a relatively unremarkable, constructive and supportive meeting. It evidenced the claimant seeking and/or receiving assistance in her supervision role. Again, the notes were not challenged by the claimant.

[32]On 29 September 2023, it is alleged that the respondent acted to the detriment of the claimant in that Ms Humphries failed to arrange some 1-2- 1 training for her (see para.3.1.1 off the list of issues). We were referred to [B1-112] which is a WhatsApp message from Ms Humphries to the claimant in which she states that she is going to arrange a “1:1” the following week. We accept the testimony of Ms Humphries that she was undertaking to arrange a meeting for the following week to create a training plan and not to conduct training. We do not accept that it was ever intended to have 1:1 training on 29 September 2023.

[33]The claimant’s witness statement was very long and detailed. She was a litigant in person, with all of the challenge that brings with it. The Tribunal is not without sympathy for those who are in the position of representing themselves. However, it is our view that the claimant’s witness statement lacked structure and failed to adequately focus on the matters raised in the list of issues. For instance, some paragraphs were spent discussing an incident when she was required to put a child on a train to London which she felt gave rise to safeguarding concerns. This was not an incident relied upon within the list of issues. We therefore felt it unnecessary to make findings about it. There were other instances where the claimant spent time addressing matters which did not appear to be central to her claim. It often appeared that she was attempting to prove an ordinary unfair dismissal claim, which was a cause of action she was unable to rely upon.

[34]The next alleged protected disclosure occurred on 2 October 2023. The claimant engaged in a WhatsApp engage with Ms Kalmanovich in which she raised a number of issues. These messages can be found at [B1-115-116]. In particular, the claimant states that she told Ms Kalmanovich that BX had failed to give CB his medication on time and that he required constant supervision as he was unable to work on his own initiative, and that he did not follow management instructions (para.2.1.1.2 of the list of issues).

[35]If one closely examines the messages, the claimant does state that BX had forgotten CB’S medication at 4pm until she remind him at 5pm. However, we could not identify the other parts of the disclosure alleged. She does say that she is stressed and that “CB won’t leave cam alone…”. It also touches upon the claimant’s own relationship issues with CB. There is also a discussion about working hours, annual leave and salary, going on in parallel. The claimant later says that “I don’t usually take it personally. Today is just a bad day and I am struggling with [BX] to be honest.”.

[36]On the following day, 3rd October 2023, the day of the third alleged protected disclosure, the claimant asks Ms Humphries for a ‘debrief’ [B1- 117]. She mentioned that she had non-specified concerns about BX. Ms Humphries responded by stating that she already had a 1:1 with BX scheduled for the following day, and asked if the claimant could put any concerns in an email. She also offered to speak to the claimant briefly on the telephone. The claimant did not take her but on the offer of a call, but said she would send an email when she got home. We find that the meeting between Ms Humphries and BX was prompted not by the claimant’s email of 3 October 2023, but by concerns raised by another senior, Lyndsey Malone. We accept this evidence from Ms Humphries' witness statement and oral testimony, not least because it is consistent with the WhatsApp messages.

[37]The email sent by the claimant on 3 October is clearly at the crux of her case. It is has been a contentious document, in part because it has never materialised. Notwithstanding that it was a document sent between two senior members of staff at the time, it has never been produced. After careful consideration, we accept that this is, impart at least, the consequence of a policy whereby the email accounts of staff at the respondent were deleted within 28 days of them leaving their post. Ms Humphries left her position in around March 2024. So that by the the time the importance of the document had emerged in terms of case management, it had already been deleted from both her’s and the claimant’s email account. The Tribunal was critical of the respondent throughout this case as to its rather reactive approach to disclosure. It is our view that it failed to fully appreciate its legal obligations to preserve and disclosure relevant documents. This led to the Tribunal making repeated request for documents during the hearing. It was clear that many of these documents should have formed part of standard disclosure.

[38]In any event, as it transpired, there was a large measure of agreement as to the content of 3 October email. Ms Humphries was cross-examined about it by the claimant, who confirmed that the email had raised that the claimant was struggling with BX and that she was finding it difficult to manage him; that she felt undermined and that he was not sticking to the same boundaries with the children that the claimant wanted. The claimant had stated that she felt it was creating unhealthy relationships between the children and BX, and that the claimant was concerned that child CJM in particular had an unhealthy attachment to BX. Ms Humphries went on to agree that the claimant had also mentioned that BX had given CB sugary treats outside of the applicable care plan. She denied that the claimant had mentioned that CB had been afraid to tell BX that she had a boyfriend.

