XX v Hampshire and Isle of Wight Healthcare NHS Foundation Trust: 6002717/2024

EMPLOYMENT TRIBUNALS

Case No 6002717/2024

Between

XXClaimant

Hampshire and Isle of Wight Healthcare NHS Foundation TrustRespondent

Before

Employment Judge Self

In person for claimant

Mr B Jones - Counsel for respondent

Date 15 August 2025

JUDGMENT

[1]All Claims for protected disclosure detriment are not well-founded and are dismissed.

[2]Written Reasons have been requested and will follow. THIS JUDGMENT HAS BEEN APPROVED BY

REASONS

[1]By a Claim Form lodged on 22 May 2024 the Claimant seeks compensation for public interest disclosure detriments that she asserted she had been subjected to between 8 January 2024 and 7 May 2024. The Claimant was engaged in Early Conciliation between 10 April 2024 and 22 May 2024.

[2]The Respondent denied the allegations in their Response and the issues were identified in a Case Management Hearing that took place on 14 January 2025. Those issues will not be set out here but will be identified when consideration is given to each one later in this Judgment. In broad terms however there were four alleged protected disclosures which allegedly gave rise to fourteen separate detriments marked (a) to (i). They will continue to be identified as per that Order in this Judgment.

[3]At this hearing there was an agreed bundle and witness statement from the Claimant on her own behalf and from Miss Holly Whitely, Ms Susan Ho and Mr Mark Nichols on behalf of the Respondent. A witness statement was also sent in by Ms Clooney, but it was agreed that her involvement post-dated the matters in issue in this case and so she did not give oral evidence. The parties also gave closing submissions which were considered.

The Facts

[4]The Claimant is a registered Mental Health Nurse who was employed by the Respondent from 1 October 2023. At the material time the Claimant worked within the Crisis Resolution and Home Treatment Team (CRHTT) at Band 5. At the start of the issues relevant to this case the Claimant had been qualified for three months. It would appear from the testimony of Ms Whiteley that she was a promising prospect and was well-thought of in comparison to her peers.

[5]The Claimant’s Team Leader was Ms Tester, and her manager was Mr Nicolls who was in charge of the whole CRHTT team.

[6]On 6 January 2024 it is agreed that there was an incident at work. In the broadest of terms, the Claimant showed a colleague Ms O’Sullivan a video of an incident that had taken place at home which had been captured by a camera installed at the Claimant’s property. The Claimant went home to try and deal with the issue, but Ms O’Sullivan considered that the situation was such that the police needed to be called as she viewed it as a safeguarding situation. There is a gulf between the parties about what happened thereafter, but the Claimant returned to work and now in knowledge that the police had been called, spoke with staff on her return. The police arrived and there was a further lengthy process that ensued outside of the Respondent’s rented office.

[7]There are a number of statements and text messages that have been taken since the incident recording the various viewpoints and I will deal with some of those taken close to the incident at the time. I reflect that those statements will have taken place soon after the incident and without consideration of these proceedings.

[8]On 7 January there was a text conversation between Gemma Meaden, an employee of the Respondent and the Claimant’s friend and Ms O’Sullivan. Ms O’Sullivan expressed the view that the Claimant’s actions on 6 January were unacceptable and that they had caused her not to be able to sleep. Ms Meaden agrees that the Claimant’s actions were unacceptable and that she considered Ms O’Sullivan had acted “professionally” (169). Ms O’Sullivan expresses the view that she hopes she never sees the Claimant again and that she is never spoken to again in the same fashion. Ms Meaden describes the Claimant as being on 6 January “unpredictable, highly emotional and very unstable …very unprofessional” (173) and that the situation was “very distressing for all to see” (174).

[9]On 8 January Mr Nichols got to hear about the incident from various members of staff and started to ask for recollections about the situation. Ms Meaden was asked, and she recorded that she had been sent what she described as “a disturbing video of an incident” and then was asked to attend the office as the police had attended. She observed the Claimant “shouting and verbally expressing her anger at (Ms O’Sullivan)” and later when her mother indicated that the police should see the video became “distressed and dysregulated.” She recorded that “one officer appeared to intimidate the Claimant and she then attempted to headbutt (the officer).” Staff in the office said that the Claimant had been “verbally abusive in the office and very unprofessional.” The Claimant had written a resignation note and left her laptop. The matter ended with the police accompanying the Claimant back to the property and an arrest being made of a member of the household.

[10]The Claimant was asked to do a reflective statement. She indicated that she was confronted with “a distressing incident at home” and she accepted that her behaviour “must have had a detrimental effect in the office.” The Claimant states that on her return to the office she did feel “heightened” and later on she states that “the events were emotionally charged and unexpected due to the deeply personal nature and this hindered my ability to navigate a situation seamlessly.” (177 continued)

[11]During the incident, the Claimant asserts in her witness statement for these proceedings that she “intended to whistle blow for Ms O’Sullivan’s inappropriate use of the lone working folder as I reasonably believed this to be a data protection breach.” That manifests itself into the first Protected Disclosure at 74 (a) of the Issues where the Claimant asserts that: “On 6 January 2024 the Claimant told Lori O'Sullivan that her accessing of the lone working folder outside the policy amounted to unauthorised processing of data and a breach of data protection law.”

[12]In oral evidence the Claimant described herself as being “assertive and to the point” when she told Ms O’Sullivan that she was going to “whistle blow her” and told her that she had accessed the lone working folder. In her statement during the fact-find Ms O’Sullivan recalled that “(The Claimant) referred to whistleblowing and that she was going to get me done for this.” In a meeting with Ms Ho on 7 March (381) Ms O’Sullivan “made a comment about me using pink folder to give this information (Claimant’s address and phone number) out and that was not what the pink folder was for”.

[13]On 7 January 2024, the Claimant had emailed Freedom to Speak Up in respect of the incident and sought an external investigation into the incident and she informed them that she considered that Ms O’Sullivan had acted inappropriately in contacting the police (186). The Claimant was responded to the following day and a Teams meeting was arranged for later that day. The Claimant has not provided any details about what was said at that meeting. This is the second allegation of a protected Disclosure (74b) and in the List of Issues the Claimant refers to the email as being the protected disclosure only.

[14]On 8 January there was a telephone call between the Claimant and Mr Nichols the Claimant told Mr Nichols that she considered there had been a breach of GDPR when her personal data had been accessed and she told Mr Nichols that she had given the same information the day before. This is the third Protected Disclosure at 74c. The Claimant was asked to prepare a reflective statement and that she would be placed on a period of reflection which was available to Mr Nichols under the Exclusion and Restriction of Practice Policy (para 5.2.3, page 83). Mr Nichols explained he made that decision on account of the need to further fact find and concerns re the Claimant and affected members of staff.

[15]Mr Nichols asked for statements from Ms O’Sullivan (235-239), Mr Simpini (280, and Mr Carr (287-288) all of whom had been working on the night in question. He also sought input from Ms Maiden, and she responded on 9 January (187-189)

[16]On 9 January, the Claimant was informed in writing (190) that she was on a further period of reflective practice of up to 7 days from 10 January whilst an external fact finding process was carried out by someone independent of the team. The Claimant was reminded that she was not to contact any members of the team during this period and nor was she to attend any of the Respondent’s premises or conduct face to face training.

[17]On 11 January there was a conversation between the Claimant and Mr Nichols in which she was involved that she would return to work on 15 January but based at Elmleigh for the duration of the investigation. The Claimant emailed her understanding of the meeting to Mr Nichols on 12 January and indicated that she was being supported by the RCN “to raise concerns about a breach of the GDPR and an abuse of power from (Ms O’Sullivan)”. This is the fourth alleged protected disclosure 74d. The Claimant ends by thanking Mr Nichols for the time he was taking out to deal with the matter.

[18]Mr Nichols forwarded the email to Ms Bekefi and a Mr O’Neill and the former asked Mr Nichols to send the Claimant a copy of the grievance policy and this was sent over on the same day (200).

[19]Mr Nichols sent a letter on 12 January to the Claimant in which he indicated that: a) Following advice from trust safeguarding the Claimant was to work independently and that the Claimant would be moved to Elmleigh Hospital whilst an enhanced fact find was undertaken and she was report to Ms Whiteley. b) Whilst the fact find was being undertaken she was not to attend at Basepoint or to discuss the incident with any staff. c) Ms Ho was going to review statements and evidence and a Teams meeting was set up for 16 January. d) The Claimant was signposted to the Employee Assistance Programme (201).

