Mrs A F D S Couto v Dorset HealthCare University NHS Foundation Trust: 6002768/2023

EMPLOYMENT TRIBUNALS

Case No 6002768/2023

Between

Mrs A F D S CoutoClaimant

Dorset HealthCare University NHS Foundation TrustRespondent

Before

Employment Judge Rayner

Date 13 February 2026

REASONS

[1]The Respondent applies to strike out allegation 4.1.26 of the case management order made by Employment Judge Dawson following a case management hearing and preliminary hearing on the 14 and 15 January 2025.

[2]The allegation made by the Claimant was that the Respondent had given references in respect of the Claimant which applied to a final written warning.

[3]The strikeout application was not addressed and, on the 17 May 2025, wrote to the employment tribunal seeking determination of their application on the papers and again copying their correspondence to the Claimant.

[4]The thrust of the Respondent's application is that the Claimant has no reasonable prospect of proving one of the matters she refers to in her ET1, and Case Number: 6002768/2023 2 that therefore any claim in respect of the reference allegedly given to Weymouth Manor care home should be struck out.

[5]The parties have provided a number of documents to the tribunal some of which all copies of references which the Respondent did provide and which do make reference to the Claimant having received a final written warning.

[6]The Respondents application is specific and in relation to the allegation made by the Claimant that the Respondent gave a negative reference to Weymouth Manor care home and that as a result the Claimant had a job offer withdrawn.

[7]The Respondent asserts that on the Claimant's own pleaded case, there is no evidence that the reason why the Claimant was not offered work was a negative reference because there is positive evidence stated by the Weymouth Manor care home that the reason the Claimant was not offered work was because there had been a restructuring and the care home no longer needed to recruit to the position the Claimant had applied for.

[8]The Respondent asserts in its ET3, as amended following the 14/15 February hearing that it had never received a reference request from Weymouth Manor care home for the Claimant and has not provided a reference request for her.

[9]The Claimant did not respond to the initial application but has now responded, stating that she does not agree that this part of her claim should be struck out. She does not address the specific matters raised by the Respondent in their application.

[10]I have reminded myself of the key legal principles when considering strikeout of a claim in advance of a final hearing. They can be summarised as follows.

Legal Principles

[11]The law is helpfully summarised in Hussain v UPS

UKEAT/0221/17/DM

[19]The power to strike out an ET claim is provided by Rule 37 of Schedule 1 of the 2013 Rules, which allows that an ET may strike out all or part of a claim on the basis that it has no reasonable prospect of success. This is, for example, to be contrasted with an ET’s power to order that an allegation or argument may only be pursued upon the payment of a deposit, which requires that the ET consider that the allegation or argument in question has little reasonable prospect of success. Case Number: 6002768/2023 3

[20]In Ezsias v North 1126 CA, Lord Justice Maurice Kay stated as follows: “29. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the Claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. …”

[21]Guidance was further provided by the EAT in Balls v Downham Market High School & College

[2011] IRLR 217

at paragraph 6. “6. Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success … the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.” (Original emphasis)

[22]More specifically, in Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly

[2012] IRLR 755

CS, it was noted that in almost every case the decision in an unfair dismissal claim is fact-sensitive, and it was further observed that: “30. … where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts …”

[23]And further, where there is a dispute as to the reason for the dismissal, it has been stated that it would be very rare indeed that the dispute could be resolved without hearing from the party or parties who actually made the decision (per Langstaff J in Romanowska v Aspirations Care Ltd

UKEAT/0015/14

at paragraph 15). As for discrimination cases, it has been recognised that involving, as they do, an investigation as to why an employer took a particular step, they will generally (allowing for the exceptional case) Whilst there is no ban on striking out a discrimination claim at an early stage, there is a public interest in such claims being heard (Ukegheson v Haringey London Borough Council

[2015] ICR 1285

, para 4). 12. In Ahir v British Airways

[2017] EWCA Civ 1392

, the Court of Appeal gave the following guidance 16. Case Number: 6002768/2023 4 16.There is force in Mr Burns's point. Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. …As I already said, in a case of this kind, where there is on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the Claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced.13. Ahir was considered in Kaul v Ministry of Justice

[2023] EAT 41

which also highlighted the importance of considering whether the acts complained of were on their face rationally and plausibly explained and whether there is any background material which tends to undermine that explanation. It also emphasised that at a strike-out stage there is a risk that any conclusion that there is no reasonable prospect of success on a material matter of fact will be premature and a risk that something might emerge later in the litigation which wrong-foots what at the time of the strike-out application appears to be obvious. Conclusion

14. The Claimant's allegation is that she was subjected to detriment by the provision of a poor reference because she was a whistleblower. The Claimant also makes allegations of race and religious discrimination.

15. In respect of any specific allegation, the burden is on the Claimant to prove facts, which demonstrate in the detriment case that she was subject to the detriment which she alleges. In a discrimination claim, she would need to prove that she was treated in the way alleged and that such treatment was unfavourable or less favourable for example.

16. The point the Respondent makes is that on the basis of the evidence now available, following disclosure of documents, there is no evidence to support the Claimant’s factual assertion that a negative reference was ever given and positive evidence produced by the Claimant herself, to suggest the contrary. Case Number: 6002768/2023 5

17. Considering that evidence and taking the claimants case at its highest, I conclude that the Claimant could only succeed if she were able to point to the Respondent being dishonest about having been asked for and having provided a reference and if she could prove that the care home was also being dishonest about the reason why they did not offer her a job. I conclude, taking into account the letter written by the care home, and the lack of any reference from the Respondent, there is , in my judgment , no reasonable prospect of the claimant being able to prove such facts, or any facts from which it might be inferred. This is a case where I conclude that the facts asserted by the claimant are inexplicably in conflict with contemporaneous documentation.

18. I agree with the Respondent that at this stage in proceedings, having clarified the issues and following disclosure of documentation , the relevant parts of which I have been referred to and which the Claimant has had an opportunity to comment on, there is no reasonable prospect of the Claimant being able to satisfy an employment tribunal in respect of this particular allegation.

19. In reaching this conclusion I take into account the fact that there or a number of other references from the Respondent which do clearly state that the Claimant had a final written warning for misconduct on her file, and it is therefore difficult to see why the Respondent would not disclose references written in respect of any other reference request.

20. Rule 38 of the Employment Tribunal Procedure Rules 2024 provides that a tribunal may strike out a part of a claim or response at any stage of proceedings either on its own initiative or an application of the parties on the grounds that it has no reasonable prospects of success. The tribunal may not strike out unless the party in question has been given a reasonable opportunity to make representations in writing or if requested by a party at a hearing.

21. I am satisfied that the Claimant has been given reasonable opportunities to make representations in writing and that she has done so and that neither party have requested a hearing.

22. I conclude that the Claimant has no reasonable prospect of succeeding improving that she was subject to detriment by the Respondent giving a negative reference to the Weymouth Manor Care Home, and I therefore strike out that allegation only, under rule 38 ETPR 2024. 23. To be clear and for the avoidance of doubt any other allegation made by the Claimant that she was subject to detriment by the provision of a negative reference which is covered by allegation 4.1.26, remains alive allegation and will be determined by the employment tribunal in November/December 2025. Case Number: 6002768/2023 6 ____________________ Employment Judge Rayner Dated: 6 June 2025 Sent to the parties on 10 June 2025 Jade Lobb For the Tribunal Note: Reasons for the decision having been given orally at the hearing, written reasons will not be provided unless a written request is received from either party within 14 days of the sending of this record of the decision. Case Number: 6002768/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mrs A Ferrreira da Silva Couto Respondent: Dorset Healthcare University NHS Foundation Trust Heard at: Southampton On: 19, 20, 21, 24, 25, 26, 27, 28, November and 1 (in chambers), 2 (in chambers), 3 and 4 December 2025 Before: Employment Judge Dawson Appearances For the claimant: Representing herself For the respondent: Mr Keen, counsel

Conclusion

[1]By a claim forms presented on 7 December 2023 and 8 October 2024 the claimant brought the following complaints; Case Number: 6002768/2023 2a. Unfair (constructive) dismissal;

b. Discrimination on the grounds of race and religion;

c. Detriment on the grounds of public interest disclosure;

d. Breach of contract (relating to back pay);

e. Unlawful deductions from wages;

f. Accrued but unpaid holiday pay.

The issues

[2]The issues were recorded in an order following a Case Management hearing which took place on 14 and 15 January 2025.

[3]At the outset of the hearing, I went through the issues with the parties in detail. Subject to what is said below, all the parties agreed that the list of issues was accurate and set out the claims that I must determine.

[4]Prior to the hearing the claimant withdrew her claims of religious discrimination and harassment related to religion.

[5]The list of issues is set out in Appendix 2 to this judgment. Conduct of the Hearing Reasonable Adjustments

[6]Neither party required any adjustments to be made for their participation. The discussion about a Witness Order

[7]At 6:22 p.m. on 18th November 2025 the claimant wrote to the tribunal stating that she would like to make an application for three witnesses to be called. The application was discussed on the first morning of the hearing (19 November 2025) and the claimant confirmed that she had not provided any witness statements from those people and was asking the Tribunal to issue a witness summons. It was apparent from the page numbers of the bundle which were referred to in the covering email why the claimant wished to call those potential witnesses and, it seemed to me, that they could give potentially relevant evidence. The respondent accepted that the witnesses had said what they were recorded to have said within the documents referred to in the application. It did not accept that what they had said was, necessarily, true.

[8]The application did not give the addresses for the witnesses or explain why a witness order was necessary to secure their attendance (as required by the Presidential Guidance – General Case Management). The claimant confirmed that she believed the first two witnesses still worked for the respondent and the third still worked for the nursing agency because she Case Number: 6002768/2023 3 was able to follow her on social media. The claimant had not asked any of the witnesses whether they would be willing to give evidence in this case.

[9]I explained to the claimant that if she called the witnesses, save in exceptional circumstances where they were treated as hostile, she would not be able to cross-examine them. Moreover, if they were called, as long as the respondent’s barrister asked questions which were relevant, he could ask the witnesses about any matter he wished to. Thus, although the claimant may call a witness to deal with point “A”, there is no reason why the witness could not be asked about “B”.

[10]In discussion with the claimant I explained that if I were to issue a witness summons, I could not know whether the witnesses would be available, they would have little time to apply to set the summons aside and they would have little time to prepare. On the other hand, I accepted that the evidence was potentially relevant.

[11]The claimant indicated that if she could rely upon the documents referred to in the application as evidence of what those potential witnesses had said within internal proceedings, she did not pursue the application. I checked that the claimant understood that she was no longer pursuing an application for witness orders and she confirmed that was the case. In those circumstances no order was made and I did not hear from the potential witnesses. Rulings

[12]In the course of the hearing I gave oral decisions on;a. whether documents in the bundle may be redacted by the respondent

b. the respondent’s application to exclude the evidence of Ramela O’ Malley on the grounds of relevance.

[13]The ruling in respect of Ms O’Malley’s is recorded in Appendix 1 to this judgment. The ruling in respect of the redaction of documents is not contained in this set of reasons because it refers to personal conditions of individuals which I held should be kept private and, also, to the content of without prejudice negotiations. If reasons are requested in respect of that ruling, they will be contained in a separate case management order.

[14]I also made rulings on the admissibility of extra documents as set out below.

The evidence

[15]I was provided with a bundle of witness statements running to 108 pages and a bundle running, initially to 1445 pages. Except where otherwise stated, references to page numbers in this judgment are to the hearing bundle. Case Number: 6002768/2023 4

[16]Generally, where documents are quoted in this judgment, they are quoted verbatim without any attempt to correct spelling or grammar.

[17]In addition, the tribunal was present with a large amount of additional documents throughout the course of the hearing. On the first day of the hearing the parties agreed to the addition of pages 1446 – 1463, page 6 of the Disciplinary Policy & Procedure and a bundle entitled “Radipole Ward Layout”. On the next day the parties also agreed to the addition of a bundle which had been paginated with pages 1 – 58 (hereafter referred to as the Additional Bundle). On 24 November 2025 the claimant sought to add a further bundle which was unpaginated but reasonably substantial. The respondent objected on the basis that it had not had time to consider the documents. The claimant indicated that they had been disclosed but omitted from the bundle. I had observed from the interchanges between parties over the course of the hearing before 24 November 2025 there had been difficulties in agreeing the bundle. It seemed to me undesirable to lose more hearing time on an argument about the contents of the bundle when the tribunal’s usual experience is that only a fraction of documents placed before it are referred to. I directed that I would receive the additional bundle into evidence, if a particular document was put to a witness by the claimant which the respondent objected to, I would hear its objections at that time, if it was necessary and appropriate I would allow the respondent to recall the claimant for cross-examination on the additional documents.

[18]On Saturday, 22 November 2025, the claimant sent a number of documents to the tribunal being extracts from a news website about the closure of a care home. The emails were only forwarded to me on 25 November 2025 and had not been drawn to my attention before then. In the end the claimant did not ask me to look at any of those documents in particular or refer to them in the course of cross examination or closing submissions.

[19]Because of the significant delay in emails which were sent to the tribual reaching me, I directed that any further documents that the parties wished me to see must be provided in hard copy. Although late in the proceedings I became aware that the claimant may have emailed further documents to the tribunal, I was not provided with hard copies of those documents and I was not asked to look at them. As far as I am aware, no such documents have been sent to via the tribunal’s internal email system.

[20]I heard evidence from the claimant and for the respondent I heard froma. Kirsty Winning, Senior HR Advisor

b. Katie Smith, Staff Nurse

c. Ruth Dean, Healthcare assistant

d. Heidi Garner, Staff Nurse

e. Scarlett Hanger, Healthcare assistant Case Number: 6002768/2023 5

f. Miriam Orrell, Band 5 Staff Nurse

g. Melissa Mitchell, Head of Primary and Psychological Mental Health Services Undertook shifts as the On-Call Manager

h. Sharon Kennedy, Ward Manager, then Acting Matron

i. Anne Hiscock,

j. Darren Cox, Matron for Westhaven and Bridport Community Hospital (since October 2023)

k. Jo Clarke, Service Manager for Community Hospitals

[21]All job titles are as at the relevant time Timetable

[22]The timetable which had been set down at the case management hearing on 14 and 15 January 2025 was discussed at the outset of the hearing and I explained to the parties the importance of sticking to it.

[23]However, the original timetable anticipated 3.5 days hearing time to be spent on the claimant’s evidence and the same amount of time on the respondent’s evidence, on the understanding that the claimant intended to call five additional witnesses and the respondent intended to call 10 witnesses. As a consequence of my ruling (above) and the claimant’s decision not to ask for a witness order in respect of the three potential witnesses, she was the only witness on her behalf. I directed, therefore, that the respondent must complete its cross examination of the claimant by 4 pm on 21 November 2025 and the whole of the week commencing 24 November 2025 was set aside for the respondent’s evidence. That allowed the claimant significantly more time for cross examination. A detailed timetable was agreed, setting out how much time the claimant would spend in cross examination of each witness.

[24]I drew the parties’ attention to the principles laid down in the Presidential Guidance for General Case Management about asking important questions first and avoiding irrelevant questions.

[25]It was not necessary to exercise a guillotine in respect of any parts of the evidence and although the claimant asked for a little extra time in respect of some of the witnesses, the timetable was adhered to. Indeed, for the most part, the claimant finished questioning witnesses early, which enabled tribunal’s timetable to remain on track even after losing 26 November 2025 to illness, as set out below. It might be that, had the timetable been more generous both Mr Keen and Ms Ferrreira da Silva Couto would have wanted to spend more time cross-examining. Nevertheless, I am satisfied that having regard to the issues in the case and the other matters which I must consider under the overriding objective, the case could be fairly presented by both sides in the times allowed and the timetable was appropriate. Case Number: 6002768/2023 6

[26]The claimant explained on 25 November 2025, that she was finding the hearings stressful and did not feel well. I asked her whether she wanted me to make any adjustments to the tribunal process but she did not. It was agreed, however, that insofar as the timetable for the cross-examination of witnesses existed, if the claimant went faster than she had anticipated on any given day, the hearing day would end, rather than me asking the respondent call its next witness. In that way the claimant was able to pace herself.

[27]The claimant did not attend the hearing on 26 November 2025, having emailed the tribunal at 05:00 stating that she was unwell. The hearing was adjourned to the following day.

