Mrs M W Vithana v West London NHS Trust and others: 3322761/2021
EMPLOYMENT TRIBUNALS
Case No 3322761/2021
Between
Mrs M W VithanaClaimantWest London NHS Trust and othersRespondent
Before
Employment Judge BansalIn person for claimantMr B Jones (instructed by Counsel) for respondentDate 3 July 2024
JUDGMENT
ON LIABILITY & REMEDY The unanimous decision of the Tribunal is that;[1]The claimant’s claims of direct discrimination on the grounds of race and sex; harassment on the grounds of race and sex; detriments suffered for making public interest disclosures and raising health and safety concerns; unlawful deduction of wages and holiday pay are not well founded and are dismissed.[2]The claimant’s claim of victimisation against the First and Fourth Respondent is well founded and succeeds.[3]The claimant’s claim of constructive unfair dismissal against the First Respondent is well founded and succeeds.[4]The claims against the Second and Third Respondent are dismissed. REMEDY[5]The First Respondent is ordered to pay the claimant the sum of £2,132.00, compensation for constructive unfair dismissal. This award comprises of(i) Case No: 3322761/2021 2 Basic Award of 1632.00, and(ii) Loss of Statutory Rights £500. This sum is payable forthwith.[6]The First and/or Fourth Respondent are ordered to pay to the claimant compensation for injury to feelings in the total sum of £9,227.67. This award compromises of £7,500 for injury to feelings and interest of £1,727.67. This sum is payable forthwith.[7]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply to these awards.
REASONS
[1]Following a period of ACAS Early Conciliation between 1 September 2021 and 11 October 2021, the Claimant presented a Claim Form (ET1) on 6 November 2021 bringing complaints for;a. Constructive unfair dismissal;b. Direct discrimination on the grounds of race and sex;c. Harassment on the grounds of race & sex;d. Victimisation;e. Detriment for making a public interest disclosure;f. Detriment for raising health & safety concerns;g. Notice pay;h. Unlawful deductions from wages;[2]By a Response Form (ET3) filed on 4 February 2022, the respondents resisted and disputed the complaints, and also raised a jurisdictional time issue in relation to the complaints which occurred before 2 June 2021 being out of time. Case No: 3322761/2021 2[3]At a Preliminary Case Management Hearing held on 12 July 2022, Employment Judge Tuck QC discussed and finalised the agreed the List of Issues for determination at this final hearing. The agreed List of Issues is set out at Annex A.
Hearing
[4]The claimant represented herself as litigant in person. The respondents were represented by Mr Ben Jones of Counsel.[5]The Tribunal was provided with an agreed bundle of 1117 pages, a chronology and cast list. During the course of the hearing the Tribunal requested from the First Respondent the policy relating to the Administration of Drugs and Medicine. This was provided for years May 2019, March 2021 and May 2022.[6]The Tribunal noted the Claim Form with Particulars of Claim, were prepared by solicitors acting for the claimant at that time. Those solicitors withdrew from acting for the claimant during the preparation of this case.[7]During the hearing, the Tribunal observed the claimant was nervous, she was not familiar with the Tribunal procedures and her ability to cross examine the respondent witnesses was limited. At the outset of the hearing, the Judge explained to the claimant the Tribunal procedures, and provided guidance in respect of cross examination and making final submissions. As a litigant in person she presented her case reasonably well, although she did not advance any case for direct discrimination; detriments for making a protected disclosure and health and safety, and harassment or cross examine the respondent witnesses on these complaints. The Tribunal found the claimant to be mild natured, courteous and respectful to the Tribunal and the respondent witnesses. It was clear during the hearing that she wanted the Tribunal to hear what she had gone through with the respondent. The Tribunal was satisfied the claimant was given full opportunity to present her case and that she had a fair hearing. Witness statements
hearing.
[8]The Tribunal heard evidence from the claimant who provided a written statement. For the respondent there were statements from, Raj Sooky; Melanie Barlow; Victor Okereafor; Inocencia Mashamba; Lisa Yueh Ming Tham; and Timothy Brackpool;[9]All witnesses gave oral evidence and were cross examined. In addition the Tribunal asked questions of the witnesses for clarification. At the end of the evidence, both the claimant and Mr Jones made their submissions.
Findings of Fact
[10]The Tribunal considered all of the evidence and made findings of fact, on the balance of probabilities. A reference to a page number is to the relevant page number in the bundle. Only relevant findings of fact pertaining to the issues and those necessary for the Tribunal to determine have been referred to in this judgement. It has not been necessary and neither was it proportionate to determine each and every fact in dispute. Case No: 3322761/2021 3[11]The claimant is of Sri Lankan cultural heritage. She is a qualified Practice Development Nurse, and registered with the Nursing Midwifery Council. (NMC)[12]The First Respondent is an NHS Trust providing a full range of mental health, physical health care and community services to children, adults and older people living in Ealing, Hammersmith and Fulham & Hounslow.[13]The Second, Third and Fourth respondents were at the relevant time (i.e November 2020 to June 2021) employees of the First Respondent.[14]The claimant commenced her employment with the First Respondent on 6th February 2010 as a Staff Nurse. Her place of work was at Jubilee Ward, St Bernards Hospital, Uxbridge Road, Southall UB1 3EU. The claimant was a Band 5 Nurse and worked 37.5 hours per week. She had completed her Preceptorship. The Jubilee Ward deals with elderly patients who have cognitive impairments and/or dementia and are considered to be vulnerable patients.[15]During the claimant’s employment her line manager was the Second Respondent, Miss I Mashamba. The Third Respondent, Mr V Okereafor, was the claimant’s supervisor at the relevant time. Contract of Employment[16]The claimant was issued with a statement of principle terms and conditions of employment dated 8th February 2019. These terms in particular entitled the First Respondent to make deductions from pay in the event she was absent from work without authorisation (p724, clause 14.1). In addition clause 12.3 (external employment and interests) provided that the employee must first obtain the express written consent from her line manager if she wished to work for an external employer at the same time (clause 12.1).[17]The claimant was also required to inform the First Respondent of all material changes to any external employment held alongside her employment (p723, clause 12.3). Further the claimant was required to inform the First Respondent of all the hours she worked, whether for the First Respondent or for an external employer to comply with the Working Time Regulations.[18]The contract also provided that it was a condition of the claimant’s employment that she may be required to undertake other duties as may be reasonably required and which are commensurate with the banding of her post (p720, clause 1.2).[19]The Tribunal noted at clause16.1 (p724), the First Respondent required all employees to report without delay any concerns to their line manager or via reporting lines identified in the Trust’s Whistleblowing policy (p724, clause16.2 ), they have regarding the environment of care within the Trust which they believe put patients or service users at risk or compromise the standards of care. Case No: 3322761/2021 4 Policy: M2, Medicines Policy, Outlining Medicines Management Process in the Trust[20]The Tribunal heard oral evidence from the Matron, Raj Sookhy, Ward Manager, Miss Mashamba and Mr Brackpool, Inpatient Services Manager for CIDS concerning the Medicines Policy.[21]During the evidence of Ms Lisa Tham, at the request of the Tribunal, the First Respondent disclosed, three versions of this Policy, for years May 2019, March 2021 and May 2022. Based on the evidence and the relevant policy the Tribunal found that the policy which applied at the relevant time was the May 2019 Policy, However, the First Respondent incorrectly applied the March 2021 policy in their Investigations. The relevant paragraphs were as follows: 2019 Policy -Clause 10.2.3.[22]The administration of medication may be carried out by a single registered nurse or nursing associate. Administration must be carried out in accordance with NMC Code of Practice and the NMC Standards of proficiency.[23]For high risk medicines e.g. methotrexate, insulin, it is recommended that a check from a second nurse is undertaken. In the case of the nursing associate the second check must be undertaken by a registered nurse and cannot be another nursing associate.