[20]On 15 January, the Claimant had a meeting with Ms Whiteley, the matron at Elmleigh, and Ms Colver the Ward Manager. Notes of the meeting appear at 202 and whilst the Claimant did not accept that the notes were wholly accurate she accepted the majority of them. The Claimant had spent some time previously at Elmleigh and Ms Whiteley, having been told of the issues that had brought the Claimant there expressed the wish that it would be a positive placement for the Claimant. The meeting was spent organising how the placement was to work in terms of shifts etc. The notes are headed ad hoc supervision and there was a dispute between the parties as to whether it was a “supervision” or not.

[21]The Claimant wrote to Ms Whiteley following the meeting expressing thanks for her “support and your warm welcome back to Elmleigh” and indicating that she would be “forever grateful during such a difficult time” and she was looking to restart on 20 January 2024 on a 9-5 basis which was agreed with “no problem at all” by Ms Whiteley.

[22]Meanwhile Ms Ho was promptly getting on with work she had been asked to do by Mr Nichols on the same day as instructed in the task. She sought meetings with O’Sullivan, the Claimant, Carr and Simpini and suggested five hours for these meetings (205). In the end those meetings took place as follows: a) Claimant 16 January 2024 b) Carr 17 January 2024 (216-220) c) Simpini 22 January 2024 (221 – 223) d) Maiden 23 January 2024 e) O’Sullivan 25 January 2024 (231-239) Taking into account the fact that Ms Ho had substantial amounts of work to do in her day job and the task that she had been asked to achieve, plus the need to seek the availability of individual members of staff, I find that this part of the investigation moved at an entirely reasonable speed.

[23]On 23 January as part of her original fact find Ms Ho asked whether Mr Nichols was able to forward her the Gosport Basepoint CCTV footage (224). She was aware that Mr Nichols was on annual leave at that time and asked for him to do it on his return which was around 29 January. She described it in another email as being the second request and the first was on 17 January at 1014 (212) where she asked him to supply it if he felt it would be helpful and informative to the proceedings. On 31 January Ms Ho (240) indicated that she was still awaiting CCTV footage and Mr Nicholls responded at (242) that he did not hold any CCTV footage and that it belonged to Gosport Basepoint and the best that could be done was for Ms Ho to view it.

[24]On 14 February Mr Nichols told Ms Ho that he made an enquiry at Basepoint reception the day before and had discovered that there was no footage to view as it was deleted after 30 days, which in this case would have been around 5 February.

[25]On 15 January, the Claimant raised a grievance which was sent to Mr Nichols and which he promptly passed on to Mr McNeil, his HR advisor and also copied in Mr Nichols line manager, Ms Bekefi and Ms Ho. The document started by making it clear that the grievance was in relation to the “actions of Lori O’Sullivan on 6 and 7 January”. The Claimant asserted that there was a clear breach of professional boundaries in that: a) O’Sullivan’s insistence on entering the Claimant’s car and home; b) Failure to follow safeguarding policy or the Code of Conduct for Social Workers; c) Data protection was broken as personal information was recorded for lone working policy only. The focus of the rest of the document is in relation to (a) and (b) above. There is no further mention of the data protection issues and whilst that is grieved about a fair reading of that document would not place the data protection issues at front and centre of the grievance.

[26]Ms Bekefi contacted the Claimant the same day in relation to her grievance (211) and asked for an opportunity to discuss the same. A meeting was held on 24 January and a Stage 1 – Outcome of Informal Grievance Meeting was sent on the same day. That letter dealt with the following: a) Ms Bekefi summarised the current situation remarking that the Claimant had told her that she felt supported and understood the reason she had been placed there. It was also clarified that the Claimant was not on restricted practice. b) The three points of the grievance were identified including the accessing of the Claimant’s personal details found in the pink folder. c) There was a summary about the updated position vis a vis the police. d) Ms Bekefi had concluded that she considered there was a need to delay the grievance pending the outcome of the fact find and that the Claimant would discuss further with her RCN Trade Union representative to consider how to proceed further with it. e) Irrespective of fact find or the grievance she would ensure that “there was a review of the process ECRHT have for all staff accessing personal details contained in lone work folders and as an interim measure had instructed staff to seek permission from managers before accessing that folder and finding details.” f) Once the fact find was concluded the Claimant would be able to raise any grievance and it would go to Stage 2 immediately. g) The Claimant was invited to raise any queries with Ms Bekefi.

[27]There was a meeting on 5 February and Ms Ho presented her findings, one of which was that a formal workplace investigation should be considered. She also indicated that there needed to be a protocol for staff re who, when and how to access staff details within the CRHTT Lone Working Folder and that the folder needed to be stored safely with restricted access. Whilst that may have been outside the ambit of what she was looking at it is noteworthy that Ms Ho fully accepts the points that processes and procedures to protect data needed to be addressed in exactly the same way as Ms Bekefi had in her letter cited above (348).

[28]Following that recommendation Ms Bekefi indicated that she considered that a formal workforce investigation should be convened in respect of an allegation that primarily focussed on the Claimant’s alleged verbal abuse and hostility / intimidating behaviour towards her colleagues. She considered that there was no option but to tread the formal path because the Claimant considered that she was the victim and had raised a grievance against O’Sullivan, that a resolution was needed because of the issues arising from the schism that had appeared between staff members post the incident, and the Claimant’s desire to go back to her previous workplace.

[29]Having considered the evidence that had been amassed by Ms Ho it seems to me that there was an inevitability that this would not conclude at this time. Allegations had been made about the Claimant’s conduct which were broadly corroborated by members of staff and there were issues to determine that would broadly impact on a number of members of staff.

[30]Mr McNeill from HR replied that he had consulted another HR individual and opined that he considered that it would be appropriate for Mr Nichols to remain the commissioning manager and that Ms Ho should continue to be the investigating manager as she would then not need to interview everybody again but simply interview the Claimant as against the Workforce Investigation terms of reference. Ms Bekefi passed on the email from Mr McNeill to Ms Ho who responded as follows: “I'm not sure I'm the right person to be the investigator given the nature and complexity of this WFI. Whilst I appreciate add on the fact finding and therefore know the case, this also means that I no longer can be can be or be seen to be fully impartial / independent of the case. Also to do the fact find I've had to cancel or postpone a lot of my work, which I now need to catch up on and can no longer wait. Therefore, if possible, I think it would be best to seek a separate investigator, who can be seen as objective and impartial to the WFI and especially by XX given what we know and how she is presented herself to us.”

[31]In essence Ms Ho sought to recuse herself both in terms of what she considered to be procedural propriety and also due to workload. Ms Bekefi responds by saying (in effect) that Ms Ho doing it would be less time consuming and that she did not have anybody else available to do it anyway. Ms Bekefi indicates a broader spread of interviews than HR had previously suggested. Ms Ho agreed to do it and indicated she would need the support of HR and there is evidence in the bundle that this support was both proffered and accepted.

[32]On 9 February Ms Bekefi wrote to the Claimant again about her grievance. All matters were rejected. In relation to the issue re data protection and the pink folder the findings were: a) That personal details were accessed but it was justified on safeguarding grounds. b) Notwithstanding the justified access detailed above there had been a review of the process of accessing the pink folder which moving forward would only be permitted following approval from a team leader or manager.

[33]On 16 February Mr Nichols confirmed that there would be a Workforce Investigation into the incident which was characterised / summarised as follows (264): “That on the evening of 6th of January 2024 during her working hours XX was verbally abusive hostile and intimidating to persons at and in the vicinity of base point offices in Gosport to such a degree that significant police attendance was required, and three colleagues did not feel able to come to work for the next shift”.

[34]Terms of Reference were included which indicated that the Investigating Officer (Ms Ho) would establish whether there was evidence which might lead to substantiation of the allegation and the proposed target date for completion was 10 April. This timeline was in accordance with the relevant procedure.

[35]On 15 February Ms Ho was sent the Incident Report in an email headed “Additional Notify” (274) and sent from a safeguarding email address. The Claimant asserted that this was only created on that date and Mr Nichols indicated that he had made the report proximately to the incident. Ms Ho had not seen the Incident Report prior to her first report but was sent this email just after she was appointed to do the WFI. On balance I accept the evidence of Mr Nichols that it was done earlier, and I take that from the fact that email is headed “Additional Notify” which would seem to indicate that other notifications had been made to others earlier. The extent that it makes a difference may be considered negligible.

[36]Ms Ho started to try and arrange meetings on 20 February (e.g. 277) but meetings could not be arranged to take place until early March. Letters of invitation went out 21-23 February.