[39]As to the content of the email, we agree with the evidence of Ms Humphries save that we find that the claimant is likely to have mentioned that CJM had expressed that she was apprehensive about telling BX she was in a relationship. It was clear to us that the claimant had been the most reliable source of information about that email, and we accepted her recollection of its contents.

[40]On 4 October 2023, the claimant received an offer of alternative employment with the Sunbeam Fostering Agency as a Supervising Social Worker [B1-118] which she appears to have accepted subject to suitable references and checks. On 5 October, the claimant told Ms Kalmanovich of her intention to leave and asked for a reference to be provided. There was no final leaving date given. On 10 October, the claimant undertook to give 4 weeks notice of leaving as required by her contract.

[41]On 4 October 2023, Ms Humphries had a supervision meeting with BX. The minutes appear at [B1-119]. Issues were raised as to his relationship with CB and with his ability to accept instructions. The latter was clearly a reference to the concerns raised by the claimant in her email of the previous day. In the Tribunal’s view, the claimant’s concern are raised and discussed in some detail. The note of the meeting was not challenged by the claimant. We mention this only because it is important that the respondent was not ignoring the concerns about BX, and that they were coming from not just the claimant but other senior members of staff. It also important to recognise that it has not been suggested that Ms Malone suffered any detriment having raised similar issues about BX.

[42]On 10 October 2023, there was a group WhatsApp discussion whereby the claimant alleged that a newly appointed senior member of staff was being offered training that she had not herself receiving [B1-128-9]. This is the third alleged act of detriment.

[43]On 12 October 2023, the claimant was at a meeting involving Ms Humphries and others at which it was announced that a new member of staff would be joining as a senior as replacement for the claimant. It was suggested by the claimant that Ms Humphries also explained that this was because of the claimant’s “weaknesses”. We accept that the claimant may not have been ready to announce her resignation to the team as a whole. However, we are satisfied that it was, at the time, her intention to resign imminently and that she had made this clear to Ms Kalmanovich. It is our view that this situation could have been handled better by the respondent. However, we also thought that it demonstrated some naivety on the claimant’s part that she expected that the respondent would not immediately seek to replace her upon learning that she had accepted other employment. It was a small home and could not reasonable be expected to cope with a gap in it’s senior staffing. We find that it is unlikely that Ms Humphries would have mentioned the claimant’s “weaknesses”, although we accept that it may have been an embarrassing meeting for the claimant if she was not ready to formally announce her resignation.

[44]On 17 October 2023, the claimant commenced sick leave and never returned to work for the respondent.

[45]On 18 October, Ms Heithus had a conversation with child CB during which the child appeared to state that she had helped staff members administer medication to CJM. In a limited sense, this was confirmed by child CJM later in the day [B1-133]. The members of staff implicated were the claimant and BX. Later that day, Ms Humphiries sent a text message to the claimant explaining that she needed to speak to the claimant via video or telephone on the following day [B1-132]. Notwithstanding that the purpose of the meeting was the investigation of the administering of medication to CJM, we find that the claimant was not put on notice at all of this matter prior to the telephone call.

[46]That conversation took place on 19 October, with the claimant, Ms Heithus and Ms Humphries present [B1-134]. It was described as a probationary meeting on the notes. We find that this was wholly disingenuous. As stated, we find that the sole purpose of the meeting was to discuss the potential disciplinary matter. We will return to the content of the meeting below.

[47]The claimant was summarily dismissed for gross misconduct on 22 October 2023 by letter which appears at [B1-137]. It explains that the grounds are that she allowed CB to physically hand medication to RJM at a time he was refusing to take medication from staff.

[48]The claimant appealed her dismissal on 23 October 2023 [B1-138] and the appeal was heard by Ms Kalmanovich on 29 November 2023. The notes of the meeting are at [B1-147]. Her appeal was dismissed by letter dated 6 December 2023 [B1-150].

[49]On 25 October 2023, the claimant submitted a subject access request to the respondent for her employment file and any information relating to her investigation and dismissal. It is common ground that the respondent was slow to respond to this request. What was provided appears to be incomplete. This was consistent with our own experience of the respondent’s compliance with obligations to provide documents. The main issue of contention related to emails, which we have accepted (albeit unwisely) were not secured when staff left the respondent’s employment.

