Mr M McMillan v Scottish Ambulance Services Board: 4106160/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4106160/2022

Between

Mr Mark McMillanClaimant

Scottish Ambulance Services BoardRespondent

Before

Employment Judge J M Hendry

Date 4 January 2024

JUDGMENT

[1]The application for strike out in relation to detriment said to arise through the respondent not allowing the claimant to return to work on the 24 May 2022 having no reasonable prospects of success is struck out. The other applications for strike out are refused.

[2]The applicationsby the respondent for a Deposit Order in relationto a) the claim for unfair dismissal, b) the claim for detriment relating to be- ing subject to disciplinary proceedings succeed and accordingly the EX Z4 (WR) claimant will pay a Deposit of £1000 in relation to each of these two allegations before being allowed to proceed.

REASONS

[1]The respondent’s solicitors wrote to the Tribunal on 7 November 2023 seeking strike out of the claimant’s constructive unfair dismissal claim on the basis that it had no reasonable prospects of success which failing for deposit orders to be granted. The application was opposed and a hearing took place by CVP on 18 December 2023.

[2]Prior to the hearing the respondent’s agents had sent copies of a telephone recording which they asked to be considered at the hearing. This is a recording of an exchange between the claimant and the ambulance control centre which forms part of the background to the claims. Both parties lodged documents in their respective Inventories of Productions.

[3]I had also noted that there had been correspondence between parties in relation to the case of Kaur v. Leeds Teaching Hospitals NHS Trust and its applicability to the present case. Both parties accepted that the law was correctly stated in that case but they differed as to how it applied to the present circumstances. The respondent’s position

[4]The respondent sought strike out or deposit orders in relation to the three claims before the Tribunal. The principal claim was for constructive dismissal. The others for whistleblowing detriment. We discussed the principles underpinning the decision in Kaur case and how they might apply to the current circumstances. Mr James observed that in this case there didn’t appear to be a proper “last straw”. Even if there was then he submitted the claim was flawed because an employer by simply initiating disciplinary proceedings could not, provided there was a basis for those proceedings, be regarded as having caused a repudiatory breach of the contract. He reminded the Tribunal that it was an objective test that applied in constructive dismissal claims.

[5]Mr James then took the Tribunal to the ET1. The claimant had admitted in paragraph 28 of the paper apart that he had resigned his employment but “was dissuaded from doing so from his Line Manager”. This occurred before the final resignation. It was noteworthy that the Line Manager was not directlyinvolved in the disciplinary process. The claimant resigned by letter dated 30 May 2022. Having resigned the claimant then rescinded his resignation on 2 June 2022. It was the respondent’s position that this was an act of affirmation and even if the respondent had previously breached the claimant’s employment contract any breach relied on that occurred prior to 2 June 2022 was affirmed when he withdrew his resignation. The respondent’s position was that the claimant could only rely on conduct that occurred from 2 June onwards until his resignation on 12 July.

[6]I was taken to paragraph 27 of the claimant’s paper apart which suggested that the invitation to a disciplinary hearing was a detriment flowing from a protected disclosure. The circumstances he submitted did not assist the claimant as it was dear that there was an investigation which commenced some time earlier in October prior to the alleged whistleblowing. Indeed, one of the claimant’s crew mates had been disciplined for their role arising from the same incident and the claimant was aware of this. It was difficult he submitted, given these circumstances to argue that there was any link between the disciplinary and the whistleblowing matter.

[7]The respondent sought strike out. It was accepted that if the Tribunal decided that a deposit order was appropriate then there were three individual claims to be considered. The Claimant’s position.

[8]Ms Harvie’s position was that there was ample material in the ET1 to show that the claims had reasonable prospects of success. It could not be argued that there was no prospects. Her position was that the invitation to a disciplinary hearing took place against the background where the claimant had been led to believe that the incident in which he had been involved was going to be dealt with informally and without the need for a disciplinary hearing. The invitation to a disciplinary hearing was both a final straw and sufficient in itself to constitute a material breach.

