Ms C Munday v Intobeige Ltd T/a Spynie Care Home: 4102615/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102615/2022
Between
Ms C MundayClaimantIntobeige Ltd T/a Spynie Care HomeRespondent
Before
Employment Judge HendryMs G Williams for claimantIntobeige Ltd trading as Spynie Care Home Respondents for claimantRepresented by: for claimantMichael A S Briggs (instructed by Advocate) for claimantinstructed by Ms H for claimantKhan, Solicitor for claimantDate 28 March 2023
JUDGMENT
The unanimous decision of the Tribunal is that the claims for unfair dismissal and detriment not being well founded are dismissed as is the claim under Section 10 of the Employee Relations Act 1999. ETZ4(WR)
REASONS
[1]The claimant in her ET1 contended that she had been unfairly dismissed for making one or more public interest disclosures to the Regulator of the Care Home in which she worked namely the Care Inspectorate. The company accepted that these circumstances could amount to qualifying disclosures but denied that even if they had been made, and they were unaware of them being made and that they had no bearing on her dismissal which was for misconduct.
Issues
[2]The Tribunal had to ascertain what the claimant said to the Regulator and if this amounted to qualifying disclosures. The Tribunal also had to consider whether or not the claimant could demonstrate that she had suffered any detriment prior to her dismissal arising from any disclosures and whether the disclosures, as she alleged, materially influenced or caused the dismissal. The issue is crystallised by the claimant in her Better and Further Particulars (p37) where she writes: *7f is reasonable to propose that when The Scottish Care Commission contacted the manager regarding the protected disclosures 2:> made, Maggie would have decided that Casey was a whistleblower” The claimant also suggested that the disciplinary offences which led to her dismissal were, in all the circumstances, relatively minor and would have usually been dealt with by the giving of advice or a warning and that the penalty of dismissal was used because of her whistleblowing. The claimant also alleged that the respondent was in breach of her right to be accompanied at any disciplinary hearings arguing that the investigatory meeting was in fact disciplinary in nature.
Evidence
[3]The Tribunal heard evidence from the claimant on her own behalf, it considered the “Bundle Index” lodged by parties to which additional documents were added by agreement at later stages.[4]The claimant is 58 years of age. She has an NVQ 2 and 3 in Caring and Diagnostics. She had worked for the NHS in England for around 30 years before moving to Elgin where her son lives. She had developed health problems. She decided to apply for posts as a carer. She felt that this would allow her to use the skills and experience she had gained in the NHS and that it would be less onerous and stressful than her pervious full time role.[5]The claimant applied to the respondent company who had a care home close by the claimant’s new home. They quickly contacted her and offered her a position. They wrote on 20 May 2021 formally offering employment as a Care Assistant at their residential home called the Spynie Care Home Duffus Road, Elgin (JB45-46). The claimant was given a principal statement of terms and conditions of employment (JB47-52) which she signed on 19 May 2021 . The Manager of the Care Home was Ms Margaret (Maggie) Scott.[6]The claimant arrived at the care home at 8am on 24 May. There was no one to meet her and explain her duties. She was immediately put to work. She was told that it was expected that she attend 15 minutes early in order to be on shift at 8am. Her later induction was rushed and incomplete. The claimant later signed a document headed “Generic Induction Programme” (JB53-64) on or about 6 September 2021. She was asked to do so although many of the induction matters referred to in the form had not in fact been completed.[7]The claimant enjoyed her job. She loved interacting with the residents. She developed a good relationship with other staff including the Care Home Manager, Maggie Scott. She completed a number of online training modules and received appropriate certificates that she had passed. This included a "Moving and Handling Certificate” (JB74) which indicated that she had passed with a score of 92%.[8]The claimant had been diagnosed with cancer some time earlier before her move to Elgin. She was at this point in remission. The claimant was in receipt of antidepressant medication throughout her period of employment.