[28]I record my gratitude to the parties for the careful way both sides presented their case. Both parties carried out their cross examinations courteously and, given that she represented herself and her lack of experience in the tribunal, it was particularly noteworthy that Ms Ferrreira da Silva Couto was extremely well prepared and conversant with the documents on which she sought to ask questions. The Law Approach To Evidence

The Law

[29]In Gestmin SGPS SA v Credit Suisse (UK) Ltd, Leggatt J gave the following helpful guidance Evidence Based on Recollection [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and

(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External Case Number: 6002768/2023 7 information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory) … [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. ... Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

[30]I have approached the evidence in that way, whilst bearing in mind that in an employment context it is likely there are less documents than there would be in a commercial case. Law on Discrimination and Harassment

[31]The following are relevant sections from the Equality Act 2010. 13 Direct discrimination 1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 26 Harassment 1) A person (A) harasses another (B) if— a) A engages in unwanted conduct related to a relevant protected characteristic, and b) the conduct has the purpose or effect of— a) violating B's dignity, or b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B 4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— a) the perception of B; b) the other circumstances of the case; c) whether it is reasonable for the conduct to have that effect. Case Number: 6002768/2023 8

[39]Employees and applicants(1) An employer (A) must not discriminate against a person (B)— (a) … (c) by dismissing B; (d) by subjecting B to any other detriment. 109 Liability of employers and principals (1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. 212 General interpretation (1) In this Act— … “detriment” does not, subject to subsection (5), include conduct which amounts to harassment. Causation 32. In considering questions of causation, in Nagarajan

[1999] IRLR 572

, the House of Lords held that that if the protected characteristic had a 'significant influence' on the outcome, discrimination would be made out. The crucial question in every case was, 'why the complainant received less favourable treatment … Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job?' 33. In Chief Constable of Greater Manchester v Bailey

[2017] EWCA Civ 425

it was held at para 12: “Both sections use the term “because”/“because of”. Case Number: 6002768/2023 9 This replaces the terminology of the predecessor legislation, which referred to the “grounds” or “reason” for the act complained of. It is well-established that there is no change in the meaning, and it remains common to refer to the underlying issue as the “reason why” issue. In a case of the present kind establishing the reason why the act complained of was done requires an examination of what Lord Nicholls in his seminal speech in Nagarajan v London Regional Transport

[2000] 1 AC 501

, referred to as “the mental processes” of the putative discriminator (see at p. 511 A-B). Other authorities use the term “motivation” (while cautioning that this is not necessarily the same as “motive”). It is also well established that an act will be done “because of” a protected characteristic, or “because” the claimant has done a protected act, as long as that had a significant influence on the outcome: see, again, Nagarajan, at p. 513B.” The Burden of Proof and drawing of inferences 34. In Madarassy v Nomura International plc

[2007] IRLR 246

, the Court of Appeal held, at paragraphs 56-57, “The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57 'Could conclude' in s.63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage (which I shall discuss later), the tribunal would need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like as required by s.5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment. 35. In Hewage v Grampian Health Board

[2012] UKSC 37

, the Supreme Court held “Furthermore, as Underhill J pointed out in Martin v Devonshires Solicitors

[2011] ICR 352

(para 39) it is important not to make too much of the role of the burden of proof provisions. They will require careful attention Case Number: 6002768/2023 10 where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” 36. In Bahl v The Law Society

[2004] IRLR 799

,e the Court of Appeal held 100 … It has been suggested, not least by Mr de Mello in the present case, that Sedley LJ was there placing an important gloss on Zafar to the effect that it is open to a tribunal to infer discrimination from unreasonable treatment, at least if the alleged discriminator does not show by evidence that equally unreasonable treatment would have been applied to a white person or a man. 101 In our judgment, the answer to this submission is that contained in the judgment of Elias J in the present case. It is correct, as Sedley LJ said, that racial or sex discrimination may be inferred if there is no explanation for unreasonable treatment. This is not an inference from unreasonable treatment itself but from the absence of any explanation for it. However, the final words in the passage which we have quoted from Anya are not to be construed in the manner that Mr de Mello submits. That would be inconsistent with Zafar. It is not the case that an alleged discriminator can only avoid an adverse inference by proving that he behaves equally unreasonably to everybody. As Elias J observed (paragraph 97): 'Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case.' Accordingly, proof of equally unreasonable treatment of all is merely one way of avoiding an inference of unlawful discrimination. It is not the only way. He added (ibid): 'The inference may also be rebutted – and indeed this will, we suspect, be far more common – by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal's own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.' We entirely agree with that impressive analysis. As we shall see, it resonates in this appeal Case Number: 6002768/2023 11 Meaning of Detriment 37. In deciding whether the claimant was treated unfavourably we have had regard to the decision in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

that, in respect of the definition of detriment, 38. “As May LJ put it in De Souza v Automobile Association

[1986] ICR 514

, 522 g, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. 39. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Brightman LJ. As he put it in Ministry of Defence v Jeremiah

[1980] ICR 13

, 30, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank plc v Kapur (No 2)

[1995] IRLR 87

. But, contrary to the view that was expressed in Lord Chancellor v Coker

[2001] ICR 507

on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. (Paragraph 34 to 35).

Compensation

[40]In Chagger v Abbey National Plc

[2010] IRLR 47

the Court of Appeal held that “ In assessing compensation for discriminatory dismissal, it is necessary to ask what would have occurred had there been no unlawful discrimination. If there were a chance that dismissal would have occurred in any event, even had there been no discrimination, then in the normal way that must be factored into the calculation of loss. The gravity of the alleged discrimination is irrelevant to the question of what would have happened had there been no discrimination” (taken from the head note). Law on Constructive Dismissal

[41]A termination of the contract by the employee will constitute a dismissal within the Employment Rights Act 1996 if he or she is entitled to so terminate it because of the employer's conduct. The Court of Appeal made clear in Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

, it is not enough for the employee to leave merely because the employer has acted unreasonably; its conduct must amount to a breach of the contract of employment.

[42]In this case the claimant, in respect of the breach of contract, relies upon a breach of the impled term of trust and confidence.

[43]In Malik v Bank of Credit and Commerce International SA

[1997] IRLR 462

, the term (was held to be as follows: “The employer shall not without Case Number: 6002768/2023 12 reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.''

[44]In Tullett Prebon PLC and Ors v BGC Brokers LP and Ors

[2011] EWCA Civ 131

Maurice Kay LJ endorsed the following legal test at §20: '… whether, looking at all the circumstances objectively, that is from the perspective of a reasonable person in the position of the innocent party, the contract breaker has clearly shown an intention to abandon and altogether refuse to perform the contract'.

[45]In Nottinghamshire County Council v Meikle

[2004] IRLR 703

it was held that: “33 It has been held by the EAT in Jones v Sirl and Son (Furnishers) Ltd

[1997] IRLR 493

that in constructive dismissal cases the repudiatory breach by the employer need not be the sole cause of the employee's resignation. The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of contract and that the employee may leave because of both those breaches and another factor, such as the availability of another job. It suggested that the test to be applied was whether the breach or breaches were the 'effective cause' of the resignation. I see the attractions of that approach, but there are dangers in getting drawn too far into questions about the employee's motives. It must be remembered that we are dealing here with a contractual relationship, and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other: see the Western Excavating case. The proper approach, therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract of employment as at an end. It must be in response to the repudiation, but the fact that the employee also objected to the other actions or inactions of the employer, not amounting to a breach of contract, would not vitiate the acceptance of the repudiation. It follows that, in the present case, it was enough that the employee resigned in response, at least in part, to fundamental breaches of contract by NCC.

[46]In circumstances where a dismissal is unfair the tribunal must consider how much compensation to award in accordance with sections 122 and 123 the employment rights 1996.

[47]In respect of the basic award, section 122 (2) ERA 1996 provides “Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly”

[48]In respect of the compensatory award, s123 ERA 1996 provides Case Number: 6002768/2023 13 (1)Subject to the provisions of this section and sections … , the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. ... (6)Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[49]It is also necessary to take account the principles laid down in Rao v Civil Aviation Authority

[1994] IRLR 240

. In making the calculation, the Employment Tribunal should first assess the amount of the loss taking account of Polkey, including the chance of employment continuing if the employee had not been unfairly dismissed. Thereafter, and in light of that finding, the Tribunal should decide the extent to which the employee caused or contributed to the dismissal and the amount by which it would be just and equitable to reduce the compensatory award in that respect.

[50]When considering a section 123(6), the tribunal must consider whether the conduct was blameworthy, whether it caused or contributed to the claimant’s dismissal and whether, if so, it would be just and equitable to reduce the basic and/or compensatory awards and, if so, by how much. Deduction from Wages

[51]The Employment Rights Act 1996 contains the following relevant sections 13.— Right not to suffer unauthorised deductions. (1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction. … (3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion. Case Number: 6002768/2023 14 Findings of Fact & Analysis

[52]Over the course of the hearing, I have heard a significant amount of evidence, often about things only tangentially related to the issues. It is not possible to deliver, in a concise judgement, findings on every single point that I have heard. I limit the findings which I make to those which I need to make in order to resolve the issues.

[53]I have considerable sympathy for Ms Ferrreira da Silva Couto both in respect of some of the family circumstances she found herself in and also because of the evident distress which she had in presenting her case. As I set out, I have no doubt that she believes she has been the victim of a substantial injustice. However, my task is to judge the evidence dispassionately. In criminal trials, jurors are often told “Your task is to judge the evidence fairly and objectively and that involves considering it dispassionately. Emotions such as anger, disgust or sympathy must not form part of your decisionmaking process”. No less applies to any judicial decision maker. Further, I must make my decision on the evidence which has been presented to the tribunal and only on that evidence.

Credibility

[54]Both parties, in their own way, asked me to treat the other (or the respondent’s witnesses) as incredible.

[55]In respect of the claimant’s evidence, Mr Keen pointed, in particular, to two examples of where he says Ms Ferrreira da Silva Couto was not credible. They were in relation to the “Air Frustrations!! Bitch” issue and the changing account of what the claimant said to Mr Cox about the fact that he was gay.

[56]I deal with those points below, I accept Mr Keen’s submission that the accounts of the claimant either do not accord with the documents from the time or have changed. I did not, however, form the view that the claimant was lying to me. It seems to me that the claimant passionately feels that she has been the victim of an injustice and that very strong view colours her recollection of events some 2 years on. It seemed to me, as I listened to the claimant, that she was highly focused on her own perception of events and was not always able to see how others might perceive things. I find that her evidence is a clear example of the dangers highlighted in Gestmin.

[57]However, the claimant, with some force, can also criticise the respondent’s witnesses in terms of credibility. In respect of the incidents on the wards, it is fair to say that individual nurses and/or healthcare assistants gave slightly differing accounts of the chronology. Those differing accounts do not trouble me particularly. In a fast-moving situation, where different witnesses were standing in different places, in circumstances where they had no notice of what was about to happen, it does not seem to me to be at all surprising that accounts have differed in some respects. Indeed, it seems to me that if those witnesses’ accounts had all matched perfectly, that would be more likely to indicate that they had had colluded with each other. Case Number: 6002768/2023 15

[58]I was, however, more troubled about some of the evidence in relation to the disciplinary processes. In her evidence, Ms Kennedy said to me that the claimant had made complaints about a different WhatsApp group during the disciplinary process and comments which had been made on it about patients. She did not investigate the allegation and, somewhat strikingly, told me that if the complaint had been made by somebody different to the claimant, she would have made arrangements to look into the complaint. Ms Hiscock, in her evidence, told me that she had raised the WhatsApp group concerns with Ms Kennedy, and Ms Kennedy took it seriously and looked into it and spoke to the people involved. Both accounts cannot be correct. Ms Hiscock also stated that the statement referred to at paragraph 37 of her witness statement and at pages 54 to 65 of the bundle was, in fact, a statement created for these proceedings, which is patently incorrect. When I asked her how the page numbers had come to be inserted into her witness statement, she told me that she did not know. That is a matter of considerable concern given that she confirmed her statement was true at the outset of her evidence. Again, however, it seems to me to be more likely that this is an example of the type of changing recollections which occur over time exemplified in Gestmin than a deliberate attempt to mislead the tribunal.

[59]All of those matters emphasise the need for me to attempt to resolve factual disputes by reference to the contemporaneous documents and that is the approach I have taken. General Findings

[60]It is not disputed that the claimant is Portuguese, nor was her witness statement challenged insofar as it outlines her arrival in the UK in September 2005 after she had closed her own business (being a coffee shop) in Portugal. She describes arriving in the UK looking for a better life after a traumatic childhood. She explains that as a Portuguese native, she is expressive and emotive in her communication style. She may speak quite fast and in a louder tone. I accept that evidence.

[61]It is also not in dispute that the claimant joined the respondent in 2018 as a bank worker and she was offered a substantive work contract at Colmers Ward, Bridport Community Hospital (Colmers) on 3 January 2021 as a healthcare assistant, band 2. For the sake of accuracy, the contract was, in fact, with the respondent and the claimant’s place of work was described as Bridport Hospital (page 547).

[62]It is not suggested that the claimant was anything other than a good healthcare assistant in terms of the care which you provided to patients.

[63]In 2021 a disciplinary investigation was carried out in respect of the claimant and in 2022 she raised a grievance. Neither event forms the subject matter of these proceedings and it was indicated during the course of the proceedings that the claimant had brought an earlier set of proceedings in respect of some or all of those matters. However, both parties referred to those matters for different reasons. The respondent referred to the disciplinary proceedings because it says that it is necessary for the tribunal Case Number: 6002768/2023 16 in these proceedings to know what the claimant understood by the word “bitch”. The claimant says that the outcome in the grievance proceedings is relevant because the peopel who she raised a grievance about were not subjected to any sanction, whereas, unfairly, the claimant was sanctioned in 2023. It is necessary therefore to make some findings in relation to those events.

[64]In respect of the 2021 disciplinary process, in the context of a shift of the claimant being cancelled on the Waterston Ward, comments had been made on the “Bank shifts” WhatsApp group chat in around May 2021. Sarah Stuart had posted a message stating “this group is not the appropriate forum to air frustrations or grievances about staff or departments. Please stop doing so and take this up elsewhere.” The claimant had, in response, written “air frustrations!? Please accept my sincere apologies for feeling frustrated or should I say discriminated!?”. In addition, the claimant had written a message to “Jose Bank” stating “Air frustration!? Bitch” and went on to write “she was the one who booked me in on Friday for tonight” (668). In circumstances which are not entirely clear to me, the messages sent to “José Bank” were forwarded to Samantha Roberts. Ms Roberts, on 17 May 2021, launched an investigation both into the use of the word bitch and the original airing of grievances on the WhatsApp group

[65]In an email, the full details of which do not appear in the bundle, the claimant wrote: Regarding the conversation with JGP on the WhatsApp private msg if Sam Roberts found the use of the Word B… inappropriate towards the manager I do apologies but for me and I always been told that b… is someone who is belligerent, unreasonable. That’s the way I felt by the way she replied to me. p680, sic

[66]Following the investigation, Ms Roberts decided to restrict the claimant’s work on the trust bank to her home ward, Colmers, and said that there would be support for the claimant in exploring why that type of behaviour was inappropriate (page 684).

[67]When the claimant was asked about this in this hearing, the original messages to the “Bank shifts” WhatsApp group were not before the tribunal. In answer to questions by counsel for the respondent, the claimant stated that it was not her who wrote the word bitch, she said that “Sarah” had done and she had written more than that. She stated that if she had called Sarah a bitch why would she send it to the manager. When it was put to the claimant that she had admitted using the word “bitch” at page 680, she stated that she was not apologising for using the word bitch but for not understanding the word. I regret that I am not able to accept the evidence of the claimant in this respect. Having, received the WhatsApp message into evidence, it is clear that the claimant did call Sarah Linden a bitch and did apologise for doing so. It follows that I reject her explanation given IN Case Number: 6002768/2023 17 evidence at this hearing. I also find, therefore, that the claimant had a good understanding of the offensive nature of the term by May 2021.

[68]Whilst at Colmers, on 8 June 2022, the claimant raised a grievance asserting that she had been treated unfavourably and unfairly by colleagues. Throughout this hearing the grievance has been referred to, somewhat colloquially, as a grievance about bullying. That is a reasonable description. The investigation found evidence to indicate negative behaviours displayed towards colleagues at Colmers, including ““clicky behaviours”, “bitching behind peoples backs”, “strongly bonded working relationships”, “critical chat”, “lack of respect” “flouting of rules” and “feelings of exclusion”.” (Page 692). The same report however found that staff across the Colmers ward had been frustrated by the claimant phoning in at the last minute to inform of sickness or inability to get to work and her raising her voice when communicating with colleagues (page 692).