[24]Service areas may decide to use two staff to support the administration of medicines during medicine rounds. Where two nurses are involved the second nurse should take the role of ensuring that there are no distractions for the administering nurse and to support checking compliance. Clause 10.2.4.[25]The administering nurse is responsible for ensuring all documentation is correctly completed prior to administration. (S)he must sign each prescription chart after administration, ensuring that any refusals or omissions are appropriately and legibly recorded, with the appropriate code and other members of the clinical team informed. 2021 Policy -Clause 31.2.[26]Registered practitioners may administer medication within their scope or practice, own competencies and in keeping with their professional guidance. All practitioners are accountable for their actions and omissions. 2021 Policy- Clause 31.3.[27]Broadmoor only: At Broadmoor hospital it is expected that all medication rounds will be undertaken by 2 registered nurses, or a registered nurse and a nurse associate, wherever possible.[28]The Investigation Fact Finding stated that the Jubilee Ward adopted the higher standard in line with the 2021 Policy Clause 31.3 (p508). Case No: 3322761/2021 5[29]The Tribunal concluded however, that the appropriate policy to refer to was the higher standard as within the May 2019 policy clause 10.2.4. This policy gave any Ward the power to adopt a two nurse approach to administering medication. The Tribunal heard how the Jubilee Ward had experienced repeated medical administration errors in the recent past and this led them to review their procedures and insisted that two nurses completed medication rounds together. This was confirmed in evidence by Ward Manager, Ms Mashamba and Raj Sookhy. Ms Mashamba’s witness statement stated “whilst the Trust’s policy ….. it is local protocol in the ward (ever since I started working in the ward) that two nurses will give out medication together to reduce the chance of error occurring.”[30]During evidence it became apparent to the Tribunal that this policy was not followed by Clinical Team Leader (CTL), Mr Vitus Okereafor. He insisted that he followed the clause in the policy allowing a single registered nurse to administer medication. This was contained within clause 10.2.3 of the May 2019 policy. In his investigation meeting with Ms Tham held on 11th June 2021 (p484), Mr Okereafor in response to a question of the implementation of this policy said, “It depends on whom you are working with. I do my medication because the Trust Policy allows one person do to medication. The medication I do, I don’t do one or two at the same time, I do one patient at the same time. I don’t do two peoples medication and keep. I prefer to do medication on my own.” He further added, “It’s not working in practice. It would have worked if one is either calling out and the other is dishing out. I find that a bit difficult because you have to agree to be able to do medication together. You can ask somebody if they want to go give or call out. I prefer to do my medication by myself. It depends on who you are working with”.[31]To a question posed by Ms Tham, “The procedure is actually optional. It is not something that says you have to work together on all the patients.”, Mr Okereafor replied, “ I don’t know. I think I went on holiday or something happened. I came back and I saw something in place. I looked at it as something that is optional because in the M8 medications management it is written there one person might do medication. To avoid a collective error. Medication is one thing. As a qualified nurse, it is one thing that I take very seriously. I don’t answer for anyone when I am doing medication.”[32]The Tribunal noted that the recommended practice of a second nurse checking due to high risk medication was not followed (which included Lithium) and neither was the higher standard procedure of two nurses administering all medication on Jubilee Ward. (p650) Meeting 1st July 2020 Claimant and Ms Melanie Barlow[33]The Tribunal heard evidence from Melanie Barlow, Community Service Manager CIDS, about a meeting she held with the claimant on 1st July 2020. The background to this meeting was that the claimant had informed, via support sessions with a physiologist which was part of the wellbeing support offered to employees under Covid 19, that she had concerns about patient care and about how the claimant was being treated on the ward. These concerns were reported by the psychologist to Mr Brackpool. At the time Mr Brackpool was on leave and Ms Barlow was covering his role. Ms Barlow then met with the claimant on 1st July 2020. Ms Barlow in evidence which is Case No: 3322761/2021 6 consistent with her summary of their meeting (p319), explained that the claimant had alleged patient care issues which she had raised with senior staff on the ward.[34]The meeting note does not provide specific details or information about the alleged concerns. The claimant in cross examination of Ms Barlow did not question her about her concerns which she may have mentioned in that meeting. Overall the Tribunal concluded that there were discussions about the claimant and how she felt undervalued and about the culture of the ward and allocation of shifts. The Tribunal concluded that at this meeting the claimant did not make any protected disclosures as alleged and neither was there any written evidence before the Tribunal from the claimant to support her contention that she made consistent and ongoing disclosures with regards to failures in the care of vulnerable patients. The Incident - 2nd and 3rd November 2020[35]On 2nd November 2020 the claimant was working on the late shift from 13:30 to 21:30. She was the ‘Nurse in Charge’ for that shift. She was working with Mr Okereafor and others. The claimant explained that due to Covid 19, there were three different areas in the Ward, (men on one side, women on the other and a covid section). There were three qualified staff in the areas, namely herself, Mr Okereafor and Irene. Irene was allocated to the Covid Ward. Although Mr Okereafor was the claimant’s supervisor- she was responsible for allocating the work that he and the other staff would do on that shift. It was common ground between the parties that;(a) the claimant and Mr Okereafor carried out the medication round for that shift.(b) the claimant was the nurse who handed the medication (Lithium Carbonate) to patient AA.(c) Mr Okereafor went to the stock treatment room to procure some Litium for patient AA.[36]What was not agreed was the process they followed. There was a conflict between the claimant and Mr Okereafor in respect of the following: Mr Okereafor said that the claimant chose the patients she wished to care for and that he agreed to cover those remaining. He said that they delivered medication individually to their chosen patients and signed their respective medication charts for the patients they distributed medication to. In contrast the claimant maintained they worked as a pair with one person dispensing the medication and the other physically giving it to the patient. According to the claimant Mr Okereafor was dishing out the medication and she was handing it to the patients.[37]In relation to who sourced the Lithium for patient AA, the claimant stated that Mr Okereafor without telling her took the keys to the medication cupboard and walked off. He came back saying that AA’s medication was missing from the medication trolley so he had gone to get it. The claimant then said she had found it. Mr Okereafor then distributed it into a cup and passed it to the claimant to administer to patient AA. In contrast, Mr Okereafor account was that the claimant approached him and said that she couldn’t find the Lithium and asked him to collect it from the medication room. He said that he then retrieved it, but when he returned, the claimant said that she had found it and she had already given it to patient AA. Mr Okereafor then returned the Case No: 3322761/2021 7 medication to the medication room.[38]To the issue who discovered that the medication had been incorrectly given to patient AA, Mr Okereafor explained that he discovered the error when the claimant asked him to sign patient AA’s medication chart and asked the claimant to check with the doctor if he had made a mistake on the medication chart (the doctor was due in the morning and they were both also scheduled to work then). The claimant however maintained that she went to sign the medication form and realised that there was no lithium dose scheduled until the following morning. (i.e 3rd November). She said she informed Mr Okereafor and that he insisted that it was probably a mistake by the doctor and that they agreed between them that they would ask about this, with the Ward Doctor in the morning shift. 