[9]The respondent has an Employee Handbook setting out their policies including their disciplinary policy (JB100-129). The Employee Handbook contains the disciplinary and grievance procedure which includes a whistleblowing procedure. The disciplinary and grievance procedure was headed “bumps in the road”. The policy has as one of its general principles the following:• We always consider informal action in preference to using formal procedures as a first resort• We fully investigate all potential capability matters before any action is taken• We will give you notice of any capability hearing in detail of the concern (concerns) in advance• We will provide written copies of evidence where applicable• A work colleague or trade union representative can accompany you at formal capability hearings and appeals. Page 34 of the policy it states: “You can be accompanied at formal capability meetings by a fellow employee or trade union representative. This applies where an outcome is that you may be given a formal warning or dismissed. It also applies where you are appealing against a warning or dismissal decisions. You are not entitled to representation where we deal with minor issues informally outside the procedure."[10]The claimant became unhappy with many of the aspects of the care being provided at the nursing home. She believed that it was often inadequate and that the home was regularly short staffed. She suggested a number of improvements to Maggie Scott. Residents were often not regularly showered. The claimant tried to improve this by suggesting that there should be a rota for resident’s showers to make sure they were getting regular showers and carrying this out should also include the night shift. There was opposition to this from staff some of whom expressed the view that residents should not be forced to take showers at a time chosen by staff. The claimant became frustrated at the lack of progress as she saw it with the company addressing these concerns and Maggie’s Scott’s attitude which seems resigned to the difficulties persisting.[11]The claimant was also concerned about the quality of the furnishings, bedding and crockery. M[12]On one occasion the claimant observed a resident sitting in their own urine for a lengthy period because of a lack of staff to assist him.[13]The Care Inspectorate visited the Home in late 2021. They completed a 2 5 report dated 8 December 2021 (JBp370-376). The inspection was carried out by two Inspectors and assisted by an Inspector volunteer who spoke to relatives by telephone. They evaluated two matters firstly on how well the residents’ wellbeing was supported and secondly how good the care being provided was during the Covid 19 pandemic. They assessed the residents’ wellbeing as adequate and the care and support during the pandemic as good. The Inspection Report under the heading “Complaints” noted there had been no complaints upheld since the last inspection.[14]The claimant was made “carer of the month” for December.[15]During the claimant’s period of employment there were no regular staff meetings. A staff meeting was arranged for 14 December. Maggie Scott arranged the meeting to talk through the Inspection Report. The claimant became aware of the staff meeting and although she could not attend she prepared a list of agenda items reflecting her concerns. This was used to form the agenda for the meeting in addition to the discussion of Report. Minutes of the meeting were prepared at a later point (JBp368-369). The claimant had put various issues in the agenda such as her concerns over under staffing, carer’s view’s being ignored, regular showering of residents not occurring and the adequacy of meals particularly pureed food. These matters were discussed. The claimant was unaware of any action taken on the items raised.[16]Ms Scott had in fact spoken to the Head Cook when the claimant had first raised the issue of the size and quality of meals. She had used a colleague’s mobile telephone to take a photograph of a plate of food (JBp458). The use taking of the photograph was observed and reported to Maggie Scott who challenged the claimant about the matter. The claimant explained why she had done this prompting Maggie Scott to raise the matter.[17]The claimant was disappointed that she received no informal or formal feedback in relation to these matters or that things were going to change.[18]The claimant was continually concerned about the level of staffing. Many of the residents were not mobile and suffered from dementia. Two carers were needed to assist residents and if short staffed it meant that a carer would have difficulty getting a second carer to help.[19]The claimant was often on duty with a Senior Carer called EP. The claimant formed the view that she was lazy. The wing on which the claimant often worked had a complement of four carers in terms of the respondent’s staffing policy. When short of a carer the claimant and others would have to rely on EP to help with tasks needing two people. The company had what was referred to as a Two Person policy which meant that tasks involving moving the resident required two carers to ensure the safety of the carers and resident. Incident 3 January 2022[20]On 3 January 2022 EP came across the claimant lifting a patient X from her wheelchair to her bed using a hoist designed to be operated by two people. The patient was balanced on a sling. She was distressed from earlier catching one of her feet under her wheelchair.