[69]By letter dated 18 November 2022, Helen De Jonge, matron for Westhaven and Bridport Community Hospitals upheld parts of the grievance and noted that the claimant had, by then, moved to Westhaven, a different trust location. Therefore, the claimant’s contact with members of her previous team was limited. It was proposed to arrange facilitated meetings between the claimant and her former colleagues with support from HR to try and rebuild relationships (page 700).

[70]The claimant had moved to Westhaven on a temporary basis whilst her grievance was investigated. The claimant says that the move was made permanent in September 2022. In her oral evidence Ms Winning stated that the move was not punitive but simply to reduce the claimant’s stress, but once it had been made, it aligned with a flexible working request which the claimant had made. The claimant challenged the suggestion that the move suited her for cost reasons and I do not need to decide that point. Suffice it to say that everybody agrees that by September 2022 (or October at the latest) the claimant have moved to work permanently on the Radipole Ward at the Westhaven site. She worked Friday, Saturday and Sunday nights (page 576).

[71]On the Radipole ward were a number of bays and side rooms. Between the bays was a central area where the nurses’ desk was situated. The area is reasonably well shown by photograph number 6 in the bundle “Radipole Ward Layout.” That photo was referred to extensively in evidence and it was agreed that the photographer is, effectively, standing in the double doors to Bay 4. There is also a plan at page 7 of that bundle, but it does not show the relevant doors.

[72]Staff worked in pairs and were allocated to bays and side rooms. Each pair was referred to as a “team”. Team 1 would look after Bay 1 (the male Bay with 8 beds) and 3 side rooms near the staff room, Team 2 would look after Bay 2 and Bay 3 (4 and 7 beds respectively), Team 3 would look after Bay 4, 3 side rooms and the palliative suite. Case Number: 6002768/2023 18

[73]I turn then to make specific findings in relation to the list of issues. It is often useful in judgements to set out in one place all of the findings of fact and then move on to a separate statement of how the law has been applied to those findings and then separately to state conclusions. Given the number of factual allegations in this case, I consider that to adopt that approach would make the decision more difficult to follow. I have, therefore, at some points analysed the factual findings I have made in the light of the law, at the same time as I make the findings.

[74]I start by setting out my findings on the question of whether the claimant made protected disclosures and then, because of the substantial overlap between the claims of constructive dismissal, detriment and unfair dismissal because of a protected disclosure and race discrimination, I deal with those findings of fact together. Having made those findings of fact, I then return to the remaining issues and analyse them in the light of the findings of fact which I have made. Findings of Fact Related to the Issues Issue 3.1- Protected Disclosures Issue 3.1.1.1

[75]The claimant says that on 25 June 2023 she spoke to Katie Smith and Heidi Garner and said that she did not agree the people from the same bay should be allowed to go on a break at the same time because it was not safe to leave patients.

[76]The claimant’s general point is that if the 2 staff members from the same bay are required to have breaks at the same time, no one is available to attend to the patients. It is therefore unsafe to send both staff from the same bay at the same time.

[77]Ruth Dean largely agreed with the claimant, she agreed that it was not normal to send staff from the same bay at the same time but stated that it does sometimes happen. When it happens, she told me, another member of staff is allocated to the bay and given a handover.

[78]Katie Smith, similarly, agreed that if 2 staff from the same bay were being sent on a break there would be a handover, the nurse covering the break would ask who needs toileting etc.

[79]There is no doubt that on 25 June 2023 the claimant was very upset about what she perceived to be the unfair allocation of breaks. A large amount of the cross-examination which was conducted by the claimant was spent dealing with the period of time when the claimant became aware of the break which she was allocated to on 25 June 2023, the unfairness of that allocation and the matters which led to her leaving the ward. The claimant’s cross examination focused on the precise chronology of when different people were involved in the conversations, since she sought to establish that everyone knew that she had been allocated the 3rd break before she did. Case Number: 6002768/2023 19

[80]For the purposes of this issue, my finding must be focused on whether the claimant said that she did not agree that people from the same bay should be allowed to go on a break at the same time because it was not safe to leave patients.

[81]When the claimant cross-examined Heidi Garner on that point, she put to Ms Garner that she (Ms Garner) approached the nurse’s station and was concerned that 2 staff members in the same bay should not go at the same time. It is, to some extent, instructive to note that the claimant did not put to Ms Garner that she (the claimant) had made the same point. Moreover, when the claimant cross-examined Katie Smith, the thrust of her crossexamination was around the fact that she had asked Katie Smith why Scarlett Hanger needed to go on the first break and why she needed to go first on every shift and said that she was fed up of that situation. She did not put to Katie Smith that she had raised patient concerns with her. I only place limited reliance upon the points put by the claimant in cross-examination, because the claimant is not a legal representative, but the questions that she put does provide insight as to the claimant recollection of what happened on the night.

[82]Of much more significance is the email which the claimant wrote on 26 June 2023 at 01:09 to Sharon Kennedy and Helen De Jonge where she sets out an account of what had happened leading up to her leaving the ward. In that email she does not refer to having raised concerns about patients (page 723 – 724). It is necessary to consider the email in full, given the amount of detail in it, but it is particularly relevant to note the following section: I only said that Ruth has worked the night before and she's should be the 1st one to choose which break she wants and it appears she choose the second break. I do not think the breaks are allocated fairly with staff as at times they say who works at the same bay can't go at same time. But this rule only works when Scarlett or Haylee are working because they always want to go 1st or seconds even if they didn't work the night before. The same happened with choosing the bays where they want to work and with who they want to work. I am always allocated last break even if I been working the night before or 1st when no one wants to go 1st. Katie did say if you are not happy I need to say . Tonight I decided to say that I don't understand why Scarlett has to go 1st all the time she's on duty even when she not working the following night or worked the night before.

[83]The tone and content of the email suggests that the claimant raised her sense of unfairness with Katie Smith about the way breaks were allocated. There is no reference to raising matters of patient safety. Case Number: 6002768/2023 20

[84]Ms Kennedy replied stating that it was disappointing that the claimant had left the shift due to issues around break allocation and stating that the decision was unacceptable. In reply to that email (at 11:32 on 26 June 2023) the claimant did say “The Nurse in charge should be paying more attention to the patients safety and not allocate the same staff looking after the same bay going on break at the same time. Leaving staff from other bays looking after their bay. Specially when staff are not given handover to all the bays” but she did not say that she had said that to Ms Smith and, in context, it is advanced as an argument designed to rebut what Ms Kennedy had said to her in the earlier email.

[85]I find, on the balance of probabilities, that the focus of the claimant, when breaks were discussed, was her feeling of injustice that Scarlett Hanger always wanted the first break and her feelings had not been taken into account.

[86]I am not satisfied, and I do not find, that the claimant raised any safety concerns on 25 June 2023.

[87]In those circumstances there was no qualifying disclosure as set out in issue3.1.1.1 because the claimant did not say what she asserts in that issue. Issue

3.1.1.2

[88]The claimant says that she raised with Katie Smith on 22 October 2023 that she did not agree with the fact the patients were being taken from the other team and given to her because there was a risk of patients falling and because the other nurse who was working with her was unable to do the admission of a patient.

[89]The claimant was working with an agency nurse and believed that she did not have access to the hospital’s electronic systems. However, Katie Smith’s evidence was that the nurse would not need to login in order to give medication and anything else that needed to be documented could have been done in writing.

[90]There is no dispute about the fact that the claimant was working with an agency nurse on the night in question and it does not appear to be in dispute that the ward was short staffed by one HCA. In those circumstances the claimant was allocated additional patients to look after.

[91]The claimant’s witness statement deals with the point at paragraph 86. It does not record the claimant saying to Katie Smith that there was a risk of patients falling.

[92]The claimant sent an email to Sharon Kennedy on 23 October 2023 at 11:53. She set out the events of the previous days. When she set out her account of what had happened on 22 October 2023, again in some detail, she did not suggest that she had raised with Katie Smith that there was a risk of patients falling. Indeed, in respect of the complaints raised with Katie Smith, Case Number: 6002768/2023 21 the main thrust of her email is that the agency nurse was not happy with the way things were managed. (page 830).

[93]In the same email the claimant records her call to the ward manager. She states “I decided to call the ward manager on call and explained the hostile and unsupported atmosphere at work. The agency nurse also spoke with the Ward manager on call and then passed the phone to Katie.” In my judgment it is of significance that when sending an email the day after the events, the claimant does not suggest that her reason for calling the ward manager was the safety of the patients but because of the hostile and unsupported atmosphere at work.

[94]I am not satisfied, on the balance of probabilities, that the claimant raised any safety concerns with Katie Smith on 22 October 2023 and this allegation is not made out factually.

[95]In those circumstances the claimant did not make a qualifying disclosure as alleged in issue 3.1.1.2. Issue 3.1.1.3

[96]The final alleged disclosure is that on 22 October 2023, the claimant disclosed to the manager on call that Katie Smith was not being rational in allocating patients to the claimant and her colleague and was not being supportive.

[97]The on call manager was Melissa Mitchell. In her witness statement she states that the claimant told her that she was stressed and unhappy because she had been given a large number of patients and was working with an agency worker who could not use the electronic patient record system. She states that the claimant did not say anything to her that flagged any patient safety concerns or anything which might be in the public interest. From her perspective the claimant was calling to complain because she was aggrieved about the number of patients which she had been allocated. Ms Mitchell made a note at page 824 of the bundle. The note reflects Ms Mitchell’s evidence and states: “Advised that she is feeling stressed and not happy that she has been given a large number of patients to look after compared to other staff. Also is working with an agency worker with no access to S1 and so is having to do all the notes. I was then passed the phone to the agency worker…”

[98]In her witness statement, paragraph 87, the claimant states that she called the call manager to report the lack of rationale for the allocation, herself and the agency nurse not being helped and supported and that the nurse in charge was already sitting with her bay lights turned off.

[99]I have set out above the claimant’s account of the call in her email of 23 October 2023. Having observed the claimant during the course of this hearing, it seems to me unlikely that the claimant’s account of events on the telephone call on 22 October 2023 would have been very concise and I anticipate that in the course of the conversation she may well have stated Case Number: 6002768/2023 22 that there was a hostile and unsupportive atmosphere at work. I find accordingly and I also accept that she told the duty manager that she was stressed and was not happy that she had been given a larger number of patients to look after than other staff and she was having to work with an agency worker with no access to the notes.

[100]I must, then go on to make findings about whether that disclosure was a qualifying disclosure by addressing issues 3.1.2 to 3.1.6.

[101]In respect of issue 3.1.2, I find that the claimant did disclose information as set out above.

[102]In respect of issues 3.1.3 and 3.1.4, Katie Smith was the nurse in charge on the night in question. Shortly after handover she says that she was approached by a colleague, Bev, who said that the claimant was questioning her about how many patients she was looking after. She says that she stepped out of a bay and the claimant and the agency nurse were shouting at her saying they were allocated more patients than any other colleagues. She describes attempting to explain the position but that both the claimant and the agency nurse were aggressive in their manner. She said that it was not up for discussion. Sometime later the claimant approached her and asked for the on-call manager’s number.

[103]In cross-examination of Katie Smith, the claimant drew her attention to page 1245. That is a statement made by the agency nurse. In that statement, the agency nurse states that the claimant had told Katie Smith that the way the allocation done was not fair. She goes on to state “Later that night HCA A called the manager to say that she was not happy with the allocation on shift that night. The manager requested to talk with me and asked me to confirm the allocation made that night, which I did. The manager then asked to speak with the nurse in charge”.

[104]Although that statement is only hearsay evidence, it supports a finding that when the claimant telephoned the on-call duty manager she was doing so because she felt aggrieved at (her perception of) the unfairness of the situation. I find that the claimant was motivated by her own interest in making the call and did not consider the public interest when doing so. Had she been concerned about matters relating to public interest she would have referred to those in her email of 23 October 2023. As I have said, in fact, when writing to Ms Kennedy, she gave the reason for the call thus, “I decided to call the ward manager on call and explained the hostile and unsupported atmosphere at work” (page 829).

[105]Thus, I do not find that the claimant believed that the disclosure of information to the on-call manager was in the public interest.

[106]In those circumstances I find that the claimant did not make a protected disclosure in respect of 3.1.1.3 because she did not believe that her disclosure was in the public interest. Case Number: 6002768/2023 23 Issues 4.1 and 6.2- Alleged detriments

[107]Notwithstanding my findings on whether the claimant made a protected disclosure, it is necessary to consider the list of detriments because they form the alleged repudiatory breaches of contract for the constructive dismissal claim, most of the allegations of race discrimination as well as the alleged acts of detriment.

[108]The detriments set out between paragraphs 4.1.1 and 4.1.26 are the same as the allegations of direct race discrimination except thata. the allegations of direct discrimination have additional allegations at

6.2.1 and

6.2.2 and 6.2.28

b. and issue 4.1.5 does not appear as an allegation of race discrimination.

[109]Issue6.2.1 is of a general nature and can best be considered in the light of other, more specific findings. I will return to it in due course. Issue

6.2.2 On 25th June 2023, Ruth Dean shouted at the claimant and the white English members of staff Ruth Dean, Scarlett Hanger, Katie Smith and Heidi Garner went into a bay together and laughed at or about the claimant. Issue 4.1.1 /6.2.3- From 26th June 2023 Ruth Dean, Scarlett Hanger, Katie Smith and Heidi Garner, Sharon Kennedy and Helen Dejonge ignored the claimant.

[110]I will deal with issues 4.1.1, 6.2.2 and 6.2.3 together.

[111]I have set out briefly, above, some findings of fact in relation to the incident on 25 June 2023. It is necessary to set out further findings of fact.

[112]There is no dispute that the claimant was unhappy about the fact that Scarlett Hanger was given the first break. I find that it is likely that she was vocal in expressing her unhappiness at the decision which had been made by Katie Smith. Indeed, the claimant in her witness statement describes herself as being expressive and emotive in her communication style and although I am wiling to accept the claimant’s argument that such expressiveness is common amongst Portuguese people, that does not, necessarily, prevent it from being alarming in the workplace (particularly on a hospital ward at night time). It is also important, in this respect, to record that on at least one occasion during the hearing, when the claimant was cross-examining the respondent’s witnesses, she suggested that her character is one of being honest even if it was unkind, and she asserted that was not connected to being Portuguese. The claimant said, during cross examination of Ms Kennedy (although in request for a clarification by me) “it’s not because I’m Portuguese, I know that English people are honest, even Sharon, I’m direct.”

[113]Regardless of the precise chronology of the way things happened on 25th June 2023, the claimant agrees that Ruth Dean, a fellow healthcare assistant came out of her bay and said to her “you can take my break and I Case Number: 6002768/2023 24 will go third" and Scarlett Hanger offered to the claimant that she could have her break. The claimant saw that as sinister and, as I understood her position, to be evidence that breaks had been prearranged behind her back and then, when she discovered the pre-arrangement, people felt they needed to unwind their earlier agreement. Having heard all of the evidence, I consider it much more likely that, even if breaks had been arranged in the absence of the claimant, when Ruth Dean and Scarlett Hanger offered the claimant their breaks they were doing so out of a genuine desire to resolve the situation. It seems to me that the claimant’s analysis does not really work. Her assertion is that her colleagues were deliberately treating her unfavourably on 25 June 2023 but that as soon as she discovered that her break time had been prearranged, they all changed their mind. It is more likely that, if the claimant’s version of events is accurate, she would simply have been told that it was for the nurse in charge to allocate the breaks and she must live with it.

[114]On the balance of probabilities, I prefer the evidence of Ruth Dean that she did not shout at the claimant but was trying to keep the peace. That is consistent with the fact that this was a night shift on a hospital ward and the conversations were taking place at some point between 10:30 PM and midnight (although the witnesses accounts vary as to the time).

[115]Thereafter, it is agreed that the claimant said that she would not take a break at all and walked to get her bag and left the ward.

[116]As part of this allegation, the claimant states that her colleagues went into a bay to laugh at her. In her email of 26 June 2023 to Ms Kennedy, the claimant wrote: What really upset me was following all this they were 4 of them on bay 1 Katie , Heidi, Ruth, and Scarlett talking about me and then Scarlett turn around and said to me I can go 1st. I never said I wanted to go 1st , 2nd or last.

[117]She did not, in this email written, at the time, refer to her colleagues laughing at her. It seems to me that is part of the claimant’s recollection which has changed over time and I am not able to accept that evidence.

[118]Scarlett Hanger and Ruth Dean both say that as the claimant walked off the ward they heard the claimant refer to bitches. Ruth Dean says she heard the claimant say “I’ve had enough of this bunch of bitches and Scarlett Hanger states she heard the claimant say “bunch of bitches”. Katie Smith and Heidi Garner who were also on the ward told me that they did not hear the claimant make those comments (which I accept and deal with in more detail when I return to issue 4.1.5).