3rd November 2020[39]On the next day, 3rd November, Mr Okereafor explained that he was scheduled to attend a practice assessor training session starting at 9-9.30am. The claimant disagreed this training was pre-planned as Mr Okereafor was not scheduled in the diary as being out of the Ward for that shift, which would have been the case had the training been agreed. (p331) The diary entry for that day made no reference to Mr Okereafor attending training, it did however list other teams members scheduled to be on training.[40]My Okereafor explained he was due to attend training at 09:30am but that he chose to come in early to help out on the (Jubilee) Ward. He sent an email to Ms Mashamba at 07:04 in the following terms (p673) “Dear Inocencia, This is to inform you that Patient AA was given Lithium that was meant for Tuesday pm 03/11/20 by SN Mallika. She refused to acknowledge it and asked me to sign along with her. I informed her I was not going to, as appears to be medication error. Vitus.”[41]The claimant was rostered to work the morning shift from 07.00-15.00. The claimant admitted that she was late to arrive in the morning. According to Mr Okereafor she arrived at 08:45am. The Tribunal concluded the claimant must have arrived before 8am. This was supported by Dr Chaudhray’s note in the RIO entry (p354) which recorded the claimant approached him at approximately 8am. The claimant said that she arrived during the handover.[42]It was not disputed that the claimant approached Dr Chaudhray when he arrived on the Ward and informed him that a dose of Lithium had been given to patient AA the previous evening. Dr Chaudhray confirmed that this was a medication error as the patient should have only had a morning dose, which he had received correctly. The claimant did not confirm that she disclosed an error had been made by Mr Okerafor or that there had been a breach of clinical procedure.[43]In Dr Chaudhray’s investigation interview note (p415-418) he repeated the information recorded in the RIO system and added that he had made a change to Patient AA’s medication intentionally skipping 2 doses (the evening of 2nd Nov and the morning of 3rd Nov) and confirmed there had been a medication error. This implied that patient AA usually received 2 doses per Case No: 3322761/2021 8 day but due to "having trouble getting levels of lithium” it was decided that the patient would move to an evening only schedule starting on the 3rd November. Dr Chaudhray was not a witness at this hearing. He said the following in his investigation interview: “I checked the drug chart I was told that the dose was administered in the evening of the 2nd of November. I asked if the IR1 and safeguarding had been completed. I went to check the patient for adverse effects. There was another conversation I had with MWV and VO entered the room (Manager’s office). The story was that VO took out the medications and put them into the holder and gave them to MWV. I asked if the wider drug chart was signed and they said that they couldn’t’ sign this. There was a kerfuffle between VO and MWV. It was as ‘he said, she said ’situation.” Incident Report Form (IR1)[44]On 10 November 2020 Raj Sookhy emailed both the claimant and Mr Okereafor the same information (separately), that if there is an incident, for example, where a patient has been given incorrect medicine, howsoever, it is a requirement that “….. we discuss about the medication error and what is expected from staff following an incident, before they finish there shift(duty). Monitoring Patient Vital`s Informing Doctor Informing patient/ carer (duty of candour) Raising an IR1 Documentation in Progress notes Update care plan/ Risk assessment Communicate in Handover and escalate to ward manager and Matron.”[45]Raj Sookhy’s recollection was that he may have popped into Jubilee Ward on 3rd November, although he was scheduled to be in a different building that day. This is consistent with his investigation interview notes which recorded that he did pop in, in the late morning. Raj Sookhy, in conversation with Ms Mashamba was told the IR1 had not been completed. He therefore, instructed Ms Mashamba for the form to be completed and for the reporting procedures to be followed. In evidence Raj Sookhy reconfirmed his instructions to Mr Okereafor to complete the IR1 form that day. He believed that he made this request via email, but this email was not included in the bundle, and Mr Okereafor had no recollection of the email. The fact is Mr Okereafor did not complete the IR1 as instructed. On 6th November at 16.55 Ms Mashamba emailed the claimant asking her to complete the IR1 (p333). The form was completed by the claimant on 7th November at 15.14 (p334). Aggressive behaviour of Mr Okereafor[46]In evidence the claimant raised her concern about the behaviour of Mr Okereafor on the day of the incident. The claimant cross examined Mr Okereafor, and the Tribunal carefully listened to his replies. The Tribunal took the view that both the claimant and Mr Okereafor were emotionally charged given the circumstances. He was avoiding the claimant because of her reaction. The Tribunal concluded that Mr Okereafor did not display passive aggressive behaviour towards the claimant; shouted at her; or Case No: 3322761/2021 9 shouted at her to make her sign the medication chart. 10th November 2020[47]Both the claimant and Mr Okereafor met with Raj Sookhy and Ms Mashamba in separate meetings.(p585) Raj Sookhy emailed both of them confirming what they had discussed. 12th November 2020[48]On 12 November 2020 Mr Okereafor sent a statement by email to Ms Mashamba in which he set out his version of what happened on 2nd and 3rd November 2020. (p337) The Tribunal did not understand why Mr Okereafor, who was the claimant’s supervisor claimed that he insisted that the claimant complete IR1 Form and that when he realised she did not intend to do it, why he did not consider it necessary to complete the Form himself. The Tribunal understood the purpose of the IR1 Form was to document or report an incident. The Tribunal were told that it did not have to be completed by the person who may have made an error. It could be completed by somebody who witnessed it or by the person who was informed of the error.[49]The Tribunal noted the interview notes of Dr Chaudhray with Ms Tham and noted he felt that the IR1 Form was used as a punishment tool rather than a learning tool (p417): He said, “There is a strong feeling in the Trust regarding IR1 reports. They are not used as a learning tool rather as a punishing tool. RS (Matron) an IM (Team Manager) were being supportive. Staff feel that they are being scapegoated into doing IR1s. There is a lot of apprehension re: IR1s. I do not feel that they are being used for learning, at least in this meeting.” Suspension -13th November 2020[50]On the morning of 13th November 2020 at or around 08:30hrs Mr Brackpool had a conversation with Carl Fernandes, (Workforce Partner). An email from Carl Fernandes to Mr Brackpool at 18:26 is quite telling in that Carl Fernandes confirmed that he spoke to Mr Brackpool that same morning at 08:30hrs “about this suspension and restriction of duties”. This clearly indicated that Mr Brackpool had already decided to suspend the claimant. The Tribunal rejected Mr Blackpool’s evidence that to suspend the claimant was a joint decision with others. Carl Fernandes sent Mr Brackpool a suspension checklist at 08:48hrs (p339), which he completed that day (p340)[51]The email from Mr Brackpool that day (13th November) at 09:48 (p348) stated: “We have a member of staff who we are moving to suspend from work, pending finding redeployment to a non-patient facing role, following not just a serious patient safety incident, but a wholly inappropriate and inadequate response to it, potentially trying to cover it up, and potentially compromising patient safety in the purpose. Her actions were contrary to safety protocols, the Duty of Candour, and Trust values of Caring and Responsibility.[52]In an email from Mr Brackpool to Carl Fernandes sent at 17:19hrs that same day (p345), Mr Brackpool wrote, Case No: 3322761/2021 10 “Just to let you know, after repeated attempts to contact yourself/Laura/Nathan/Nina, following a discussion between Nevil and myself, I ended up having a meeting with MWV and asked her to take paid leave over the next couple of days, that we hadn’t made any decision on anything yet, but because of no clarity from the accounts given and the serious patient safety aspect we needed to take action, to which she agreed. I’ve confirmed this in writing. I said I ’d contact her on Monday about the next steps.” The Tribunal concluded that Mr Brackpool unilaterally decided to suspend the claimant and to redeploy her to a non-patient facing role.