[9]In the course of the submissions which were detailed and wide ranging I queried whether the pleadings gave notice of the claimant’s position as developed by the claimant's agent. She had some trenchant and detailed criticisms of the report which had recommended disciplinary proceedings indicating that it was slanted and partial. She did not accept that the disciplinary process was in any sense neutral It was suggested that the writer of the report was not neutral for various reasons including referring to policies that were not practiced, recommending disciplinary action and ignoring evidence. The claimant had concluded that by starting the disciplinary process the respondent had a fixed objective in mind and had gone back on undertakings or assurances that had been given by his Line Manager.

[10]Ms Harvie urged the Tribunal to consider the claimant’s case at its highest. The claimant’s resignation was on the basis that the matter would not proceed to a disciplinary hearing and it would be dealt with as a health and safety discussion. Ms Harvie spent some time going through the report indicating that at the very outset the reference to the Policy whereby staff could be called on to extend their shift if something happened within 30 minutes of the end of the shift was a clear attempt at suggesting that the claimant had left to go home and had not acted unprofessionally. He had 30 years’ unblemished service and had felt these matters very keenly. In the evidence pack, she said, he had seen a transcript of the hearing with his crew mate and had concluded that the crew mate had been bullied into accepting responsibility for unprofessional behaviour. He felt that the report had been edited and it was in no way even handed form example there was no exculpatory evidence and it wasn't clear in what way the claimant had caused any delay. There were a number of inaccuracies in the report in relation to the day-to-day practice. This manager, she said, might say that day-to-day practice accorded with their policies but had to recognise that the position “on the ground” was different. Ms Harvie explained that ambulance crews get a call “red” only when they are able to mobilise. The call could have been escalated to “purple”. Ambulances often stop a distance from the scene of the incident so that PPE could not be put on out of sight of the public. The respondents must have been aware that this occurs as it could not be put on when the ambulance was moving. There were, she concluded, numerous potential causes of delay. The references to the standard operating practice i.e the policies was not relevant.

[11]She noted that Paragraph 15 (Rp.17) of the ET1 which indicated that the claimant attended a number of occupational health assessments. One report said that he was “under conduct proceedings”, He had never been told he was subject to disciplinary proceedings. This report had to be corrected.

[12]In reply, Mr James indicated that what was being said by the claimant’s lawyer was not pled. Discussion and Decision

Background

[13]I first of al! considered the pleadings and the history of events disclosed there much of which did not seem to be in dispute although there were differing interpretations. The genesis of the matter was an emergency (“999”) incident where ambulance assistance was called for. The claimant and his crew mate was on duty but was about to go off shift. The next shift had arrived and agreed to attend the incident There was contact between the claimant and the control room.

[14]Management later became concerned at what appeared to have been a ten minute delay in attending and investigated the circumstances. They wanted to examine what had occurred during this period. The claimant was interviewed on the 8 November 2021(C5). During this hearing the emergency call made to the service, which had been recorded, was played. This had an impact on the claimant. The meeting was postponed and he went off sick on the same day and was too unwell to return for some time.

[15]The claimant’s crewmate, AK, was interviewed on the11 November. At a later point in January 2022 he accepted that his actions had not been in the interests of the patient by allowing the next shift to attend (Rp178).

[16]The respondent waited until February of the following year and after taking medical advice considered both the claimant’s return to work and concluding the investigatory process.

[17]The claimant made an alleged whistleblowing disclosure on 24 May 2022 It related to the emergency call had been played to him. He considered that this constituted a breach of data protection and a potential health and safety matter because of the potential impact on listeners and his own mental health. He received an outcome to his whistleblowing concerns on 23 June. He also raised a grievance. On 9 July 2022 he received what he described as “out of the blue” a request to attend a disciplinary hearing. At paragraph 27 he stated: “The claimant believes the summons to the disciplinary hearing and the Respondent’s attitude regarding his return to work were a consequence of his having made a protected disclosure”

[18]In relation to constructive dismissal claim and the first resignation the ET1 stated: "Constructive Dismissal

[28]As a consequence of the respondent’s course of conduct on 30 May 2022, the claimant moved to resign but was dissuaded from doing so by his Line Manager. The claimant at that stage hoped that a resolution could yet be achieved.