[37]On 23 February there is an email from a Freedom to Speak Up Guardian following a call from the Claimant. The discussion is recorded as the Claimant being “concerned that your personal data has been breached and this is not being dealt with” (297). It is recorded here that the Claimant was complaining about her personal data as opposed to any wider concern.

[38]On 25 February Mr Sneade who had seemingly been appointed the Claimant’s line manager, although the Claimant asserted she was not informed of that fact, emailed Ms Whiteley saying that he had managed “to catch up with the Claimant for supervision on 23 February between 11 am and noon”. Mr Sneade stated that the next time they met he intended to speak about where the Claimant could access further support, whether the Claimant was well enough to be at work and to talk about the Claimant’s role on Elmleigh.

[39]On 6 March, the Claimant met with Mr Nichols and another to discuss working expectations and it was agreed that he hours would be marked as 9-5 but she would actually work 10-4 because of travel time and child commitments. She would remain supernumerary and that she could also use the time for external study.

[40]The Claimant met with Ms Makgathno in respect of her Stage 2 grievance which she was intending to bring on 7 March. The notes of that meeting are set out at 320-322. The issue of the Lone Working Folder was brought up and for the first time the Claimant indicated that Mr Nichols would have been at fault for allowing the Lone Working folder to be accessible in the main office. What the Claimant sought as an outcome to her grievance was for O’Sullivan to be disciplined and for the Lone Working Policy to be reviewed. The Claimant raised that she considered that Mr Nichols being Commissioning Officer was a conflict of interest. On the following day Mr Nichols passed over the role of Commissioning Officer to Goretti Halliday and the Claimant was advised of that fact shortly after and then formally on 28 March (414).

[41]Other matters in this note of relevance are: a) The Claimant had been stopped from going to preceptorship “because she is a risk to people.” The Claimant did not assert then as she does now that it was on account of her raising protected disclosures. b) She said that Snead was her supervisor and that “Holly (Whiteley) was “as supportive as she can be.” This runs counter to the Claimant’s allegation at (h) of the Issues that Whiteley was preventing the Claimant from having supervisions.

[42]There were then the Workforce Investigation Meetings with the following individuals: a) Ms Maiden– b) Mr Simpini c) Mr Nicholls d) Ms O’Sullivan– e) Mr Carr f) The Claimant

[43]On 12 March Ms Ho makes further enquires with Mr Nichols as to whether there is any CCTV footage as the Claimant believed it had been saved and/or because of her own experience believed it would still be available (338). Mr Nicholls reiterated that he had already asked for the footage and been told it did not exist and did not consider there were any exceptions (349).

[44]On 12 March, the Claimant met Ms Ho and on 28 March when Ms Halliday offered the Claimant a further meeting with Ms Ho due to concerns raised by her TU rep. The Claimant asked for a face to face meeting saying that she “understands that this may delay the outcome, but I think it is important to ensure fairness during the process.”

[45]Stage 2 of the Grievance was held on 7 March 2024 and the outcome was sent to the Claimant on 5 April 2024: a) Issues as to the storage of the Lone Working Folder had led to a review and safety measures had been put in place so that access could only be made with the approval of management. This part of the grievance was upheld and an apology was issued. b) So far as the Claimant’s own details being accessed it was considered that the safeguarding situation that presented itself was such that access was justified and so this part of the grievance was rejected. c) Mr Nichols was removed from the process as soon as he became part of the grievance.

[46]The Claimant appealed that decision on 12 March 2024 indicating that she considered the outcome unduly severe / inconsistent and / or the Trust’s policies had not been conducted properly.

[47]The WFI report was dated 8 April 2024, two days before the due date. It is a structured document with 23 appendices attached thereto. Halliday considered the report and determined that the matter needed to be heard at a disciplinary hearing and that the status quo workwise would continue and informed the Claimant of that on 29 April.

[48]The disciplinary hearing took place on 8 May before Penny Hill, who was the Head of Nursing and Quality. The actions of Ms Hill and the subsequent appeal have no bearing on the matters in this case, but the outcomes were that there was to be No Formal Action. I have read the reasoning and confess that the basis for coming to that decision, which was an excellent result for the Claimant, is difficult to follow. A conduct action plan was suggested which would be reviewed for six months and the Claimant would return to CRHTT and facilitated conversations may be required.

[49]On appeal it was requested that the action plan should not be pursued and that was upheld.

The Evidence

[50]The Claimant came across as strong on detail and well prepared. As a litigant in person, she conducted her case competently and where she missed questions that were pertinent to the matters I had to decide, I asked those questions. As a witness she was anxious to promote her agenda at every opportunity whether it fitted the question or not. From time to time when forced to answer the actual question, a concession of sorts was elicited. I gained the strong impression that the Claimant was recalling how she should have presented on 6 January as opposed to how it really was. I find that the Claimant knows that she fell below the standards that she would normally hold to and is not prepared to face up to that and, in preference, seeks to place a sanitised gloss. It may well be that Ms O’Sullivan’s evidence is also subject to hyperbole, but it is hard to leave behind the contemporaneous impressions of Ms Maiden who attended as an ally and a friend of the Claimant.

[51]The Respondent’s witnesses were all professional in their presentation. Ms Ho was very precise, had a good grasp of detail and was prepared to make concessions where required as to issues related to the investigation. Mr Nichols came across as what I would describe as “old school.” He was clearly very experienced in his role and took the view that he would do his job in the way that was most advantageous and pragmatic. This included the GDPR matters arising from the pink folder. Whilst he accepted what his legal responsibilities were, it was clear to me that he did not necessarily hold the same in particularly high regard. He did not appear to me to be a man who would be particularly fazed by an allegation he was in breach of GDPR or even much care about the same. He would just crack on and do the job which was clearly a busy and difficult one. Ms Whiteley answered the questions in a straightforward way and sought to assist the Tribunal where she could.

Conclusions

[52]This is obviously an unfortunate case as many which come before the Tribunal were. We have a disgruntled employee bringing claims against her employer that she firmly believes in with the commensurate time and money that such claims cost the Respondent and ultimately the public. It seems obvious that whatever the outcome of this Claim there is another Claim waiting in the wings which will cover a further lengthy period of over one year ending with the Claimant’s resignation. Whatever the rights and wrongs of this Claim and other matters it is highly unfortunate that a fully trained nurse has been, for the time being at least, lost to the NHS.

[53]When drafting this Judgment I am conscious that there is highly likely to be another claim and so will do my very best to stay within the tramlines of the Issues agreed before REJ Pirani. This is an odd claim in some ways. I have received no indication of any issues with the Claimant prior to the 6 January 2024 but her case is that new colleagues who she barely knew decided to fabricate evidence about her conduct which was unjustified and then her line manager once removed and an individual from outside she had never met acted in a manner that was designed to cause her maximum difficulty and they did so at least in part because she had raised an issue about inappropriate access to the lone working folder. The clear tenor of the Claimant’s position was that Nichols, Ho and Bekefi (orally introduced but not in the List of issues) were seeking to get the Claimant dismissed and acted together to provide that outcome only to be thwarted when the disciplinary hearing came along.

[54]There is no explanation why having gone to all the trouble of getting the Claimant to the door of being disciplined Ms Hill was not influenced or persuaded to provide the coup de grace. Counsel for the Respondent described the Claim as unusually ambitious and one that was “incredible” in the sense that it lacked any credibility at all.

[55]I start with the protected disclosures. Four have been indicated by the Claimant within the List of Issues. Why specifically those four were chosen is a bit of a puzzle and has not been explained but the Claimant is entitled to choose what she considers to be the protected disclosures that she considers gave rise to the detriments she has also chosen.

[56]The process to be adopted will be that I will first summarise the law in relation to such claims and then consider whether the Claimant did make a protected disclosure. Finally, if protected disclosures were made I will consider whether or not the Claimant was subjected to a detriment on account of some or all of the protected disclosures.

[57]In order for a whistleblowing disclosure to be considered as a protected disclosure three requirements need to be satisfied (ERA 1996 s 43A). a) There needs to be a disclosure within the meaning of the Act. b) That disclosure must be a qualifying disclosure. c) It must be made by the worker in a manner that accords with the scheme set out at ERA 1996 ss 43C–43H. This is made out in this case because all of the alleged disclosures were made to the Respondent’s staff.

[58]The first issue that needs to be considered is whether or not there has been a disclosure for the purposes of the Act. The Act provides a very broad definition of what amounts to a disclosure and “any disclosure of information” will qualify (ERA 1996 s 43B(1)). In Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

, it was not sufficient that the Claimant had simply made allegations about the wrongdoer (especially where the claimed whistleblowing occurs within the claimant's own employment, as part of a dispute with his or her employer). As Slade J put it in that case: ''… the ordinary meaning of giving “information” is conveying facts” and went on to distinguish between a mere allegation and the conveying of information .