[53]The Tribunal noted in Para 8 of Mr Brackpool’s witness statement he stated that he recognised that a serious incident had taken place at the beginning of that week (2nd November). Yet no explanation was provided why it took until 13th November to suspend the claimant. If she was a serious risk to patient safety as Mr Brackpool maintained the Tribunal would have expected immediate suspension of the claimant. It appeared the respondent waited for Mr Okereafor’s account of the incident which he gave by email on 12th November at 16:01 (p337) before taking action against the claimant. This is consistent with the comments made by Mr Brackpool in the completed suspension checklist (p340), in which he wrote, “there are two different accounts of what took place from the two people involved and on the balance of probabilities at the interim stage we are inclined to believe the account of the second person (VO) and consider (MV)’s account to be potentially false (pending further investigation).”[54]The Tribunal considered why only the claimant was suspended. The Tribunal concluded this decision had nothing to do with the claimant’s race or her sex. There was no direct evidence or any evidence from which the Tribunal could infer that the claimant’s suspension was because of her race or sex. The fact that the claimant is Sri Lankan and female is not sufficient to persuade the Tribunal that this was the reason for her suspension. Mr Brackpool believed the account of Mr Okereafor and considered the issue of patient safety. He was of the view that that the claimant had made the error. He also said that Mr Okerafor had acknowledged his failings for not following procedures when he realised an error had been made, whereas the claimant was adamant the error was not made by her.[55]In evidence Mr Brackpool in evidence maintained that the claimant was not suspended but was sent home on paid leave. This was inconsistent in light of the email correspondence and documentation which referred to the suspension of the claimant. The Tribunal noted the email from Mr Brackpool to the claimant sent at 17:04 (p352) which stated, “You left the meeting before I was able to discuss this with you fully, but I hope that you are not too upset. Whilst I have emphasised that we haven’t made any decision on next steps yet, and this is not formal action but a request which you agreed to, I can appreciate that the situation may be upsetting”. The Tribunal preferred the claimant’s evidence of that discussion that she was told to go home. She did not agree to go home voluntarily. She had no choice but to go home.[56]The Tribunal found that after this suspension meeting with Mr Brackpool and Ms Mashamba the claimant went back to the Jubilee Ward where she tried to Case No: 3322761/2021 11 log in to her emails to advise Raj Sookhy that she would be unable to attend a supervision meeting that he had scheduled in a couple of days’ time. She was unable to access her emails. She also logged into the RIO system and made two entries regarding the 2nd November 2020, within a few minutes of each other. Claimant’s IT access following suspension[57]The claimant provided no supporting or compelling evidence for the Tribunal to find that her email account was blocked. The Tribunal accepted it was not unusual for employers to disable employees email access when suspended. The Tribunal accepted Ms Mashamba’s explanation that if any employee did not access their account for two weeks or so then it automatically disabled. The claimant was able to access the RIO system. It was also noted that at sections 17 & 18 in the suspension checklist relating to Disabling IT systems, Mr Brackpool indicated that these are “not needed at this time” (p341). 16th November 2020 - Telephone call Mr Brackpool to Claimant.[58]On 16th November at around 16:00 Mr Brackpool telephoned the claimant. The purpose of this call was to inform her, in his words, that she was to remain on paid leave and that they were looking to find a non-patient facing role to redeploy her to in the near future. According to Mr Brackpool there was a brief conversation before the phone call went silent, Mr Brackpool said that he tried to call the claimant and the phone went to voicemail. This call was followed by an email from Mr Brackpool in which he confirmed the respondents position to keep her on paid leave (suspension) and that he would be in touch about redeployment (p350). The claimant responded to that email on the same evening at 18:00 acknowledging the email and setting out her account of events (p351-352). In that email she complained about being bullied and harassed by those who have power and that false allegations had been made against her. 17th November 2020 - Terms of Reference[59]On 17th November 2020 Mr Brackpool drafted the Terms of Reference for the Fact Finding Investigation. (p363) The finalised Terms of Reference for this Fact Finding Investigation only focused on the claimant (p392) and the timescale for completion was TBC but estimated to be 1-2 months. This demonstrated this investigation was only in reference to the claimant’s alleged conduct and did not include Mr Okereafor despite the fact that the First Respondent and Mr Brackpool knew and acknowledged that there were two different accounts given by the claimant and Mr Okereafor. The explanation given by the First Respondent for not suspending Mr Okereafor was that Mr Okereafor had recognised his failings and breach of policy by his inaction; that he had satisfied them that he had learnt from his mistake not to follow the protocol and that he knew what to do in the future. They also considered the accounts he gave were consistent throughout.[60]The Tribunal noted that at this point no independent investigation had been conducted to make any judgment on the accuracy and consistency of the two conflicting accounts and who was culpable. The First Respondent believed Mr Okereafor and therefore proceeded to investigate on the basis that the Case No: 3322761/2021 12 claimant was the only nurse involved in the error. The Tribunal did not conclude that this decision to carry out this investigation was in any way connected to the claimant’s race or sex. The First Respondent took the view that the claimant had made the error. The Tribunal concluded that based on the view taken by the Respondent any other individual in similar circumstances would have been treated no differently, irrespective of their race or sex. 24th November 2020 - Redeployment[61]On 24th November 2020 Mr Brackpool emailed Len Ramchelawon (p657) thanking him for his help in agreeing to take the claimant in the governance team based out of the Trust Headquarters (ASW). This was to be her redeployment placement. Mr Brackpool confirmed this would be reviewed at the beginning of January by when he had hoped the investigation would have progressed. He confirmed, in the meantime, the claimant would remain on Jubilee Ward’s payroll and that Ms Mashamba would remain her official line manager for the period of redeployment. 25th November 2020[62]On 25th November 2020, Ms Mashamba telephoned the claimant around 16:30 and advised her to report to Kulbir Biring at the Trust headquarters the following morning 09:00 (26th Nov). (p531) At 19:51 the claimant replied stating “when you spoke over the phone, just only said tomorrow and didn’t say 09:00. I have another appointment in the morning. I am not in a position to postpone the appointment due to this short notice. Is it possible to meet Kulbir Biring on Friday? Please let me know”.[63]The claimant then sent an email to Ms Mashamba at 20:34 stating: “Just received advice from my union to inform you that my representative is not available within this short notice They also asked to provide at least a week notice for the meeting. Can you please let me know what this meeting is and whether it's formal or informal as well. Furthermore, the representative requested to conduct the meeting via MS Teams due to pandemic situation.” 26th November 2020[64]Ms Mashamba responded via email on the following day in which she acknowledged the claimant’s email and informed her that she will be working with the governance team and that Kulbir will explain the role to her when she meets him on 27th November (Friday). Later that same day at 15:25 Ms Mashamba emailed the claimant stating “I am sorry Kulbir is not in tomorrow but Paul Gibbs will be available to explain the role to you tomorrow morning at 09:00. Please ask for him at the main reception at Armstrong Way”.[65]From the explanation the claimant gave to the Tribunal as to why she did not attend, it appeared she did not fully understand what she was being asked to attend for. She explained that her union representative had informed her that the next meeting was likely to be with someone in HR and therefore she believed that is who Kulbir was. She said she thought the governance team may mean HR. She therefore insisted that her union representative attend the meeting with her and proceeded to get dates of his availability. Case No: 3322761/2021 13 2nd December 2020[66]On 2nd December 2020 Mr Brackpool sought advice from his HR department concerning the claimants absence. 14th December 2020[67]On 14th December Mr Brackpool was advised to call the claimant and to follow his conversation with a confirmatory letter. 