Employment Judge AnstisIn person for claimantMiss G Rezaie (instructed by counsel) for respondentDate 16 July 2020
JUDGMENT
The claimant’s claims are dismissed.
REASONS
[1]This case was the subject of a case management order dated 16 July 2019, in the course of which the claim and issues were described in a case management summary as follows (retaining the numbering from the original order): “(3) The claimant worked for the respondent as a locum pharmacist. It is agreed between the parties that although the claimant was not an employee he was a worker for the purposes of section 43K of the Employment Rights Act 1996 and so can bring this claim. (4) On 13 April 2018 the claimant was working at the respondent’s branch in Carterton. On that day he raised an issue with Karen Bailey about the failure of a member of staff to properly complete “near miss” forms. He says that this (and subsequent disclosures of the same matters) were protected disclosures and were the cause of detriments including him no longer being offered work at that branch and eventually being barred from working for the respondent at all. Page 1 of 10 He says that these detriments were a result of him having made protected disclosures. (5) The following protected disclosures are alleged by the claimant and accepted by the respondent to have occurred and to be protected disclosures. Each are that (or to the effect that) “the health and safety of the public was being put at risk by the actions of a dispenser staff member who failed to record drug error near misses in line with company policies”:(i) A spoken disclosure to Karen Bailey on 13 April 2018,(ii) A disclosure by email later on 13 April 2018, and(iii) A disclosure in writing to the respondent’s superintendent office on 22 June 2018. (6) The three detriments relied upon by the claimant and accepted by the respondent to have occurred and to be detriments are: (i) His shifts in Carterton being cancelled (on 13 April 2018), (ii) Being barred from working for the respondent in the Oxford area (on 13 April 2018), and (iii) Being barred from working for the respondent at any branch (on 6 July 2018). (7) The respondent disputes that these were detriments done on the ground that the claimant had made protected disclosures. It says that its actions were taken because of the claimant’s poor performance and other issues with his work. … (9) The issues for determination by the tribunal are: (i) Whether any or all of the detriments noted above were on the ground that the claimant had made any or all of the protected disclosures noted above …”[2]At the start of this hearing Miss Rezaie made the unattractive submission that despite the terms of that case management summary (and despite the respondent having been represented by counsel (not Miss Rezaie) at that preliminary hearing) the respondent did not accept that the claimant had made protected disclosures. While she accepted that she had no basis on which to dispute what was recorded as being an accurate summary of discussions at the preliminary hearing, she said that the terms of the case management summary could not supersede the respondent’s original pleading (which disputed that there had been protected disclosures). Page 2 of 10[3]This submission was not improved by Miss Rezaie’s acceptance that the respondent had never alerted either the claimant or the tribunal to what they now say is an error in this record. We were told that there had been a recent change in the respondent’s representatives, but this does not explain why the original representatives did not dispute or correct this record of the preliminary hearing at the time, nor why the new representatives did not immediately alert the claimant and the tribunal to this issue. Miss Rezaie accepted that the first that either the claimant or the tribunal knew of the respondent’s dispute on this point was in her opening submissions at today’s hearing.[4]Since the parties appeared in their evidence to address the terms of any disclosures, we indicated to Miss Rezaie that we would defer consideration of whether the respondent could withdraw this apparent concession until we heard full argument on it in the parties closing submissions.[5]In her closing submissions, Miss Rezaie suggested that we could approach the claimant’s claim at least initially by proceeding on the basis that there were protected disclosures as set out in the case management summary, and address the question of causation. Depending on the answer to that it may then not be necessary for us formally to consider whether the respondent could withdraw this apparent concession or determine the status of any disclosures.[6]As will appear below, we have been able to determine the case on this basis. For the remainder of these reasons, we will proceed on the basis that the claimant’s did make protected disclosures, as set out in the case management summary. However, we have made not formal findings as to whether those are protected disclosures or whether the respondent can withdraw this apparent concession, since this has not been necessary for our decision.[7]The hearing took place on 15 July 2020. The hearing took place during the Covid-19 pandemic. The parties were content to attend in person given the precautions and social distancing measures adopted by the tribunal. Both indicated that they were satisfied with the measures adopted by the tribunal for the hearing.[8]The tribunal heard evidence from Karen Bailey and Thomas Richards for the respondent, and from the claimant. We were able to conclude the case and deliver an oral judgment with reasons on the day of the hearing. The claimant requested written reasons for our decision at the conclusion of the hearing, hence these written reasons are produced together with the judgment.[9]We will now briefly address the relevant law, to set the scene for what is and is not relevant in our consideration of the facts. B. THE LAW[10]Section 47B of the Employment Rights Act 1996 provides that: Page 3 of 10 “A worker has the right not be subjected to any detriment by any act … by [a respondent] done on the ground that the worker has made a protected disclosure.” and according to section 48(2): “On [a complaint of detriment due to protected disclosures] it is for the [respondent] to show the ground on which any act … was done.”[11]The causation test is whether the employer’s actions were “on the ground that the worker has made any protected disclosure”, and “s47B will be infringed if the protected disclosure materially influences (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower” Fecitt v NHS Manchester [2011] EWCA Civ 1190 (para 45). C. THE FACTS