[59]However, in Western Union Payment Services UK Ltd v Anastasiou

UKEAT/0135/13

Eady J, following and applying the Cavendish distinction between information on the one hand and the making of an allegation or statement of position on the other, commented that 'the distinction can be a fine one to draw and one can envisage circumstances in which the statement of a position could involve the disclosure of information, and vice versa. The assessment as to whether there has been a disclosure of information in a particular case will always be fact sensitive.'

[60]This comment was made in the context of one of two possible qualifications (or at least explanations) of the basic Cavendish principle, namely that although the most obvious form of disclosure will concern primary facts, there can also be cases of mixed primary facts and opinion which on balance would still qualify.

[61]In Kilraine v London Borough of Wandsworth ([2018) IRLR 846 one of four alleged protected disclosures was ruled out by the tribunal under the Cavendish approach, as falling into the category of 'allegation'. In the EAT (

[2016] IRLR 422

) Langstaff J said at [30]: ''I would caution some care in the application of the principle arising out of Cavendish Munro. The particular purported disclosure that the Appeal Tribunal had to consider in that case is set out at paragraph 6. It was in a letter from the Claimant's solicitors to her employer. On any fair reading there is nothing in it that could be taken as providing information. The dichotomy between “information” and “allegation” is not one that is made by the statute itself. It would be a pity if Tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined. The decision is not decided by whether a given phrase or paragraph is one, or rather the other, but is to be determined in the light of the statute itself. The question is simply whether it is a disclosure of information. If it is also an allegation, that is nothing to the point'.'

[62]On further appeal to the Court of Appeal it was decided was that whatever is claimed to be a protected disclosure must contain sufficient information to qualify under the ERA 1996 s 43B(1) (my emphasis). Agreeing with Langstaff J, the position was said to be that, in effect, there is a spectrum to be applied and that, although pure allegation is insufficient (the actual result in Cavendish), a disclosure may contain sufficient information even if it also includes allegations. Moreover, the very term “information” must grammatically be construed within the overall phraseology which continues 'which tends to show …'. Ultimately, this will be a question of fact for the Tribunal, which must take into account the context and background. At para 41 of the judgment puts the point neatly by adapting the famous example given in Cavendish itself. The contrast was made there that if a nurse says to the management that 'the ward is filthy and there are sharps left about' that can be information, whereas if he or she simply says 'You are breaking health and safety law' that would be mere allegation. To this, the judgment adds that if the nurse made the latter remark while pointing to sharps lying around, that should be sufficient.

[63]The question therefore is whether there is sufficient by way of information to satisfy s 43B and that is a matter of fact for the tribunal. Clearly, the more the statement consists of unsupported allegation, the less likely it will be to qualify, but this is as a question of fact, not because of a rigid information / allegation divide.

[64]Once a disclosure has taken place it becomes necessary to consider whether or not that disclosure can be categorised as a qualifying disclosure. The definition breaks down into a number of elements. a) There must be a disclosure of information. b) The worker must believe that the disclosure is made in the public interest. c) If the worker does hold such a belief, it must be reasonably held. d) The worker must believe that the disclosure tends to show one or more of the matters listed in sub-paragraphs (a) to (f). e) If the worker does hold such a belief, it must be reasonably held.

[65]As an initial starting point, it is necessary that the worker making the disclosure has a reasonable belief that the disclosure is in the public interest and tends to show one of the six statutory categories of 'failure' set out below (ERA 1996 s 43B(1)). All that is required is that the worker has a reasonable belief.

[66]It is not necessary for the information itself to be actually true. It follows that a disclosure may nevertheless be a qualifying disclosure even if it subsequently transpires that the information disclosed was incorrect. Having said that the factual accuracy of the allegations may be an important tool in determining whether or not the employee did have such a reasonable belief the assessment of the individual's state of mind must be based upon the facts as understood by him or her at the time.

[67]It is also important to note that the statutory test is a subjective one. This is because the Act states that there must be a reasonable belief of the worker making the disclosure. It follows that the individual characteristics of the worker needs to be taken into account and the relevant test is not whether a hypothetical reasonable worker could have held such a reasonable belief. This was affirmed by the EAT in Korashi v Abertawe Bro Morgannwg University Local Health Board

[2012] IRLR 4

, EAT.

[68]Where there is more than one disclosure, as here, the requirement is that there was a reasonable belief in relation to each; it is not enough that the Claimant can be shown to have believed in the general gist of his or her complaints.

[69]The issue of the public interest element of whistleblowing was considered in the leading case of Chesterton Global Ltd v Nurmohamed

[2017] IRLR 837

, that demonstrated that there is no 'bright line' between personal and public interest, with any element of the former ruling out the statutory protection. In a case of mixed interests, it is for the tribunal to rule as a matter of fact as to whether there was sufficient public interest to qualify under the legislation. The decision of the Court of Appeal (largely upholding that of the EAT) contains guidance as to how to approach that task. ''The statutory criterion of what is “in the public interest” does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. I am not prepared to rule out the possibility that the disclosure of a breach of a worker's contract of the Parkins v Sodexho kind may nevertheless be in the public interest, or reasonably be so regarded, if a sufficiently large number of other employees share the same interest. I would certainly expect employment tribunals to be cautious about reaching such a conclusion, because the broad intent behind the amendment of section 43B(1) is that workers making disclosures in the context of private workplace disputes should not attract the enhanced statutory protection accorded to whistleblowers – even, as I have held, where more than one worker is involved. But I am not prepared to say never. In practice, however, the question may not often arise in that stark form. The larger the number of persons whose interests are engaged by a breach of the contract of employment, the more likely it is that there will be other features of the situation which will engage the public interest. Against that background, in my view the correct approach is as follows. In a whistleblower case where the disclosure relates to a breach of the worker's own contract of employment (or some other matter under section 43B(1) where the interest in question is personal in character), there may nevertheless be features of the case that make it reasonable to regard disclosure as being in the public interest as well as in the personal interest of the worker…. The question is one to be answered by the Tribunal on a consideration of all the circumstances of the particular case, but [counsel for the employee's] fourfold classification of relevant factors which I have reproduced … above may be a useful tool. As he says, the number of employees whose interests the matter disclosed affects may be relevant, but that is subject to the strong note of caution which I have sounded in the previous paragraph.''

[70]The four factors adopted were as follows:(a) The numbers in the group whose interests the disclosure served;

(b) The nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect; c) The nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people; d) The identity of the alleged wrongdoer – as [counsel for the employee] put it in his skeleton argument, “the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest” – though he goes on to say that this should not be taken too far.

[71]In addition, the very term 'public interest' is deliberately not defined by Parliament, leaving it to be applied by tribunals and not to be influenced by precedents from other areas where it is used in other contexts.

[72]The mental element imposes a two-stage test: a) Did the clamant have a genuine belief at the time that the disclosure was in the public interest, b) If so, did he or she have reasonable grounds for so believing? This point was explored further in Ibrahim v HCA International

[2019] EWCA Civ 207

, where it was held that the claimant's motivation for making the disclosure is not part of this test. As the judgment of Underhill LJ puts it: 'the necessary belief is simply that the disclosure was in the public interest' and 'the particular reasons why the worker believes it be so, are not of the essence'.

[73]The necessary reasonable belief in that public interest may (in an atypical case) arise on later contemplation by the employee and need not have been present at the time of making the disclosure (though as an evidential matter, the longer any temporal gap, the more difficult it may be to show the reasonable belief).

[74]Having dealt with the public interest element of the statutory test the Act sets out six categories of 'failure' to which the information must relate if the disclosure is to be one qualifying for protection (ERA 1996 s 43B(1)(a) to (f)). The categories of failure are as follows:(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health and safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been or is likely to be deliberately concealed. In this case the Claimant within the List of Issues relies upon those set out at (b) above.

[75]With regard to head (b) (failure to comply with a legal obligation), the word 'legal' must be given its natural meaning, with the result that the fact that the individual making the disclosure thought that the employer's actions were morally wrong, professionally wrong, or contrary to its own internal rules may not be sufficient. Subject to this possible limitation, a wide interpretation is to be given as to the nature of the legal obligation in question. Sub-s (1)(b) is in very broad terms and is capable of covering the commission of a tort such as defamation or breach of statutory duty or in this case a breach of GDPR.