15th December 2020[68]Mr Brackpool telephoned the claimant and informed her of her start date of 18 December and explained the consequences of her non-attendance. This conversation was confirmed in writing by letter dated 15 December 2020 In that letter the claimant was informed in the following terms: (p386/7) “I am concerned that you have not reported for work in the redeployed role we have arranged for you. As per our conversation, this is not an HR meeting to discuss any disciplinary or other HR matter, but the non-patientfacing role we have arranged for yourself whilst a fact-finding process takes place looking into the medication incident and responses to it. I will reiterate that we have not come to any conclusion regarding the medication incident, the response to it, or any responsibilities associated with it and that these matters will be addressed as part of the fact finding process. As Inocencia detailed in her most recent email to you, and as you discussed with her, the redeployment is to the clinical governance team and is based out of Armstrong Way. At this point, without further explanation, your continued absence could be considered unauthorised which may result in your pay being stopped. Should we not hear from by 5pm on Thursday 17th December 2020 confirming that you will be attending your redeployment at 9am Friday 18th December 2020, and actually attending the redeployment, this is a course of action we are likely to pursue.”[69]The claimant’s pay was stopped retrospectively from the 27th November 2020 and without the claimant’s knowledge or agreement. That said, the subsequent decision to withhold the claimant’s pay once her absence became unauthorised from 18 December 2020 was a contractual right exercised by the First Respondent. This decision had nothing to do with the claimant’s race or sex. The Tribunal concluded that the respondent would have treated an employee not sharing the claimant’s characteristics in a similar situation would not have been treated any differently. 16th December 2020[70]The Tribunal noted the advice of Carl Fernandes to Mr Brackpool in his email of 16th December 2020 (p388) with reference to potentially stopping the claimants pay for December. (p388) Carl Fernandes stated: "As you know we also just discussed the fact that it is the holiday season and the reasonableness of stopping a staff members pay during this time. As you know, we agreed to talk about this on Friday morning. I will be back on Friday morning and contactable from 8am to discuss any aspect of this.” 17th December 2020 Case No: 3322761/2021 14[71]Notwithstanding Carl Fernandes’s view Mr Brackpool emailed Nevill Cheeseman on the following day confirming “unless something changes today I’ll be suspending her pay from the time she was meant to be redeployed as of tomorrow. We have given her due warning of this, and I have been in touch with HR throughout.”[72]On 17th December Mr Brackpool telephoned the claimant first on her home number and was told that she was not at home. He then called her on her mobile number which went to voicemail and he left a number for her to return his call. On 22nd December 2020[73]The claimant responded to Mr Brackpool via email (p394) in that email the claimant reconfirmed her understanding of her discussions with Ms Mashamba. In that email she wrote, “She only asked me to go and meet a named person of HR. I clearly explained to her that I am with my Union and I will act according to their advice. Next day the Ward Manager has sent me an email saying to meet another person in HR. I received advice not to go by myself without my representative and also it was a short notice to come for a meeting.” She further stated that due to Covid 19 restrictions and with her union representative working from home because of Christmas she was still waiting her union advice and that she was unable to attend by herself for redeployment. 2021 15th January 2021[74]As from 15th January 2021, the email exchange with the claimant, Carl Fernandes and Mr Brackpool showed the claimant’s union representative was seeking to facilitate a meeting. (p399) There is no evidence of a response to this. Then on 26th January the claimant emailed Mr Brackpool chasing him about this meeting in which she stated ; “Hope you received my first email re. a meeting. I have been told to send another email to remind you the same again.” (p401). Mr Brackpool replied by email on 1st February 2021 in which he apologised for the delay explaining there had been significant operational pressures and staff shortages. He also confirmed that Carl Fernandes was currently unavailable. There will be a delay in arranging this meeting. Also in this email Mr Brackpool encouraged the claimant to contact the Ealing vaccination hub to arrange getting a Covid 19 vaccination. (p402) The claimant remained absent from work. 4th March 2021[75]By email sent on 4th March Mr Brackpool informed the claimant that a new HR person had been assigned to them and he offered a meeting on 18th March at 11am to be held by Microsoft Teams. The claimant replied on 9th March confirming that she was unable to participate because her union representative was not available until April. 15th March 2021[76]By email dated 15 March, Mr Brackpool offered the claimant a meeting date Case No: 3322761/2021 15 of 5th April at 2pm. In that email he reconfirmed the meeting was to discuss redeployment only and not the incident itself and he indicated that she did not need to have her union representative present. (p430) The meeting invitation sent confirmed that Rajan Bhachu from HR was also invited to attend. (p427) The scheduled meeting on 5th April did not go ahead as it happened to be a public holiday.[77]The claimant explained that in order to revalidate her nursing license she was required to complete 450 hours of clinical work. The ability to do this in the suggested redeployment position would have prevented her from completing these hours. In cross examination Mr Brackpool acknowledged he was aware of this implication. 26th April 2021[78]The meeting was rearranged for Monday 26th April at 12:00 (p439) via Microsoft Teams and took place with the claimant with her union representative, Mr Brackpool, and Carl Fernandes. The Tribunal was not provided with any evidence oral or documentary as to the outcome of this meeting. Mr Brackpool in his witness statement (para 40) stated “due to passage of time I cannot recall the specific details of what was discussed at that meeting”.[79]After that meeting the claimant raised a grievance by letter of the same date. The letter referred to this meeting and her dissatisfaction that the First Respondent refused to discuss her account of the incident and what she perceived to be unfair treatment in the actions taken afterwards. (p443)[80]By letter dated 28th May 2021 the First Respondent acknowledged the claimant’s letter of 26th April. (p471) In that letter, the claimant was informed the fact finding process was still continuing and that they hoped to conclude it by mid-June and that she would be kept updated with the timescales. It was also confirmed that a temporary redeployed role had been found. This was communicated to the claimant by email of 28th May by Carl Fernandes (p472). The start date of that redeployed role was given as 3rd June and the role was Administration. Claimant’s resignation[81]On 3 June 2021, the claimant was due to start her redeployed role. By email sent that same morning, at 07.52, the claimant resigned from her position with the First Respondent with immediate effect. (p474) In her email, the claimant complained she had been the victim of unfair treatment and despite the fact that she had complained, no measures had been taken. Instead she had been re-deployed to an administrative role to which she had received no training. Following this resignation, Mr Brackpool tried to arrange a meeting with the claimant but no meeting took place. Fact Finding Investigation[82]On 17 December 2020, Ms Lisa Tham was formally commissioned to undertake the fact finding investigation. She was supported by Betsy Galuga. On the same date of her appointment Mr Brackpool sent to Ms Tham the formal Terms of Reference (p391-393). The estimated completion time for Case No: 3322761/2021 16 this fact find was estimated to be 1 to 2 months.[83]In terms of the chronology of this fact find investigation the Tribunal noted the timeline was as follows. There were no interviews conducted in the months of January, March and May. Interviews were held on 15th February - Matron Mr Sookhy and Ward Manager Ms Mashamb; 16th April - Mr Okereafor; 30th April - the claimant; 11th June - Apprentice nurses Dorkus Abote and Emmanuel Pooley and supplementary interviews with Ms Mashamba and Mr Okereafor.[84]The Tribunal recognised Ms Tham’s difficulties from 19th February to early March due to personal reasons. However, despite the interviews being completed on 11th June the final report was not concluded until 4th August 2021. Ms Tham’s explanation for the length of time it took to conduct the fact find and compile her report apart from her personal circumstances, was because of her heavy work commitments; the availability of witnesses; having to collate a lot of documentation and having to read and refer to various policies.