[29]By July 2022 the claimant felt that the employment relationship had been so undermined by the respondent’s conduct that it had destroyed the relationship of trust and confidence between the claimant and respondent.

[30]In particular, the claimant reflected on the respondent’s insistence in pursuing disciplinary proceedings against him whilst failing to progress any investigation to the grievance concerns he had raised, that they had acted from the investigation stage, before knowledge of the facts, as though they had predetermined he was guilty of misconduct and was responsible for the patient’s death, that they had acted with no regard to his mental health, on the lack of a fair or transparent disciplinary process: and on the dismissive attitude to any return to work exhibited by his Line Manager.

[31]The claimant tended his resignation with immediate effect on 12 July 2022.” 19. The claimant makes reference to the history of the investigation and the occupational health report obtained by the respondent. It is important to consider the events leading up to the first resignation and then the final resignation. The claimant had during this period been absent from work. He wanted to return but management had concerns about him doing so. By email dated 30 April 2022 (R44) the claimant raised the fact that “alleged misconduct” had been referred to in an occupational health report. He wrote: “My colleagues and I are not under investigation for alleged misconduct and if we are no one has advised us of this, we were called into an investigatory meeting regarding an undisputed delay in response.......” 20. The claimant e-mailed Keith Jenson, the Manager on 9 May: “Hi Keith. ......as my health is improving my linking thought process still can’t wrap around the distraction of travel this investigation is taking. I didn’t do anything wrong! That said, Tm going back to the beginning to ensure information sharing has been true, factual and without distorted judgment.” 21. The claimant raised a grievance on the 17 May about the actions of the investigatory team who played the telephone call. 22. Mr Gorman, the Head of Ambulance Services acknowledged the claimant’s complaint on 23 May 2022 (p50/51). He wrote: ‘7n my view the progressing complaint of this nature at this point could be seen to interfere or influence the ongoing investigation process. As such this complaint will require to be placed on hold until the investigation process is concluded. However it will remain a priority to resolve. You will be given the opportunity to provide any information you feel is relevant to the investigative process during your investigatory interview.'’ 23. The claimant received a letter on 18 May from a Mr Farquhar inviting him to an investigatory meeting. It contained the following passage: “The purpose of the meeting is to enable the investigation team to understand what happened in this matter. Once I have concluded my Investigation I will consider whether any further action is required under NHS Scotland Workforce Policies.” 24. The claimant received a letter dated 23 May 2022 (R50-51) acknowledging his grievance in relation to the playing of the emergency call recording. He was advised as follows: “I note that you have raised this complaint as a grievance in the first instance. However given the detail and on review of the available policies I intend to handle your complaint under the NHS Scotland Workforce Bullying & Harassment Policy. I also note that you copied me into another complaint. .... It is my intention to combine these both into this process. 25. The claimant went through a return to work process. A report dated 24 May 2022 was prepared (R52-57). It indicated at page 56:• Mark candidly discusses absence and current emotional state including his mental health although he arrived promptly for the day, he had found it difficult to put his uniform on and attend the day. I feel strongly that Mark’s state of mind during the day with the specific reference to return to full duties contrasted with the Occupational Health Report (25/04/2022) recommending that he would be fit for work from 09/05/2022. Mark expressed doubt that he was ready for the agreed phased return to work programme, specifically as third crew in preparation for a return to full duties.

