Miss E Mason v Glenholme Healthcare Group Ltd: 3307143/2023

EMPLOYMENT TRIBUNALS

Case No 3307143/2023

Between

Miss E. MasonClaimant

Glenholme Healthcare Group LimitedRespondent

Before

Employment Judge Mr. A Spencer

In person for claimant

Date 4 October 2024

JUDGMENT

[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed.

[2]The complaint of unfair dismissal is not well-founded. The claimant was not unfairly dismissed. The complaint of unfair dismissal is dismissed.

REASONS

[1]The respondent is a company in business providing care to the elderly, those with dementia and nursing care needs and adults with severe learning difficulties. The respondent runs Shakespeare House, which provides supported living accommodation for young adults with learning disabilities.

[2]The claimant was employed as a Support Worker at Shakespeare House from 30 March 2022 until she resigned with immediate effect from 15 May 2023.

[3]By a claim form presented to the tribunal on 20 June 2023 following a referral to ACAS for early conciliation from 26 April 2023 to 17 May 2023 the claimant brought complaints of:(a) Being subjected to detriments as a whistleblower in contravention of s47B Employment Rights Act 1996 (“ERA”); and

(b) Automatic unfair dismissal contrary to s103A ERA 1996 (constructive unfair dismissal for whistleblowing). Case No: 3307143/2023 2

[4]The claimant says that in November 2022 she made whistleblowing disclosures by raising safety related concerns about leaks in the boiler room at Shakespeare House. She says that these concerns amounted to a protected disclosure (i.e. whistleblowing). She says that she was subjected to detrimental treatment by her Service Manager, Karen Dobson as a result of that whistleblowing. She says that she made a second protected disclosure on 9 May 2023 regarding prescribed medication being withheld from a service user at Shakespeare House and received further detrimental treatment thereafter. She says the detrimental treatment caused her to resign in May 2023 in circumstances where she was entitled to treat herself as constructively dismissed.

[5]The issues for us to determine are as set out in an agreed list of issues. The list of issues does not include the question of whether the two disclosures relied on by the claimant amounted to “protected disclosures” in law. However, the respondent concedes that both the claimant’s disclosures were protected disclosures within the meaning of s43A ERA.

[6]These reasons relate to the issues concerning liability only. We confirmed at the outset of the hearing that we would consider remedy (if applicable) after giving judgment on liability. Witnesses

[7]For the claimant, we heard evidence from:7.1 The claimant herself; and

7.2 Lisa Dunn (a work colleague of the claimant)

[8]For the respondent we heard evidence from the following witnesses:8.1 Karen Dobson, the respondent’s Service Manager;

8.2 Jaine Hale, the respondent’s Quality and Governance Manager; and

8.3 Jasmine Triggs, the respondent’s Team Leader

[9]The witnesses gave evidence under oath or affirmation and confirmed the truth of their written statements. We had the benefit of seeing the evidence of each witness tested under cross examination and the opportunity to put questions to the witnesses ourselves. Documentary Evidence / Submissions

[10]We considered the contents of an agreed hearing bundle which was supplemented by two additional pages of documents added at the claimant’s request during the hearing.

[11]We also heard oral closing submissions from the claimant and the respondent’s representative.

Findings of Fact

[12]The service users at Shakespeare House are not parties to these Case No: 3307143/2023 3 proceedings. It is not necessary to interfere with their privacy by naming them in this judgment. We refer to them by initials throughout.

[13]Having heard the evidence our findings of fact are as follows:

[14]The respondent is a large company which employs 838 staff in the UK at seventeen sites.

[15]The claimant was employed as a Full Time Support Worker by the respondent under the terms of a written contract of employment dated 30 March 2022. The claimant worked at Shakespeare House.

[16]The respondent has a company handbook which includes a Public Interest Disclosure (“Whistleblowing”) policy.

[17]We were not provided with copies of other relevant policies. For example, we were not provided with the respondent’s grievance policy or any on call policy.

[18]Karen Dobson was the claimant’s line manager.