[50]It became apparent during the course of the Tribunal hearing that BX was also disciplined by the respondent in relation to the administering of medication to CJM (as well a s another issue-see below). There is a dismissal letter relating to him at [SB-131] dated 22 October 2023. He was therefore summarily dismissed by Ms Humphries on the same day as the claimant. It is a remarkable aspect of this claim that this fact was not mentioned by any of the witnesses in their statements, and that relevant documents were not in the original bundle. It is surprising because it was potentially highly relevant to the issues before us.

[51]We find that BX was dismissed for two reasons: firstly that he had been party to the administering of medication to RJM as discussed above; and secondly that he had allowed CB to have unsupervised access to her mobile telephone resulting in her downloading and accessing ‘Snapchat’. His appeal was heard on 7 November and dismissed by letter dated 16 November 2023 [SB-134].

[52]The claim was lodged with the Employment Tribunal on 17 January 2024. Reasons and Decision

[53]The claimant’s case as to the protected disclosures is definitively set out in the list of issues. As stated, the relevant law in relation to protected disclosures is set out at s.43B of the Employments Rights Act 1996. We have also been referred to the cases of Cavendish Munro Professional Risks Management Ltd v Geduld

UKEAT/195/09

and Kilraine v Wandsworth London Borough Council

[2018] EWCA Civ 1436

[54]The first question for us to decided on the list of issues was whether the claimant had made the alleged disclosures. In relation to paragraph 2.1.1.1 of the list of issues, we are satisfied that the claimant had raised concerns about DX with Ms Heithus as set out in our findings. We are not satisfied that the claimant had gone on to have a discussion with Ms Kalmanovic about the assessment. We note that the claimant explained in her witness statement that she had sent the assessment to Ms Heithus, who had then “forwarded it on to Luke and Ruth” (paragraph 30). She did not assert that she had personally spoken to Ms Kalmanovich, who denied that she was sent the assessment or that she spoke to the claimant about it. We also note that there is no documentary evidence to corroborate any exchange between the claimant and Ms Kalmanovich. In addition, it seemed to the Tribunal to be inherently unlikely that Ms Kalmanovich would have conceded that one of her staff had ‘psychopathic traits’; and that she would have done nothing about it if she had made that observation.

[55]In any event, we find that matters were raised with Ms Heitus as alleged. However, in our judgement it is an alleged disclosure which must be looked at in the context of the guidance set out in the case of Cavendish and Kilraine, in the sense that there must be a conveyance of facts to amount to a protected disclosure as defined, which must be more than a simple communication. Apart from anything else, it must convey facts which might bring it within the categories set out in section 43B(1) of the Act.

[56]In terms of the requirements of section 43B(1)(b), the claimant’s case as to the nature of the legal obligation she relied upon was vague. In truth, it was not an issue dealt upon by either party to a significant degree. There appeared to a tacit understanding that the respondent was subject to either a common law and/or (more likely) a statutory duty of care towards the children residing in Orion House. Although we were not referred to any specific provision, we were happy to decide the case on the basis of the existence of such a legal duty. With regards to section 43B(1)(d), we were not referred to any specific health and safety provision which the claimant said she had in mind when making her protected disclosures. Again, the claimant’s case was vague. In general terms, we dealt with the case on the basis that inappropriate behaviour on the part of staff could, at some point, give rise to the endangerment of the health and safety of the children in the home as vulnerable individuals, which would be recognised as safeguarding issues.

[57]In our view, and looked at in the context of matters as they existed at the time, there is no sense that disclosure 2.1.1.1 was more than part of the normal process of a line manager supervising a relatively inexperienced member of staff, and seeking support in doing so (as an inexperienced manager herself). It was our impression that with the benefit of hindsight, the claimant wished to read more into the assessment she had carried out with BX, and the note of her meeting with Ms Hiathus, than was actually there. The claimant raised some concerns about BX’s attitude, and was offered some assistance by Ms Hiathus. When asked expressly whether there were any safeguarding issues, she said no. The claimant also confirmed that she was familiar with the ‘whistleblowing’ procedure which is at [B1-60]. We note that the procedure requires employees to report any concerns to a director, failing that to an appropriate official organisation or regulatory body. In this case, a disclosure would have been brought to Ms Kalmanovich. As we have found, the claimant did not do that on this occasion. Neither did she ever revert to an outside organisation or regulator about her concerns.