• Due to the above I can’t recommend that Mark is fit to return to full duties at present. 26. On 30 May (Rp.59) the claimant wrote to his Line Manager: “Please find herewith in writing my notice of resignation.....My notice period is 2 calendar months.....” No reasons were given. 27. Mr Jenson responded on 31 May (Rp.58) asking to meet the ciaimant before considering his resignation. The claimant subsequently met Mr Jenson and was persuaded to withdraw his resignation. The basis on which this occurred does not appear to have been recorded in correspondence although the claimant’s email dated 2 June (Rp62) states it is withdrawn to “consider options discussed) 9 it does not make reference to any assurances about matters being delay with informally as now suggested). 1 5 28. The investigation was concluded and a report prepared (R21). It recommended formal (disciplinary) action should be taken against the claimant. 29. The claimant received a letter on 6 July inviting him to a disciplinary hearing on 22 July. I he hearing was to consider the following allegations: “1. On 8 October 2021, you contributed to a delay in the emergency response to cal! incident 7912697 by BCY3915.” A copy of the investigation report and associated appendices were attached. Included in the investigation was a transcript of a meeting with the claimant’s colleague (Andy Kellis). 30. The protected disclosure was not made until 24 May 2022. The claimant in his second letter of resignation (Rp204-205) indicated that he had no choice but to resign. He cited a number of matters for his resignation. The first was “undue and harsh treatment, including bullying to the point my health has been seriously affected” This seems to refer to the playing of the call and the investigation process. The next related to the proposed disciplinary hearing and was referred to as an ‘anticipated breach of contract’ but also contains reference to a call made by the claimant being edited and “clear untruths” He then mentions breach of trust and confidence and a flagrant disregard (unspecified) of policy and procedure. The next ground refers to the “last straw” and to abusive treatment and several fundamental breaches of contract (unspecified). There is then reference to “questionable and unlawful treatment” said to be detriment relating to being asked to take more leave or sick leave following a protected disclosure so as not to return to work. There is reference to the Equality Act and to bullying in relation to the claimant’s mental health. 31. The Kaur case has echoes of the present circumstances. In that case Ms Kaur, a Nurse, argued that her employer’s instigation and outcome of a disciplinary process was unreasonable and amounted to a repudiatory breach of the implied term of mutual trust and confidence. The claim was unsuccessful and was struck out as having no reasonable prospect of success. She appealed but was unsuccessful at the EAT. She appealed further to the Court of Appeal where the Judges took the opportunity of reviewing the operation of the last straw doctrine in constructive dismissal claims. They held that the concept of affirmation of contract was not strictly relevant in last straw cases. AH that was required for a last straw resignation was that a series of incidents (whether or not previously affirmed) amounted to a fundamental breach. They stated that other contributory acts effectively revived the employee’s right to rely on the whole series of acts. Five questions were set down for the Tribunal to consider. “1. What was the most recent act (or omission) on the part of the employer which the employee says caused or triggered the resignation? 2. Has the employee done anything to suggest that he accepted or affirmed the contract since that act? 3. If not, was the act (or omission) by itself a repudiatory breach of contract (i.e. sufficient to support to justify a resignation? 4. If not, was it nevertheless part of a course of conduct comprising several acts or omissions which, viewed cumulatively, amounted to a repudiatory breach of the employee’s contract by showing that all trust and confidence had been destroyed? If it was, there was no need for any separate consideration of a possible previous affirmation. 5. Did the employee resign in response (or partly in response to that breach)?”

[32]In the course of the hearing I indicated to the claimant’s solicitor that although I had not made any decision in relation to whether a Deposit Order was appropriate it would be helpful for her to take instructions in relation to the claimant's financial position after the conclusion of the Hearing. This Ms Harvie did indicating that he would be in a position to pay deposit orders in the sum of £3,000 if asked to do so. Strike Out/Deposit Orders

[33]The respondent seeks strike out of the claims under Regulation 37 of the Employment Tribunals Rules of Procedure 2013 on the basis that they had no reasonable prospects of success which failing for deposit orders under Rule 39. *

[34]The powers of the Tribunal are set out in that Rule which is in the following terms: “Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim 20' or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;”