[21]Two people were required when using the hoist to ensure that the patient did not fall from the sling while being lifted. EP had seen the patient already hoisted up from her wheelchair. There was no one ensuring the resident did not fall out of the sling when the hoist was being operated by the claimant. EP brought this to the attention of Ms Scott. Ms Scott did not immediately act on the matter. EP was later asked that week to provide a written statement of the incident which she did on 1 2 January (JB396).[22]The administrator at the home, Emma Robertson, reported the incident involving the claimant to was concerned that the matter might not be addressed “appropriately” by Maggie Scott and emailed Vicky Pace, a Peripatetic Manager (later called an Operations Support Manager) on the 12 January (JB 393). She raised a number of matters involving the claimant including the incident regarding the hoist. She observed that in her view despite an Investigatory meeting having been arranged by the manager “I personally think it has taken an extremely long time to get to this stage” and warned that Maggie was “quite friendly” with staff suggesting that she ignored issues. This was passed to Mr Turnbull the Respondent’s HR manager.[23]Ms Scott had already discussed the incident and other matters that had come to her attention by telephone with Kieran Turnbull. It was decided that the incident had to be investigated. Ms Patterson was asked to complete an incident report.[24]The claimant was at work on the 12 January. She had met a Carer called Dawn who had told her that Maggie was ‘'on the warpath” as someone had complained to the Scottish Care Commission about the home.[25]On the 13 January the claimant was asked to see Maggie Scott. She went to her office and was told that it was an investigatory meeting. The Minutes were taken (JBp397-401). The Minutes are accurate. The claimant was asked about the incident and about allowing a patient to vape in the home, not using two people when using a ‘stand aid’ with a patient and taking a resident’s laundry home to wash. The claimant was recorded as saying: “Is it possible that we could have more staff so that we don’t have to go in SJC on our own? We are all guilty of it, its not just me”.[26]Following the meeting the respondents decided to discipline the claimant. Ms Scott had been involved in the investigatory meeting. The disciplinary hearing was passed to Kevin Partis, a Peripatetic Manager or Operations Support Manager to deal with. He was an experienced manager. He wrote to the claimant on 17 January 2022 (JB402). The allegations were as that the claimant had carried out a hoisting procedure without another carer to asst her, she had used a stand aid with a resident again without a second carer assisting, she helped a patient X use a vape, and took X’s laundry home to wash contrary to Covid infection control procedures.[27]A disciplinary hearing took place by Teams on 21 January. Minutes were prepared (JB403-407) which accurately reflect the meeting. The claimant accepted that she had moved X without assistance. When asked if she would do it again she explained that the resident was in agony and she had no one to help. She also accepted taking X's jumper home to wash so it would not shrink. She accepted she should have asked permission.[28]Mr Partis was concerned particularly at the incident involving the claimant hoisting a patient on her own. The patient was not self mobile. He did not detect any remorse from the claimant nor was he confident that she might not act in the same way again. Mr Partis considered the matter carefully and decided that the claimant should be dismissed. He wrote to her on 24 January 2022 setting out the reasons for dismissal (JB406-407). He upheld the first, second and fourth allegation but did not uphold the third. He wrote: “I have given careful consideration to all the issues raised and it is my reasonable belief that you are unable to perform the role to the standard that is required with the company, therefore, I have decided to terminate your contract on the grounds of unsuitability.”[29]The claimant was given four weeks pay in lieu of notice.[30]The claimant appealed by letter dated 26 January 2022 (JB408-411). She complained that she had no representation at the initial investigatory meeting. She said she had been given no warnings not properly trained in moving and handling. She said that he home was understaffed. She gave detail of the incident involving X. She complained about lack of support from Estelle. The claimant did not suggest that she had been disciplined or dismissed because of whistleblowing.