[58]It follows that we find that there is insufficient factual detail or specificity which might bring it within the categories set out in section 43B(1) of the Act. The simple assertion that a member of staff is under-performing does not necessarily give rise to the risk that a person has failed, is failing or is likely to fail to comply with any legal obligation. Neither does it show that the health or safety of any individual has been, is being or is likely to be endangered. The claimant’s case was argued on the basis that any shortcomings must give rise to a safeguarding issue. We do not think that this can be correct. There must be a broad range of scenarios whereby a member of staff like BX can be the subject of valid criticism, but which does not give rise to a safeguarding issue so far as the children are concerned. In our view, looked at in context, the exchanges in late July 2023 fall into this category.

[59]We are reassured in our conclusion about this by the claimant’s own supervision report dated 11 September, when again she was asked if she had any safeguarding concerns. She replied that she did not [B1-111]. Of course, it is the claimant’s case that she held similar concerns about BX throughout her employment, and certainly after 31 July. We find that at the time, in late July 2023, the claimant herself did not believe that she was making disclosures within the categories of section 43B(1). Her own supervision records expressly demonstrate this. In putting together her case, she has sought apply a gloss to events which was simply not there at the time.

[60]We take a similar view about the second alleged disclosure. Again, the context is significant. The disclosure starts with the words “I am stressed…” and continued with with the phrase “Today is a bad day…..”. It is again certainly a complaint about BX in parts. But save for him forgetting RJM’s medication, there is no further detail. In fairness to the claimant, they are concerns raised with Ms Kalmanovich. However, again there is little sense that they were intended to be a formal disclosure as opposed to a member of staff letting off some steam. They were messages sent via WhatsApp which is hardly the most formal method of communication for such matters. They were also interspersed with a discussion about the claimant’s salary and working hours. The focus seemed to me more on the claimant herself than on any safeguarding issues. The only criticism of BX is his overlooking of medication for an hour. The administering of medication is clearly important. We will return to this issue below in more detail. However, in relation to this alleged disclosure, we could not see that a delay in an hour could, on any reasonable view, be seen as a giving rise to a breach of a legal obligation and/or endangering the child. By way of illustration, the claimant did not say that BX forgot every day, or even for the majority of the time. It was reported as an isolated slip, and for only a period of an hour. It is difficult to imagine that oversights for short periods of time were unusual in a busy environment. We were not told of any specific problems that CJM might experience if his ADHD medication was delayed by 60 minutes.

[61]We agreed with the respondent that if there was a breach, then the claimant was at least partly culpable, as the senior on duty at the relevant time. It seemed unlikely to us that the claimant was telling her employer that she had participated in, or facilitated, a breach of any legal duty towards CJM. In summary, we conclude that there was an insufficient conveyance of facts to constitute a protected disclosure.

[62]We then turn to address the third disclosure. Understanding this document was problematic because we never saw the email itself. It is there difficult to fully understand the context of the document. As stated above, the email stated that the claimant was struggling with BX and that she was finding it difficult to manage him; that she felt undermined and that he was not sticking to the same boundaries with the children that the claimant wanted. The claimant had stated that she felt it was creating unhealthy relationships between the children and BX, and that the claimant was concerned that child CJM in particular had an unhealthy attachment to BX.; that BX had given CB sugary treats outside of the applicable care plan; and that CB had been afraid to tell BX that she had a boyfriend.

[63]This exchange comes closest to a disclosure of information which satisfies the relevant categories under the Act. The previous alleged disclosures concentrated on criticism of BX and on the claimant herself. The focus of the email of 3 October is, at least to a greater extent, on the potential impact on the residents. This is key if any disclosure is to attract protection under the Act. The email expressly suggests that BX had unhealthy relationships with the children, and particularly CB, the implication being that the children are being endangered.

[64]However, in our view this email is still preoccupied with what remained criticisms of BX. It still has the air of the claimant attempting to engage in supervision of BX, albeit seeking the assistant of Ms Humphries this time. She sends the email only when requested to do so by Ms Humphries and for the purpose of her using it’s contents at a supervision meeting with BX.