[85]In evidence, Ms Tham said she took contemporaneous notes during the interview for Raj Sookhy held on 15 February. The Tribunal did not understand why notes from an interview conducted in February were only sent to him in July for his approval (p603).[86]In the Fact Finding Report, the Tribunal noted the timeline of the interviews carried out by Ms Tham (p506). Also it was noted the transcription notes of interviews with Ms Mashamba, Mr Okereafor, Dorkus Abote, Emmanuel Pooley were marked as “Not returned/verified”. Raj Sookhy’s notes were not sent to him until 26th July, despite having being interviewed on 15 February. Dr Chaudhray, was interviewed on 26th February. His notes were sent to him 5 months later on 26th July and returned by him on the same day. The claimant was interviewed on 30th April, yet her draft transcript of interview were not sent until 17th June which the claimant returned with amendments on 23rd June.(p500). Ms Tham did not acknowledge receipt of these amended notes until 2nd July.[87]On 4th August the claimant chased Ms Tham for the report stating the following: “The fact finding MS team meeting was on 30/04/2021 and you promised me to send my copy of the report and I also requested a copy on 28/05/2021. You have sent me the draft transcript of interview for any amendments on 17/06/2021 and I sent it back to you on 23/06/2021. Now it’s more than 3 months and I have not yet received my copy of the “Fact finding meeting”. Can you please send a copy of final report.”[88]On the 4th August at 12:43 Ms Tham forwarded the completed draft Fact Find to Mr Brackpool and Mr Fernandes asking “if there are further amendments required”.[89]The First Respondent was unable to confirm or provide any evidence that the outcome of the Fact Finding Investigation was ever sent to the claimant. Mr Brackpool in his witness statement (para 48) said he could not recall whether a final outcome letter or the investigation report was delivered to the claimant following her resignation in June 2021. According to his enquiries with the Case No: 3322761/2021 17 HR Dept the claimant was not notified either by HR. The claimant asserted and was adamant she has never received the report.[90]The Tribunal concluded the report has never been sent to the claimant. The Tribunal also found the First Respondent’s handling of this investigation process, and the continuous delays unacceptable and highlighted the incompetence on part of the First Respondent and those responsible for dealing with and concluding this investigation process. The Tribunal also found Ms Tham’s claim that this was an detailed investigation and required reading a lot of material and policies hence the delay to was a poor explanation. Ms Tham lacked any empathy and consideration about the welfare and impact on the claimant. The Tribunal noted in Para 11.7 (p263) of the Respondent Policy, which stated, “Where the employee has been removed or restricted from their duties, the investigating officer will give a two-weekly progress update to the employee/or nominated representative on the progress of the investigation. This will also be copied to the Commissioning Manager. The fact is that this Policy was not followed.[91]The Tribunal concluded that the delay and the manner in which this investigation was conducted showed incompetence on those dealing with this and not discriminatory conduct as asserted by the claimant. Report to the Nursing Midwifery Council (NMC)[92]From the evidence it is clear that Mr Brackpool reported the claimant to the NMC in August 2021. The Tribunal did not find Mr Brackpool's evidence to be entirely accurate for the following reasons. In his witness statement (para 49) Mr Brackpool stated around early November 2020, “I telephoned the NMC to speak informally to explain that the Trust was about to undertake an investigation. Nothing had been substantiated I asked if the NMC wished to be informed of the circumstances or would prefer to wait for the conclusion of the investigation. They informed me that they would like to know details of the concern therefore I informed them that there had been a serious medication error that the claimant had been involved with and appropriate actions had not been taken involving medical staff and informing the patient and their relatives. The NMC thanked me for informing them and asked me to contact them again when the investigation was complete.”[93]There is no written record of this call and what was said. The Tribunal was not informed of any follow up from the NMC about this call, which the Tribunal would have expected had such a call taken place. Given the fact that Mr Brackpool viewed the medication incident and failure to follow the required procedures a serious issue, the Tribunal would have expected Mr Brackpool to have notified his HR Dept; or kept a contemporaneous note or followed his call with some form of correspondence to the MNC. In the absence of any supporting evidence, the Tribunal was not convinced that Mr Brackpool made any such call. Further, In August 2021, Mr Brackpool and Carl Fernandes had a discussion about a possible referral of the claimant to the NMC. Carl Fernandes followed this up with an email on 9th August 2021, advising the following: “Further to our conversation, regarding that the fact find has now been concluded, I had advised on holding back on the referral to the NMC for the above name. I informed you that best practice would be to invite the employee for a hearing (despite her already resigning from the Trust) Case No: 3322761/2021 18 whereby the invite letter would state that ‘one of the outcomes of the hearing could ultimately result in a potential referral to the NMC. ’The employee has the right to respond to the fact find report before any referral is undertaken as this will ensure our internal process is concluded. You confirmed having concerns with this approach and will speak to Suzanne accordingly from a nursing viewpoint. Kindly keep me updated. I also informed you to complete the termination form.” The Tribunal noted this advice was not followed; the claimant was not sent a copy of the fact finding report or that she was warned that a potential outcome could be a referral to the NMC.[94]Mr Brackpool in his witness statement at Para 52 stated that he emailed the NMC on 16th August 2021 “in a professional capacity, acting in the interests of patient safety”. The Tribunal noted the correspondence between Mr Brackpool and Louise Perch of the NMC (p520-521) on 16th August 2021. Louise Perch of the NMC send through some further questions that day to which Mr Brackpool to answer. Ms Perch acknowledged his responses on 17th August. In the answers Mr Brackpool gave on the 16th August ,he stated his referral was not made on behalf of the Trust (p521) The exchange was, “Q. Are you referring the matter of behalf of the Trust? If not, do you know if the Trust plan to refer this to us? A. At this stage, I am referring this to you as an individual professional acting in the interests of patient safety. The Trust will make a decision on whether to support the referral following the disciplinary hearing but senior nursing colleagues support me in flagging the potential issue with yourselves at this stage (including a Deputy Director of Nursing and the Executive Director of Nursing).”[95]That is also recorded by the NMC decision which stated that “we received what appears to be a member of the public referral from Tim Brackpool raising concerns about nurse Vithana “(p556) The NMC wrote to the claimant on 11th November 2021 with their decision. The outcome was that the NMC decided not to take any further action against the claimant. Covid 19 vaccination[96]In relation to the Covid 19 vaccination complaint the Tribunal was not provided with any evidence from the claimant to show that on or around January 2021 the respondent had rolled out a vaccination process.[97]The Tribunal noted that on 1st February 2021 Mr Brackpool in an email encouraged the claimant to contact the Ealing vaccination hub to arrange getting a Covid 19 vaccine. In evidence the claimant maintained that the phone number given to her by Mr Brackpool was incorrect. The Tribunal found that this may have been a genuine error and in any event the claimant did not follow it up and could have made her own enquiries. It also appears the claimant may have been working at a different hospital and her knowledge of vaccinations would have been clear.[98]Thus, contrary to the claimant’s assertion she was sent the email by Mr Brackpool to arrange a vaccination. Request for online meetings[99]In relation to the claimant’s assertion that the First Respondent failed to allow Case No: 3322761/2021 19 meetings to be held by online video platform the Tribunal did not find that this option was not made available. The Tribunal concluded that the First Respondent did when requested accommodate her request. The claimant put forward no evidence that this was not the case.