[76]Case law has established that s 43B places two obligations on the employee. First, the disclosure of information in question must have identified to the employer the breach of legal obligation concerned: Fincham v HM Prison Service

UKEAT/0991/01

. It was, however, said there that this need not be 'in strict legal language'. Moreover, it has also been held that the context of the communication(s) must be borne in mind; in particular, this requirement is also met if the breach complained of is perfectly obvious.

[77]An employee wanting to rely on the whistleblowing protection before a tribunal bears the burden of proof on establishing the relevant failure. In Boulding v Land Securities Trillium (Media Services) Ltd

UKEAT/0023/06

Judge McMullen said: ''As to any of the alleged failures, the burden of the proof is upon the Claimant to establish upon the balance of probabilities any of the following:(a) there was in fact and as a matter of law, a legal obligation (or other relevant obligation) on the employer (or other relevant person) in each of the circumstances relied on.

(b) the information disclosed tends to show that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.''

[78]The four Protected Disclosures relied upon in the List of issues are as follows: a) On 6 January 2024, the Claimant told Lori O’Sullivan that her accessing of the lone working folder outside the policy amounted to unauthorised processing of data and a breach of data protection law; AND/OR b) On 07 January 2024, the Claimant emailing ‘The Freedom to Speak Up Guardians’ to share concerns related to the breach of Data Protection and GDPR; AND/OR c) On 8 January 2024, the Claimant told Mark Nichols (‘MN’) the same information by telephone; AND/OR d) On 12 January 2024, the Claimant emailing MN to initiate a grievance in respect of the same.

[79]I do not accept that the Claimant told Ms O’Sullivan that accessing of the lone working folder outside the policy amounted to unauthorised processing of data and a breach of data protection law. Ms O’ Sullivan recalled in her initial statement (237) that “(The Claimant) referred to whistleblowing and that she was going to get me done for this”. In the Claimant’s statement at 2.2 she indicated that she “made clear” to Ms O’Sullivan that she “intended to whistleblow for her inappropriate use of the lone working folder as she reasonably believed that this was a data breach.” In oral evidence the Claimant stated that she had told Ms O’Sullivan that she was going to “whistleblow her.” Following a further question the Claimant stated that she had told Ms O’Sullivan that she had accessed the lone working folder. At 408 Ms O’Sullivan discloses that the Claimant did make a comment about accessing the pink folder.

[80]As I explained to the parties I can only deal with matters on the evidence before me. On the balance of probabilities, I do not accept that the Claimant spoke the words set out at 78 (a) above. Even on the Claimant’s case she was emotionally heightened as this point in time and the context was that she had just discovered that a work colleague had called the police over a child protection issue in her own home which the Claimant considered an overreaction. I consider it highly unlikely in the context of what was going on at that time, which the Claimant undoubtedly viewed as a crisis, that the Claimant expressed her way she suggests. I do accept however that she indicated to Ms O’Sullivan that she intended to “whistleblow” in the future i.e., that she intended to make a protected disclosure in the future, and I do not consider that expressing an intention of future action amounts to the making of a protected disclosure. The alleged protected disclosure at 78 (a) above is not a protected disclosure pursuant to the Employment Rights Act.

[81]On the evidence I am far from sure that it makes any material difference in this case anyway as none of the detriments were said to be the work of Ms O’Sullivan. It is unclear when Mr Nichols .got this statement but the earliest it could have come to him was 8 January when he realised there were matters of concern to be investigated and he sought the same. The Claimant asserts that she made a protected disclosure to him on that same day.

[82]So far as the second disclosure is concerned the facts detailed within the List of issues did not take place. I have considered the email on 7 January (186) the complaint mentions nothing to do with any breach of data protection or GDPR. What that email does disclose is that at that time the Claimant did believe having seen the video that her husband had pushed her daughter over and that she was upset because her husband was said to have not done anything like that before. Her complaint then is about the fact that Ms O’Sullivan called the police and that was inappropriate. There is nothing about the means or the method by which she gained access in this report.

[83]As an aside this seems to be in clear contrast to the Claimant telling me at this hearing that she went home because her husband did not appear to be following an approved and agreed bedtime routine. That is not what the Claimant thought at the material time and is an example of the Claimant seeking to put an untrue gloss on what actually took place.

[84]I note that in the Claim Form this disclosure is not referred to. The Issue is limited to the email but the Claimant at this hearing sought to say that she made a clear disclosure in a subsequent telephone call to the Guardian. That is not pleaded and is not in the List of Issues and there would be prejudice to the Respondent to allow any extension of that sort as they could have attempted to glean evidence from whomsoever the Claimant spoke to had they been alerted to the allegation. There is also nothing in the Claimant’s witness statement that evidences what the Claimant said on that call. The alleged protected disclosure at 78 (b) above is not a protected disclosure pursuant to the Employment Rights Act.

[85]In any event there is no evidence that the Guardian actually passed on that “disclosure” to management or that it was known to any of the decision makers. As the Guardian themselves are not named as perpetrating any detriment, nor is there any evidence of any communication of this email / conversation to management then none of the detriments can have been caused by the matter set out at 78(b) even if it did amount to a protected disclosure.

[86]The allegation at 78 (c) is that the Claimant told Mr Nicols “the same information by telephone”. That does not get the Claimant off to a good start following my finding that what the Claimant has given evidence of to the Guardian does not constitute a protected disclosure. Mr Nichols accepts that in the telephone call he was told by the Claimant that Ms O’Sullivan had accessed her personal data and that she believed that it was breach of GDPR. On that basis and notwithstanding the way that the protected disclosure is framed at 78 (c) I accept that the Claimant did make a disclosure of information which recorded and specified a breach of a legal duty by Ms O’Sullivan. I am not satisfied that the Claimant was as specific as she asserts in her statement at paragraph 3.2 and I find that she was not as specific as she sets out in that paragraph, but I do consider that she had done enough in any event.

[87]The final question is whether or not she made that disclosure in the public interest. Whilst I would not have considered that she had a reasonable belief in the public interest at the time she threatened Ms O’Sullivan with whistle blowing I am satisfied on the balance of probabilities that by 8 January she had reflected and was concerned about the availability of the Lone Working folder and the fact that personal data could be used inappropriately. I note that at 593 the ICO upholds the Claimant’s complaint that the Respondent did not comply with data protection obligations because they did not implement measures to ensure that the Claimant’s personal data was secure so as to prevent unauthorised access.

[88]Whether the Claimant was right or not makes no difference as all she needs is a reasonable belief. Going back to public interest I am satisfied that whilst much of her disclosure was based upon her own breach I am satisfied that by that time the Claimant did hold a genuine belief that the public interest was engaged because all of her colleagues personal details were accessible too. I am satisfied applying the four criteria in Chesterton that the reasonable belief in the public interest is just made out and the Protected Disclosure at 78(c) was a protected disclosure under the Employment Rights Act 1996.

[89]The fourth protected disclosure is in relation to what the Claimant describes as initiating a grievance about the data protection issue. In actual fact the email is the Claimant reflecting over what was said in a telephone meeting on 12 January. The only part of the email that is relevant is where the Claimant states that “I am being supported by the RCN to raise concerns for a breach of GDPR and an abuse of power from Lori I will get this to you as soon as I can as this is directly linked with the instant that occurred on the 6th of January”. Again, this seems to be an intimation from the Claimant that she is going to raise issues in the future about the breach of GDPR as opposed to actually raising issues at the time. The Protected Disclosure at 78(d) was not a protected disclosure under the Employment Rights Act 1996.

[90]The Claimant could, of course, have chosen any of her communications with the Respondent as protected disclosures but for reasons that remain opaque has chosen just these four. I will not stray outside my remit in respect of other discussions / correspondence

[91]Having identified that there is a protected disclosure (78 (c)) I will move on to a determination of whether the alleged detriments were on account of that protected disclosure. At this point I will deal with the time limit point. I am satisfied that all claims are in time. I am satisfied that all of the detriments flow from the incident on 6 January and various individuals decisions and consequences that arise from that incident and so am satisfied that the allegations amount to a continuing series of alleged acts and failures. Accordingly, the last act is the 7 May 2024 and so all claims have been lodged in time.

[92]Section 47B of the ERA 1996 reads as follows, so far as is material: “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A) A worker ('W') has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done(a) by another worker of W's employer in the course of that other worker's employment, or

(b) by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer (1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer.”

[93]The use of the phrase 'subjected to' imports ordinary ideas of causation and does not require a further element of wilfulness and/or control of events on the part of the employer. 'Detriment' is not defined in the statute, but it is a wellknown concept in discrimination law, and it is proper to apply the case law there under this section i.e., that there is a detriment if a reasonable employee might consider the relevant treatment to constitute a detriment: In particular, 'detriment' is to be given a wide interpretation.