[65]The case as to actual risk to the children is vague. There was no apparent mention of danger to the children in any other document. We have a number of daily supervision logs in B2. There appeared to be nothing in there about the issues raised in the email. If the claimant had been attempting to communicate a safeguarding issue, then she was well aware of the process by which she could do so. The same applied to whistleblowing. If she had wished to do so, the claimant could have taken more robust steps than simply sending a fairly benign email to Ms Humphries. She could have engaged in direct supervision/appraisal with BX, or taken steps to discipline and/or suspend him. It was our view of the claimant that if she had had genuine safeguarding concerns (rather than those related simply to her supervision of BX), then she would have taken further action.

[66]Looked at in context, this email did not, in our judgment, have a sufficient factual content and specificity capable of tending to show one of the matters listed in paragraphs (a)—(f) of section 43B(1). It was perhaps closer than the first two alleged disclosures, but it fell short in our view.

[67]Even if we are wrong about the content of the alleged disclosures, and one of more of them did have sufficient factual content and specificity capable of tending to show one of the categories in section 43B, then were are satisfied that the claimant did not have a reasonable belief that the information she disclosed did tend to show one of the listed matters. We rely on all of the matters set out above in this regard. In particular, we note that the claimant repeatedly said she did not have safeguarding concerns [B1- 108-111]. Neither did she apply the whistleblowing policy, of which she was aware. The claimant presented herself as someone who placed great priority on the welfare of the children. This is consistent with her previous role as a social worker. We therefore have no doubt that had she wished to raise breaches of legal obligation and/or endangerment to the children, then she would have found a way to do so in unambiguous terms. The rather nebulous and vague communications she relies upon in this case are a strong indication that she did not have such an intention, because she did not believe that the information she disclosed tended to show one of the listed matters.

[68]If it had been necessary, we would also have gone on to find that there was no causal connection between the detriments complained of by the claimant, and the alleged disclosures. We take the same view of the claimant’s dismissal. We note that by the time of the first detriment on 29 September 2023, the only alleged disclosure was that which occurred on 31 July. It seemed to us to be inherently unlikely that Ms Humphries perceived failure to arrange training on 29 September (to the extent that it did amount to such a failure) could have been motivated by her communication with Ms Heithus some two months before. Much the same observation applies to the second alleged act of detriment on 2 October, namely failing to provide a copy of the claimant’s terms and conditions. In our view there was insufficient evidence of any causal link.

[69]The third and fourth alleged acts of detriments (namely offering training to a newly appointment senior which the claimant had not received; and the announcement that a replacement senior had been appointment)(to the extent that they were detriments) were clearly motivated by the claimant’s imminent departure. We are at a loss as to understand why the claimant was surprised, either at the time or at the hearing, that the respondent would have acted to replace her as soon as possible. She seemed to think that the respondent was obliged to wait until she had given her four weeks notice. As we have already stated, this was to some extent naivety on the claimant’s part.

[70]Finally, and for reasons we will explore in a little more details below, we are satisfied that the dismissal was the result of the claimant’s actions in relation to the mis-administering of medication to RJM. As we observe below, there were significant defects in the procedure adopted by the respondent. However, it is clear that the claimant did engage in that inappropriate application of rules surrounding the giving of medication. She admitted as much. This was clearly a serious matter, and it is clear from the evidence that the respondent was preoccupied by this issue when dismissing the claimant. We saw insufficient evidence that the alleged disclosures played any part in the dismissal.

[71]Accordingly, we dismiss the claims of automatic unfair dismissal and of protected disclosure related detriment.

[72]We then turn to the claim of wrongful dismissal. The claimant was summarily dismissed i.e. without notice. This can only be justified if the claimant has committed an act of gross misconduct. In this context, the Tribunal is entitled to come to its own decision (to the civil standard), based on the evidence, whether the claimant did as a matter of fact, commit an act of gross misconduct which entitled the respondent to summarily dismiss.

[73]This is not a claim of ordinary unfair dismissal and so there are limits to the findings that we need to make in relation to the process that led to the termination of the claimant’s employment. It suffices to say that we felt there were areas significant procedural unfairness. A few of the points are as follows: (i).that the claimant was not given any notice of the disciplinary matter; (ii).that there appeared to be no separation of the investigation from the disciplinary stages of the process; (iii).that the claimant was not given access to the evidence been relied upon, or proper opportunity to respond to the case against her; (iv). that there appeared to be no adequate assessment of the relative credibilities of the children as opposed to the claimant and BX; (v). that it was not clear from the wording of the allegation when or how often the claimant was said to have mis-administered medication; (vi).that it was unclear who had taken the decision to dismiss; (vii).that the investigation and disciplinary process was conducted when the claimant was on sick leave.