[19]We considered the relationship between the claimant and Ms Dobson in the period before the claimant’s first protected disclosure in November 2022. The claimant’s case was that the relationship deteriorated as a result of that protected disclosure. There was a good relationship between the claimant and Ms. Dobson in the period to November 2022. None of the witnesses identified any issues in this respect. It is also supported by the contemporaneous documents. For example:(a) The claimant attended a supervision meeting with Karen Dobson on 21 June 2022. At the meeting, the claimant confirmed that she was happy and felt settled in her role. Ms. Dobson complemented the claimant on how well she had been supporting resident LT. The review was positive and concluded with Ms Dobson complementing the claimant on her positive attitude and the support she provided. Ms. Dobson was sufficiently pleased with the claimant’s performance that she asked the claimant to take on the additional responsibility for completing the monthly key worker plan for resident LT.

(b) The claimant attended a further supervision meeting with Karen Dobson on 29 September 2022. At the meeting, the claimant confirmed that she was happy at Shakespeare House. At the time, the claimant was a key worker for resident CC. It was noted that the claimant was a little behind in completing her key worker reports and that this needed to be brought up to date. This was plainly not a significant problem as the claimant was also asked during the meeting to take on the role of preparing key worker reports for resident LT. The claimant confirmed that she was happy to do so. Ms Dobson thanked the claimant for her hard work and confirmed that the claimant had become a valued member of the team and was much appreciated by Ms. Dobson.

[20]Prior to November 2022 there was a good relationship between Ms Dobson and the claimant. Case No: 3307143/2023 4

[21]The evidence shows that although her relationship with the claimant was good, there were occasions when Ms. Dobson behaved intemperately towards staff members generally. For example:(a) In September 2022 the claimant and Lisa Dunn discussed concerns they had about what they saw as bullying and unprofessional messages from Ms. Dobson to staff members in the communications book that was used to relay important messages between staff. We have not seen book or the messages but we accept the claimant and Ms Dunn’s evidence that they perceived these messages as unprofessional and bullying;

(b) In October 2022 Ms. Dobson lost her temper with staff. She became angry and aggressive one morning. During the incident she took packed lunches out the refrigerator and threw them at the wall. This made one member of staff, Sarah Fenton cry, leave and go home.

(c) Ms Dobson accepted, in her evidence that she had going through “a rough time personally” and this was affecting her behaviour at work.

[22]The claimant’s first protected disclosure was made on 16 November 2022. The claimant was working that night. She noticed a leak from pipework in the boiler room at Shakespeare House. She was concerned about the leak particularly as it was in the vicinity of electrical wiring. Ms. Dobson was not working that night. The claimant made a call to Anne Flemons (the on call manager). Ms. Flemons called Ms. Dobson and spoke to her about this. Ms. Dobson informed Ms. Flemons that she was already aware of the issue and that a plumber had been called and was due to attend on 18 November. Ms. Dobson asked Ms. Flemons to pass this message on to the claimant. Ms Flemons did so.

[23]The claimant was concerned that there may have been further leaks and that Ms. Dobson may not be aware that the situation had worsened. She sent messages directly to Ms. Dobson with photographs showing pipework and what appears to be electrical wiring in close proximity. The messages record: “Hi Karen, just emptied the bucket and noticed that it seemed like another leak coming from the lower pipe and it was leaking onto the end of whatever this black wire is xx” and “Sarah moved the wire and put some tissue there. Just checking in case that other leak wasn't noticed xx”.

[24]The claimant recorded her concerns about the leak in the respondent’s communications book.

[25]Ms. Dobson didn’t respond to the claimant’s messages that night as she wasn’t working that night, nor was she the manager on call.

[26]Ms. Dobson accepted in evidence that she hadn’t recorded the action she was taking about the leak in the respondent’s communications book. This would normally be the way the claimant would become aware that Ms. Dobson was already aware of the issue. Case No: 3307143/2023 5

[27]We accept the claimant’s evidence that at some point in the days immediately after the plumber’s visit on 18 November, Ms Dobson took the claimant and Lisa Dunn into the boiler room. Ms. Dobson showed them the boiler and said, “its fine”. Neither Ms. Dobson nor Lisa Dunn recall this. However, we accept the claimant’s evidence that Ms. Dobson was a little defensive in the way she said this. It was however nothing more than Ms. Dobson appearing to be a little defensive. This lack of significance is reflected in the fact that the incident wasn’t a matter that the claimant considered important enough to include in her witness statement and neither Ms. Dobson nor Lisa Dunn could recall it.

[28]It is notable that by this point there is no evidence before us to suggest that Ms Dobson was angry at the claimant or had ill will towards her for raising concerns about the boiler.