Introduction
[12]The parties set out in their evidence several basic propositions (which we do not consider to be in dispute) to give context to the claim. We record them as follows:a. The respondent is a large national chain of pharmacies.b. Subject to some limited exceptions which are not material for the purposes of this case, in order to operate a pharmacy it is necessary to have at least one pharmacist on duty at the premises. A pharmacy cannot open without a pharmacist on duty at the premises.c. Individual pharmacies therefore require pharmacists on duty at all times. The respondent manages this through employed pharmacists based at individual pharmacies. Relief cover for days off or other absences is provided using locum pharmacists who are either employed by the respondent or (as in the claimant’s case) engaged through agencies. Locum pharmacists are also used where “double cover”: that is, two pharmacists at one site at the same time, is necessary on account of the workload.d. The booking of locum pharmacists is dealt with by locum coordinators at the respondent’s head office. Unless they specifically ask, local staff will not know which locum is to attend on any day.e. The pharmacists (and if there are more than one, one of the pharmacists on duty) will be designated as “responsible pharmacists” for the purposes of the relevant regulations. This brings with it particular regulatory responsibilities in addition to the usual professional obligations and standards required of pharmacists.f. Individual pharmacies operated by the respondent may be managed on a day-to-day basis by “non-pharmacist pharmacy managers”. As the name suggests, these are not qualified pharmacists but they take Page 4 of 10 managerial or operational responsibility for the operation of a particular branch. This does not override the professional or regulatory obligations of the pharmacists, who remain responsible for the dispensing operations and the associated regulatory obligations.g. A “non-pharmacist pharmacy manager” may also be a “cluster manager” which is a kind of area manager carrying out supervisory duties (but again not in respect of the regulatory or professional obligations of the pharmacists) across 8-10 individual branches in addition to their managerial responsibility for one particular branch. Karen Bailey was the non-pharmacist pharmacy manager at the Carterton branch and was a cluster manager of several branches in Oxfordshire, including the Wallingford branch.h. Pharmacists do not carry out all dispensing activities personally. They are assisted by what the respondent calls “healthcare partners”, who will carry out work under the supervision of a pharmacist. The pharmacist holds overall responsibility for their work. An important part of this is that the pharmacist must carry out a final check before medication is handed over to a customer.i. Each of the respondent’s pharmacies maintains what was at the time called a “near miss log”, and what is now called a “learning log”. Entries are made in this where an error in dispensing has been spotted and corrected before the medication is handed over to the customer. This will often (but not always) arise where the error is spotted at the point of the pharmacist’s final check. It may also arise where an individual realises during their work but prior to the final check that an error has been made. The near miss log is maintained on paper locally and is reviewed to check for any common factors that may require a change in local procedures or informal local training. An example given to us was that staff may be instructed to be particularly alert in the case of medication which had similar packaging, or that such medication may be moved to be in different shelves or storage areas to minimise the likelihood of confusion. We were told that this log was not used for disciplinary matters. The respondent’s “Disp07: Performing an Accuracy Check” procedure contains the following instruction to a pharmacist: “If not satisfied during the final accuracy check bring any error to the attention of the dispenser to ensure it is corrected. Ensure all “near misses” are recorded appropriately.”j. Where an error is not identified and a customer is issued with incorrect medication (or an incorrect dosage or there is other inaccuracy in the dispensing), this requires central reporting under the respondent’s PIMs computer system.k. Finally, we take it to be is obvious that high standards are necessary in a pharmacy and that errors in dispensing medication can be extremely serious. Page 5 of 10[13]The claimant is an experienced pharmacist, and it appears that much of his career has been as a locum pharmacist. He appears to suggest in his evidence that in recent years this has been exclusively working (via an agency) for the respondent. We are not sure about that, but it suffices for our purposes to note that he was an experienced locum pharmacist who regularly worked at the respondent’s branches, but without apparently having any regular booking at any one particular branch. His work was peripatetic and he would often work at branches he had had no previous