The Legal Framework
[100]The statutory provisions and legal framework are set out in Annex B below.
Conclusion
[101]Based on the findings of fact, and applying the relevant legal framework and principles as summarised in Annex B below, the Tribunal came to the conclusions as set out below in relation to each of the complaints pursued. Constructive Unfair Dismissal[102]In respect of this complaint, applying the legal test, the first issue the Tribunal had to decide was whether each conduct relied upon amounted to a fundamental breach, and whether it was calculated or likely to cause serious damage to, or destroy the implied term of trust and confidence between the claimant and respondent, which entitled the claimant to resign. The Tribunal noted that the implied term of trust and confidence was not breached merely if an employer had behaved unreasonably, and that the conduct complained of must have been serious.[103]The Tribunal considered each of the alleged breaches as follows; (i) Withholding the claimant’s pay[104]The Tribunal determined the claimant’s pay was not unlawfully withheld during the period of her unauthorised absence from 18 December 2020 to the date of her resignation. The First Respondent was contractually entitled to withhold this pay. Mr Brackpool in his letter of 15 December 2020 to the claimant warned the claimant if she failed to attend her redeployed role from 18 December 2020, her pay may be stopped. However, the Tribunal found the claimant’s salary was retrospectively deducted without notice from 27 November 2020, which could not be justified. (ii) Delay in the Fact Finding Investigation.[105]Looking at this objectively, the Tribunal concluded the delay was unreasonably lengthy. There was a lack of urgency and professionalism on part of the First Respondent and Miss Tham. There was a failure to proceed with sufficient urgency and diligence particularly after March 2021. The claimant was left unaware of the progress being made and remained at risk of disciplinary action and/or uncertain about her future. There was no consideration of the claimant’s welfare and the impact on her. This delay was in breach of its own estimation that the investigation may take up to 2 months to complete. This unreasonable conduct amounted to a repudiatory breach of the claimant’s contract of employment. Case No: 3322761/2021 20 (iii) Failure to keep the claimant up to date on progress of the investigation process.[106]The Tribunal considered that “context is key”, in considering the failure to keep the claimant informed and updated about the progress of the investigation. The facts clearly confirmed that the First Respondent and/or Ms Tham failed to keep the claimant informed. This showed the First Respondent’s failure and lack of professionalism. It was incumbent on the First Respondent to keep the claimant duly informed generally and in compliance with its own policy. This failure to do so amounted to a repudiatory breach (i) Failure to suspend Mr Okereafor.[107]The Tribunal found that given Mr Brackpool’s comments in the suspension document that there were two accounts of what had happened, in the interests of fairness it would have been appropriate and a reasonable step to have also suspended Mr Okereafor, even though he accepted his own failings as Clinical Lead. By not doing so, this conduct was sufficient to destroy or damage the implied term of trust and confidence.[108]The Tribunal gave consideration to whether these breaches individually or taken cumulatively as a course of conduct objectively were sufficient to destroy or seriously damage the implied term of trust and confidence. The Tribunal concluded they did seriously damage the implied term of trust and confidence.[109]The Tribunal concluded that the claimant resigned in consequence of these repudiatory breaches and that she did not delay in resigning. Accordingly, she was constructively unfairly dismissed.[110]The Tribunal did not find the conduct of the First Respondent in relation to these breaches amounted to discrimination on the grounds of the claimant’s race or sex. Victimisation[111]For the purposes of this complaint, the protected act relied upon was the claimant’s grievance formulated in the claimant’s solicitors letter dated 1 July 2021. (p659) The detriment was that she was reported to the NMC whereas Mr Okereafor was not.[112]It was not disputed by the First Respondent or Mr Brackpool that this letter did not amount to a protected act. In evidence Mr Brackpool did not dispute that he had not seen the letter before he reported the claimant to the NMC in August 2021.[113]Mr Brackpool said he first contacted the NMC in November 2020 to speak to them “informally” about the claimant and the incident. This was before this grievance letter.[114]In his evidence, Mr Brackpool said that he made the referral to the NMC on 16 August 2021 in his personal capacity, acting in the interests of patient safety. He did so, without first notifying the claimant. He also did this Case No: 3322761/2021 21 against the advice of Carl Fernades; without the authorisation and knowledge of the First Respondent. In the referral email dated 16 August 2021 (p520/521) Mr Brackpool answered some questions, in which he stated “ at this stage I am referring this to you as an individual professional acting in the interests of patient safety. The Trust will make a decision on whether to support the referral following the disciplinary hearing but senior nursing colleagues support me in flagging the potential issues with yourselves at this stage (including a Deputy Director of Nursing & Executive Director of Nursing). The Tribunal was provided with no evidence, from the Executives to support this referral.[115]Mr Brackpool told the Tribunal that in the past, he had not made a referral to the NMC.[116]The Tribunal noted the grievance letter raised a formal grievance against Mr Brackpool and his involvement in this matter. The Tribunal concluded that this letter motivated Mr Brackpool to make the referral to the NMC. Accordingly, the Tribunal found the actions of Mr Brackpool were an act of victimisation for which he was personally liable and/or the First Respondent would be vicariously liable.[117]The Tribunal dismissed the argument advanced by Mr Jones that this allegation was barred by judicial proceedings immunity. The Tribunal concluded that the motivation and timing of Mr Brackpool in making the referral was the issue, and not the actual content of the referral. There was a clear causative link.[118]The Tribunal did not conclude that reporting the claimant to the NMC was on the grounds of the claimant’s race or sex. Unlawful deduction from wages[119]The claimant claims her wages for the period form 18 December 2020 to the date of her resignation on 3 June 2021. The Tribunal found that from 18 December 2020 the claimant should have reported to work. She failed to do so in beach of her contract of employment. This amounted to unauthorised absence from this period onwards to the date of her resignation having failed to attended her re-deployment role. Mr Brackpool in his letter dated 15 December 2020 made the position clear to the claimant about her pay being stopped if she continued to remain absent from work. Accordingly, this complaint was not well founded. Holiday pay claim[120]The claimant did not advance this complaint at this hearing. The Tribunal agreed with Mr Jones submission that the burden is on the claimant to prove her claim. She has failed to do so. The Tribunal was not able to determine this complaint. Accordingly, this complaint is not well founded. Direct discrimination on the grounds of race and sex.