[35]The Tribunal must also give effect to Rule 2 the “Overriding Objective” which is in the following terms: Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable- fa) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal”

[36]In general a Tribunal has to be slow to strike-out an application where the central facts are in dispute (North Glamorgan NHS Trust v. Ezsis

[2007] IRLR 603

and Mbusia v. Cygnet Health Care Ltd EAT 0118/18. It has been observed that the power of strike out is a draconian one and could only be exercised in rare circumstances. The effect of a successful strike out application would be to prevent a party proceeding to a hearing and leading evidence in relation to the merits of their claim. (Balls v Downham Market High School & College

[2011] IRLR 217

EAT). There is no absolute bar to striking out such cases.

[37]As a general principle discrimination cases should not be struck out except in very dear circumstances and the cases in which such claims are struck out before the full facts could be established are rare (Chandhok & others v. Tirkey

[2015] IRLR 195

EAT).

[38]I also had regard to the comments of HHJ Taylor in Cox v. Adecco [

UKEAT/0339/19/AT

]: “No one gains by truly hopeless cases being pursued to a hearing.”

[39]My starting point is the pleadings. As has been observed before, the ET1 and what is stated there is important (Chandhok v. Tirkey

(2015) ICR 527

). It must give notice of the basis of the claims being made. The pleadings must be read as a whole. The ET1 was prepared by a solicitor.

[40]There are two major areas that raise concerns. The first is that Ms Harvie was very clear that her client’s position was that the rescinding of the resignation was in some way conditional because he had received some assurances from his line manager that whatever difficulties that had arisen from the incident they could be dealt with informally. The first resignation and it’s recission are significant events but are hardly mentioned in the pleadings. At paragraph 28 it is put that the claimant “moved to resign”. He does not say what assurances were given by his line manager. It seems unlikely that his line manager would have the authority to veto any possible disciplinary action as the matter was outwith his control.

[41]The claimant refers to matters in paragraph 28 in this way: “As a consequence of the Respondent’s course of conduct on 30 May 2022 the Claimant moved to resign but was dissuaded from doing so by his line manager. The Claimant at that stage thought that a resolution could yet be achieved” This does not seem to reflect the submissions I heard. It is clear from the email correspondence that the claimant went further than moving to resign. He actually did resign and gave notice. In relation to the assurances he said he had received it is simply pled that he was dissuaded from resigning and that at that stage “he hoped that a resolution could yet be achieved” it is not clear what that resolution was but I assume it was dealing with the incident in a non disciplinary way.

[42]The second concern is that the potential final straw or final repudiatory breach(es) are summarised along with earlier alleged breaches in paragraph 30 (p17). In relation to the summoning of the claimant to a disciplinary and the allegedly unbalanced report recommending disciplinary action it is described as predetermined and was not a transparent disciplinary process. Nowhere does it say that the report was slanted or biased or ignored evidence without setting out in what way it was. In submissions I was told that the report quoted polices which the writer should know were ignored in practice and that it was not even handed. We did not go into the detailed disciplinary policy but it is not unusual for someone to investigate and make recommendations about disciplinary action as the authors did here on the basis that he should be referred to a formal hearing. It was argued that the basis for the action was not clear and the claimant did not know what the criticism was of his actions. This is not pled. The report and attachments must be read as a whole. At page 85 (second paragraph from the bottom) It says that the claimant was the senior clinician and that there was no reasonable explanation provided by him as to why he got out of his vehicle and did not attend but handed over to the day shift crew. That appears to give the claimant a clear indication of what the criticism was of his actions.

[43]Looking at the case more widely, in relation to the other grounds and the issue of possible affirmation the claimant’s position is at points not as clear as it could be from the pleadings. In passing, I would observe that this whole matter was clearly distressing to him and no doubt to others involved including those examining the circumstances around the incident which involved someone’s death.