[94]This formulation means that there is a causative element, namely that the protected disclosure needs to have materially influenced (in the sense of being more than a trivial influence) the employer's treatment of the whistleblower: Fecitt v NHS Manchester

[2012] IRLR 64

. Moreover, the test here is not the same as that for dismissal for whistleblowing in s 103A where it must be shown that the protected disclosure was the reason or principal reason for the dismissal, a far tougher test.

[95]S 48(2) ERA applies to all detriment claims which are brought under s 47B ERA (which includes whistleblowing cases) and is drafted in the following terms: “On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”

[96]The statutory burden is on the employer to show on the balance of probabilities that the act, or deliberate failure, complained of was not on the grounds that the employee had done the protected act; meaning that the protected act did not materially influence (in the sense of being more than a trivial influence) the employer's treatment of the employee: Fecitt.

[97]However, it is important not to cast that burden too highly and to apply the statutory wording. Although it may at first look like the well-known statutory reversal of the burden of proof in discrimination law (EqA 2010 s 136]), it appears that a direct analogy is not to be drawn with that discrimination law position which mandates a finding for the Claimant if the employer fails to convince the tribunal of its version of events. Serco Ltd v Dahou

[2017] IRLR 81

. This concerned detriment on trade union grounds, under TULR(C)A 1992 s 148 which uses similar wording (“…it shall be for the employer to show what was the sole or main purpose…”). The tribunal had considered that this was indeed to be interpreted in the same way as the burden of proof reversal in discrimination law, but the EAT (

[2015] IRLR 30

) pointed out that the wording there is different, actually requiring the tribunal to find against the employer if it does not satisfy the burden. TULR(C)A 1992 s 148, however, was said to be cast in terms which are more in line with those in the ERA 1996 s 48(2) which, according to Kuzel v Roche Products Ltd

[2008] IRLR 530

, CA (a case on whistleblowing dismissal, but showing a similar approach). This means that if the employer fails to show an innocent ground or purpose, the tribunal may draw an adverse inference and find liability but is not legally bound to do so. At para 53 Simler J summed the position up as follows: ''Accordingly, if a tribunal rejects the employer's purported reason for dismissal, it may conclude that this gives credence to the reason advanced by the employee, and it may find that the reason was the one asserted by the employee. However, it is not obliged to do so. The identification of the reason will depend on the findings of fact and inferences drawn from those facts. Depending on those findings, it remains open to it to conclude that the real reason was not one advanced by either side.'' That approach was endorsed by the Court of Appeal.

[98]One other point of law arose in the appeal in Dahou, concerning the position of the Claimant in a case such as this and the whole question of when the statutory reversal is triggered. Does he or she have to produce some evidence of the illegal reason in order for the ultimate burden to be reversed? The EAT decision in Yewdall v Secretary of State for Work and Pensions

UKEAT/0071/05

suggested that, like discrimination law, there is an initial burden on the claimant to show a prima facie case. It has been argued that as a matter of policy this places too high and onus on the claimant, but in the Court of Appeal's decision Yewdall is cited at some length and with approval, the judgment stating that 'the burden of proof only passes to the employer after the employee has established a prima facie or arguable case of unfavourable treatment which requires to be explained'. To this limited extent, discrimination law does act as a precedent here.

[99]We take that legal position into account when coming to our conclusions.

[100]The allegations of detriment are as follows:a. On 8 January 2024 MN suspending her without following the policy on ‘Exclusion and Restriction of Practice Policy and Procedure’ - section 5.4 – suspension over the phone without a meeting and representation;

b. On 22 January 2024 MN redeploying her to Elmleigh Hospital in a supernumerary position;

c. From 8 January 2024 to 7 May 2024 subjecting the Claimant to a flawed 4-month workplace investigation. The Claimant will say that the investigation was flawed because: i. MN did not seek CCTV evidence that she or the investigating officer requested be obtained (in various emails in January and February 2024) on the basis that it would have been exculpatory of her; ii. There was a conflict of interest in MN deciding that the concerns about the Claimant should be formally investigated, when he had been responsible for not having secured the lone working folder; iii. The investigator ‘colluding’ with witnesses (David Simpini and Leon Carr) by coaching to provide a biased witness statement]; iv. The investigation extending to consideration of the Claimant’s personal life as a mother and a wife therefore an unjustified expansion of the investigation scope; v. The investigation was unreasonably lengthy; vi. Inconsistent application of internal policies – some policies followed, chose not to follow others – workplace investigation policy, handpicked some and excluded other witnesses failed to collate all the information – lack of suspension and exclusion policy.

d. On 9 January 2024 MN directing that the Claimant could not attend preceptorship training nor any face to face training;

e. On 9 January 2024 MN advising the Claimant not to contact anyone from her team;

f. On 12 January 2024 MN directing that the Claimant was not to be working independently;

g. On 12 January 2024 MN discontinuing the Claimant’s development post;

h. MN and Holly Whiteley ‘HW’ preventing the Claimant from having supervisions during the investigation; AND/OR

i. MN completing a risk assessment on 12 February 2024 which contained derogatory remarks about the Claimant’s personal life

[101]I am satisfied that on 8 January Mr Nichols came into work and was greeted with a barrage of information about the incident that had taken place on 6 January. Staff were upset (rightly or wrongly) about the way the Claimant had acted and, indeed, some were not at work because of the incident. There was plainly enquiries to be made and had Mr Nichols not done so then he would have been abrogating his management responsibilities.

[102]Mr Nichols contacted the Claimant to discuss what had taken place with her so as to provide her a chance for input. The Claimant was central in the whole incident as it was she who had considered it necessary to return home, she who had shown the video, she who was alleged to have been abusive to staff and also she who was involved with the police outside of the building. Under the Exclusion policy (80) staff could be excluded to minimise any risk to, inter alia, staff and the Respondent. Exclusions should be in exceptional cases and as a last resort (para 1.4). It was made clear that it was not a disciplinary penalty but could be applied where it was deemed in the best interest for all parties for a party to be absent (para 3.1).

[103]It was emphasised that exclusion was an interim measure and the overall purpose included protecting the interests of, inter alia, staff and assisting an investigation process. The manager could, if the wishing to take further advice authorise up to 2 days special leave to allow a period of reflection for management consideration. It would be best if TU representation was available, but it was understood that there were times where delay would not be in the best interests (5.2.3). Alternatives were set up to exclusion and one of which was “transfer of workplace,” and this was implemented by letter dated 12 January 2024 indicating that the Claimant would return to work in a fresh location on Monday 15 January.

[104]I am satisfied that Mr Nichols was taking advice from HR over this period as he did for the totality for the time. To that extent his actions were guided by that advice. When he had the conversation on 8 January he was still in the middle of gathering facts to try and determine the way forward. Placing the Claimant on reflective leave was a sensible and pragmatic step pending a determination of next steps. I find that this sort of situation is precisely what reflective leave would normally be for. Whilst I accept that the Policy indicates that TU representation was preferable I cannot see that there would have been any material difference to the outcome.

[105]I can see no real material difference between exclusion and suspension and so I am satisfied that the detriment is made out in that the Claimant was suspended over the phone without a meeting and representation. I have already expressed my view as to the little difference representation would have made and I also do not consider that anything, but delay would have been gained by a face to face meeting as opposed to a telephone conversation. On the Claimant’s case she was quite able to put across her position to Mr Nicholls in any event. The request for a reflective statement was proper and was a request for the Claimant to explain what had happened on 6 January and to reflect as to what she may have been able to have done better. Arguably giving the Claimant, the time off to do that as opposed to requesting that she do it alongside her day to day work could be said to be a benefit to the Claimant. Nevertheless, it is clear that the Claimant did not perceive it that way and so I am satisfied that it was a detriment.

[106]Having established that factual truth of allegation (a) and that it was a detriment did the fact that the Claimant raised the protected disclosure detailed above more than a trivial influence on Mr Nichols decision to exclude / suspend. I have no hesitation in concluding that it did not.

[107]Excluding the Claimant whilst a fuller picture emerged for a short period was entirely reasonable and entirely sensible at a time when all facts still had not been gathered. One has to look at it from what was known or not known at the time. Excluding the Claimant was, in my view, inevitable and what any reasonable employer would have done. Further it is hard to imagine an individual less likely to be bothered by the suggestion that the Claimant was complaining about Ms O’Sullivan accessing her data than Mr Nichols. He was quite certain that the pink folder was not an issue. The fact that it was a breach picked up by the ICO is immaterial. I am satisfied that the protected disclosure played no part in the eminently sensible decision to exclude the Claimant on a short-term basis. Thought was put into it, and she was then given a transfer as an alternative to exclusion one week later. Detriment (a) is not well founded and is dismissed.