contact with, or had only attended once or twice before. Wallingford[14]On 24 February and 24 March 2018 the claimant was deployed to work as a locum at the respondent’s Wallingford branch. On 29 March 2018 the manager of the Wallingford branch telephoned Ms Bailey (who was his cluster manager) to tell her that he was going to complain to the locum coordinator about the claimant’s behaviour when at his branch. Later that day he sent an email to the locum co-ordinator raising various complaints about the claimant’s behaviour and actions at the branch. It is not necessary to spell those out in these reasons, but we note that it includes complaints about the claimant’s attitude towards colleagues in the branch, his timekeeping, and one particular incident of an incorrect dosage of medication being issued, requiring a report to be made through the PIMs system. The manager concluded his email by saying: “Please do not continue to use this locum for Wallingford and I would have serious reservations that he were to be used at any of our branches quite frankly.”[15]Ms Bailey said (and we accept) that such a complaint from a store manager about a locum was highly unusual. However, as she says in her statement: “At the time, I thought that just because [the claimant] had not worked well with [that manager] wouldn’t mean that he couldn’t potentially work well in other teams or branches. [The manager] was within his right to inform the locum co-ordinator that [the claimant] should not be used for Wallingford again … but I did not think it was necessary for me to take any further action about the wider branches at this point … I was still giving [the claimant] the benefit of the doubt as a locum pharmacist.”[16]The claimant does not take issue with the basic facts (such as his timekeeping) of the complaint by the manager of the Wallingford branch, but he does say that the matters complained of were not particularly unusual or remarkable in the course of work as a locum pharmacist. At this point there is no suggestion that the claimant had made any protected disclosures, nor has he given any other reason for why the manager would form such an adverse opinion. We do not need to assess whether the Wallingford manager was justified in taking this action but we simply note that the manager was given his honest opinion of the claimant’s work at Wallingford, and that while Ms Bailey knew of this neither she (nor, presumably, the Page 6 of 10 locum co-ordinator) saw it as a reason why the claimant should be prevented from working in any other of the respondent’s branches. Carterton[17]The claimant was booked to work alongside another pharmacist (as “double cover”) at the Carterton branch on 12 & 13 April 2018. Carterton was Ms Bailey’s own branch. She described it as being a particularly busy branch.[18]There is a dispute between the parties as to the sequence of events over those two days, leading up to the claimant walking out half-way through his shift on 13 April. An important aspect of this is whether Ms Bailey was in the branch for part of the day on the 12th (as she says) or away all day (as the claimant says). It is agreed that at least in the morning of the 12th she was away carrying out cluster manager duties at another branch. We prefer the evidence of Ms Bailey on this, and other disputed points occurring during the claimant’s time at the Carterton branch. Ms Bailey was able to give a detailed and specific account of what occurred. By contrast, the claimant was not able to give such detail, and the detail he did give (such as the name of the person he clashed with at the Carterton branch) was incorrect. We will use the initials of that person for the purposes of this judgment. We take what follows largely from Ms Bailey’s account.[19]On Ms Bailey’s return to the branch in the afternoon of 12 April, she was met by the other pharmacist who said that she (Ms Bailey) should speak to CE, a trainee Healthcare Partner who had been in tears in the morning.[20]CE said that the claimant had been rude to her after she had told him not to use his mobile phone to access Facebook while on duty. Ms Bailey had worked with CE for a year and considered it out of character for her to be so upset or to have clashed with someone. She went to see the claimant, who in turn accused CE of having made far too many errors. Ms Bailey then told the claimant of the near miss book and the need to complete it in the even of any errors that he had spotted. She defended CE on the basis that she was a trainee and new to the dispensing work. Following this, she spoke to CE who completed the necessary entries in the near miss log. Ms Bailey herself worked alongside the claimant, carrying out dispensing work, for the rest of the day. She describes this as being “uncomfortable” as “he was being difficult” and “his manner was abrupt”.[21]It is not for us to decide who was right and who was wrong in the dispute between the claimant and CE. We note, however, that at this point any negative opinion that Ms Bailey had formed of the claimant and his behaviour cannot have been because of any protected disclosure. On the claimant’s case his first protected disclosure came the following day.[22]Ms Bailey was out at another branch for the start of 13 April, but returned to Carterton mid-morning. She says “it was immediately apparent that [the claimant] and [CE] were still having issues” and “the staff reported to me that [the claimant] was taking longer bathroom breaks in order to use his phone”. This was reported as having given rise to a problem with a Page 7 of 10 customer, and the other pharmacist on duty complained to her that the claimant’s frequent absences were causing her difficulties. CE had threatened to walk out rather than continue to work with the claimant. Ms Bailey also made her own observations about the claimant’s behaviour and ability to keep up with the work at the Carterton branch. Taking into account what she had previously heard from the manager of the Wallingford branch, she contacted the locum co-ordinator and, after discussion with her, told her to cancel any further bookings for the claimant in her cluster.