[31]The appeal process was passed to Vicky Pace to deal with. She was an experienced manager. She had some experience of visiting Spynie but did 2f not know the claimant personally. An appeal hearing took place by Teams on 18 February, it was minuted. The Minutes are a fair reflection of what took place (JBp413-419).[32]Ms Pace considered the claimant's appeal. She decided not to uphold the appeal. She wrote to the claimant on 28 February 2022 detailing her reasons for doing so (JBp420-422).[33]The Care Inspectorate carried out an unannounced inspection on Spynie Care Home in October 2022. The inspection was detailed and involved speaking to staff and management and to 20 people using the service. It published their findings in a report (JBp431445). Overall, it found the home “adequate” but identified a number of areas where improvement should occur.[34]Following her dismissal the claimant was unemployed. She had applied to join a company providing a “bank” of carers. Ms Scott gave the claimant a reference describing her as a ‘phenomenal’ carer. She did not get the post.[35]The claimant’s dismissal left her devasted and lacking in confidence. She has not tried to return to the care sector. Witnesses[36]The claimant was a clear and articulate witness. We had no doubts as to her sincerity or honesty. Unfortunately, we had some difficulties with her reliability as a witness and felt that in relation to the crucial evidence of when she complained to the Care Inspectorate we could not rely on her recollection. We also found it difficult to fully accept the claimant’s recollection of the incident involving X or her decision to use the hoist. Having spent many years in the NHS where moving and handling issues are taken very seriously as the claimant conceded and having completed, albeit online, the manual handling training we could not understand why she had proceeded with this risky manoeuvre. The immediate cause of X suffering pain had ceased and it would have been obvious that the sensible course was to go and seek assistance and then to report the injury and how it had occurred.[37]Mr Partis was a confident, clear and professional witness. He did not know the claimant and we detected no antipathy towards her. We accepted his evidence that when dismissing the claimant he did not without any knowledge of the claimant having contacted the Care Inspectorate or having attempted to do so. He was in our view a credible and reliable witness.[38]We generally accepted the evidence of Ms Pace as being credible and reliable in relation to her conduct of the appeal. We were surprised when she said that she did not pay much attention to the staff rotas when visiting the home as part of her duties. This was when the rotas lodged in evidence by the claimant were being referenced. They tended to suggest that there was insufficient staff to provide the staffing the claimant was told should be in place and which she expected to be in place. It may be that the home is compliant with the Care Inspectorate minimum staffing but the regular absence of a full complement of staff and the fact that staff can be taken away on escort duties for lengthy periods seemed to us to support the claimant’s concerns.[39]We were not wholly convinced by Ms Scott’s evidence particularly at her assertion that she moved quickly when serious concerns were raised with her such as the incident involving X. The timing of events do not seem to support that nor does the email from Ms Robertson. We did not hear evidence from Mr Turnbull about what was said in the conversation with her before the investigatory meeting took place but we suspect that there was pressure on her to act. In the event that was not significant as she did not take the decision to dismiss. Submissions[40]Mr Briggs submitted that the case turned on the facts and not on any legal point. The principal issue was whether the claimant could demonstrate that she had, as she claimed, raised the same concerns she had raised in the agenda she had prepared for the meeting in December with the Regulator the Care Inspectorate and that the respondent company was aware of this. There was in his view insufficient evidence both of the respondent’s knowledge of the disclosures, if made, and accordingly the decision to dismiss was untainted. The Tribunal had before it clear evidence of misconduct which the claimant had accepted. There had to be doubt over the claimant’s recollection the absence of the 6 January date from the ET1 being evidence of that.