[29]On 21 November 2022 Ms Dobson lost her temper towards the end of a handover meeting attended by the claimant and other staff members. Letitia McKenna made a joke to the claimant. The claimant laughed. Ms. Dobson was upset by this. She felt that it was rude to interrupt the meeting in this way. She banged the table and said words to the effect of “so fucking rude laughing, I’m not fucking coming in tomorrow you can sort it out”. Ms Dobson then picked up her belongings and stormed out. Ms. Dobson acknowledged in evidence that she made an outburst and banged the door as she left. We accept the claimant’s account of the incident.

[30]The reason for Ms. Dobson’s outburst was simple – she perceived the behaviour of the claimant and Ms McKenna as rude. This caused her to lose her temper. Ms. Dobson had personal problems at time. She lost her temper resulting in her outburst. It is notable that this is similar in nature to the incident with the packed lunches in October 2022. The cause of this outburst was the behaviour of the claimant at the meeting and not the concerns she had raised about the boiler on 16 November.

[31]The claimant had been given the responsibility for preparing key worker reports for service user LT.

[32]The evidence about the role of a key worker for a particular service user was not entirely clear. It was not documented in any of the material before us. It was not a distinct role. Some support workers were given additional responsibility as a key worker for a particular service user. Those additional responsibilities included writing up key worker reports, being the main point of contact for the servicer user and liaising with parents/relatives of the service user. There was no additional pay for taking on these responsibilities.

[33]In about late November/early December 2022 Ms Dobson asked another Support Worker, Fuhad to be LT’s key worker. The claimant discovered this from Fuhad on 3 December 2022. The respondent acknowledged that this role was removed from the claimant in its amended Grounds of Resistance. The claimant was never told about this directly by Ms. Dobson or any of the respondent’s managers. She discovered this from Fuhad.

[34]The respondent’s pleaded case is that this responsibility was taken away from the claimant because she was not completing the keyworker reports in a timely way. This is supported by the supervision report in September 2022 Case No: 3307143/2023 6 where the claimant’s delay in preparing these reports had been noted.

[35]Contrary to the respondent’s pleaded case, Ms Dobson referred in her evidence to the role of Key Worker being suspended at this point and pointed to this as the reason why the claimant was no longer given responsibility for preparing LT’s keyworker reports. We reject that. We find that if the role was suspended it was at a later stage. The respondent’s witnesses were unclear as to when the suspension of the role took place. The suspension of the role at that point is entirely inconsistent with events at the time – what occurred was that the role of report writing for LT was moved from one support worker to another. There was no suspension or cessation of the role at that stage.

[36]The respondent’s reason for removing the role from the claimant was not because of the claimant’s disclosures concerning the boiler. The reason was because the claimant was not completing the reports in a timely way. This is supported by the earlier supervision meeting. Further, the claimant accepted in evidence that there was a backlog of reports. The cause of this action was in no sense whatsoever because the claimant made a disclosure concerning the boiler.

[37]The claimant had been absent from work due to ill health from about 5 to 15 December 2022. She attended a return to work meeting with Karen Dobson on 19 December 2022. The record of the meeting shows that the claimant gave the reason for her absence as “Stress at work – treatment from Manager”. During the meeting, the claimant stated that she felt that Ms. Dobson had been hostile and distant during the few weeks prior to sickness She also complained that Ms. Dobson had not responded to a call the claimant had made to her. Ms Dobson apologised to the claimant if she felt this way. Ms. Dobson expressed the view that she was very happy with the claimant’s work and that she was a trusted and valued member of the team. The claimant said that she was OK with being back at work and there were no issues at present.

[38]The claimant had not, by this stage, made any allegations that Ms. Dobson’s behaviour towards her was because she had raised concerns over the boiler.

[39]There were no further issues until about February/March 2023.

[40]In about early February 2023, other members of staff raised concerns with Jasmine Trigg (Team Leader) about the claimant. We were not told what those concerns were. Ms Trigg raised this with Ms. Dobson. Ms Dobson took the view that she was not prepared to deal with such matters on the basis of hearsay and that if the matter was to be taken further, those making complaints would need to put in writing details of the events complained of so they could be investigated properly. This was a view that was taken to protect the claimant. It would ensure that any complaints were properly evidenced and that matters were not deal with on the basis of “hearsay” as Ms. Dobson put it.