[119]On 26 June 2023 at 00:29 (so shortly after the claimant had left the ward), Katie Smith emailed Jill Warn with an account of the incident. It includes the statement “Andreia was still not happy with this so grabbed her bags and car keys and left the ward, muttering what the HCAs heard to be “bitches” under her breath as she left”(page 719). Case Number: 6002768/2023 25

[120]The claimant denies that allegation and instead asserted in her cross examination that once she had passed through the double doors on her way out of the ward she said “always bitching around”. That is consistent with what she said in her disciplinary interview in November 2023 (page 880). It was, she says, a reference to the way her colleagues behaved.

[121]The claimant says that the only way anyone could have heard her say “bitching around” would have been for them to check the CCTV. Ruth Dean and Scarlett Hanger both deny checking the CCTV and say it would not have been possible for them to do so. I asked the claimant how her colleagues would go about accessing CCTV footage and she said they would need permission from the housekeeping manager and they would have to go and rewind the tape and watch it. I asked the same question of Ms Winning who thought that it would be necessary to make a request to the facilities manager and they would not be on site 24/7. Ms Kennedy gave evidence that the CCTV did not record sound in any event.

[122]When the claimant left the ward, it is likely to have been something of a surprise for her colleagues and I see no reason to doubt the evidence of Scarlett Hanger that after 10 minutes or so she went to check and saw that the claimant’s car was no longer in the car park. The departure of the claimant had, of course, left the ward short staffed and it would be necessary to see to the patients.

[123]If the claimant only said “always bitching about” after she had gone through the double doors and could not be heard by her colleagues, it is difficult to see why any of her colleagues would think to themselves that it might be a good idea to check the CCTV footage in case the claimant had said something which could be used against her. Moreover, given the report by Katie Smith sent at 00:29 on 26 June 2023, for the claimant’s version of events to be right, her colleagues would need to decide to check the CCTV, get access to the CCTV, rewind it to the right place and review the footage and report it all to Katie Smith within an extremely short window of time. I regret to say that I find the claimant’s version of events to be fanciful and I am not able to accept it. In those circumstances I accept the evidence of Ruth Dean and Scarlett Hanger that the claimant did refer to bitches on the way out of the ward. She must have known that in using that term, she was being offensive.

[124]I have already pointed out that the actions of the claimant on the 25 June 2023 left the ward short staffed which would have, obviously, increased the burden on her colleagues.

[125]The claimant’s answer to that point is that she was ill, having a panic attack, needed her spray, and had no option but to leave. She was so distressed that she does not know how she managed to drive home. However, even if the claimant was ill on the evening in question, it is easy to see how, following that night, her colleagues may be more wary around her. She had raised her voice to them in relation to the breaks, refused to cooperate with them when they offered her their break times, left the ward and called them bitches. Case Number: 6002768/2023 26

[126]All of the claimant’s colleagues denied ignoring her except for Scarlett Hanger. She states, in a frank paragraph in her witness statement, that although she did not observe anybody else ignoring the claimant she did start to ignore her. She states that the claimant did not engage in conversation with her and so she did not engage with the claimant. She states that the reason was because the claimant had left them in the lurch when she walked out, she points out that on night shifts there are no doctors or sisters so it is really tough when you are short staffed. She did not think that the claimant’s behaviour in walking out should have been tolerated. I accept that evidence as being true.

[127]Katie Smith accepted in her witness statement that she did not make conversation with the claimant to the same extent as before, for example by discussing personal matters, but, in cross examination, stated that she would engage with the claimant when she was in charge and would speak to her about patients and breaks and stated that on 30 June the claimant was invited to join in a takeaway. I have seen no contemporaneous evidence of that but I note that on 23 October 2023, the claimant wrote to Sharon Kennedy stating “I was still settling the patient on Bay 1 when Katie came to bay 1 around 10 PM and asked me and Nithan if we want to order takeaway.” (Page 828). It appears, therefore, but at that point the claimant was still being included in orders for takeaway food.

[128]Ruth Dean states that she did not ignore the claimant or witness anyone else ignoring her but kept her distance because she was concerned that the claimant would snap at her, she says that she still greeted her and spoke to her about the patients.

[129]Ms Garner denies ignoring the claimant. When the claimant crossexamined Ms Garner she put to her that they had got on well. Indeed in relation to issue 4.1.17, the claimant’s case whilst cross-examining Ms Garner was that it was Ms Garner who made the comment about Mr Cox being gay. In cross examination of Ms Garner, the claimant became particularly distressed and said that she had always tried to protect Ms Garner as the one who made the comment. She also stated that she knew that Ms Garner was not telling her about Mr Cox because she was homophobic. The important point for the purpose of this issue, however, is that it i difficult to see why the claimant would have wanted to protect Ms Garner if she was treating her as she now asserts.

[130]There is contemporaneous evidence that the claimant believed she was being ignored. On 23 October 2023, she wrote to Ms Kennedy stating that she had had “really bad night shifts” since 20th October and stated “I was completely ignored by Katie, Haylee and Ruth . When they arrived at the nurse station on the beginning of the shift. Saying hello to everyone but ignored myself completely.” (Page 828). It is therefore necessary for me to refer briefly, at this stage, to the findings of fact that I set out below about the period between June and 23 October 2023.

[131]On everybody’s evidence, there had been difficulties on the ward on 25 June 2023, 8 July 2023, 17 September 2023 and 18 September 2023. The Case Number: 6002768/2023 27 claimant accepts that she sometimes raises her voice and she positively asserts that she will tell the truth even if it hurts. Matters reached the point on 22 October 2023 when agency nurse Ms Ndzeshu, who supported the claimant in a dispute about patient allocation, wrote a letter of apology for her behaviour. In those circumstances it is inevitable that relationships would be strained between the claimant and her colleagues.

[132]I do not find that from 26 June 2023 people ignored the claimant, apart from Scarlett Hanger. I accept that the relationships became more remote after 25 June 2023 because of the events of 25 June 2023 and the events thereafter. However, to the extent that the claimant was ignored, it was because of her behaviour on the ward on 25 June 2023 (and thereafter as I will go on to set out). It was nothing to do with the claimant raising issues around patient safety. Further there are no facts from which I could find that the claimant was treated as she was because she was not English. I am entirely satisfied that an English person in the same position as the claimant who behaved in the same way as the claimant would have been treated in the same way as the claimant was.

[133]To the extent that the claimant’s case is that she is expressive because she is Portuguese, that is really an allegation of indirect discrimination or harassment. In respect of a claim for indirect discrimination, the claim would be put on the basis that the respondent’s witnesses wanted to work with people who were not loud and expressive and that because she is Portuguese the claimant could not comply with that practice. However, not only is that not the case which is set out in the list of issues, the claimant has produced no evidential basis for such an argument. I cannot assume that a substantial number of Portuguese people are unable to moderate their language (in tone or content) in the context of a night shift on a ward in a hospital.

[134]In respect of the claim of racial harassment, while I accept that Portuguese people may be more expressive than English people (although the claimant adduced no real evidence of that point), the claimant’s behaviour went beyond expressiveness. She called colleagues bitches and as I will set out in more detail shouted at her colleagues on occasions. Although the claimant says that she had a medical need to leave the ward on 25th June 2023, that is not something which she suggests is related to her race. My finding is that even if the claimant’s colleagues should properly be described as ignoring her, they did not do so because of her expressiveness but because of her behaviour that went beyond expressiveness. In those circumstances their behaviour was not related to her race.

[135]Finally, I do not consider it to be a breach of the implied term of trust and confidence for the claimant’s colleagues to treat the claimant in the way that they did. Employment law has to take account of the fact that people work with colleagues who are human. They will react and respond according to the way that they find themselves treated. I do not find that the claimant’s Case Number: 6002768/2023 28 colleagues behaviour was a breach of the implied term of trust and confidence in this respect. Issue 4.1.2/6.2.4- Start an investigation about the claimant leaving her shift on 25th June 2023 and not attending work in 8th July 2023

[136]In addition to those matters above, it is necessary to set out what happened on 8 July 2023.

[137]The claimant was due to work a night shift between 8th July and 9 July 2023. It is not in dispute that the claimant emailed Ms Kennedy at 13:54 state that she would be arriving 30 minutes late because her daughter was performing at the Pavilion at 7 PM and she would need to bring her home when the show finished. Although she apologised for the inconvenience that may cause, she did not seek permission to attend late but simply stated as a fact what would happen. (Page 737). Ms Kennedy replied to state that it was not common practice to arrive on shift when people wanted to or could do and asked her in future to ensure that she telephoned the ward and spoke to the nurse in charge. She asked whether she would be staying on in the morning to make up her time. The claimant replied stating that she could not let her daughter down after seeing her crying because she would not have any parental presence to watch her performance, she did not answer the question about making up the time.

[138]According to the witness statement of Ms Smith (and it does not appear to be in dispute) the claimant was due to start the shift at 20:15. In fact she did not turn up at all. The claimant says that at around 6pm she telephoned the ward and spoke to another nurse, Polly, and was distressed and crying saying that she could not let her daughter down because she had been working so hard all year. She told Polly that she would not be able to honour her shift. Everyone agrees that the claimant waited on the line while Polly went to contact Sharon Kennedy. Ms Kennedy accepts that Polly came to get her but says that she was with a patient. Polly, according to Ms Kennedy, said to Ms Kennedy that the claimant could not come into work but she could not understand her clearly. The claimant says that after 10 minutes the line went dead and she hung up.

[139]Polly was asked to provide a statement for a subsequent investigation and did so on 14 September 2023. She stated ADSC called late into the evening around 6pm to say that she was unable to attend work for the shift that night and started to cry. She explained that she had to watch her daughter in a show because no one else in the family was available. She kept crying and I couldn’t understand the rest of what she was trying to say.

[140]The claimant relies upon that statement as being an accurate account as to what happened and I accept that it is.

[141]The claimant then did not attend for the whole of the night shift which, obviously, left the ward short staffed. Case Number: 6002768/2023 29

[142]The claimant, effectively, asks what else could she do but put her daughter first.

[143]Any parent will be able to empathise with the claimant’s agony at seeing her child distressed because there was no one to watch her performance, however the harsh reality is that that was not the respondent’s concern. The respondent has to ensure the safety and welfare of its patients and its staff. It is entitled to require staff who have agreed to work shifts to turn up for those shifts. The claimant, in her witness statement, states that she had forgotten that her daughter would have a theatre school performance (paragraph 46) and this was not, therefore, a sudden or unforeseeable emergency. Whilst I am genuinely sympathetic to the position which the claimant found herself in, it is impossible to see that the respondent did anything wrong in regarding the failure by the claimant to attend as serious.

[144]Ms Kennedy states that she commissioned the investigation in relation to the claimant leaving the night shift in June and not attending the July shift. I accept that was the position. She states that it was because the claimant’s actions presented a risk to patient safety and, if proven, potentially constituted misconduct. She points out that the disciplinary policy lists both persistent poor timekeeping and unauthorised absence as misconduct. The letter subsequently sent by Anne Hiscock on 8 August 2023 setting out the issues that would be investigated is consistent with the evidence of Ms Kennedy in that respect (page 743).

[145]The claimant says that English people have done things which are similar and not been subjected to any investigation. She therefore does not accept the genuineness of Ms Kennedy’s evidence. I asked her whether there was any evidence of that in the bundle and she stated that she was referring to her previous grievance when nothing was done in respect of her colleagues.

[146]The outcome to the claimant’s grievance is dated 18 November 2022 and appears at page 697. Prior to that the respondent had commissioned Kate Pope, who works on the professional register, to conduct an investigation into the claimant’s concerns. That appears at page 688. The allegations were around the claimant feeling humiliated by other members of staff, being allocated to a different bay when she arrived late for a shift, a door being pushed while the claimant was holding it and four colleagues being unpleasant and ignoring her. I accept that those colleagues were English. It is clear from the grievance investigation and grievance outcome that a number of counter allegations were made against the claimant. They included that the claimant phoned in at the last minute to inform of sickness or inability to get to work which left shifts short of personnel (and while doing so was picking up bank work) and that the claimant raised her voice while communicating with colleagues. The outcome letter records that, when asked what the claimant wanted from her grievance, she replied nothing (page 699) but, nevertheless, the outcome letter suggested mediation. The letter also stated that the trust would be ensuring appropriate measures to address behaviours displayed by staff who had been identified as not Case Number: 6002768/2023 30 demonstrating behaviour in keeping with the trust’s values but the steps would not be shared with the claimant.

[147]The allegations made by the claimant against her colleagues were different to the allegations which were being investigated in this case. In this case the investigation was about leaving a shift and failing to attend a shift. In those circumstances it is of limited use for me to consider how a different matron, in a different hospital, dealt with allegations of bullying when counter allegations were made against the complainant. Even taking account of that evidence, there are no facts from which I could conclude that an English person in the same position as the claimant, who had left a ward and failed to attend a shift in the same circumstances, would have been treated differently to the way which the claimant was.

[148]I accept the evidence of Ms Kennedy as to why she commissioned an investigation into the claimant’s conduct and I am entirely satisfied that the decision to investigate the claimant in relation to those 2 allegations was nothing to do with having made a protected disclosure (if one was made), nor was it related to her race. It was a direct consequence of the claimant’s behaviour in leaving the ward short staffed on 2 occasions.

[149]To investigate the claimant in this respect was not a breach of the implied term of trust and confidence Issue 4.1.3 /6.2.5- By letter dated 8 August 2023, require the claimant to attend a disciplinary meeting on 15 September 2023

[150]The letter of 8 August 2023 was an invitation to an investigatory meeting on 14 September 2023, not an invitation to a disciplinary meeting on 15 September 2023 (page 199). It appears that the meeting may, in fact, have taken place on 15 September 2023, although I have not been provided with a clear account as to that and nothing turns on it.

[151]Once a decision had been made to investigate the claimant’s behaviour, it was inevitable that she should be invited to an investigatory meeting. Arguably, the claimant would have been treated unfairly if she had not been invited to such a meeting.

[152]For the reasons I have given, I am satisfied that this step was not because the claimant had made a protected disclosure nor related to her race. I also do not find that it was a breach of the implied term of trust and confidence. Issue 4.1.4/ 6.2.6- On 15th September 2023 Anne Hiscock told the claimant that phoning the ward 2 hours before her shift started to say she could not attend was misconduct that could lead to dismissal.

[153]Ms Hiscock denies that she made such a statement. For the reasons I have given, I do not regard either the claimant or Ms Hiscock to be a sufficiently accurate witness for me to be confident that either of them is correct in their own recollection of what happened in the meeting. Case Number: 6002768/2023 31

[154]In those circumstances I can only rely upon the notes of the meeting. The first set of notes appear at page 779. They are not signed by the claimant. In cross-examination, the claimant put to Ms Hiscock, and Ms Hiscock agreed, that she (the claimant) wanted to amend the minutes. That was evidenced at page 810, where Ms Hiscock writes “I have added your amendments into the original statement, please find attached your final statement.”

[155]The amended minutes notes appear at page 1447 and are signed by the claimant at 1450. Those notes do not record Ms Hiscock saying to the claimant that phoning the ward two hours before the shift started was misconduct that could lead to dismissal.

[156]In the circumstances where those notes are the only evidence which I am able to rely upon and in circumstances where they are signed by the claimant, I do not find that this allegation is made out factually. Issue 4.1.5- Ruth Dean, Scarlett Hanger, Katie Smith and Heidi Gardner told managers that on the 25 June 2023, the claimant had referred to them as bitches

[157]The respondent’s case has never been that all 4 of those staff members told managers that the claimant had referred to them as bitches. The incident report logged at 07:17 on 26 June 2023 states that the claimant was heard by 2 staff muttering “bitches” on her way off the ward (page 717). As I have already said the statement made at 00:29 on 26 June refers to 2 staff hearing the word bitches.

[158]The contemporaneous evidence supports the position being that Ruth Dean and Scarlett Hanger told the nurse in charge that the claimant had referred to them as bitches and that is my finding of fact.

[159]I have found that the claimant did refer to her colleagues as bitches and I can see nothing wrong, in those circumstances with her colleagues referring that to managers. It was inappropriate behaviour in the workplace.