[41]In reply, Ms Williams asked the Tribunal to accept the claimant’s evidence. She was a resilient and dynamic person was deeply concerned about the welfare of the residents. The claimant’s evidence should be accepted. It could not be a coincidence that Dawn had made the comment she had about Maggie being on the warpath. The Tribunal had heard how the training was inadequate and about the pressures on carers due to lack of staff. The claimant had not been suspended and this suggested that the disciplinary matters were not as serious as now suggested. It was unfair that the claimant attended the investigatory meeting unaccompanied and without knowing what io was going to be spoken about. Discussion and Decision[42]The starting point are the Sections of the Employment Rights Act 1996 on which the claimant relies. These are found at Sections 43 (meaning of a protected disclosure) 47B (protection against detriment and 103 A (protection against dismissal),[43]An employee wanting to rely on the whistleblowing protections before a tribunal bears the burden of proof on establishing the qualifying disclosure and 20 that it was made to the employer (or other prescribed organisation) (Boulding v Land Securities Trillium (Media Services) Ltd. UKEAT/0023/06.) In the present case the employers fairly accepted that disclosure made to the Regulator could amount to protected disclosures the claimant also made protected disclosures to Maggie Scott but did not rely on these. She relied on the disclosure to the Care Inspectorate as prompting her dismissal and for the earlier disciplinary process she was subjected to.[44]The Tribunal had regard to the suggested approach when considering protected disclosures given in the case of Blackbay Ventures Ltd. t/as Chemitree v Gahir UKEAT/0449&50712/JOJ. We considered whether or 30 not the claimant had the reasonable belief whether each disclosure was made in good faith and under the ‘new’ law whether it was made in the public interest. W had no difficulty with these questions. The issues raised by the claimant were serious and many were considered by the Care Inspectorate in their second report namely. It is in the public interest that vulnerable people such as the residents of the home are well treated, showered, feed properly and so forth.[45]The claimant acted throughout in good faith and with the best interest of residents. This was recognised in the evidence of Maggie Scott who did not seek to suggest any ulterior or personal motive for the claimant raising these matters and her acknowledgement that the claimant was an excellent and professional carer.[46]The claimant initially alleged that the disciplinary process was a detriment. This argument fell down when she accepted that the disciplinary allegations (apart from one involving allowing a patient to vape) were potentially serious and that she expected a warning or a slap on the wrist. The suggestion that the disciplinary process was a sham was no longer tenable and the claim for detriment short of dismissal evaporated.[47]It is for the respondent to show the grounds on which the alleged detriment occurred (Section 48(2) of the ERA. The idea of an employer being influenced by the protected disclosure was definitively developed in the Court of Appeal case Fecitt v NHS Manchester[2012] IRLR 64 per Lord Justice Elias: “45 In my judgment, the better view is that S.47B 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 whistle- blower. (Emphases added). “[48]The claimant relied on the conjunction of events namely her whistleblowing on the 6 January and the alleged comments by Maggie Smith being on the warpath about a complaint to the Care Inspectorate followed by her being involved in a disciplinary process. She also asked the Tribunal to hold that the complaints were not serious enough to warrant dismissal. Crucially her claim depended on two things the first being that a whistleblowing complaint was actually made by her on the 6 January and secondly that the respondent company and by implication Mr Partis was aware of this.[49]The first difficulty the claimant faced is that in her original ET1 she had written doing this in December 2021. She wrote: “within days of me reporting these concerns to the care inspectorate which was in Dec" (JBp12). The claimant later in her Better and Further Particulars (JBp33) put the date as the 6 January. There is no corroboration showing when the compliant was actually made other than possibly the comment from Dawn. The claimant tried to obtain confirmation from the Care Inspectorate of when her anonymous complaint was made (apparently through their website) but was unable to do so. We were left with her assertion that she had done so in January and that the earlier reference to December was an error.