[74]That being said, in relation to a claim for wrongful dismissal we are concerned much less with the process but with whether the evidence established an act of gross misconduct. In this case that requires the claimant to have seriously breaches the rules regarding the administering of RJM’s medication as defined by the respondent’s disciplinary procedure. This demands a careful examination of the explanations provided by the claimant.

[75]We note that at the remote meeting on 19 October, the claimant denied that she had ever allowed CB to administer medication. She stated that she had not given RJM medication because he was abusive towards her. She stated that she left it to BX to administer all of RJM’s medication. As part of her investigation, Ms Humphries checked the records. At least to some extent, those documents were before us at the hearing, although that there was an issue raised by the claimant as to whether we had all of the relevant documents. Having spent much time pursuing our own enquiries as to the relevant documents, the Tribunal did the best with what it had been provided.

[76]The records we were shown appear in the the supplementary bundle. They start at [S2-102]. This is a printout of a database search carried out at the instruction of Ms Kalmanovich between the 7 March and 2 May 2025. She contacted ‘Mentor’ who are the providers of the respondent’s computer record keeping software . She said she had asked them for all of the occasions when the claimant had administered medication to RJM from mid-September 2023 to the date she ceased to work for the respondent. Accordingly, all of the entries relate to when claimant entered onto the computer database that she had administered medication to RJM.

[77]It is important to note that the basic procedure for the administering of medication to residents was that a member of staff administer it, and another witness it. In other words, there had to be two signatures. It was the respondent’s case that [S2-102] proved that the claimant invariably signed to say she was administering medication to RJM.

[78]There are other documents relating to this issue. At [S2-122], there is one of a number of examples of the daily log book which is also completed with significant events of the day. The bottom entry on [S2-102] can be crossreferred to [S2-122] for the 2 October 2023. On the latter, it is clear that BX woke RJM and administered medication, but that the claimant initialled the entry to say she had witnessed it. To this extent the two documents ([S2- 102] and [S2-122]) and are not consistent. It is apparent that the respondent relied on the inconsistencies between the claimant’s answers at interview as compared to the record keeping when dismissing her.

[79]The claimant dealt with the question of the administering of RJM’s medication at paragraph 46 of her witness statement. She repeated that she could not be present when RJM took his medication due to his likely reaction to her, but would instead check the records afterwards to ensure that he had received it. She stated that on one occasion, she had noticed that BX had not signed the record to confirm that RJM had been given his medication. She had asked BX if he had administered it and he confirmed that he had, but that he had forgotten to sign the record. He had asked her to sign it for him and she had agreed to do so. However, with hindsight she realised that she should not have done so as it looked as if she was present when the medication was given.

[80]Whether administering or witnessing, it was accepted by all that both members of staff needed to be physically present (both the witness and the one administering). It was apparent from the claimant’s own testimony, that she was rarely if ever in the same room as RJM when he received his medication. We find that this was a serious breach of the appropriate procedure,. We also find that failing to fill out official records in a way which accurately reflected what was happening on shift was also a significant deviation from good practice and the required procedure.

[81]It follows that in her absence, it would have been difficult for the claimant to have denied the suggestion that on at least one occasion, CB handed RJM his medication. We find that given the evidence of what CB and RJM had said about the former assisting in the giving of the latter his medication, that it is likely to have taken place.

[82]We have given consideration to whether these matters could have properly constituted gross misconduct. We have regard to [S1-65] which is the relevant part of the disciplinary policy in the staff handbook. The dismissal letter asserts that the claimant’s conduct had resulted in a fundamental breach of contract which irrevocably destroyed the trust and confidence necessary to continue with the employment relationship [S1-137]. The policy makes provision for this approach. In our judgment, such a breach of contract is established on the evidence. This includes the claimant’s failure to be present to ensure proper procedures were adopted; that other residents were not involved; her failure to accurately complete the records; and the failure to provide an accurate and honest explanation to the respondent. When these matter are taken together, they amount to a fundamental breach of contract as alleged by the respondent. In our judgment, the claimant did commits acts of gross misconduct, and the respondent was justified in dismissing without notice.

[83]In summary, we dismiss the claim of wrongful dismissal, as well as the other claims. Richard Wood