[41]On 7 February 2023 the claimant spoke to Eunice Doosey. Ms Doosey reported to the claimant that she had been asked by Jasmine Trigg to “keep an eye on” the claimant because the claimant and Ms Doosey had “scoff” (i.e., had an argument). Ms Doosey told the claimant that Ms Trigg had told her Case No: 3307143/2023 7 that a few people had said things about the claimant and Ms Trigg was asking people to record the claimant’s behaviour (including dates, times and anyone present).

[42]The claimant was understandably concerned to hear this and took this up with Jasmine Triggs. She spoke to her on 10 March 2023. The claimant explained what Eunice Doosey had told her. As the claimant put it “Jasmine’s face turned white” when she was confronted with this. Ms Triggs declined to discuss the matter saying she needed to talk to Ms. Dobson first but explained “it’s to cover our backs mainly”. Ms Triggs accepted that Ms. Dobson had asked her to do it.

[43]The claimant raised the matter again on 22 March 2023 at a supervision meeting with Jasmine Triggs. The claimant said that she felt uncomfortable that Ms Triggs had asked members of staff to record interactions with her because of other staff raising concerns about her. The claimant asked Ms. Triggs why this was happening. Miss Triggs’ response was that it was done to ensure that records were kept and evidenced.

[44]One particular service user (KC) attended college. The view was taken that it would be beneficial for her to walk back from college to Shakespeare House to get exercise. This was a walk of up to 20 minutes. KC needed to be accompanied by Support Workers on the journey.

[45]The Support workers began their shift at 14:30. KC left college to make the walk from college to Shakespeare House an hour later at 15:30.

[46]Ms. Dobson allowed some support workers (Bethany Hassan and Roksana Chmielewska) to go straight from their home to KC’s college without first attending Shakespeare House to clock in. The support workers would start work by meeting KC at her college at about 15:30 and then accompany her on the walk from college to Shakespeare House. The support workers doing this could not clock in at Shakespeare House until they arrived there shortly before 16:00 (i.e. they could not clock in at Shakespeare House until about 90 minutes after their shift had started). To address this, Ms. Dobson would clock them in on their behalf as having started at work at 14:30. In fact they were likely to have been leaving home to walk to KCs college after 15:00 and were not starting work until then. This was a clear benefit to those employees because they were not having to come into work first and they were being paid for approximately half an hour that they weren’t working. This suited the employees concerned and also clearly suited the respondent as it made practical sense for the Support Workers who lived relatively closely to KC’s college to do the task and to go straight to the college rather than to attend Shakespeare House first. This benefit was afforded to those Support Workers who lived relatively close to KC’s college and who accompanied KC on the walk back to Shakespeare House.

[47]The claimant was not afforded this benefit. However, the reason for this was in no sense whatsoever due to her disclosures regarding the boiler in November 2022. It was a practical and pragmatic arrangement made for those support workers who lived relatively close to KC’s college and who accompanied KC on the walk back to Shakespeare House. There was no evidence of the claimant undertaking this role or being asked to do it. Nor did Case No: 3307143/2023 8 the claimant give any evidence of her being in a similar situation where it might have been fair to afford her the same benefit. It was in no sense whatsoever due to her disclosures concerning the boiler.

[48]The claimant had discussed her working hours with Ms. Dobson at her initial interview for the job. The claimant had said that she didn’t want to be rostered to work on Monday or Thursday mornings because of her other commitments. Ms Dobson verbally agreed to accommodate this as far as possible. This was not reflected in the claimant’s contract of employment and no formal flexible working request had ever been made.

[49]In practice, that arrangement was implemented by Ms Dobson who did not roster the claimant to work on Monday or Thursday mornings.

[50]The evidence before us was unclear as to how far in advance work rotas were published. Witnesses’ recollection varied between 3 and 6 weeks. However, the work rotas were published to the Support Workers at least 3 weeks in advance.

[51]Ms. Dobson was flexible in accommodating the claimant’s requests to change shifts when the claimant requested this. For example, evidence of messages exchanged in February and March 2023 show that Ms. Dobson was very accommodating and altered the claimant’s shifts at her request without complaint. The messages exchanged were friendly in tone. Ms. Dobson was plainly very accommodating.

[52]The claimant had expressed a preference not to work on Monday mornings. One particular service user (CC) went swimming on a Monday morning and needed to be accompanied by Support Workers. As CC was a wheelchair user, this work involved using a hoist (which the C was trained to use). The shifts were not popular amongst staff as CC required a high level of support. On 18 March 2023 Ms. Dobson asked the claimant if she could work a Monday morning shift. The claimant agreed. The message exchanges between the two remained perfectly friendly.