[121]In respect of this complaint, the Tribunal agreed with Mr Jones submissions, that the claimant did not advance this complaint at this hearing or put it to any of the respondents that any of the matters complained of were on the Case No: 3322761/2021 22 grounds of her race or sex. The burden of proof was on the claimant to show a primary case for the burden to shift to the respondent to provide an explanation.[122]The Tribunal gave consideration to this complaint based on the pleaded case and the evidence heard. Based on the conclusions and observations made as set out above, the Tribunal concluded this complaint was not made out against any of the named Respondents.[123]The Tribunal acknowledged and sympathised with the claimant that she felt she had been treated unfairly and had been singled out in comparison to Mr Okerafor. The Tribunal concluded that the reason and explanations given by the respondents had nothing to do with the claimant’s race or sex. Harassment on the grounds of race and sex[124]The claimant also did not advance this complaint. Notwithstanding this, the Tribunal considered the complaint on the facts. The Tribunal concluded the complaint was not made out.[125]In respect of each of the incidents, the Tribunal concluded as follows;(i) On the late shift of 2 November 2020 being forcefully asked by Vitus Okereafor to sign the medication chart for the patient which he had made a medication error; The Tribunal found as a fact Mr Okereafor did not forcefully ask the claimant to sign the medication chart.(ii) On 2 and or 3 November 2020 being deliberately ignored by Vitus Okereafor when she asked him any questions about the medication error or for help on the ward; The claimant did not advance this allegation or put this to Mr Okereafor in cross examination. The claimant has not shown that this incident occurred.(iii) On 13 November 2020 being sent home from work; The claimant was sent home by Mr Brackpool. This amounted to unwanted conduct. Mr Brackpool gave his explanation for doing so. The Tribunal, in the absence of any evidence to the contrary, concluded that this conduct was not related to the claimant’s race or sex.(iv) On 13 November 2020 having her work e-mail blocked; On the facts, the claimant has not proven that her work e-mails were blocked. The Tribunal preferred the evidence of Ms Mashamba that after a period of non-use access to emails is blocked. Any restriction which the claimant experienced would not have been related to her race or sex.(v) Failure to arrange the fact-finding meeting in a timely manner: the alleged incident took place on 2 November 2020, yet the meeting was not held until 30 April 2021. The Tribunal found there was unreasonable delay in arranging to meet with the claimant. This amounted to unwanted conduct. The Tribunal concluded this delay was due to the incompetence of those involved. There was no evidence before the Tribunal to either find or infer that this conduct was related to the claimant’s race or sex. Case No: 3322761/2021 23[126]Given the Tribunal concluded that the conduct was not related to the claimant’s race or sex, the Tribunal did not consider it necessary to determine the purpose or effect of the unwanted conduct. Detriments suffered for making Public Interest Disclosures[127]The claimant also did not advance this complaint in evidence. The Tribunal considered the complaint on the facts and concluded this complaint was not made out, for the reason that no protected disclosures were established.[128]The claimant relied on three alleged disclosures, namely(i) on 3 November 2020 to Miss Barlow and Raj Sooky,(ii) on 16 November 2020 by email to Mr Brackpool about the respondent’s practices and unsafe patient care, and(iii) on 26 May 2021, in her grievance letter concerns about patient care on the Jubilee Ward.[129]In evidence Miss Barlow and Raj Sooky did not recollect the claimant making any disclosure on 3 November 2020. The claimant did not in cross examination put to these individuals what specific information did she disclose which amounted to a qualifying disclosure. Accordingly the Tribunal was unable to determine if a protected disclosure had been made.[130]In respect of disclosures (ii) and (iii) the Tribunal noted the claimant made general statements alleging unsafe patient care. The statements were allegations and did not amount to disclosure of information as they lacked sufficient factual content and specific information about the particular incidents she was complaining about and also did not assert that the alleged disclosures tended to show one or more of the matters listed in s43B(1)(a-f) of the Employment Rights Act 1996.[131]Accordingly, the Tribunal did not consider it necessary to deal with the alleged detriments. Detriments suffered for raising a health and safety concern[132]The claimant did not pursue this complaint in evidence. Accordingly, the Tribunal did not make any findings of fact and dismissed the complaint.
REMEDY
[133]Following giving oral judgment the Tribunal proceeded to deal with remedy. The claimant confirmed she was seeking compensation.[134]The Tribunal heard from the claimant as to her current employment situation. The claimant confirmed that following her suspension she found work as a Bank Nurse with another Trust. From the date of dismissal she confirmed her weekly earnings were higher than she had been earning with the First Respondent. The claimant therefore accepted that she had not incurred any loss of earnings following her resignation.[135]The claimant had failed to give full disclosure of her earnings from the date of her suspension. The Tribunal had made an Order to do so which she had Case No: 3322761/2021 24 not fully complied with.[136]The claimant explained the impact on her welfare and family life of the report made to the NMC. The claimant confirmed that she had to write a report to the NMC in reply, which was some 26 pages long. It took over 2 weeks to complete. This caused her insomnia. She lost her appetite and weight because of the worry and stress. Her husband became indifferent towards her and started drinking. She received counselling and in November 2021 she received the letter from NMC confirming no action was to be taken.[137]The Tribunal assessed the claimant’s losses and compensation for the act of victimization and made the award as follows.(i) Constructive dismissal - £1632 This claim was limited to the Basic Award. This was assessed at £1623.00. This sum was based on 2 years complete service at a weekly sum of £544 x 3.(ii) Injury to feelings - £9,227.67 The Tribunal had due regard to the Vento Guidelines in assessing compensation to the “injury to feelings” caused to the claimant by the complaint made to the NMC. The Tribunal took into account the claimant’s evidence about the impact on her personally; her well-being and family life and upon her future career. The Tribunal concluded that an award in the lower band of the Vento guidelines was appropriate. Accordingly, the sum of £7,500 was awarded to reflect the injury to feelings suffered by the claimant. On the basis that the report to the NMC was made 16 August 2021, the interest to be applied to this award ran from this date to the date of this award, which amounted to 1051 days at 8% being the applicable rate. Accordingly, the amount of interest payable was calculated to be £1727.67, making a total award of £9,227.67(iii) Loss of statutory rights- £500 The Tribunal awarded the sum of £500 under this head of claim.[138]Accordingly, the claimant was awarded the sum of £11,359.67.[139]The complaints against the Second and Third Respondent were dismissed.[140]The Judge sincerely apologises to the claimant for the delay in producing this Judgment with full reasons which has taken longer to produce than they should have.