[44]There are other issues raised in the ET1 including the handling of the grievances and whistleblowing. The grievances are dealt with at paragraphs 22 and 23. The assertion is that they were not dealt with or not dealt with expeditiously.

[45]Whistleblowing is dealt with at paragraphs 24-27. The claimant says he believes that the disciplinary action was initiated because of the disclosure as the refusal to allow him to return to work.

[46]An issue which arose during the claimant’s absence was his assessment by Occupational Health and his unhappiness with the return to work process. At an assessment the claimant says the physician mentioned that the respondent’s referral mentioned that he was subject to disciplinary proceedings. This was before any formal intimation that he was as the investigatory process was ongoing. He also complains that two grievances made by him on 16 and 17 May were not progressed.

[47]What complicates this picture is that the claimant resigns immediately after an investigatory meeting on the 30 May. This was apparently a new panel and not the one he had raised grievances about. He does not give reasons for the first resignation but presumably the earlier issues he identifies form the basis for the resignation. He then withdraws the resignation and by doing so potentially affirms his employment contract at that point).

[48]It seems clear that the institution of formal disciplinary proceedings led to the claimant resigning. He also states that the institution of such proceedings and a failure to allow him to return to work were a consequence of the whistleblowing allegation. Mr James argued that the institution of disciplinary proceedings was a neutral matter and could not form either a repudiatory breach of contract or a “final straw”. I think this is going too far in ail circumstances. Indeed the Kaur case envisaged a claimant possibly being able to show that a disciplinary process could amount to a final straw.

[49]In conclusion I first of all addressed the issue of the impact of the apparent affirmation on the basis of the pleadings as they stand. It is a significant hurdle for the claimant to overcome and he is not assisted by the fact that there will almost certainly be objections to him leading evidence about matters that are either mot pied or are ambiguous. The Tribunal hearing the facts is best placed to rule on those matters as the case develops.

[50]I cannot wholly discount the possibility that a Tribunal hearing the whole circumstances, taking into account the possible affirmation, which starting with the playing of the recorded telephone call and including the difficulties over the return to work, handling of the grievances and whistleblowing might not conclude that there has been a breach of the implied term of trust and confidence. It cannot be said that such a claim has no reasonable prospects of success but it has little reasonable prospects in my view. Detriment claims

[51]Finally turning to the claims for detriment. Very little is pled. A link is asserted between the protected disclosure and two other events.. One is that the claimant suffered a detriment by being summoned to a disciplinary hearing. That he was picked out in some way because of the whistleblowing seems unlikely especially given that disciplinary action was also taken against his crewmate following a formal process of investigation predating the disclosure. It may be that the claimant can make some connection between these matters but other than reference to the same HR person being involved nothing else is said to establish a link.

[52]The second detriment was said to be not allowing the claimant to return to work. This seems to turn on an assessment carried out by a Mike Adams on 24 May (R52-57) who felt that the claimant was not sufficiently well to return whilst being assessed as clinically competent. Nothing is said as to why Mr Adams would have been influenced by the whistleblowing allegation which did not involve him. The disclosure was said to be made to him.

[53]Mr Adams reasoning and the basis for his decision appears clear and measured in the contemporaneous report and related to the after effects of the claimant being unwell foilowing the investigatory hearing and the playing of the 999 call. He writes to the claimant that the claimant agreed that he did not feel well enough to return to work (C Doc49). The contemporaneous documentation undermines what is a threadbare allegation. In my view this allegation has no reasonable prospects of success and should be struck out. However, although not suggested in the pleadings (paragraph 27) the resignation letter complains about a detriment relating to being asked to take holidays when unwell by his manager.

[54]However, I concluded that in relation to the disciplinary process allegation some support for the claimant’s position might come from surrounding circumstances and that I could not say the allegation has no reasonable prospects of success although I remain sceptical of it. Accordingly, with some considerable hesitancy I will allow it to proceed subject to a deposit order. It was accepted that the claimant had the financial resources to pay £1000 per allegation and this will be the sum provided for in the orders. io