[53]After this, Ms. Dobson began to assign further Monday morning shifts to the claimant in the work rota.

[54]The claimant spoke to Ms. Dobson about the Monday morning shifts. The claimant’s evidence was that this took place in April / May. It is more likely that this took place in April. The claimant reminded Ms. Dobson of their original agreement but said that she would do the Monday morning shifts occasionally for the sake other colleagues if given sufficient notice. Karen Dobson apologised.

[55]In the next rota the claimant was then allocated three Monday morning shifts in a row including shifts on 15 and 22 May 2023. The claimant would have been aware of this by about mid-April when the rota was published.

[56]We accept the respondent’s evidence that shifts were allocated to meet the needs of the service users and not because of the claimant’s disclosures concerning the boiler in November 2022. There was a clear need for support workers to cover the Monday morning shift with CC. It was unpopular work Case No: 3307143/2023 9 and the claimant was a ble to use the hoist. The claimant had also confirmed that she would work such shifts if required. It is implausible that in allotting shifts in May 2023 Ms. Dobson was punishing the claimant for raising the concerns regarding the boiler room some five months earlier.

[57]The claimant made a referral to ACAS for Early Conciliation on 26 April 2023.

[58]On 9 May 2023 the claimant sent an email to Jennifer Hames (the respondent’s Regional Operations Manager) with the subject “Whistleblowing/Health and Safety”. It read: Dear Jennifer, I am a support worker at Shakespeare house and I am writing to you as I am deeply concerned about the health and safety of a young lady that we support. I attended a doctor's appointment with [KC] on 19/04/23. It was confirmed that [KC] needed to continue her antifungal treatment for ringworm for 6-8 weeks. [KC] was given a prescription to order more cream. I recorded clear notes from the appointments on nourish and explained this in our communication book. Since the first tube finished Karen Dobson has not requested more cream and I have been told by colleagues this evening that this is because she believes she doesn't need it ( this is against the opinion of the GP – and all other reputable medical sources). This is a highly contagious infection and [KC] is covered in the rash lesions. [KC] is making sad noises and this could well be part of the reason why. I believe that this is abuse and action needs to be taken urgently. I would greatly appreciate if you could respond to this e-mail and let me know these steps you intend to take.

[59]Miss Hames referred the matter to Jaine Hale as the Registered Manager to be investigated in accordance with the respondent’s whistleblowing and vulnerable adult protection policies. This included referring the matter to the Local Authority.

[60]Jaine Hale sent an email to the claimant on 9 May 2023 to confirm that she had opened an investigation into the matter. This was immediately before Ms. Hale went on annual leave.

[61]The claimant had been allocated shifts on Monday 15 and 22 May 2023. The claimant messaged Jaine Hale on 12 May. The claimant said: Hi Jaine, I was wondering if you could make a couple of changes to the rota please? as I don't feel comfortable asking Karen. Could you move me please from the early to the late shift Monday coming and the Monday after? I told Karen I wasn't available at those times in my interview and I spoke to her about it again a few weeks ago because she'd put me down for them before and has done again. Thank you Eireann x Case No: 3307143/2023 10

[62]Jaine Hale’s response was: I am now on annual leave. I would suggest you ask Karen

[63]The message is curter and less friendly than previous messages exchanged between the two women. However, Ms Haile was away on annual leave at time with her husband in Egypt. The claimant’s message came through on her personal phone (having left her work phone at work). Ms. Haile’s reason for responding in this way was simply because she was on holiday. It is nothing to do with either of the protected disclosures the claimant had made by this time.

[64]The claimant resigned on 15 May 2023. Her short email states: “I hereby tender my resignation from the position of support worker at Shakespeare House. I feel that I have been constructively dismissed and therefore this resignation is immediate. I am resigning as a result of the breach in contract by yourself and now, Jaine Hale, which began when I blew the whistle last November. You have failed your duty of care towards me I will be providing a FIT note shortly.”

[65]On 23 May 2023 the claimant asked the respondent to consider her resignation letter as a grievance.

[66]On 20 June 2023 the claimant sent an amended grievance letter to the respondent giving more details to support her grievance. The grievance is similar to the complaints made in these proceedings. In her letter, the claimant referred to several employees who were involved in the events giving rise to the grievance. The main thrust of her grievance was that she had been bullied by Karen Dobson because of raising whistleblowing concerns.