[108]At 1311 on 9 January the Claimant asked where she needed to be the following day as that would have been the end of her reflective leave. There was a telephone conversation between the Claimant and Mr Nichols and after that call he responded by email (190) at 1627. He informed the Claimant that she was to be placed on a further 7 days reflective leave whilst an extended fact find was carried out, she was not to contact other team members during this period nor was she to attend any of the Respondent’s premises or attend face to face training. The Claimant does not mention this conversation with Mr Nichols in her statement.

[109]Factually allegation (d) and (e) are made out as I find that preceptorship training was part of face to face training. Under the policy there was not any basis under 5.2.3 for extending the special leave for reflection but equally there was a general power to exclude in the type of circumstances that pertained. It is entirely understandable that if the fact find had not been completed and the picture was not clear then a further short hiatus would follow with the Claimant being excluded before an appropriate plan could be hatched. Armed with what the Respondent had an extension to the exclusion was entirely reasonable and sensible.

[110]Further in such circumstances the restrictions the Claimant faced are very standard and protects individuals who may be in conflict with the Claimant. There is an argument to say they could have been drawn more narrowly but this was anticipated to be for a relatively short time and were intended at that time to be for no more than 7 days. Whilst I accept they were a detriment to the Claimant they were almost inevitable consequences of the events that had been set in chain by the incidents of 6 August. I am satisfied that Mr Nichols was guided by his managers and HR as he states in his 9 January email, and I am satisfied that the protected disclosure had nothing whatsoever to do with the steps taken and Mr Nichols had no concerns whatsoever about that small point but rather the far larger whole. Allegations (d) and (e) are not made out and are dismissed.

[111]It is not at all surprising, and I find inevitable, that a deeper enquiry needed to be undertaken after Mr Nicholl’s initial information gathering. I also find that the decision to move the Claimant to Elmleigh in the interim was proportionate and wholly in keeping with the Exclusion Policy i.e., to keep exclusion as short as possible and to consider alternatives to exclusion.

[112]It is correct that Mr Nichols indicated that the Claimant was not to work independently, and I accept that was a detriment to the Claimant. Having said that in light of the various issues and the Claimant’s accepted behaviour that was a precaution that protected the Claimant as well as other staff. Whilst the safeguard may not have been essential it was certainly a decision that a risk aware organisation could have come to. It was proportionate over a relatively short period of time. That decision was borne of the 6 January incident and was not influenced in any way by the Claimant’s protected disclosure. Detriment (f) is not well-founded and is dismissed.

[113]I do not consider that factually the allegation that the Claimant’s “development post” was discontinued is made out. Due to the 6 January incident and pending further investigations the Claimant was temporarily moved. It is right that she moved to Elmleigh into a supernumerary position as per allegation (b) but once again that complies with policy and was deemed to be a better alternative that simply suspending the Claimant. It was a pragmatic solution and in keeping with other staff on temporary deployment that she would be supernumerary. Whilst the Claimant was moved on a temporary basis that was to ensure that she did not work with those individuals who had accused her of acting inappropriately. I accept that the move may not have been the best for her development, but it is hard to describe it as being discontinued. Regardless of these points that decision was borne of the 6 January incident and was not influenced in any way by the Claimant’s protected disclosure. Detriments (b) and (g) are not wellfounded and are dismissed.

[114]Mr Nichols was taking advice in relation to all these decisions, and I am satisfied that the direction of travel was one that he was advised to take. He exercised his own judgment based on the advice tendered. I am satisfied and find that he was not in the slightest bit affected by the Claimant’s protected disclosure which at this point did not cite him as having committed any misdeed. Even if it had have been aimed at him I consider it highly unlikely that he would have acted any differently to the proportionate and really what I would describe as standard way he did act faced with what was potentially a serious incident the facts of which were gradually unfolding. In my view if the Claimant had have remained suspended during the interviews that would still have been an approach that would not have caused any eyebrows to be raised.

[115]Ms Ho was engaged to do the investigation. As with many such situations this was not a task that was easily fitted into Ms Ho’s very busy work schedule. Although a member of the Respondent’s staff she was neutral in the sense that she did not know any of the participants in the January 6 incident and was outside of their work stream. The Claimant has failed at any point in her evidence to provide any evidential basis for why Ms Ho would do anything but her best in investigating matters. There was a suggestion that Ms Bikefi was a malign force guiding the hands of others but that was not something that was asserted at the Issues stage and importantly, I was provided with no basis upon which she might have had motive to act in that way, save for the protected disclosure.

[116]The Claimant did raise a grievance about matters and one of those matters was the data breach. However, even in that grievance (206) the breach of Data Protection does not take centre stage with safeguarding issues and breaching personal boundaries being just as important if not more so. For some reason, the Claimant does not cite that grievance as a protected disclosure. Ms Bikefi deals with grievance at an interim stage and there is tacit acknowledgment that the personal details needed to be more closely guarded and their use more regulated and that management approval was required before any use of the details in the pink folder were used. Once Ms Ho had done her initial fact find Ms Bikefi rejected the Claimant’s assertion that her data had been used inappropriately but had reviewed the process by which such data had been accessed and was minded to continue the approval process detailed above. It is not for me to say whether that safeguard is adequate of not, but it is a recognition that some safeguard was required to ensure that data was not used inappropriately.

[117]I accept that the Claimant was unhappy about how her data from the folder had been utilised. Her concern was primarily personal, but I have accepted that she did have just about sufficient interest in the position of her colleagues to make it a public interest issue. At most it was only part of what she complained about, and I do not accept that it was her main point but one of several. The Respondent dealt with the issue proportionately and made changes to the process to safeguard in the future. An issue was raised and the Respondent considered it and made a change. I have been unable to detect any form of angst, irritation, or concern from the Respondent about the Claimant raising that issue. In the scheme of things, the Respondent were looking at it was quite simply just one of a substantial number of matters to be dealt with following an unfortunate staff incident.

[118]Returning to Ms Ho, I found her to be a compelling and truthful witness. She had been handed a big task and was inexperienced in investigating such matters, but I find she did a professional, diligent and competent task. Having heard all of the evidence I find that Ms Ho did the very best she could and did so with integrity and independence. That is exemplified by Ms Ho’s concern as to whether she should remain the investigator for the second stage. The decision to retain her came from John McNeil (251-252) not Ms Bikefi nor Mr Nichol and was clearly done so as a matter of expediency as it was hoped by him that she would only have to interview the Claimant and so time and effort would be saved. As it turned out Ms Ho saw everybody again (which I consider was unnecessary) but that seems to me to have flowed from Ms Bekefi (250).

[119]Dealing with the allegations against Ms Ho’s investigation I do not accept that she colluded with witnesses to provide a witness statement, so factually this allegation is not made out (allegation (c iii). By and large Ms Ho’s investigation which is fully documented is very competently done. There are occasions where she does slip into questions that may be deemed to be leading, but not often and as counsel for the Respondent demonstrated in Ms Maiden’s interview she asked leading questions or reacted in a way that was positive towards the Claimant’s case as well. I have been provided with no evidence as to why Ms Ho would act in the manner alleged and expressly find that the allegation of a data breach was such a tiny part of the narrative that it was no part of her reasoning. This is an unfortunate attack on Ms Ho’s integrity which has no proper evidential foundation and I unequivocally reject it. Making an error (and even those a few and far between) is a country mile from collusion and bias and it is regrettable that Ms Ho has been accused in this way. Allegation (c iii) is not well-founded and is dismissed.

[120]The scope of the investigation was set out in Terms of Reference and the actual Allegation / Complaint did not call upon there to be any enquiry into the Claimant’s life as a mother and a wife. The context for the whole incident was founded on the reactions of staff to an incident that was seen on video that involved the Claimant’s child and the Claimant’s husband. The Claimant has failed to provide any concrete examples of what she considered to be this extension in the work of Ms Ho. I find that it was inevitable that there was some questioning about the background of this matter because that may have informed why it was that individuals acted in a certain way. I do not consider that the investigation scope was unjustifiably extended and even if that was the case it had absolutely nothing to do with the Claimant’s public interest disclosure. Allegation (c iv) is not well-founded and is dismissed.

