Ms R Butterworth v C Jacks and Others: 6014290/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 6014290/2024

Between

Ms R ButterworthClaimant

C Jacks and OthersRespondent

Before

Employment Judge Ficklin

Date 5 June 2026

JUDGMENT

[1]In an oral judgment delivered on 20 March 2026, I dismissed the claimant’s claim for public interest disclosure detriments as not well-founded. I was asked for written reasons.

REASONS

[2]The claimant is a Community Staff nurse. The first respondent, Ms Caroline Jacks, is a senior nurse and at the material time was employed as Macclesfield Care Community Team Leader. The second respondent, Ms Katie Andrew, is also a senior nurse and held the position of Macclesfield Care Community Team Leader prior to the first respondent. The third respondent is the National Health Service (NHS) Trust in which the claimant and other respondents worked at the material time.

[3]The claimant’s case is that, on 15 December 2022, she made a protected disclosure by verbally challenging the decision of her then-line manager, Ms Andrew, to allow another nurse to work in a patient facing role whilst Covid positive. She says that as a result, in June 2024, she was “blocked” from taking bank shifts in the Macclesfield region by Ms Jacks, Ms Andrews’ successor. She believes that Ms Andrew, in conjunction with Ms Jacks, was involved in the decision to prevent her from accessing shifts in that region because of her disclosure.

[4]On 3 June 2024 the claimant raised a formal grievance in relation to her being prevented from taking shifts in the Macclesfield area, and a grievance hearing took place on or about 17 June 2024. The claimant says that the third respondent failed to provide a formal outcome to the claimant’s grievance (and the complaints she made at the grievance hearing), and failed to address her public interest disclosure complaint in relation to the alleged breach of Covid guidelines. She also alleges that there was an ongoing detriment since she was still not allocated any shifts after the grievance process.

[5]In claim forms received in October 2024 following ACAS Early Conciliation, the claimant brought complaints of detriment against the three respondents.

HEARING

[6]There is an agreed bundle of 392 pages and separate bundles of witness statements. I heard evidence from the claimant on her own behalf. I heard oral evidence from the first and second respondents as well as from Ms Lisa Nolan, whose title at the material time was Head of Nursing – Safer Staffing and Workforce Lead for the third respondent.

LAW

[7]The public interest disclosure provisions are contained in the Employment Rights Act 1996 (ERA). For this case the relevant sections are at sections 43B and 47B. The relevant parts read as follows: 43BDisclosures qualifying for protection (1)In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (da)that sexual harassment has occurred, is occurring or is likely to occur, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. (4)A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice. (5)In this Part “ the relevant failure ”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1). ... 47BProtected disclosures (1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer. (1D)In proceedings against W's employer in respect of anything alleged to have been done as mentioned in subsection (1A)(a), it is a defence for the employer to show that the employer took all reasonable steps to prevent the other worker— (a)from doing that thing, or (b)from doing anything of that description. (1E)A worker or agent of W's employer is not liable by reason of subsection (1A) for doing something that subjects W to detriment if— (a)the worker or agent does that thing in reliance on a statement by the employer that doing it does not contravene this Act, and (b)it is reasonable for the worker or agent to rely on the statement. But this does not prevent the employer from being liable by reason of subsection (1B). (2). . . This section does not apply where— (a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X). (3)For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “ worker ”, “ worker’s contract ”, “ employment ” and “ employer ” have the extended meaning given by section 43K.

[8]Several cases in the higher courts have considered aspects of these statutory provisions. When considering whether there has been a ‘disclosure’ within the meaning of s43(B)(1) the employee must disclose ‘information’. It is not sufficient that the employee has made an ‘allegation’ Cavendish Professional Risks Management Ltd v Geduld

UKEAT/0195/09/DM

. As far as the test under section 47B is concerned, I am guided by Fecitt and others v NHS Manchester

[2012] IRLR 64

where the Court of Appeal made it clear that, where a worker has shown that they made a protected disclosure, it is for the respondent to show that any detriment was “in no sense whatsoever” connected to the making of that disclosure.

AGREED ISSUES

[9]None of the respondents took points about whether the claims were brought in time. The issues were agreed between the parties, as set out in the bundle: Protected disclosures

AGREED ISSUES

[1]Did the claimant make one or more qualifying disclosures as defined in section 43B of the Employment Rights Act 1996? The Tribunal will determine what happened in relation to the following allegation:(1) The claimant says that, on 15 December 2022, she verbally challenged the decision of her line manager, Katie Andrews, to allow another nurse to work in a patient facing role whilst Covid positive. The claimant said words to the effect that this was a breach of infection control guidelines and government rules on isolation to which Ms Andrews said she was “overruling” those rules and guidelines.

(2) On 3 June 2024 she raised a formal grievance in relation to the above and her being “blocked” from taking shifts in the Macclesfield and reiterated the disclosure relating to the breach of Covid protocol in relation to (1) above.

(3) On 17 June 2024 in a meeting with Lisa Nolan, of the third respondent, the claimant and re-iterated the disclosure relating to the breach of Covid protocol in relation to (1) above. Did she disclose information?

[3]Did she believe the disclosure of information was made in the public interest? Was that belief reasonable?

[5]Did she believe it tended to show that:(a) a person had failed, was failing or was likely to fail to comply with any legal obligation;

(b) the health or safety of any individual had been, was being or was likely to be endangered; Was that belief reasonable?

[7]If the claimant made a qualifying disclosure, it was a protected disclosure because it was made to the claimant’s employer. Detriment (Employment Rights Act 1996 section 48)

[8]What are the facts in relation to the following alleged acts or deliberate failures to act by the respondents?(1) In June 2024, Ms Caroline Jacks (the second respondent), the manager who succeeded Ms Andrews (the first respondent) refused the claimant’s request for some shifts at Macclesfield GP Surgeries, by saying words to the effect that it was “not a good idea”.

(2) Thereafter, the claimant was not offered any shifts in the Macclesfield area.

(3) The third respondent failed to provide a formal outcome to the claimant’s grievance of 3 June 2024, and failed to address her public interest disclosure complaints of 3 June and 17 June in relation to the alleged breach of Covid guidelines. The claimant believes that the decision to “block” the claimant from being offered shifts in the Macclesfield area was taken by Ms Andrews (the first respondent) and Ms Jacks (the second respondent) who were both managers in that area, and that the third respondent was liable for their actions.

[9]Did the claimant reasonably see that act or deliberate failure to act as subjecting her to a detriment?

[10]If so, was it done on the ground that she made a protected disclosure? EVIDENCE AND FINDINGS 10. Having considered the oral and written evidence and submissions presented by the parties, I have made the following findings of the relevant facts having resolved conflicts in the evidence on the balance of probabilities. I will not rehearse all the evidence but incorporate the points made by the parties within the body of these reasons.

[11]The claimant is a nurse who was the third respondent’s employee until January 2023. Both before that time and after, she did shifts as a bank nurse, which means that she did ad-hoc shifts to fill in when there were not enough staff nurses available to cover the shifts.

[12]It seems that between January 2023 and May 2024 she had not done shifts at the third respondent's site at Macclesfield, which is where the claimant had worked before. On 29 May 2024 the claimant contacted Caroline Jacks, who was at that time the manager of that section, to ask about booking into bank shifts, asking if it would be “inadvisable” and saying she did not want to cause any conflict in the team.

[13]Ms Jacks contacted other members of the team including the more senior Katie Andrew, who I understand had been the claimant’s line manager previously, and also the Nurse Bank Manager Jill Marshall. After that consultation Ms Jacks responded to the claimant saying words to the effect that it was probably best if the claimant did not book shifts, referencing the circumstances around why the claimant left the team. The claimant then contacted or spoke to Ms Marshall and the HR adviser Agatha Barnes about Ms Jacks’ response. In summary the claimant was aggrieved at the situation and lodged a grievance under the Trust’s Grievance and Dispute Policy on 3 June 2024.

[14]There was an investigation by Nicky Winder who interviewed Ms Jacks and Ms Andrew and who upheld the claimant’s grievance in a report that seems to be dated on or about 9 July 2024; nothing turns on the exact date.

[15]The grievance outcome was purportedly communicated to the claimant by Lisa Nolan, a senior nurse, in a meeting either on 16 or 17 July 2024 and in a letter dated 22 July 2024. The claimant was unsatisfied with the outcome, despite the grievance being upheld, and appealed via letter on 23 July 2024. That appeal was purportedly resolved by email on 24 September 2024 from Peter Ledworth, Deputy Director of Governance, the details of which are addressed below.

[16]The claimant went to ACAS in all three cases on 19 September 2024, and the certificates were issued on 23 September 2024. Her claims against Caroline Jacks, Katie Andrew and the East Cheshire NHS Trust were lodged in October 2024. The Respondents have not taken time points in this matter and for the reasons I shall set out they will not matter in any event.

[17]There are three claimed protected disclosures. The first is on 15 December 2022, when the claimant is accepted to have raised with her manager Ms Andrew that she had allowed a nurse to work in a patient-facing role while testing positive for Covid, which was a breach of regulations at the time. The respondents do not accept that the disclosure showed any actual breach of health and safety.

[18]The second is that on 3 June 2024 she raised a formal grievance for being blocked from taking bank nurse shifts in Macclesfield, and she reiterated the previous disclosure against Ms Andrew.

[19]The third is a further reiteration of the first disclosure to Lisa Nolan in a meeting on 17 June 2024 as part of the grievance process.

[20]The main focus of this case has to be the original disclosure on 15 December 2022. The respondents do not dispute that the disclosure was made, inasmuch as the claimant went to Ms Andrew and raised that she thought a nurse was working while infected with Covid and that Ms Andrew had allowed it.

[21]I have no hesitation in finding that the claimant believed that the disclosure was made in the public interest and that she believed that it tended to show that the health and safety of any individual had been, was being or was likely to be endangered, and the reasons why are obvious. In December 2022 Covid was, although somewhat diminished, still a much more severe threat than it is now and even than it was in June or July 2024, ie the period of the claimant’s grievance.

[22]I find that the respondents’ argument that the health and safety regulations around Covid had changed by summer 2024 completely irrelevant in the context of the wording of the statute that a protected disclosure can show that the health and safety of any individual “had been” endangered. The respondents are not arguing that Covid had always been a lower threat and that the regulations in 2022 were wrong, which would have been impossible to argue in any event, but that the threat had diminished over time and the regulations changed to reflect that. In that context, it is open to me to find that the regulations in 2022 reflected the threat level as it was then, so a breach of those regulations can be taken to have endangered health and safety at that time.

[23]Rather, the issue is the claimant’s reasonable belief. There was a dispute in evidence about what the guidance at the time said about when staff could come in after negative tests. It was put to the claimant in cross examination that it was “five days and two negative tests”. The claimant answered that she thought it was five days and then two days of negative tests, which I understand to mean negative tests on the sixth and seventh day after testing positive.

[24]The respondents’ Grounds of Resistance state that the nurse in question tested positive on 9 December, and returned to work on 14 December, which is also stated in Ms Andrew’s witness statement. It is not clear to me whether the respondents’ argument is that it is two negative tests in five days, thus clearing the person to come in on the fifth day, which would be consistent with their grounds of resistance, or whether it is five days away during which there are two negative texts, after which the person could return ie on the sixth day. That is what I understood to be put to the claimant, and Ms Andrew’s witness statement states that the guidance at the time said to “isolate for five days”, which seems more like the latter. Those are not the same in the context of this kind of guidance and I am surprised that the respondents have not been able to be clearer about that considering the importance of it.

[25]But I am even more surprised to see that the appropriate guidance was not even put before me. I have referred to what is in the bundle described as ‘guidance’ because it was mentioned several times in the evidence. But what is in the bundle is not the appropriate guidance at all. The guidance in the bundle is called COVID-19: information and advice for health and care professionals, but that guidance is about how to deal with patients; it is clearly not about staff. In that guidance it refers to links to other guidance that is about management of staff. That other guidance should have been in the bundle. It is not appropriate for me to follow links to guidance that was not before me in the hearing and to which the parties have not referred. But I have no clear evidence in front of me of what the rules were at that time.

[26]I cannot find on the balance of probabilities that the claimant reasonably believed that Ms Andrew allowed the other nurse to work contrary to guidance because I do not know what it says. I accept that the claimant believed it, but she may have been factually wrong about the guidance. If she was wrong, her belief could not have been reasonable. It is her case to prove.

[27]That is determinative of the claim, and is the first reason why it must fail. The second reason is because even if I had found that the claimant’s belief was reasonable, it would have to be shown to the balance of probabilities ie more likely than not, that the detriments were done because she made that disclosure, or that the disclosure was a material factor in the respondents’ choices to subject her to detriment. I do not need to make a finding on it, but the evidence is not sufficient to show that that particular incident was operative in the decision to block her from shifts. There is no evidence that it was a material factor, other than a reasonable inference based on the respondents’ other behaviour in this case. It seems to me that in all the circumstances, even a reasonable inference does not reach the balance of probabilities.

[28]I turn then to the other two pleaded disclosures, which are the formal grievance and the meeting with Ms Nolan, in both of which the claimant raised the 2022 incident again.

[29]It seems to me that neither of these are separate from the first disclosure. If the first disclosure about the Covid incident was made out, these would be redundant. Because it is not made out, the fact of raising a grievance or having a meeting do not show endangerment of health and safety, failing to comply with a legal obligation etc as per s. 43B of the ERA 1996.

[30]The issues in this case also refer to detriments the claimant claims were inflicted on her. There are three detriments listed in the Issues. The first two are effectively the same; they are different ways to state that the claimant was blocked from taking shifts at Macclesfield by the respondents’ actions. The third is the failure to provide a formal outcome to the claimant's grievance of 3 June 2024 and in that, failure to address her claimed protected disclosure.

[31]I first address whether she was formally or informally blocked from taking shifts. In a sense it does not matter, because even if there was no technical bar from booking as a bank nurse at Macclesfield, no party can sensibly argue that the respondents’ actions were not a barrier to that. In fairness to the respondents, they did not argue that in the hearing. But the respondents' pleaded position in the Grounds of Resistance say that there had never been a technical bar. I note that Jill Marshall said in an email on 24 May 2024 that she would add a restriction to the claimant’s booking availability based on Ms Jack’s decision, which was cited in Ms Jack’s own witness statement. The pleading flies in the face of their own evidence.

[32]Ms Marshall stated in an email of 23 April 2025 that there “are” no restrictions on the booking system for the claimant. That was in the present tense and has no application to the material time of almost a year earlier in May-June 2024. It is not the only example of the respondents seeking to have the evidence both ways, as I set out below.

[33]The respondents accept, because they must, the bare fact that they acted contrary to their own guidance called Process for Removal of Bank Worker from the Bank Register and that the claimant's grievance was upheld. But I have no hesitation in finding that, subject to what I have said about the protected disclosures not being made out, the claimant was subjected to those pleaded detriments.

[34]Ms Jacks told the claimant not to book shifts with a view to formally blocking her, as per her correspondence with Ms Marshall. Ms Andrew was part of this decision, which was made by speaking to only four people in a 33-member team, according to Ms Jacks. It was personal, based on a cherry-picked survey of a minority of the team, and it was based on no formal reasons from the claimant’s previous employment, because all the respondents’ witnesses accepted that there were none. Their evidence was that informal resolutions of any previous conflicts meant that they were indeed resolved. But, they then used their personal views to block the claimant from working there again. This is not the only example of the respondents hiding behind the grievance outcome to acknowledge their failings without really ameliorating them. Had the protected disclosures been made out I would have upheld the first two detriments.

[35]The third detriment was failing to provide a formal outcome to the grievance. In their evidence, the respondents’ witnesses clung to the fact that the grievance was formally upheld. But there is a clear disjoint between the recommendations made by the investigator Nicky Winder and what was communicated to the claimant.

[36]For the avoidance of doubt, Ms Winder’s report was unequivocal; policy was not followed by either Ms Jacks or Ms Marshall. It says “there is no evidence of any formal concerns” and “the rational for the decision that [the claimant] should not work...at Macclesfield ...was based on verbal feedback...The concerns had not been documented...”

[37]The recommendation states that the claimant should “be able to work in an area (where [the claimant] has the appropriate skills, without fear of victimisation” and an apology. The claimant said, and I accept, that she did not see that report until the Tribunal process. Ms Nolan agreed and told me she did not show it to the claimant in their meeting on 16 July 2024 in which she purported to deliver the grievance outcome to her. I say ‘purported’ because apart from the bare fact that the grievance was upheld, and a minimised apology, the investigator’s report and the outcome communicated to the claimant were not congruent.

[38]Ms Nolan gave evidence that she was not bound to implement the investigator’s recommendations, and that is convenient because she did not.

[39]I am surprised that there is no record of the meeting in which Ms Nolan purported to deliver the grievance outcome on 16 July 2024. Ms Nolan gave evidence that her letter of 22 July 2024 reflected the meeting on 16 July. She said in response to a question from me that the reference to the claimant being able to work without fear of victimisation was put to her verbally in the meeting of 16 July, but I do not accept her evidence. I prefer the claimant’s evidence that this was not done.

[40]In the context of all the evidence this omission could only have been intentional. I say this because the 22 July letter also says nothing about whether the claimant was free to book shifts. Ms Nolan said this might have been an oversight, which in the context of the grievance simply defies belief; it is not credible evidence and I find it to be untrue.

[41]Ms Nolan gave evidence that the proposed meeting between the claimant, Ms Jacks, Ms Andrew and Ms Marchall for the claimant to resume working shifts was to “agree a way forward”. But that requirement came solely from Ms Nolan herself and was no part of the grievance outcome. I conclude that the requirement for a meeting was intended to be another barrier to the claimant resuming shifts. Ms Marshall was involved in the decision to block the claimant from shifts in the first place, and it is difficult to see why her presence at a meeting with people who had subjected the claimant to detriment would be supportive in any way. I do not accept that it was actually intended to be supportive, and was part of the respondents’ failure to communicate or implement the actual grievance investigator’s recommendations.

[42]The witnesses again and again hid behind the grievance outcome, but in substance neither accepted it nor implemented it. The witnesses said that they accepted that they had not followed Trust policy procedure and that informal interventions that were not recorded formally were by definition resolved. In that case, any residual issues could only have been their animus against the claimant. And so barriers were put in place, particularly in the form of the “clear the air” meeting that Ms Nolan proposed which could only have been another chance for the respondents to convey their personal opinions of the claimant, because they all accepted there were no valid professional complaints. That is a summary of the respondents’ approach to the claimant’s grievance, and to this litigation.

[43]Ms Nolan described the appeal against the grievance outcome as unusual because the claimant was appealing an upheld grievance. I accept that it is probably quite rare for that to happen. But in the context of this evidence it is understandable because the claimant was left with no clear resolution. She says in her appeal letter of 23 July 2024 that “It has not been made clear that I am allowed to work in any area following the grievance”. That is again surprising, considering the unequivocal recommendation of Ms Winder’s report. It simply was not communicated to her because the respondents did not want to implement it. The claimant also said in her appeal that she was not minded to attend a meeting because there was no actual evidence of any reason why she should not book shifts. According to the evidence I heard from the respondents’ witnesses, two of whom are respondents themselves, the claimant was quite right.

[44]The appeal process is a matter for the third respondent only, but in any event was not worthy of the name. The claimant sent many emails requesting updates and saying that it was not clear to her whether she was able to book shifts. There were various references in the bundle to appeal meetings that appear not to have happened. Ms Nolan gave evidence that she would normally have been spoken to about an appeal against her decision but that did not happen. The third respondent purportedly resolved the appeal with an email from Peter Ledwith on 24 September 2024, some two months after the claimant appealed. Mr Ledwith’s email said that the appeal was not treated as an appeal at all because the grievance was upheld, despite the claimant having been told she could appeal in Ms Nolan’s letter of 22 July. The letter states “NHSP (which I understand to mean NHS Professionals ie the NHS temp agency for bank nurses) have assured Jenny (Hanson, who was not otherwise mentioned in the evidence) there are no restrictions on [the claimant] working on the Nurse Bank”. Considering the issues in this case, it is understandable that the claimant was unsatisfied with that broad statement. She had never been restricted from the Nurse Bank generally; as the respondents well know the issue was about Macclesfield alone.

[45]The response goes on to say that in addition to acknowledging that the managers were wrong to prevent the claimant from working, they “had not addressed any behaviour correctly”. But that is also wrong. The grievance report found that there was nothing in the claimant’s file, behavioural, personal or professional, that would be any bar to working at Macclesfield, and the witnesses accepted that any matter resolved informally was resolved. There is no suggestion in the grievance report that any issues with the claimant had not been appropriately handled, it was that they were handled in such a way that meant there was no ongoing issue at all. Suggesting that managers had “not addressed any behaviour correctly” misplaces their errors and suggests that the claimant had been guilty of sanctionable conduct that should have been handled differently, but that was not the respondents’ evidence at all.

[46]It is not surprising that the claimant felt further aggrieved by this purported resolution. Had this detriment flowed from the disclosure, I would have found that the claim succeeded on this basis.

CONCLUSION

[47]This claim must fail because as a starting point the primary disclosure has not been shown to be based on the claimant’s reasonable belief, ie she may have been wrong, and the evidence to show otherwise is not before me. The detriments that were clearly imposed on her cannot therefore flow from a protected disclosure, and so the claim is not well-founded.

[48]The claimant’s claims are dismissed.