[67]The claimant also presented her claim form to the tribunal on 20 June 2023. The claimant gave no evidence as to why she did not present her complaint earlier given that she has alleged that the detriments began as early as November 2022. When asked about this, the only reason she gave was that the situation was stressful.

[68]Penny Howard (the respondent’s Elderly Services Operations and Commissioning Manager) chaired a grievance hearing on 22 June 2023. Minutes of meeting record the discussion. The meeting was attended by the claimant who was accompanied by her union representative.

[69]A grievance investigation was undertaken. Apart from reviewing relevant documents, the only persons interviewed were the claimant, Karen Dobson and Jasmine Triggs.

[70]Melissa Gilbert, an HR administrator wrote to the claimant on 7 July 2023 to confirm the outcome of the claimants grievance. The grievance was not upheld. Case No: 3307143/2023 11

[71]The claimant submitted an appeal against the outcome of her grievance on 14 July 2023.

[72]On 27 July 2023 the claimant attended a grievance appeal hearing chaired by Zoe Hunter (the respondent’s Head of Quality and Care). The minutes of the meeting record the discussion.

[73]Ms Hunter wrote to the claimant on 1 August 2023 to confirm that the appeal had not been upheld for the reasons set out in letter.

[74]The respondent followed a process which accords with the ACAS Code of Practice on grievance procedures. However, we consider the quality of the investigation into the claimant’s grievance was lacking. The claimant alleged that she was being bullied by her line manager. She gave a number of examples of that alleged bullying including naming the members of staff involved. It is surprising that the respondent did not interview any of those employees. In a bullying complaint one would expect an employer to interview other members of staff who could shed valuable light on whether Ms. Dobson was behaving inappropriately toward the claimant. The respondent did not do so. This was a significant failing. However, there is no evidence to suggest that the reason for this was in any sense because the claimant had made the two protected disclosures. It was merely a lack of rigour on the part of the respondent. There was no evidence to suggest that any of the staff involved had any animosity or ill will towards the claimant for raising her protected disclosures. Conclusions and Applicable Law

[75]Applying the law to the facts of this case, our conclusions on the various issues follow. We have addressed all the issues in the list of issues (save for those relating to remedy). However, we have grouped some of them together so that this judgment is better understood. Claim 1: Being subjected to detriments as a whistleblower in contravention of s47B ERA 1996. Did the claimant have protection as a whistleblower?

[76]To be protected as a whistle-blower the claimant must first show that she made one or more “protected disclosures” (i.e., she must show that she “blew the whistle” in a way that gives her protection under the law). In this context a “protected disclosure” is defined in section 43A Employment Rights Act 1996 (ERA) as being a “qualifying disclosure”. This, in turn, is defined in section 43B ERA.

[77]The respondent accepts that the two disclosures relied on by the claimant were both “protected disclosures” (as defined). Thus, the following disclosures by the claimant were “protected disclosures” and afforded the claimant legal protection as a “whistleblower”:(a) The disclosures to Anne Flemons and Karen Dobson concerning the leaks Case No: 3307143/2023 12 in the boiler room at Shakespeare House made on 16 th November 2022; and

(b) The disclosure concerning medication issues relating to service user KC made on 9 May 2024.

[78]Both disclosures gave the claimant the necessary legal protection as a whistleblower. Were the claimant’s rights under s47B ERA breached?

[79]Section 47B ERA gives a worker the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his/her employer done on the ground that the worker has made a protected disclosure.

[80]In the context of this case four key questions must be considered. They are:(a) Was the claimant subjected to the treatment she alleges?

(b) Was that treatment a detriment?

(d) Was that treatment done on the ground that the claimant made a protected disclosure?

[81]We will address these questions in relation to each of the seven alleged detriments.

[82]The term ‘detriment’ is not defined in the ERA. In Ministry of Defence v Jeremiah

1980 ICR 13

, CA, Lord Justice Brandon said that ‘detriment’ meant simply ‘putting under a disadvantage’. In the same case Lord Justice Brightman stated that a detriment ‘exists if a reasonable worker would or might take the view that [the action of the employer] was in all the circumstances to his detriment’. Brightman LJ’s words, and the caveat that detriment should be assessed from the viewpoint of the worker, were adopted by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL.

[83]It is not necessary for there to be physical or economic consequences to an act or failure to act for it to amount to a detriment. What matters is that, compared with other workers (hypothetical or real), the complainant is shown to have suffered a disadvantage of some kind.

[84]Ordinarily, a claimant in civil proceedings bears the burden of proving all the essential elements of his or her claim on the balance of probabilities. That position has been altered in respect of section 47B ERA. In a claim under this provision, it is for the employer to show the ground on which any act, or deliberate failure to act, was done (see section.48(2) ERA).

[85]The claimant still has the burden of proving all the other necessary elements of a claim on the balance of probabilities — i.e. that there was a protected disclosure, there was a detriment, and the respondent subjected the claimant to that detriment. Once the claimant has proved these matters the burden shifts to the respondent to prove that the worker was not subjected to the Case No: 3307143/2023 13 detriment on the ground that he or she had made the protected disclosure.

[86]This case turns largely on the last of the four key questions identified above (i.e. whether the claimant was subjected to a detriment on the ground that she had made a protected disclosure). There needs to be a causal link between the fact of making a protected disclosure and the decision of the employer to subject the worker to the detriment. In this regard, the authoritative statement of what is required for causation under s47B is that formulated by Elias LJ’s in Fecitt and ors v NHS Manchester (Public Concern at Work intervening). We must consider whether the protected disclosure materially (in the sense of more than trivially) influenced the employer’s treatment of the claimant

[87]It will be clear from our findings of fact that we have concluded that the claimant was treated in the way she alleges in respect of the seven detriments she relies on. Our conclusions in relation to each of the seven alleged detriments relied on by the clamant are as follows: Detriment 1

[88]Karen Dobson removed from the claimant, the responsibility for preparing key worker reports for service user LT in late November/early December 2022. This was a detriment. Whilst it was not a demotion and did not affect the claimant’s remuneration it was a removal of status and responsibility and is something that a reasonable employee would perceive to be a detriment.

[89]This detriment arose from a deliberate act by Ms Dobson acting on behalf of the respondent.

[90]However, we have found that Ms Dobson’s act in removing this responsibility was in no sense whatsoever done on the grounds of the claimant’s first protected disclosure concerning the boiler. Further, the act could not have been done on the grounds of the claimant’s second protected disclosure as that did disclosure did not happen until May 2023. Consequently, any claim under s47B in respect of this matter fails. Detriment 2

[91]Karen Dobson was hostile and angry (but not distant) towards the claimant including during the team meeting on 21 November 2022.

[92]This behaviour was a detriment. It was unpleasant and upsetting to the claimant. It is something that a reasonable employee would perceive to be a detriment.

[93]This detriment arose from a deliberate act by Ms Dobson on behalf of the respondent.

[94]However, we have found that Ms Dobson’s behaviour was in no sense whatsoever done on the grounds of the claimant’s first protected disclosure concerning the boiler. Further, the behaviour could not have been done on the grounds of the claimant’s second protected disclosure as that did disclosure did not happen until May 2023. Consequently, any claim under s47B ERA in Case No: 3307143/2023 14 respect of this matter fails. Detriment 3

[95]The claimant was not offered the opportunity to be “clocked in early” as she put it. She was never afforded this benefit. However, this was not a detriment that the claimant was subjected to. She was never in a position to benefit from this treatment. The claimant was never in a comparable situation to the employees to whom Ms. Dobson afforded this benefit. The claimant did not live close to service user KC and did not accompany KC back from college having travelled to college from her home. Nor was the claimant ever in a similar position where the same benefit could be afforded to her. This was not a detriment that she was subjected to. Had she done this task she would most likely have been clocked in by KD too. The claim in relation to detriment 3 fails for this reason. Even if we had decided differently on this point we concluded that the reason for this treatment was in no sense whatsoever done on the ground of the claimant’s first protected disclosure concerning the boiler. Further, the act could not have been done on the grounds of the claimant’s second protected disclosure as that did disclosure did not happen until May 2023. Consequently, any claim under s47B ERA in respect of this matter fails. Detriment 4

[96]We found that Karen Dobson did ask Jasmine Trigg in February 2023 to ask the claimant’s work colleagues to make written records about any issues they experienced with the claimant.

[97]This was a detriment. Asking other employees to record the behaviour of the claimant (to include recording times, dates and witnesses) is something that a reasonable employee would perceive to be a detriment. It was plainly worrying for the claimant to hear this. Miss Triggs could have explained this to claimant in a far more diplomatic way. It was a measure designed to protect the claimant and to achieve fairness by ensuring that any complaints were properly evidenced.

[98]Further, this detriment arose from a deliberate act by Ms Dobson on behalf of the respondent.

[99]However, we have found that Ms Dobson’s behaviour was in no sense whatsoever done on the grounds of the claimant’s first protected disclosure concerning the boiler. Further, the act could not have been done on the grounds of the claimant’s second protected disclosure as that did disclosure did not happen until May 2023. Consequently, any claim under s47B ERA in respect of this matter fails. Detriment 5

[100]We have found that Ms Dobson did draw up the shift rota in late April 2023 so as to allocate Monday morning shifts that were outside the claimant’s availability on 15 and 22 May 2023.

[101]This is something that a reasonable employee would perceive to be a detriment. It was inconvenient for the claimant to be allocated such shifts and Case No: 3307143/2023 15 ran contrary to the arrangement she had agreed with Karen Dobson.

[102]Further, this detriment arose from a deliberate act by Ms Dobson on behalf of the respondent in drawing up the shift rota.

[103]However, we have found that Ms Dobson’s behaviour was in no sense whatsoever done on the grounds of the claimant’s first protected disclosure concerning the boiler. Further, the act could not have been done on the grounds of the claimant’s second protected disclosure as that did disclosure did not happen until 9 May 2023. Consequently, any claim under s47B ERA in respect of this matter fails. Detriment 6

[104]We have found that Jaine Hale did decline to change the shift rota on 12 May 2023 when the claimant messaged her to request this.

[105]This was a detriment. It left the claimant having to work shifts that were inconvenient to her. This is something that a reasonable employee would perceive to be a detriment.

[106]Further, this detriment arose from a deliberate act by Jaine Hale in declining to deal with the claimant’s request.

[107]However, we have found that Ms Hale’s conduct was in no sense whatsoever done on the grounds of either of the claimant’s protected disclosures (both having been made by this stage). Consequently, any claim under s47B ERA in respect of this matter fails. Detriment 7

[108]We have found that the respondent did not conduct a sufficiently thorough investigation of the claimant’s grievance for the reasons given earlier.

[109]This was a detriment. It reduced the prospect of the claimant’s grievance being upheld. It is something that a reasonable employee would perceive to be a detriment.

[110]Further, this detriment arose from a deliberate act on behalf of those dealing with the claimants grievance investigation, hearing and appeal.

[111]However, we have found that the conduct concerned was in no sense whatsoever done on the grounds of the claimant’s protected disclosures (both having been made by this stage). Consequently, any claim under s47B ERA in respect of this matter fails.

[112]In conclusion, the claim under s47B ERA fails for these reasons. Largely, the reason for this is that we are not satisfied on the evidence before us that the respondent’s treatment of the claimant was done on the ground of her whistleblowing. Case No: 3307143/2023 16 Claim 2: Automatic unfair dismissal contrary to s103A ERA 1996 (constructive unfair dismissal for whistleblowing).

[113]The claim for unfair dismissal also fails.

[114]The right not to be unfairly dismissed is given by section 94 ERA. That right is subject to a restriction. Normally, an employee who wishes to claim unfair dismissal must show that they have at least two years’ service with their employer by the date their employment ended. If they do not have that period of qualifying service, they have no right to bring a complaint of unfair dismissal (see s108 ERA).

[115]The claimant did not have the requisite two years continuous service by the time she resigned in May 2023. She does not have the right to bring what is known as an “ordinary” unfair dismissal claim.

[116]However, the claimant relies on section 103A ERA. This provides an exception to that rule and allows an employee with less than two years’ service to bring an unfair dismissal claim. However, to bring herself within that exception, the claimant must demonstrate that the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[117]The claimant asserts that she was constructively dismissed. In support of that claim she asserts that by subjecting her to detriments for making protected disclosures the respondent acted in such a way as to fundamentally breach her contract of employment (i.e. it was conduct which goes to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract). Further, to bring herself within s103A ERA that conduct must be on the ground of the claimant’s protected disclosures.

[118]We have already found that the conduct complained of by the claimant was not done on the grounds of her protected disclosures. Thus, the claim must fail. Even if the claimant could show the other necessary elements of a constructive dismissal the claim must fail. This was not a whistleblowing dismissal and so the claim for unfair dismissal fails as the claimant does not have the required two year period of qualifying service.

[119]In the circumstances, the issues regarding whether the claims were in time are no longer relevant for us to determine.