[50]The Tribunal found it difficult to understand why such a crucial error had arisen in the first, place. The ET1 starts with references to the claimant complaining to her manager in December. She then goes on to say that “those concerns I reported to the Scottish Care inspectorate” It raised in our minds whether the claimant was actually remembering events correctly and that this had in fact occurred in December or earlier prompting the inspection. That inspection was “unannounced” (JBp370). It referenced the showers and the equipment which was an issue the claimant had raised. We also noted for example that the later report in October referred to a deep clean of the home “following our complaint investigation” and various improvement plans being put into operation. We could not reconcile the claimant’s evidence with these matters but noted that the claimant had said that she had found this 2 < period distressing and was taking anti-depressant medication throughout this period which might have affected her recollection of the timing of these events. We have no doubt that at some point she complained to the Regulator but on balance we suspect this was not on 6 January as she now contends.[51]We did, however, find the claimant a generally persuasive witness but even if we had accepted that she had made an online complaint on the 6 January, or tried to, and that the remark from Dawn is accurately recalled in its terms and timing and did not relate to either some other time or compliant we were prepared to accept that the company was neither aware of the complaint or it’s origin. The respondent’s witnesses all gave evidence that to this day they are unaware of any complaint being made at or around this time that reflects the concerns raised by the claimant or at all.[52]Ms Scott indicated that in her experience if a serious complaint is made it is usually the care home manager who is contacted, sometimes by telephone and urgently asked about the area of concern. If the home manager was not contacted the matter would be raised formally with the company and then the home manager and the Business Support Managers would be involved. (Ms Pace being the Support Manager for Spynie). We accepted her evidence in this regard.[53]All of the respondent’s witnesses claimed ignorance of any complaints made at this time or any contact from the Care Inspectorate later that year prior to the Inspection in October. We wondered whether there was anything in the terms of that report that might indirectly support the claimant’s evidence but accepted that an Inspection is detailed and would traverse all the workings of the home.[54]The fact that the disciplinary complaints had substance and the manual handling compliant was clearly serious provided support for the actions taken by the respondent.[55]We considered carefully the evidence both of the dismissing officer and the appeal officer. In our view the disciplinary matters particularly the moving and handling complaint were the reasons for dismissal and not any protected disclosures made to the Care Inspectorate.[56]In terms of causation, the correct causative test is not a ‘but for’ test or a test of whether the treatment was ‘related to’ the protected disclosure, but whether the fact that the protected disclosure has been made caused or influenced the employer io act in way complained of. That requires an analysis of the mental processes (conscious or subconscious) which caused the employer to act (London Boroughof Harrow v Knight [2003] IRLR 140, EAT.[57]Our conclusion in this case was that the respondent as a company and the managers involved in the disciplinary process were all unaware at the relevant time that protected disclosure had been made to the Care Inspectorate at that point by the claimant and that this had no bearing on the subsequent disciplinary process and dismissal.[58]For completeness there was also a claim that there had been a breach of the claimant’s right to be accompanied at the investigatory meeting with Maggie Scott. Under section 10 of the Employment Relations Act 1999, the employee has the legal right to be accompanied to any meeting or hearing that can result in disciplinary action against them. Section 13 defines a disciplinary meeting as one in which an employee “could” receive a warning. Our understanding of the respondent’s disciplinary process is that Ms Scott could not issue any disciplinary sanction at that point nor did she seeks to do so.[59]We do not believe that there has been a breach of the section at least what could be described as being in a technical sense. The ACAS Code states this: “7. If there is an investigatory meeting this should not by itself result in any disciplinary action. Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer’s own procedure."[60]It is recognised good practice to do so. We would have had concerns if the case was an “ordinary’’ unfair dismissal that the claimant was disadvantaged at the hearing not knowing either what was being investigated nor having a companion. By the time of the investigatory meeting the allegtions were crystallised and the respondents had evidence that the claimant had breached the rules. The meeting was very tightly kept to those allegtions and was arguably only nominally an investigatory meeting.