[160]There is no evidence from which I could find that Ruth Dean or Scarlett Hanger would not have reported an English colleague who made such a remark and there is no evidence that their behaviour was related to the claimant’s race. I am also satisfied that the report was not because of anything the claimant had said about patient safety, it was because the claimant had called them bitches and they were offended by that. In circumstances where the claimant had called them bitches, it is not a breach of the implied term of trust and confidence for them to complain about that to a manager. Issue 4.1.6/ 6.2.7- Investigating the allegation about referring to the claimant’s colleagues as bitches

[161]The investigation which was launched in June 2025 was in relation to the fact that the claimant left her night shift partway through on 25 June 2023 and did not attend work on 8 July 2023. It is apparent from the letter dated Case Number: 6002768/2023 32 8 August 2023, that the “bitches” comment was not a separate allegation which was being investigated.

[162]The allegation did appear in the investigation report at paragraph 3.15, but only as part of the background to the claimant leaving the shift on 25 June 2023 (page 760).

[163]In my judgment referring to this matter was an entirely natural part of investigating the incident on 25 June 2023. It was not connected with any alleged disclosures nor is it anything to do with the claimant’s race. There is no evidence that an English nurse in the same position as the claimant would have been treated any differently. It was not a breach of contract. Issue 4.1.7/6.2.7 – On 17 September 2023 the claimant was forced to work on a bay with covid 19 positive patients

[164]It is necessary to set out findings of fact that go a little wider than this precise allegation given issues 4.1.24/6.2.25 to which I will return below.

[165]The nurse in charge on the night in question was Miriam Orrell. She says that she had not worked with the claimant before. The claimant disputes that but agreed that she had not been involved in the incident on 25 June 2023 and no other allegations are made about her (such as that she was ignoring the claimant). The claimant confirmed that this incident was Ms Orrell’s only involvement in the matters to which this case relates.

[166]Ms Orrell qualified in September 2022 and was relatively junior in her role as nurse in charge. Ms Orrell, in her witness statement, says that there were patients in bay 1 with Covid. Although, as I set out in discussing the next issue, I understood the claimant to dispute that position in cross examination, it is clearly the claimant’s case that there was at least one patient with Covid 19 on the bay, otherwise this allegation could not be properly pursued and would be bound to fail.

[167]Working on the shift were Ms Orrell (nurse in charge), the claimant (healthcare assistant), Kim Carroll (nurse), Vineetha Paulose (nurse) Beverley Guilbert (healthcare assistant) and Scarlett Hanger (healthcare assistant). Ms Carroll had previously been employed by the trust but was now working via the bank.

[168]The nurse in charge allocates staff to the teams on each shift. It is not in dispute that generally if a person has been working on a particular bay the night before, they will continue to work on that bay. Thus if somebody works 5 night shifts in a row, the presumption is that they will work on the same bay for 5 nights.

[169]It is also not in dispute that because of Ms Guilbert’s personal circumstances she could not work with Covid patients nor could Ms Carroll. The claimant did not dispute that. I also did not understand the claimant to dispute that there were infectious patients in bay 4 and for the same reasons Ms Guilbert and Ms Carroll could not work in that bay (on team 3). Case Number: 6002768/2023 33

[170]Ms Orrell’s account of events is that she had understood that the claimant had worked in team 1 on Friday night, she had been asked to work in team 2 on the Saturday and on the night in question (Sunday) she asked the claimant go into team 1 again.

[171]Ms Orrell says that initially the claimant expressed frustration that she had been allocated to bay 1 and also that she had been moved from team 1 to team 2 on the previous night. In her evidence Ms Orrell accepted that she had misunderstood where the claimant had worked on previous nights and said that she had apologised. Ms Orrell offered to the claimant that she could go into team 3, which would mean that the claimant was not working with Covid positive patients. Ms Orrell says that the claimant decided to stay in team 1 but, once the shift had started following handover, she again started expressing her unhappiness. Ms Orrell says that the claimant’s concerns were not about working with a Covid patient but about the fact that she had been moved twice.

[172]The claimant’s witness statement asserts that she was asked to move from the previous bay where she had been working because Scarlett Hanger, as well as the other 2 colleagues, were refusing to work with patients with Covid. She says that, therefore, she asked the nurse in charge why Scarlett Hanger refused to work on bay 1 and was told that it was because Ms Hanger had worked there the night before.

[173]For her part the claimant agreed that she had gone into bay 1 to start the shift and then came back out to ask Ms Orrell a question about Scarlett Hanger. I have no doubt that the claimant had a strong sense of grievance because she felt that she was being treated unfavourably compared to Scarlett Hanger and wished to pursue that with Ms Orrell.

[174]The claimant’s account is that at that point Ms Guilbert came to her and said that it was all her (Ms Guilbert’s) fault, and the claimant burst into tears and went towards the staffroom. The claimant’s case is that she met other nurses who were leaving from the day shift and complained about the fact that she was being discriminated against and that then Ms Orrell and Kim Carroll came to reassure her. The claimant says that Kim Carroll kept speaking and would not allow her to talk, Ms Orrell’s perception was that Ms Carroll was trying to support her (Ms Orrell). Ms Orrell was of the view that the claimant was not letting her speak and she just wanted to talk to Ms Carroll and tell her that she was only a bank nurse. The claimant accepts she did say to Ms Carroll that she was a bank nurse though she says that was to point out that she was not the nurse in charge.

[175]Ms Orrell sent a statement about the incident on 19 September 2020 which appears at page 793. It largely supports Ms Orrell’s version of events and, in particular, it records that when Ms Carroll was attempting to support her, the claimant “got confrontational and stuck her finger in Kim’s face stating, “you are just a bank nurse””. It describes the claimant as being quite rude. Case Number: 6002768/2023 34

[176]The claimant says that as she was trying to calm down by the staffroom she saw Ms Hanger looking at her and the claimant said to her words to the effect of, “why are you looking at me I am not going home”. Ms Hanger then said that there was no need to be rude. Ms Orrell agreed with that version of events.

[177]Around that time Ms Carroll then asserted that she would leave the ward but she was placated by Ms Orrell and stayed.

[178]The claimant sent her version of events to Ms Kennedy on 21 September 2023. It largely supports what she told me in her evidence.

[179]The main evidential issue, which I must decide at this stage is whether I accept the evidence of Ms Orrell that she gave the claimant the option to work on team 3 instead of team 1. Looking at the account that Ms Orrell gave on 19 September 2023, which clearly sets out the context in which she says that she offered the claimant to work on team 3, on the balance of probabilities I accept that she did so. Ms Orrell struck me as a person who would attempt to defuse conflict and I think it likely that she would have tried to present the claimant with alternatives. I think it likely that the claimant was upset by what she perceived to be unfair treatment and that she was either unable or unwilling to listen in any great detail to what Ms Orrell was saying to her, given her state of upset.

[180]Therefore, I do not find that this allegation is made out factually. I do not find that the claimant was forced to work on a bay with Covid 19 positive patients. She was given the option to work on team 3 instead. Even if she had been required to work with Covid patients, there has been no evidence put before me from which I could conclude that an English healthcare assistant in the same position would have been treated any differently, nor is there any evidence that Ms Orrell was aware of the alleged protected disclosure.

[181]I must then consider whether there was a breach of contract in this respect. The claimant accepts that there was no clinical reason why she could not work with Covid positive patients. It is a fact of working life that sometimes people are required to work in roles that are not ideal. Sometimes they may perceive that other people are being treated preferentially to them. That does not automatically amount to a breach of the implied term of trust and confidence. The only connection between the events of this night and other nights is the presence of Scarlett Hanger. There were particular factors that made this night unusual, in particular the circumstances of Ms Guilbert and Ms Carroll and the fact claimant’s team allocation had been swapped on the previous 2 nights. The fact that in those circumstances the claimant was required to work in a team which she did not wish to (even if that were the case) does not amount to a breach of the implied term of trust and confidence. Case Number: 6002768/2023 35 Issue 4.1.8/6.2.9-  On 18 September 2023, Ruth Dean said about the claimant; o she is always fussing, o she complained to management, o she should have her break on a mattress on the floor and not in the staff room because she was looking after patients with covid.

[182]There is a substantial amount of agreed evidence in respect of this issue. It appears that staff took breaks by combining their 15 minute breaks with their hour-long break and therefore took one break of 1 hour and 30 minutes. On night shifts they would make a bed up to rest in.

[183]On the night before the night in question, Ms Orrell was the nurse in charge and the claimant was working with Ms Paulose. The claimant’s case, as put to Ms Orrell in cross examination, and agreed by Ms Orrell, was that Ms Paulose went on the first break. Ms Orrell asked the claimant whether she wished to take her break in the day room or the John Talbot room and the claimant said the day room. Ms Paulose then came back from her break early and Ms Orrell said to the claimant that, because there were other staff using the day room on their break, if the claimant wanted to go on break early she would need to go into the John Talbot room. The claimant did so. The claimant has made no complaint about those matters.

[184]The claimant says that on the 18th September, she was goaded by Ruth Dean, Beverley Guilbert and Ms Orrell and they asked her to have her break on the John Talbot room floor (again). She states that she informed them that she would have her break in the staffroom and then was shouted at by Ruth Dean that she did not want her to have the break in the staffroom because she and Beverley Guilbert wanted to keep the staffroom claim for them, because the claimant was looking after a patient with Covid (claimant’s witness statement paragraph 80).

[185]The claimant’s account in the chronology that she sent to Ms Kennedy on 21 September 2023 is slightly different. It is that she asked Ms Orrell where she could go on her break and was told that the John Talbot and the staffroom were the options. She said to Ms Orrell that she did not want to go to the John Talbot room and she would go to the staffroom. At that point Ruth Dean raised her voice from outside bay 4 and said “why you and Vineeta don't go on your breaks on the mattress in the John talbot and me and Bev go on staff Room!? Me and Bev are trying to keep the staff room clean of covid” (page 802).

[186]In her witness statement Ms Dean states that her request about the use of the room was for clinical reasons to protect the staff, patients and families because there was Covid 19 on the ward. She states that she may have Case Number: 6002768/2023 36 agreed with others that the claimant should take a break in a separate room to avoid the risk of contamination but she also says that she offered that the claimant would to go into the staffroom and Ms Dean and the other staff would go to a different room.

[187]In cross examination that point was put to the claimant and her response was that there was no Covid on the ward. That was a slightly surprising response given that her complaint at issue 4.1.7 is that on the previous day she was forced to work on a bay with Covid positive patients. When that point was put to her she replied there was no Covid and she did not complain about that.

[188]It seems to me that this part of the claimant’s evidence must be confused. Given the apparent confusion in the claimant’s evidence, I have decided that I prefer the evidence of Ms Dean.

[189]In any event, it cannot sensibly be said that Ms Dean acted because the claimant had complained to Katie Smith about patient safety and there is no evidence that an English person would have been treated any differently to the claimant. A discussion between colleagues as to where the best place for a break would be, in the context of a Covid infection in 2023, is not a breach of the implied term of trust and confidence even if it is a discussion robustly had.

[190]In respect of the other 2 parts to this allegation, Ms Dean denies making those statements. In the chronology sent by the claimant to Ms Kennedy on 21 September 2023, she does not say that Ruth Dean said that she was always fussing or that she complained to management. The claimant’s witness statement does not repeat those allegations either. In those circumstances issues4.1.8.1 and

4.1.8.2 (and their discrimination counterparts) are not made out factually.

[191]Ms Dean states that during the night in question, the claimant had an unprofessional attitude in that she upset Bev, shouted in her face and swore in front of patients. She said that she had never been spoken to like that before and it must have been horrible for patients. She states it was necessary to close the doors. In the context of the disciplinary investigation which was, at that point, ongoing Ms Dean had given a statement. On 24 September 2023 she wrote to Ms Hiscock as follows Hi Anne, I've read the final version and happy with this. Just to let you know every shift I've worked with Andriea since I met with you there has been unnecessary issues with her. Also on shifts I'm not there. The patients are getting worried as they can hear her shouting so we have to close the bay doors which is an issue in itself. I have reached a point where I dread working with her and happy to cancel bank shifts if she's working and I'm not the only one. I'm fed up of her shouting at me and my colleagues and calling me a bully. Her unprofessional attitude is affecting most of the staff now and the moral is very low. (Page 805). Case Number: 6002768/2023 37

[192]Ms Dean does not, in that email refer to the claimant swearing at her and I do not accept that part of her evidence, but on the balance of probabilities I find that it is likely that the claimant was shouting at her. Issue 4.1.9/6.2.10- On 21 September 2023 the claimant wrote to Sharon Kennedy with a chronology of events and was ignored by her.

[193]On 19 September 2023 the claimant went off work with stress. On 21 September 2023 she sent an email to Ms Kennedy. It stated “please find below the chronological events during the night shifts started on 10 September 2023.” (Page 799) It then set out the chronology.

[194]Ms Kennedy acknowledges that she did not reply to that email. She says that it was because the claimant was on sick leave for stress and it would not have been appropriate for her to discuss that email with her in case it increased the stress that she was experiencing. She also says that the claimant was discussing her concerns with Ellen Ford, a sister who had been allocated to support her during the disciplinary investigations.

[195]In my judgement those are poor reasons for failing to engage with the claimant. If an employee who is off sick with stress writes to a manager with a detailed chronology which clearly sets out that they are feeling distressed (whether reasonably or otherwise), the least the manager can do is acknowledge receipt of the email. Ms Kennedy should have replied to the claimant’s email stating that she believed it was not profitable to discuss matters whilst the claimant was on sick leave and that she was being supported by Ms Ford. In his closing submissions Mr Keen argues that it would not have been appropriate for Ms Kennedy to engage separately with the claimant’s narrative outside the formal process. That may be so, however, that is not the explanation given by Ms Kennedy and in any event, there is no reason why Ms Kennedy could not have written to the claimant saying that.

[196]I am, therefore, somewhat critical of Ms Kennedy in this respect. It is also noteworthy that by this point the investigation into the disciplinary allegations had largely taken place. The investigation report is dated September 2023 (it does not have a precise date) but on 5 September 2023 Ms Hiscock had written to Ms Kennedy stating that she wondered if Ms Kennedy wanted to widen the terms of reference to include the behaviours and conduct of the claimant (page 767).

[197]It was, therefore, at about this time that Ms Kennedy decided not to investigate the allegations that the claimant had made about an alternative WhatsApp group and lack of patient confidentiality because it was the claimant who was making the disclosure. I have referred to this issue already.

[198]I regret that I have come to the conclusion that, by this time, Ms Kennedy had no time for the claimant. That is why she did not reply to the chronology and also did not investigate the claimant’s allegations. Nevertheless, I am confident that the actions of Ms Kennedy were not because of the fact that the claimant had made any disclosures to Ms Smith about patient safety (I have found that she did not) and there is no evidence that Ms Case Number: 6002768/2023 38 Kennedy would have treated an English nurse in the same position in any other way. I have considered whether this is one of those cases where I should infer discrimination from unexplained unreasonable treatment of the claimant, but in reality, on the evidence I have seen, I am satisfied that Ms Kennedy was unhappy with the claimant because of all that had gone before. Thus even if the burden of proof shifted in this respect, looking at the evidence as a whole, I am satisfied that Ms Kennedy’s treatment of the claimant was not because of or related to race.

[199]The more difficult question for me is whether the behaviour of Ms Kennedy amounted to a breach of the implied term of trust and confidence. The actions of Ms Kennedy of which I am critical are the failure to reply to the chronology of events and the failure to do anything about the complaints the claimant made about a different WhatsApp group. However, the latter point is not alleged to have been a breach of contract by the claimant in the list of issues. Therefore, I must focus on the email of 21 September 2023. It is not insignificant that the email of 21 September 2023 did not ask for a reply. It is well known that not every unreasonable act by an employer will amount to a breach of the implied term of trust and confidence and, in this respect, whilst I am critical of Ms Kennedy’s actions, I do not think that the failure to reply to the email was conduct which was likely to destroy or seriously damage the relationship of trust and confidence between the claimant and her employer. Issue 4.1.10 On 8 October 2023 the claimant was allocated shifts to the hardest bay [bay 1] without rotation.

[200]During the course of evidence, the claimant cross-examined Ms Garner about the allocation of bays on 25 June 2023. She put to Ms Garner that “they are all hard bays, it depends on the patients”. Ms Garner agreed. She followed that question by the statement that “on that day, that bay was the hardest,” Ms Garner replied “it may have been I can’t remember the patients who were in at the time.”

[201]It is clear (and I find) that the respondent has created 3 different teams to work on any given night shift and distributed the bays, side rooms and palliative care suite amongst those 3 different teams. That is not an allocation which changes according to the shift, it is a permanent work pattern, team 1 looks after bay 1 and 3 side rooms, team 2 looks after bay 2 and bay 3 and team 3 looks after bay 4, 3 side rooms and the palliative care suite. Therefore, on every shift, all nurses and healthcare assistants were affected by that distribution of bays etc. to the teams. Thus if the position was that bay 1 was universally regarded as being the hardest bay, it is surprising that no other nurses or healthcare assistants have complained about the way the bays etc. have been divided amongst the teams.

[202]That analysis confirms the proposition which the claimant put to Ms Garner and with which Ms Garner agreed, namely that the identity of the hardest bay varied.

[203]The claimant’s witness statement does not deal with her allocation on 8 October at all. Her witness statement states that she returned to work on 5 Case Number: 6002768/2023 39 October 2023 and was allocated to the hardest bay during all her night shifts on duty. She refers to staying on bay 1. In cross examination the claimant accepted that, in fact, she had taken annual leave from 5th October to 7th October for her daughter’s birthday.

[204]I am not satisfied on the evidence which I have received that on 8 October 2023, bay 1 was the hardest bay. It may have been, it may not. There is simply no evidence for me to decide either way.

[205]It is, however, important to record another part of the evidence. As I set out above, if somebody is on a run of 5 shifts, they will normally stay in the same team. That means that if somebody else starts a shift pattern during that period, they will not be allocated to that team in preference to a person already there. Thus, in part, the team which somebody is allocated to when they return from a break in their shifts depends upon who is also working and how long they have been on shift for. Ms Garner explained that she did not recall that the claimant was always in bay 1, but even if she was it would not mean the people were keeping bays to themselves. She told me that it depends on who had been on shift and how long they had been on shift for, she stated that sometimes she had been in the same bay for 2 months and, in particular, she had been on bay 1 for 2 months, in the past. There is no basis for me doubting that evidence and I accept it.

[206]Thus, even if I were to find that on 8 October 2023 bay 1 was the hardest (and I do not on the evidence) it would not follow from that, that the claimant had been treated unfairly. It certainly would not follow that the claimant had been treated unfairly because she had made a protected disclosure, or because of her race, or that there was a breach of the implied term of trust and confidence.

[207]This allegation is not made out factually. Issue 4.1.11/6.2.12- On 22nd October 2023 the claimant was allocated to the hardest bay [bay 1] with an agency nurse and without access to system one. Issue 4.1.12/6.2.13- On 22nd October 2023 the claimant was allocated more patients by Katie Smith who removed patients from the other team.

[208]I will deal with these issues together.

[209]It was the events of 22 October 2023 which led to those matters which the claimant says were her 2nd and 3rd disclosures. To some extent, therefore, I have already set out relevant findings above. I will not repeat them again.

[210]It is not in dispute that the claimant was working with an agency nurse and it was believed at the time that the agency nurse did not have access to hospital systems (although at this hearing Ms Smith suggested that, in fact, the agency nurse may have had such access). It is also not in dispute that on the night in question, the ward was a staff member down and therefore patients had to be reallocated amongst the teams. Case Number: 6002768/2023 40

[211]It is disputed by Ms Smith that bay 1 was the hardest bay on the night in question. At paragraph 18 of her witness statement, Ms Smith has set out in some detail what the different patient requirements were. She points out that every bay had different challenges and that according to her recollection she had IV antibiotics and an end-of-life patient which is very challenging. There were 2 members of staff on the claimant’s bay whereas other bays only had one healthcare assistant between them and the additional patients which the claimant was given were not at risk of falls or particularly complex. In crossexamination, Ms Smith stated that Ms Ndzeshu could have documented matters in writing if necessary and it was not necessary for the claimant have entered notes for her.

[212]The claimant’s witness statement deals with the events of 22 October 2023 at paragraphs 86 and 87. The claimant does not, in those paragraphs, says that bay 1 was the hardest bay. Her complaint, there, is that Ms Smith allocated her to work with an agency nurse who did not have access to systems, knowing that she would have more work to do and allocated more patients.

[213]The claimant draws attention to the letter from Ms Ndzeshu at page 1245 of the bundle. That letter states that after handover Ms Ndzeshu realised she had 13 patients in total whereas another nurse had 7 patients and the nurse in charge had 8 patients. She went and asked whether there was a particular reason for being allocated so many patients and the nurse in charge said that it was because she would be working alone in her allocated bay (whereas Ms Ndzeshu was working the claimant). Ms Ndzeshu stated that when the ward was short staffed the nurses would be allocated patients evenly among them. She says in her letter that HCA A (who I understand to be the claimant) then said that the way the allocation was done was not fair and that she and Ms Ndzeshu had 4 patients on antibiotics.

[214]Ms Ndzeshu writes, in her letter, that she apologises for questioning the allocation decision made by the nurse in charge, reflecting on matters she wishes she had done things differently by adopting a different approach to the situation, either by speaking to her privately or by seeking advice from the agency on how best to deal with the situation. Whilst, of course, I must take account of the reality of the situation, which is that it is unlikely that Ms Ndzeshu would want to lose the opportunity to work on the ward in the future and therefore may be writing a letter which shows more contrition than she actually felt, the letter is evidence of Ms Ndzeshu and the claimant adopting an inappropriate approach to matters. Indeed, in cross examination of Ms Smith, the claimant put to her that even the staff nurse (Ms Ndzeshu ) had started raising her voice.

[215]I am not satisfied, on the balance of probabilities that the claimant was allocated the hardest bay on the night in question. The claimant was allocated to work with an agency nurse but it is apparent that a different healthcare assistant was required to look after more than one bay. It was a question of having to make do with the staff available. Case Number: 6002768/2023 41

[216]On 27 October 2023, Ms Smith created an incident detail report (page 825). She wrote; I found during this night that an agency nurse and substantive HCA did not agree with my allocation and they both started shout at me across the ward about how it had not been done fairly, in actual fact they only had one more patient than they usually do and they had a less dependant team than others who had to work alone in a bay, myself included. Both staff were rude and aggressive in their manner, the HCA was questioning everyone on how many patients they had many on QDS observations etc. and then took it upon herself to report this to the oncall manager which was extremely inappropriate. I also spoke to the oncall manager to explain the situation and gave her a rationale for my allocation.

[217]It is not necessary for me to make specific findings about the matters set out in that entry in order to resolve this issue, but the report is relevant when I return to issue 4.1.15/6.2.16.

[218]In terms of her protected disclosure claim, the claimant’s claim must be that because of the disclosure which she alleges she made on 25 June 2023, Ms Smith was deliberately manipulating the patient allocation in October 2023. I have already found that the claimant did not make a protected disclosure on 25 June 2023, but even if she did, I accept the evidence of Ms Smith as to why she allocated patients in the way that she did on the day in question. The claimant was working with a nurse and was not being split between bays as the other healthcare assistant was and I accept the rationale given by Ms Smith as to why she made her decisions. I find that they were decisions made in good faith.

[219]There are no facts on which I could conclude that an English healthcare assistant in the same circumstances would have been treated any differently to the claimant. The decisions were not related to race.

[220]I do not consider that the decisions of Ms Smith amounted to a breach of the implied term of trust and confidence. Ms Smith had a clear rationale for her decisions and whilst the claimant may well have had a genuine sense of grievance, I am not satisfied that it was a justified one. Issue 6.2.1- From the time the claimant started at Westhaven, Katie Smith staff Nurse and Heidi Gardner when on charge always allocated the claimant to the hardest bays

[221]in the light of what has gone before, it is now convenient to deal with this issue.

[222]Apart from the evidence which is set out above, the claimant has not adduced any evidence which shows that this allegation is true. As set out above, I am not satisfied that any particular bay is harder than others and without a clear analysis showing which bays the claimant was allocated to on which nights and which patients occupied those bays, it is impossible to find an allegation as general as this to be proved. Case Number: 6002768/2023 42 Issue 4.1.13/ 6.2.14 Giving the claimant special leave between 23 October 2023 and 6 November 2023.

[223]On 23 October 2023 the claimant was given special leave. Her witness statement states, at paragraph 88; I was with a Patient when Senior Sister Sharon Kennedy call me to her office. I was visibly distressed and crying. I told Sharon Kennedy that I had enough and I will resign as I can’t coop with the unfair treatment. Sharon told me that she could see all the situation is affecting my health and wellbeing and told me she will give me special leave till 3rd November 23 day of the final disciplinary hearing. she also told me that I will not have financial lost. She was aware I was being allocated to the same bay for weeks

[224]That is consistent with the letter from Ms Smith of the same date in which she writes: Thank you for meeting with me this morning, as I expressed special paid leave has been given to you up until your investigation hearing, this is not in any way a form of suspension from your duties, but I am very concerned with your current health and wellbeing at this particularly stressful time. As discussed there will be no financial implications to this. I just feel you need some time to concentrate on your own wellbeing, as it was evident that during our conversation, you were extremely distressed during our discussion around staff behaviours on the ward (page 827).

[225]It became clear, in the course of evidence, however that the decision to place the claimant on special leave was that of Mr Cox. He was relatively new to the ward, having joined the trust as matron on 2 October 2023. His evidence referred to email sent by the claimant around 12th and 13th of October 2023 at pages 816 – 818 of the bundle. On 12 October 2023 the claimant, having received investigation documents, stated that she was feeling very distressed and asked for disciplinary action to be taken against all the staff involved and stated that she could not wait until November. She states “this is a very serious allegations. Criminal offence against myself. This has affected my health and well-being. Will be very difficult and emotionally distressed to work with co-worker who are making malicious comments, damaging my reputation making libellous statements.”

[226]On 13 October 2023 the claimant wrote: The slanderous comments at work and false allegations statements are affecting my well-being and my health. The unwanted behaviour at work since the investigation started by the staff members called as a witness is affecting my wellbeing . Case Number: 6002768/2023 43 I am trying my best to keep myself to myself at work. But I am a human being , I have enough stress at home I don't need more stress at Work. I am being constantly provoked with comments said out loud. On the 18th September during my Night Shift I been taking to hospital after being unfairly accused once again . I had a vasogoval attack. Since the 15th of September when I been informed by Anne the investigator that I was being accused of calling bitches has affected my emotional well-being plus the few more incidents at work. Always caused by the same staff members Scarlett Hanger and Ruth Dean. On top of that they are dragging another staff members into their slanderous comments towards myself. This needs to stop. (Page 816)

[227]I accept Mr Cox’s oral evidence that he was motivated by the claimant’s well-being. However, I do not find that he was solely motivated by the claimant’s welfare. It is apparent from his email dated 13 October 2023 to Ms Kennedy (page 819-820) that he was also unhappy with the comments which the claimant had made which he considered could be inflammatory to the team “unkind and very unprofessional” and because it could be “tricky for the team”. In so far as, in his oral evidence, Mr Cox gave the impression that he was only motivated by the claimant’s welfare, I do not accept that evidence. The use of special leave was, in my judgment, in part because of the claimant’s welfare but also as a convenient way of managing a difficult situation.

[228]The claimant says that she was given no choice but to go on special leave. Mr Cox in evidence repeatedly referred to “an offer” of special leave. The reference to offer is made in some of the emails between Mr Cox and others, however, the decision to give the claimant special leave was communicated by Ms Kennedy. In her witness statement she wrote “Darren and Jo made the decision to put Andreia on special leave but I communicated this decision to her on 23 October 2023.” (Paragraph 26). That statement supports the claimant’s case that the decision that she was being given special leave was one which had already been made and was not optional. Ms Kennedy’s email at page 827 does not suggest that she is giving the claimant an option. I find that the claimant was not told that she had an option to carry on working if she did not take special leave. It was not put to her as an option.

[229]Although Mr Cox’s witness statement suggests that there would be a financial disadvantage to the claimant if she was placed on special leave (because she was not given her night enhancement), he clarified in evidence in chief that he had, in fact, completed SRA 30 which gave the claimant night Case Number: 6002768/2023 44 enhancement payments. That is consistent with the email at page 837 where Ms Winning advised Mr Cox that enhancements would be paid. The claimant did not challenge that evidence and there is no claim for wages in that respect. Thus I find that she did not lose payment because she was on special leave.

[230]The claimant’s contract of employment does not provide for the provision of special leave. Within the bundle of documents I have seen, the only provisions for special leave are within the leave policy which provides that "Special Leave is intended to help staff balance the demands of home and work responsibilities at times of unforeseen need through the provision of paid or unpaid leave.” (Page 629) In my judgment that provision does not apply to this situation. It may be that I have not seen the whole of the leave policy, since page 630 does not seem to be the obvious page to follow page 629. However, I asked Mr Cox about that policy and it was not suggested to me that there were any other provisions which I should consider.

[231]I am wholly satisfied that in requiring the claimant to take special leave, Mr Cox was only motivated by the dual aims of assisting the claimant’s welfare and seeking a way to manage the problems which had arisen on the ward. I do not find that he was motivated by any of the alleged protected disclosures and there is no evidence that an English healthcare assistant in the same position as the claimant, who had behaved in the same way as the claimant and sent the same emails as the claimant had done, would have been treated any differently. The treatment was not related to race.

[232]The more difficult question is whether requiring the claimant to leave work and take special leave was a breach of contract and, if so, a repudiatory breach of contract.

[233]Effectively, the claimant was suspended on full pay- although that word was not used, that is what happened. She was suspended in the context of an ongoing disciplinary investigation where she had been (or was to be) invited to a disciplinary hearing on 3 November 2023. In those circumstances the provisions of the disciplinary policy are clearly relevant.

[234]The disciplinary policy sets out a number of detailed provisions in relation to suspension as follows: 9. Suspension9.1 In some circumstances, it may be necessary to place an employee on a temporary period of paid leave, whilst the manager attempts to establish the initial facts. Once this has happened, consideration may need to be given to whether it is appropriate for the employee to remain in the workplace whilst a more detailed process of investigation takes place.

9.2 The Suspension Risk Assessment form available on Doris should be used to support this decision-making process. Where possible, all reasonable adjustments will be made to enable the employee to remain in the workplace e.g., increased Case Number: 6002768/2023 45 supervision, adjustments to duties, temporary redeployment. Suspension should only be applied as a last resort once all other alternatives have been explored and discussion has occurred with HR. The relevant Service Director, Deputy Chief Nursing Officer (where the case relates to a clinician) and the Service Director for People & Culture must be informed of any decision to suspend.

9.3 The following is intended to provide examples where suspension may be appropriate, although it is not intended to be restrictive:

• Where their presence at work might significantly prejudice the process of investigation in some way;

• Where relationships within the organisation have broken down to such an extent that it would be inappropriate for the employee to remain at work;

• Where the service cannot guarantee the safety of other staff and/or patients if the individual remains in the workplace;

9.4 Where temporary redeployment or suspension are deemed appropriate, the manager must meet with the individual and confirm the decision face to face, following this up in writing, ensuring that the rationale behind the decision and any associated terms are fully explained.

[235]I was not addressed on the question of whether the claimant’s contract of employment provided her with a right to work and, whether in those circumstances, requiring the claimant to go on special leave was a breach of that right. It seems to me likely that the claimant did not have a right to work, given ensured that she was paid in full, including enhancements.

[236]I was also not addressed on the question of whether the disciplinary policy was contractual and, therefore, whether a breach of it would amount to a breach of the claimant’s contract.

[237]However, the opening paragraphs of the disciplinary policy state: 1.4 This policy has been written in accordance with the law and the principles of the ACAS code to ensure fair and consistent treatment of employees. It has also been revised to take account of the recommendations from the NHS Improvement Group, convened in response to an incident at a London Trust and a report subsequently communicated to all NHS Trusts in 2019 by Baroness Dido Harding, Chair of NHS Improvement. These recommendations tasked every NHS Trust to assure itself that anyone subject to Disciplinary processes are treated with dignity and respect at every stage of that process. Alongside this, the Trust has undertaken an exercise to develop a more compassionate approach to employee relations casework. The Respect and Resolution Framework sets out a range of measures now in place as a result of that work which should be used alongside this policy. Case Number: 6002768/2023 46

[238]There is a clear expectation, therefore, that if a person is to be suspended, the provisions in the disciplinary policy will apply.

[239]In this case, the decision to place the claimant on special leave rather than apply the disciplinary policy meant that the claimant was deprived ofa. the protection that suspension should only be applied once all other alternatives had been explored, including temporary redeployment and

b. a suspension risk assessment being carried out (the process of carrying out such an assessment did not commence until 30th of October 2023)

c. the type of meeting and follow-up letter anticipated by paragraph 9.4.

[240]In my judgment, failing to provide the claimant with those safeguards was conduct which was likely to seriously damage the relationship of confidence and trust between the claimant and her employer. Issue 4.1.14/6.2.15- On 3 November 2023 Darren Cox gave the claimant a final warning

[241]I do not believe that I was taken to the letter inviting the claimant to the disciplinary hearing and I have not been able to find it in the hearing bundle. However, as I have indicated, the letter inviting the claimant to the investigatory meeting in August 2023 referred to her leaving her shift on 25 June 2023 and not arriving on 8 July 2023.

[242]It appears from the disciplinary hearing outcome letter on 6 November 2023 (page 911) that the allegations had not changed.

[243]The claimant’s case in relation to the disciplinary hearing is that Mr Cox was not intending to give her a final written warning until she shared with him that her colleagues on the ward were making comments about the fact that he was gay. That is the case that she put to Mr Cox in cross examination.

[244]The minutes of the disciplinary meeting show that the meeting adjourned at 12:20 PM and recommenced at 12:45 PM. Thereafter, Mr Cox said that he was issuing a final written warning and shortly after that the claimant stated “The staff at Bridport are mean. They have been saying you are gay. At this point Andreia held out her hand and flopped her wrist down. So mean” (page 888).

[245]The claimant says that the minutes are wrong. She says that she made her comment earlier in the process and, in part, relies upon the incident report which Mr Cox completed on 6 November 2023. Mr Cox considered the report to be homophobic and entered an incident on the Ulysses system. He stated that the date of the incident was 3 November 2023 and the time was 12:15 (page 910). Thus, argues the claimant, the remark she made was made before he made his decision. Case Number: 6002768/2023 47

[246]Mr Cox states that he was using his best recollection when he gave the time of the incident at page 910 and the comment was definitely made after he had delivered his decision. In this respect I prefer the evidence of Mr Cox since it is supported by the minutes of the disciplinary meeting. The minutes, read as a whole, have a natural flow and I find the suggestion (made implicitly if not expressly) that the disciplinary minutes have been manipulated to change the point in the minutes where the claimant made the comment to be fanciful.

[247]In further support of her position, the claimant refers to the 3rd “DC” entry on page 888 in which Mr Cox is recorded as saying “which is why I am issuing you a warning”. She asserts that she then made her comment and then the warning was elevated to a final written warning. That argument is unsustainable because in the 2nd “DC” entry on the same page, Mr Cox is recording a saying “I am therefore issuing a final written warning…”.

[248]In the light of my finding in this respect, it follows that Mr Cox cannot have taken account of the allegedly homophobic comment when he made his decision to issue a final written warning.

[249]The claimant’s only other argument is that Mr Cox’s sanction was too severe. It is striking that Mr Cox has moved the claimant from having no disciplinary record to a final written warning.

[250]The disciplinary policy deals with sanctions as follows: 15.1 There are two levels of formal warning; A First Written Warning may be given in cases of minor misconduct and will remain ‘live’ for 12 months. In some circumstances the panel may decide that the sanction is reduced to a 6-month period, the reasons for this will be outlined in the decision letter. A Final Written Warning may be given in cases where there is already a first written warning on file, or where the misconduct is of a more serious nature; this will remain live for 12 months.

[251]Mr Cox was dealing with a situation where the claimant had left the ward short staffed with little or no notice on 2 separate occasions. The claimant asserted that she had left the ward on 25 June because of a panic attack, but the circumstances which gave rise to the panic attack are ones for which the claimant was largely responsible. If Mr Cox had only been dealing with one incident, it would be difficult to justify a final written warning. However, the incident of 25 June 2025 makes the incident of 8th July more serious when seen in context. I have reached the conclusion that the claimant does not appreciate the seriousness of her actions, but I am satisfied that she caused considerable inconvenience to her colleagues and potentially risked patient safety without any satisfactory reason on 8 July 2025. In my judgment a final written warning, although severe, was justified. It was certainly open for Mr Cox to conclude that the claimant’s behaviour was more than minor misconduct. Case Number: 6002768/2023 48

[252]I am satisfied that Mr Cox acted in response to the facts as he saw them and the way the claimant presented herself in the disciplinary meeting in deciding what sanction to apply. He was not motivated by any of the alleged disclosures and I am satisfied that he would have reached the same decision in respect of any employee in the same position, regardless of their nationality.

[253]In considering whether giving the final written warning was a breach of contract, I must be careful not to fall into the trap of applying a range of reasonable responses test to Mr Cox’s conduct on the day in question. The question for me is whether objectively speaking Mr Cox was in breach of contract. The disciplinary process clearly allows for a final written warning to be issued. For the claimant to succeed in an argument that giving such a warning was a repudiatory breach of contract, she would need to show that objectively speaking, Mr Cox had behaved in a way which was likely to destroy or seriously damage the relationship of trust and confidence. In my judgment Mr Cox’s decision did not do that. He may have imposed a sanction which was more severe than others would have, but that alone does not amount to a breach of the implied term of trust and confidence. Issue 4.1.15/6.2.16 on 8 November 2023 Darren Cox suspended the claimant

[254]It is not in dispute that Mr Cox suspended the claimant on 8 November 2023. The letter of suspension makes clear that he did so to allow investigation into the allegations around the shifts on 17th and 22 October 2023 and because of more general allegations about the claimant’s behaviour and the impact it was having on her colleagues (page 929).

[255]On this occasion, Mr Cox properly followed the disciplinary process and carried out a suspension risk assessment, which was completed on 8 November 2023 (page 923). That risk assessment refers to additional evidence which had been received from colleagues about the claimant’s behaviour and set out why he felt there was a risk of harm to patients, employees, the trust’s reputation and potentially harm to the investigation process. It properly considered alternatives to suspension and concluded that suspension was appropriate.

[256]In this respect, I find that Mr Cox behaved appropriately and his actions were justifiable given what had gone before. I am satisfied that his actions were nothing to do with any protected disclosure and that there is no evidence that an English employee in the same position as the claimant, with the same level of complaints against her and with the same response as her, would have been treated any differently. Mr Cox was behaving in accordance with the contractual obligations which the trust owed to the claimant. Case Number: 6002768/2023 49 Issue 4.1.16/6.2.17.  Darren Cox sent to the claimant minutes of the meeting on 3 November 2023 which were inaccurate and manipulated in that o Staff names the claimant reported were incorrect. o Statements made by the claimant were incorrect. o The name of the person the claimant should appeal the decision to was different to the one given in the hearing

[257]The claimant is correct that some errors appeared in the minutes. Errors include that the minutes state that the claimant had said staff from Bridport rather than Westhaven were mean and that the name of person to appeal to was given as Jo Clarke. The claimant’s witness statement does not set out any other errors.

[258]It is inevitable that some errors will arise in a detailed set of minutes. Such errors are not unique to this case and are regularly seen by the tribunal. An employer is not obliged to carry out an investigation to the standard of a judicial enquiry. I find that the errors in this case were of the type commonly seen and I am satisfied nothing to do with any alleged protected disclosures nor anything to do with the race of the claimant. They were also not a breach of contract. Issue 4.1.17/6.2.18-On 3 November 2023, Mr Cox misinterpreted the claimant’s comment about staff saying he was gay by interpreting it as being hurtful and unnecessary, when it was intended only to demonstrate the way staff at the Westhaven hospital treated people

[259]I have set out above what the minutes show the claimant saying in this respect, namely, “The staff at Bridport are mean. They have been saying you are gay. At this point Andreia held out her hand and flopped her wrist down. So mean” (page 888).

[260]Had that minute been accurate I would have had considerable sympathy for the claimant in this respect. It is not homophobic (which is the term used by Mr Cox) to report that staff are mean and have been referring to somebody as gay.

[261]However, in this respect the minutes are not accurate. The claimant and Mr Cox both agreed that the claimant started the comment by saying that she would give an example of how she speaks the truth even if it is unkind. She then said she would give an example of how staff on her ward were mean. She then stated what is said in the minutes.

[262]Thus, the claimant was not seeking to disclose wrongdoing by her colleagues as much as she was seeking to continue her argument that the way she behaves is part of her character. She chose to use, as an example, Case Number: 6002768/2023 50 something which she must have known would be abrasive or upsetting to Mr Cox.

[263]My view in this respect is fortified by a further point. When the claimant was cross-examining Heidi Garner, she put to Heidi Garner that it was she, Heidi Garner, who had told the claimant that Mr Cox had approached Sharon Kennedy and said he was there to support her and then Ms Garner had demonstrated his hand flipping downwards and said “our matron is gay”. Ms Garner denied that but the claimant went on to say “I know you were telling me not because you are homophobic, you were just telling me how he approached Sharon Kennedy”. If it is true that she knew that Ms Garner was not homophobic and the description was, in reality innocuous, it is difficult to see why she would say to Mr Cox that the staff on the ward were “mean… so mean”

[264]The claimant’s account of what actually happened on the ward has changed. The minutes show that the claimant referred to Bridport staff (that minute must be wrong and does not reflect adversely on the claimant). In her witness statement, that claimant said that she had referred to Sharon Kennedy as being the person who made the comment (see paragraph 102) and in her evidence, she said it was Ms Garner. This point reflects on the accuracy of the claimant’s memory as set out in paragraph 46 above.

[265]I remain unpersuaded that even, in those circumstances the claimant was being homophobic. I asked Mr Cox if there was a Trust definition of homophobia and he said there was not. The dictionary definition is showing a dislike of or prejudice against gay people. I do not believe that is what the claimant was doing, she was simply seeking to advance her argument in a way which she knew Mr Cox would find offensive. The claimant was at pains to assert that she is not homophobic, she has attended the gay pride march and close family members are gay. I need to make no finding on those points and do not do so.

[266]Nevertheless, insofar as Mr Cox interpreted the claimant’s comment as being hurtful and unnecessary, he was right. It was not necessary, because it was delivered after she had been told that the final written warning was being given. It was hurtful, because it is nearly always hurtful to hear that people are talking about you behind your back.

[267]In my judgment it was unhelpful and unnecessary for Mr Cox to make the statement that he did in the penultimate paragraph of the letter of 6 November 2023. It risked creating the impression that he had taken the comment into account in deciding to give the final written warning. Nevertheless, Mr Cox did not misinterpret the claimant’s comment and, therefore, this allegation is not made out factually. Issue 4.1.18/6.2.19- The claimant was not allowed to present new evidence on the appeal.

[268]This issue does not, in fact, properly encapsulate the claimant’s case. On the claimant’s own evidence, she was asked by Ms Clarke at the appeal Case Number: 6002768/2023 51 if she had new evidence (claimant’s witness statement paragraph 124). The claimant’s real complaint is that in the letter inviting her to the appeal, Ms Clarke wrote that new evidence could not be presented (page 980).

[269]If the claimant had been misled as to the process of the appeal, to her detriment, that may be a matter of concern. However, the minutes of the appeal at page 1026 show that the claimant stated that she had sent an email to explain the reason why she had left work and that there was new evidence to consider, but that all emails had been sent to Anne Hiscock. Ms Clarke asked if all emails had been provided “Anne” prior to the hearing and the claimant said that they had.

[270]The claimant’s witness statement does not refer to any new evidence which she would have presented had she understood the appeal process to be different.

[271]Ms Clarke was asked in re-examination how the inaccurate statement came to be in the letter of appeal and she stated that there was a standard letter but she had amended it, having discussed the content with HR, because she wanted to make sure that it was clear that the appeal was not a rehearing. That is a credible explanation when the paragraph is considered in the context of the letter and I accept it.

[272]Ultimately, this allegation fails because the claimant was allowed to present new evidence on appeal. However, even if it is to be recast so that it referred to the inaccurate letter of 29 November 2023, the inaccurate paragraph was not because of any alleged disclosure nor anything to do with the claimant’s race. It was because Ms Clarke failed to set out with precision what she was intending to communicate, namely the fact that the appeal was not a rehearing. I do not find that the error was conduct which was likely to destroy or seriously damage the relationship of trust and confidence. Issue 4.1.19/6.2.20 – Mr Cox was present at the appeal

[273]There is no dispute that Mr Cox attended the disciplinary appeal and was invited by Ms Clarke to present the management case. The claimant’s complaint in this respect is that when she appealed against the outcome of her flexible working request, nobody presented the management case at that time. Thus, she is concerned that there was a departure from the usual

procedure.

[274]The claimant had been told in the letter inviting her to the appeal that Mr Cox would be present and present the management case and her witness statement does not set out any prejudice she says that she suffered as a result of him doing so.

[275]The disciplinary policy does not set out how an appeal will be conducted but it is not at all unusual for a disciplinary appeal to be conducted in the way that this appeal was conducted. Case Number: 6002768/2023 52

[276]The claimant did not explain to Ms Clarke in cross examination why she believes that Darren Cox being present was because she had made protected disclosures or because she was not English. Her witness statement does not set out any basis for that belief and I find that his presence was simply because Ms Clarke considered that to be the appropriate way to conduct the appeal. She was, no doubt, supported by HR in the process- it is apparent from the minutes that Jenny Howes , senior HR adviser was present (1025).

[277]There was no breach of contract in the way the appeal was conducted and I do not find it was because the claimant had made disclosures or in any way related to race.. Issue 4.20 / 6.2.21- 4.1.20 The person who heard the appeal, Jo Clarke, gaslighted the claimant by misrepresenting that, when she did not attend work on 8 July 2023, Sharon Kennedy was correct to mark it as DNA and then delete that and insert the reason the claimant gave for not attending and then deleted that and write DNA

[278]The background to this issue is that the claimant’s belief is that when the system marks somebody as DNA, it represents “did not attend and did not contact the ward”. She says that when she was first employed, she was told that if someone had too many DNAs they would be subject to disciplinary proceedings.

[279]The respondent’s witnesses all denied that was what DNA meant. Ms Clarke explained that in the software programme where absences are recorded, there is a drop down box and the DNA appears in the drop down box. It means no more or less than “did not attend”.

[280]Ms Kennedy explained that initially DNA was entered onto the system, she then changed the entry so that it had a note stating that the claimant had called the ward and she then changed the entry back to DNA. She told me that she had to ensure that it showed DNA otherwise the claimant would have been paid for the shift because payroll do not see the notes on the system. However, she was unable to explain why she changed it from DNA to the entry with a note in the first place.

[281]In this respect Ms Kennedy’s evidence was somewhat unsatisfactory, however, the claimant has adduced no evidence to show that DNA meant did not attend and did not call the ward and she was unable to obtain any support for that proposition from any of the respondent’s witnesses.

[282]In this respect, I consider that Ms Clarke gave her evidence honestly and she believed that DNA was the correct entry in the system. In those circumstances I do not accept that she “gaslighted” the claimant when she said that Sharon Kennedy was right to have inserted DNA into the system.

[283]The claimant has not proved the factual allegation contained within this issue. Case Number: 6002768/2023 53 Issue 4.21/6.2.12- 4.1.21 Jo Clarke found that the written warning was appropriate

[284]In the appeal outcome letter of 15 December 2023, Ms Clarke went through the various grounds of appeal raised by the claimant in some detail. The letter is 6 pages long, she concluded that the final written warning sanction was appropriate and reflective of the serious nature of the misconduct.

[285]It is apparent from the outcome letter that Ms Clarke was careful in the way that she approached the appeal and although there is no doubt that the claimant profoundly disagrees with her decision, I find that it was an outcome which was reached in good faith.

[286]In the same way that it might be considered that the original sanction of a final written warning was a harsh one, it might be considered that the decision on the appeal was harsh. However, it was a decision which Ms Clarke could properly reach. I am satisfied that the decision was not because the claimant had made any type of protected disclosure, and the claimant has not proved any facts from which I could conclude that an English employee in the same circumstances have received a different result.

[287]It cannot be said that in reaching the decision she did, Ms Clarke behaved in a way which, objectively, was likely to destroy or seriously damage the relationship of trust and confidence. She reached a decision which was well within her discretion as a manager. Issue 4.1.22/ 6.2.23 - Jo Clarke said that the claimant needed help getting out of the building instead of allowing HR to support the claimant in getting out of the building Issue 4.1.23/6.2.24- Jo Clarke escorted the claimant out of the building

[288]It is convenient to deal with these 2 allegations together.

[289]At the end of the appeal hearing Ms Clarke escorted the claimant from the premises. The claimant says that the HR adviser asked her how she would get home and Jo Clarke interrupted and asked if the claimant needed help getting out of the building because she wanted to make sure the claimant was getting out of the building. When reaching the doors, Ms Clarke became embarrassed and red-faced because she could not let her out because she did not have the fob key. The claimant’s witness statement states “I found this conduct unacceptable, I felt humiliated reduced to dust. Looked unreal to be true.” (Paragraph 125).

[290]Ms Clarke explained that her swipe card to get through the doors was part of her ID badge. Thus she would not be unable to get through the doors. The claimant put to her that she did not have a key for community hospitals to which Ms Clarke gave the answer that she manages the community hospitals and therefore her smartcard is activated for all of the doors. It seemed to me that evidence was credible and I accept it. Case Number: 6002768/2023 54

[291]Experience in the employment tribunal shows that it is not at all unusual for a manager who has heard an appeal to escort the appellant from the building. On some occasions it is a matter of courtesy. On some occasions managers want to ensure that the claimant leaves the building without causing disruption.

[292]It was not a detriment to the claimant to be escorted from the building and there is no evidence to suggest that Ms Clarke is inaccurate when she states that she offered to escort the claimant out of the building because she did not want her to have to knock on someone’s door to be let out. I accept that evidence is true. I therefore find that the actions of Ms Clarke were nothing to do with the alleged protected disclosures and there is no evidence from which I could find that her decisions related to the claimant’s race.

[293]I also do not find that Ms Clarke was in any way in breach of contract. Issue 4.1.24/6.2.25 On 8 November 2023 the respondent launched an investigation into alleged incidents on 17 September 2023 and 22 October 2023

[294]As I have already explained, during the investigatory process that led up to the final written warning, additional allegations were made against the claimant. Those were serious allegations about the claimant’s behaviour and included assertions by members of staff that they now dreaded coming into work when the claimant was on shift which was causing them to consider handing in their notice (page 839) and “the thought of having to work with her and being ignored or spoken to rudely is quite stressful and it makes me want to leave my job as a staff nurse at Westhaven” (page 841).

[295]Those allegations could not be ignored, the respondent had to deal with the situation which it was facing. In those circumstances it was appropriate for the respondent to launch the investigation, which included the incidents on 17 September 2023 and 22 October 2023.

[296]As I have set out above in respect of those specific dates, allegations were made about the behaviour of the claimant and, in my judgment, it was entirely reasonable (indeed it was necessary) for the respondent to investigate them. The investigation was nothing to do with any alleged disclosures nor related to the claimant’s nationality. It was because serious allegations have been made which needed to be investigated. The decision to investigate was not a breach of the contract of employment. Issue 4.1.25/ 6.2.26- The respondent refused to hear the claimant’s grievance of 13.11.23 as a separate process

[297]The claimant’s witness statement refers to a grievance on 13 November 2023 about Katie Smith for malpractice in not supervising patients correctly and also a 2nd grievance against Hayley Stamp, Ruth Dean and Scarlett Hanger.

[298]On 10 November 2023 (not 13 November 2023) the claimant raised a formal grievance about allegedly silent treatment and unfair treatment she Case Number: 6002768/2023 55 had been receiving from work colleagues, Hayley Stamp, Scarlett Hanger, Ruth Dean, Heidi Gardner and Katie Smith. She said that she believed there had been malicious intent by the staff members since 26 June 2023. The particulars that were given by the claimant in that document all relate to the events on 22 October 2023, they include allegations which might reasonably described as malpractice of Ms Smith for not supervising patients correctly (page 948). I have not been taken to and cannot find a grievance of 13 November 2023.

[299]The grievance(s) were raised shortly after the claimant had been suspended and whilst her appeal in relation to the final written warning remained outstanding.

[300]The matters contained within the grievance would almost certainly be considered as part of the investigation and disciplinary process in respect of which the claimant had now been suspended.

[301]On 17 November 2023, Mr Cox wrote to the claimant providing further information in relation to the disciplinary investigation which was ongoing (page 967). In that letter he stated that he did not consider it necessary to instigate a separate grievance process as the concerns the claimant had raised related directly to the complaints and workplace relationships. Thus the claimant’s complaints would be considered as part of the investigation.

[302]At page 527 of the bundle is the “Employee and Line Managers Guide to the Grievance Procedure”. At paragraph 1.6 it states: Grievances raised while you are subject to disciplinary proceedings will usually be heard only when the disciplinary process has been completed. Insofar as a grievance has any bearing on the disciplinary proceedings, it can be raised as a relevant issue in the course of those proceedings.

[303]I do not believe that I was taken to that page during the evidence and, therefore, I should be somewhat slow to rely upon it. However, it seems to me to be a statement of usual practice both within the NHS and outside of it. In this case the respondent was not refusing to consider the claimant’s grievance, it was simply setting out how it would consider it – within the disciplinary procedures. There was an entirely normal course of action.

[304]I am satisfied the decision was nothing to do with the disclosures which the claimant alleges she made, nor with her race. It was also not a breach of contract. Issue 4.1.26 / 6.2.27- The respondent has given the claimant references which refer to her having been given a final written warning

[305]It is not wholly clear what the claimant’s case is in this respect. It is not dealt with in her witness statement at all. The claim form at page 271 refers to 3 withdrawn offers and in particular refers to a reference for Weymouth Manor care home. The claimant gave late disclosure of what she says is the Case Number: 6002768/2023 56 evidence in respect of the reference. It appears at page 1408. The respondent does not accept that document is genuine. It contains a message stating “Thank you for your email Unfortunately We have been informed by Radipole ward management you are still under a disciplinary investigation with a live final written warning”. It is undated but must be related to the withdrawn job offer evidence at page 1367 in January 2024.

[306]The respondent accepts that it gave other references that referred to the warning and stated that it was live at the time of leaving and issued due to misconduct (pages 1128 and 1218). Mr Cox explains that he gave those references having requested support from HR. There is no basis for me to doubt that evidence.

[307]The NHS guidance at page 608 states that references should aim to provide details of any recent or ongoing disciplinary action.

[308]I accept that the giving of references which refer to warnings would reasonably be seen as a detriment. However, I am entirely satisfied that it was nothing to do with the alleged disclosures or the claimant’s race. Mr Cox was asked to provide references, he followed the NHS guidance and he accurately described the position, indeed given that he only referred to a live warning, and not a final written warning, it might be thought that he was more generous than he needed to be to the claimant.

[309]I do not consider that it is a breach of contract to provide an accurate reference but, in any event, the references were given after the claimant had resigned. Issue 6.2.28- constructively dismissing the claimant

[310]This allegation is made as an allegation of direct race discrimination and I deal with it at this stage only in that context. Conceptually, it is possible that if the claimant had resigned because of breaches of contract which were due to her race, her constructive dismissal would be an act of race discrimination (see section 39 Equality Act 2010).

[311]However, in this case I have not found any of the allegations of race discrimination proved. In those circumstances even if the claimant was constructively dismissed, the dismissal was not an act of discrimination and, therefore, the claim based on this issue must fail. Analysis of Further Issues

[312]My analysis of the issues so far has, largely, been making the relevant findings of fact. In the light of those findings, I now turn to the other issues. I will return to the question of constructive dismissal in due course. Remaining issues in Issue 4

[313]In respect of issue 4.2, I accept that, at least some of, the things complained of, could be seen by a reasonable employee is being to their Case Number: 6002768/2023 57 detriment. Although I have not found all of the allegations factually made out, where they have been made out I consider that they amount to a detriment. A reasonable employee would take the view that it was to their detriment to be investigated in respect of allegations, subjected to a disciplinary process and a final written warning and for their appeal to be unsuccessful.

[314]However, in respect of issue 4.3, I am entirely satisfied that any detriments which have been proved were not done on the ground that the claimant had made the alleged protected disclosures. Issue 5- Dismissal (Employment Rights Act s103A) Issue 5.1 and 5.2- Was the making of any proven protected disclosure the principal reason for the Claimant’s dismissal?

[315]Given that the claimant has not proven that she made any protected disclosures, it must follow that any repudiatory breaches of contract which led to the claimant’s resignation were not because she made a protected disclosure.

[316]In any event, for reasons which I have set out above, even if I were wrong and the claimant had made protected disclosures, I am entirely satisfied that the things which happened to the claimant were not because of any such disclosures. Thus, even where the respondent was in repudiatory breach of contract, the principal reason for the breach was not the alleged protected disclosures.

[317]In those circumstances this claim must fail. Issue 6- Direct Race Discrimination

[318]I have set out above my findings on issues 6.2.1 – 6.2.28.

[319]In the light of those finding the answer to issue 6.3 is that the claimant has not been treated worse than a hypothetical comparator in the same position that she was in. There are no facts from which I could conclude that the claimant’s treatment was because of her race and, in any event, I am satisfied as to the reasons which the respondent has given and that they show that the treatment of the claimant was not for a reason connected to race.

[320]In those circumstances this claim must fail. Issues 7,8 and 9

[321]As set out at the outset of the hearing, the claim of discrimination on the grounds of religion was withdrawn. I do not consider it further. That deals with issue 7

[322]In respect of issue 8, the claim of harassment related to race, I repeat my findings set out above in relation to paragraph 8.1.1. For the same Case Number: 6002768/2023 58 reasons that some of the acts of alleged race discrimination would amount to a detriment, they would also amount to unwanted conduct (issue 8.2).

[323]However, even in respect of those allegations of unwanted conduct which I have found proved, there is no evidence from which I could conclude that they related to the claimant’s race (issue 8.3). At its highest, the claimant’s case is that because of her Portuguese nationality, she behaves in a particular way.

[324]However, the way that the claimant behaved on the wards to her colleagues went beyond mere expressiveness or talking loudly. I have found that the claimant behaved in an aggressive way towards her colleagues on occasions and did not behave acceptably. I do not find that the unacceptable way in which the claimant behaved was related to the fact that she was Portuguese. Indeed, the claimant herself stated that her characteristic of speaking the truth even if it was unkind was not because she was Portuguese.

[325]In those circumstances it is not necessary for me to consider issues 8.4 and 8.5 and the claim of harassment fails.

[326]The claimant withdrew the claim of harassment related to religion. Issue 2 – Constructive Unfair Dismissal

[327]Having made my findings as to the allegations of repudiatory breach of contract, I now turn to the question of constructive dismissal.

[328]The only respect in which I have found that the respondent behaved in a way which was likely to seriously damage the trust and confidence was in requiring the claimant to take special leave.

[329]I do not find that the respondent had reasonable and proper cause for requiring the claimant to take special leave. It should have applied the disciplinary policy and given proper consideration to whether it would suspend her or not.

[330]Issue 2.3 requires me to decide whether the claimant resigned because of that breach. The respondent, with some justification, argues that the claimant’s witness statement does not provide sufficient evidence as to why she resigned. However, I consider it sufficiently clear from paragraphs 126 and 130 of the claimant’s witness statement that she is asserting that she resigned because of everything which had gone before. I find that was the case .The claimant resigned because of a number of the things which I have set out in my judgment. She resigned in part because of the fact that she was required to take special leave, which I find was hurtful to her because she felt she was being singled out for different treatment to her colleagues. However, she also resigned because of the ongoing difficulties she had with her colleagues and the decision to give her a final written warning. Case Number: 6002768/2023 59

[331]Applying the test in Nottinghamshire County Council v Meikle

[2004] IRLR 703

, I find that it is sufficient that the claimant resigned in part to this repudiatory breach of contract for the claim of constructive dismissal to succeed.

[332]Issue 2.5 requires me to consider whether the claimant waited too long before resigning or affirmed the contract. It has not been suggested that she waited too long and therefore I do not need to consider the question of delay. In any event she did not. She was placed on special leave at the end of October 2023 and, finally, resigned in on 11 December 2023. That delay did not affirm the contract.

[333]I note, simply to record, that in its amended response and its closing submissions, the respondent has not asserted that the claimant affirmed her contract when she withdrew her resignation on 12 November 2023 and, therefore, I do not consider the point further.

[334]In respect of issue 2.5, there was no fair reason for Mr Cox placing the claimant on special leave.

[335]On those circumstances the claim of constructive dismissal succeeds. Issues relating to Remedy

[336]It was agreed that I would deal with issues 14.3, 14.4.4 and 14.4.7 at this stage of the proceedings. Issue 14.4.4- Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

[337]In respect of issue 14.4.4, I find, following my decision that the claimant resigned for a number of reasons, that even if she had not been placed on special leave, she would have resigned when she did in any event. The special leave was only one of a number of things which had happened to the claimant which caused her to reach the view that her ongoing employment was not tenable- that is clear from her letter of resignation at page 1037 (although it is a somewhat difficult document to follow). I find that the claimant would have resigned on the day that she did, even if she had not been placed on special leave. Thus the compensatory award will be reduced to nil on the basis that the breach of contract which led to the claimant’s resignation did not cause her any loss. Issue 14.3- Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? Issue 14.4.7, If the Claimant was unfairly dismissed, did she cause or contribute to her dismissal by blameworthy conduct? If so, would it be just and equitable to reduce her compensatory award? By what proportion?

[338]In respect of issues 14.3 and 14.4.7 I must decide whether the claimant contributed to her dismissal by blameworthy conduct. Given that the Case Number: 6002768/2023 60 compensatory award has already been reduced to nil, it cannot be reduced further pursuant to issue 14.4.7. The respondent argues that because the claimant behaved so badly towards her colleagues, her awards should be reduced on the basis of her contributory fault. In my judgment the claimant’s behaviour did not contribute to the respondent’s erroneous decision to place her on special leave to the extent that it would be appropriate to reduce her compensation further.

[339]In any event, having regard to the significant reduction which I have made to the compensatory award, I do not consider that it would be just and equitable to reduce the basic award further.

[340]Thus the claimant will be entitled to a basic award but no more. Issue 11 – Holiday Pay

[341]The claimant’s witness statement does not deal with any claim for holiday pay and Ms Winning’s evidence is that the claimant was paid for more holiday than she had accrued. She gives details at paragraph 16 of her witness statement. In those circumstances I accept her evidence and the claim for holiday pay is dismissed. Issue 12 – Unauthorised Deduction 12.1.1- Not being paid appropriate allowances while suspended

[342]I accept the argument of the respondent that when a person is suspended, they receive their normal pay but not enhancements as those depend on actually working. That is consistent with the claimant’s contract of employment which provides a salary of £19,337 per annum but, in addition, unsocial hours payments when people work at night time. If someone does not work at night, they are not entitled to the allowance.

[343]In those circumstances when considering the amounts which were properly due to the claimant during her suspension, the amounts properly due are her basic salary. Again the claimant has not advanced any other argument in the course of these proceedings.

[344]The claimant claims a sum for a cancelled bank shift, which is a different type of payment and the respondent accepts that sum is due. The respondent concedes that more is due in the claimant has claimant and, in their circumstances, I accept the respondent’s figure. There will be judgment in the amount of £189.93 Issue 12.1.2- The claimant claims the sum of £171.60 in respect of the disciplinary and investigation meetings she attended

[345]I was told by Ms Winning that the claimant was paid her salary when attending the disciplinary and investigation meetings but that the claim for £171.60 is in respect of expenses. Case Number: 6002768/2023 61

[346]The claimant does not address is claimant all in her witness statement and, in those circumstances, it has not been proved. For the purposes of clarity I would accept the respondent’s argument that the claimant’s contract does not entitle her to claim expenses in respect of attending disciplinary and investigation meetings. Issue 12.1.3 The claimant claims back pay for the period 2022/2023 in the sum of £3500

[347]Ms Winning states that the claimant has been paid all sums she was entitled to as a result of being rebranded from band 2 in band 3 in April 2023. The claimant has not adduced any evidence to the contrary, nor did she question Ms Winning about that evidence. In those circumstances I am not satisfied that this claim is well-founded. Issue 13- Breach of contract

[348]This head of claim adds nothing to the claim of unauthorised deductions from wages, to the extent that the claimant has succeeded in part in her claim for unauthorised deduction from wages, the claimant cannot also recover the same sums under this head. The extent to which the claimant has failed in that claim, she fails in respect of her claim of breach of contract for the same reason. Overall conclusions

[349]The claims of being subject to a detriment and unfair dismissal because of making a protected disclosure fail because the claimant did not make protected disclosures and, in any event, to the extent that she was subject to detriments, that was not because of any disclosure she made.

[350]The claim of harassment related to race fails because the things about which the claimant complains either did not happen, or to the extent to which they did happen, they were not related to the claimant’s race.

[351]The claim of direct race discrimination fails because, there are no facts from which the tribunal could conclude that the claimant was treated as she was because of her race.

[352]The claims of direct religious discrimination and harassment related to religion are dismissed because the claimant has withdrawn them.

[353]The claim of constructive unfair dismissal succeeds because the respondent was in repudiatory breach of contract when it placed the claimant on special leave and that was a reason for her resignation. However, the claimant would have resigned on the day that she did even if the respondent had not been in repudiatory breach of contract and, therefore, the compensatory award is reduced to nil.

[354]The claims in respect of loss of wages fail, except the admitted amount of £189.93. Case Number: 6002768/2023 62