[121]It is suggested that the investigation was unreasonably lengthy. I believe it could have been concluded more quickly because I do not consider that there was any real need to re interview everybody at the WFI stage of the enquiry. Mr O’Neill’s view that only the Claimant need be interviewed was sound advice, although whilst I take that view I can readily understand why a belt and braces approach was ultimately taken. This was not however an unreasonably lengthy investigation – it complied with the time scales set for each stage and those time scales were those within the relevant Policies. From my experience of hearing these cases and indeed from many years as a barrister that is a very rare occurrence especially in public sector settings. The fact that they were done in that time frame whilst Ms Ho was having to do her day job is a testament to her dedication to the cause and I fully accept taking into account the depth of her investigation that she did have to heavily dip into her own person out of work hours’ time to do it. The investigation was not unreasonably lengthy taking into account what needed to be covered and even if it was that was not caused by the Claimant’s protected disclosure. Allegation (c v) is not well-founded and is dismissed.

[122]The Claimant has failed to demonstrate that there was an inconsistent application of internal policies. She has failed to really nail down what she means in her statement and in her oral evidence. Were there potential areas where policies were not followed to the letter e.g., offering a further 7 day reflective leave when that was not specifically included in the policy? Yes, but no more than I would expect to see in any other investigation of a similar type. The key witnesses were spoken to, and I am unpersuaded that other witnesses would have done anything more than add to Ms Ho’s workload and delay the process. None of this in any event was linked to the public interest disclosure. Allegation (c vi) is not well-founded and is dismissed.

[123]Was Ms Ho’s contribution perfect – no, but in the scheme of things and taking into account her inexperience her investigation was a very good effort which produced a fair representation of what had taken place and placed management in a position to consider whether a disciplinary hearing was necessary. Although it is not specifically an issue for me to consider as it has not been alleged (although it could have been) that the decision to convene a disciplinary hearing was a public interest detriment, I find that the decision to do so fell well within a band of reasonable responses. The fact that ultimately the Respondent took no further action could be said to show the integrity of the process at work. I make no further comment about the ultimate outcome.

[124]Ms Ho did seek the CCTV evidence on a number of occasions, and it is here that some criticism can be levelled at Mr Nichols. It was not for him to determine whether or not it was going to be relevant or not, it was for him to promptly go and secure the footage. Even had he done so when he returned from his holiday in late January there would have been time to do so before it was deleted. I do not see that criticism can be levelled at Ms Ho in relation to this issue as she had a great deal to do, and it was appropriate and reasonable for her to second this part of the process to Mr Nicholls. She also persisted appropriately. Had she been a more experience investigator she may have known that often CCTV is kept for 30 days but she was not.

[125]It does not matter whether the CCTV footage would have been determinative or not. In fact, it would appear that the failure to secure it worked in the Claimant’s favour as it appears from the outcome letter that the most serious part of the allegations was rejected because of the failure to secure the footage. I have to say that I consider that to be an odd decision, but it worked in the Claimant’s favour. Notwithstanding that and the fact that the CCTV footage did not have the scope to be fully exculpatory (no sound, no inside coverage) I accept that it was still a detriment not to obtain it.

[126]The fault lies squarely with Mr Nichols but for the reasons I detailed earlier I do not accept that the failing was because the Claimant had made a protected disclosure. The GDPR breach was quite simply a matter of no consequence to Mr Nichols. Allegation (c i) is not well-founded and is

[127]The Claimant asserts that there was a conflict of interest in Mr Nichols deciding that the Claimant should be investigated when he had been responsible for not securing the folder. I am satisfied that back in January when the investigation was first commissioned by Mr Nichols that there was no conflict of interest that could have weighed on the mind of him because the allegation was solely against Ms O’Sullivan and Mr Nichols did not even consider that he was in any way implicated. In any event even if he did I consider it inevitable that whoever took the decision in January would have considered that a fact find was necessary. The incident clearly warranted one in order to comply with the management responsibilities towards staff and good order in the workplace. When the Claimant made a specific complaint against Mr Nichols and asked for him to be removed he was removed the next day and I find that was another example of the Respondent acting reasonably and seeking to remove from the process an individual who had allegations made against him. . Allegation (c ii) is not well-founded and is dismissed.

[128]Having made those findings I reject the Claimant’s proposition that the workplace investigation was flawed and further I am satisfied that the conduct of the investigation was not influenced in any way whatsoever by the fact that the Claimant had made a public interest disclosure. . Allegation (c) is not well-founded and is dismissed.

[129]I do not accept on the evidence that Mr Nichols and Ms Whiteley prevented the Claimant from having supervisions during the investigation. There is absolutely no evidence that Mr Nichols had any part to play in the Claimant’s day to day work whilst at Elmleigh. Ms Whiteley was the matron at that time and had a significant daily workload of which the Claimant was one small part. Ms Whiteley had a favourable impression of the Claimant as the Claimant had previously carried out a placement at Elmleigh, and that impression was a favourable one as the Claimant was viewed as very competent.

[130]Ms Whiteley gave evidence that on 15 January the Claimant gave her details of the incident with Ms O’Sullivan and that her confidentiality had been breached and that she had raised her concerns in a grievance. The Claimant does not assert that this was a public interest disclosure. I am satisfied that Ms Whiteley would have been aware that the Claimant had raised confidentiality issues and was raising a grievance against the Respondent but am wholly satisfied that this was viewed simply as a matter of background and played no part whatsoever in any of the Claimant’s treatment thereafter. Ms Whiteley was simply concerned with the day to day running of her department and getting the job done.

[131]I reject the allegation that Ms Whiteley prevented the Claimant from having supervisions. She did not. I am satisfied that she appointed a supervisor (Mr Sneade). She contacted him on 8 February to see what supervisions had been conducted (256) and he reported back on 23 February that one had taken place that day (298). At the Claimant’s grievance meeting (321) she commented that “Holly is being as supportive as she can” and she confirmed that she had met with Mr Sneade her supervisor. The Claimant’s comment is in direct contradiction to her allegation that Ms Whiteley was actively preventing her from having supervisions.

[132]There was a number of potential absences over this period by the Claimant although the precise number remains in dispute. The Claimant raised complaints about the level of supervision she was getting, and Ms Whiteley made arrangement for the Claimant to be supported by Ms Cleaver who was the Head of Nursing who would timetable a weekly slot.

[133]I find that it is likely that there was less supervision that would have been ideal over this period. I have not heard from Mr Sneade as to why that might have been, but I am wholly satisfied that it was not because Ms Whiteley was preventing it, and I can see no reason why it would have been in her interests to suggest that. Allegation (h) is not well-founded and is

[134]The final allegation is that Mr Nicholls created a risk assessment on 12 February that contained derogatory remarks about the Claimant’s personal life. That document is at pages 194 and 195 of the bundle. In the Claimant’s statement she identifies the entry under “Risk to patients / service users /carers / relatives”: “Possible failure to protect vulnerable others (her children as personally involved). No evidence that she would not protect others. Has discussed her previous difficulties in supervision.”

[135]I am unable to make any assessment as to whether there was a risk as that is outside of my skill set. Mr Nichols had to make an assessment armed on the information he had. At that time there were suggestions from Ms Maiden that the Claimant was “waiting for something serious to happen to her children” and was critical of her remaining in the situation to safeguard her children. I am satisfied on the information available at the time Mr Nichols was entitled when considering risk to flag that up and it was justified at that time as a risk. In any event if derogatory in any sense it is fanciful to suggest that the comment was made on account of the protected disclosure. Allegation (h) is not well-founded and is dismissed.

[136]It follows therefore that I do not consider the allegations to be wellfounded and accordingly I dismiss these claims I understand that the Claimant considers that she has been seriously wronged by the actions of the Respondent and that she holds that belief very strongly. Evidentially there was nothing at all to support her contention that any of the actions of the Respondent were motivated by her protected disclosure. The outcome to this Claim was not a close call by any means. My general finding is that the investigations made were inevitable taking into account the complaints that were levied and, in reality, the Claimant to emerge with a finding of No Further Action was as good an outcome as she could expect as, on the evidence, an alternative finding could in my view have been made.

[137]I understand why the Claimant was unhappy about the actions of others on 6 January and if she were true to herself she would also be unhappy about her own reaction. Since that time, as in many cases, that come before this Tribunal after an incident, there is a spiral downwards. I understand that the Claimant has now resigned from the Respondent and that it is her intention to bring another claim. That may or may not be justified but I would simply ask that all parties reflect upon the time, and the money this is costing a public service before embarking upon what is likely to be a Claim that will be almost certainly not be heard before 2027 and will definitely absorb the time, attention, and finances of the parties for many months APPROVED BY