[23]Although Ms Bailey had not expected this to be immediately implemented, it appears that notice of cancellation was sent to the agency, who themselves informed the claimant very shortly after this. On hearing of this, the claimant did not return from his lunch break.[24]The locum co-ordinator appears to have immediately contacted the claimant’s agency, who then immediately notified the claimant of the cancellation. In notifying him of the cancellation the agency included extracts of emails received from the locum co-ordinator as follows: “Karen the cluster manager … said that he made a dispenser cry, he is always on the phone, rude and took several bathroom breaks longer than 10 mins (I am assuming staying with his phone) as he hasn’t mentioned that he has any problems.” The locum co-ordinator also forwarded the original email in which the Wallingford manager had requested that he should not return to Wallingford.[25]On the afternoon of 13 April 2018 the claimant wrote to his agency to contest the decision that he should no longer be given work in Ms Bailey’s cluster. He describes this as arising from public interest disclosures, and says that any toilet breaks are due to a health problem.[26]On 22 June 2018 he repeated these allegations in an email to the respondent’s professional standards department. On 4 July 2018 the matter was referred on to Thomas Richards, a “Professional Support Manager” working for the respondent, for him to investigate. He spoke to both Ms Bailey and to the manager of the Wallingford branch, and concluded that the claimant’s complaint was not justified. Mr Richards said that he was particularly concerned to learn of the mis-dispensing which had taken place at Wallingford. The claimant replied protesting at Mr Richards’ decision, following which his complaint was escalated to a Regional Quality Manager, who said (by email to the claimant): “we cannot condone lateness, rudeness and lengthy use of a personal mobile phone during working hours. Regretfully … we will no longer be offering you any bookings” D. CONCLUSIONS[27]As discussed earlier, we proceed on the basis that the claimant did make protected disclosures as set out in the case management summary. Page 8 of 10[28]The question is whether those protected disclosures caused the three detriments claimed by the claimant – a refusal to accept him for work in Carterton, the wider cluster and then the whole of the respondent’s business.[29]In legal terms, the question is whether the respondent has demonstrated that the detriments were not caused (in the sense of being more than a trivial influence) by his protected disclosures.[30]We are satisfied that the respondent has shown that.[31]It is clear that the claimant’s relationship with the respondent was in difficulties by the end of the day on 12 April 2018. The Wallingford manager had reported problems with the claimant to Ms Bailey, and Ms Bailey found that she was now having problems along the same lines with the claimant at the Carterton branch. It is not necessary for us to conclude whether the claimant was actually in the wrong in those incidents. It appears that in both cases there was material (in some cases undisputed by the claimant) from which the managers could have concluded that he was in the wrong. The important point is that this negative opinion of the claimant was formed prior to him having made any protected disclosures and so cannot have been influenced by any protected disclosures.[32]Relationships deteriorated further on 13 April 2018, culminating in the instruction not to offer the claimant any further work in Ms Bailey’s cluster. The question is whether this was more than trivially influenced by any protected disclosures by the claimant. We find that it was not. The problems on 13 April 2018 were simply a continuation of the problems on 12 April and in Wallingford. This was not about the claimant raising complaints of a failure to complete the near miss log. It was, as Ms Bailey said, about the claimant’s behaviour, following on from the problems arising in Wallingford and on 12 April. We do not see Ms Bailey had anything to gain by taking action against the claimant for complaining of failures in completing the near miss records. We do not see why any such complaint might have been considered a problem by Ms Bailey or lead to her decision that he should not return to her cluster. It was his behaviour at work, against the background of the previous problems, which was the reason why he was barred from working at Carterton or in her cluster.[33]As for the question of being barred from working for the respondent at any location, we consider that this is properly explained by the email in which he was told that he was not going to be offered any further bookings. As with Ms Bailey, we do not see that those in the professional standards department had anything to be gained by taking this action against the claimant because of protected disclosures. We are satisfied that the explanation given in that email is the reason why he was prevented from getting any further locum bookings by the respondent.[34]It follows that even assuming the claimant’s complaints amounted to protected disclosures his claim cannot succeed as they did not lead to the detriments he complains of. We do not need to go on to consider whether Page 9 of 10 the respondent can withdraw its apparent concession or whether these were, in fact, protected disclosures. COSTS JUDGMENT The respondent’s application for costs is dismissed. Employment Judge Anstis Date: 3 December 2020 Judgment and Reasons ............................................................ Note: