Mrs T I Edafienene v Linc-Cymru Housing Association Ltd and Codi Homes and Communities Ltd: 6027797/2025

EMPLOYMENT TRIBUNALS

Case No 6027797/2025

Between

Mrs T I EdafieneneClaimant

Linc-Cymru Housing Association Ltd and Codi Homes and Communities LtdRespondent

Before

Employment Judge R Brace

In person for claimant

Date 20 April 2026

JUDGMENT

[1]The complaint of being subjected to detriment for making a protected disclosure is not well-founded and is dismissed. Direct discrimination

[2]The complaint of direct race discrimination is not well-founded and is dismissed. Unfair Dismissal

[3]The complaint of unfair dismissal is not well-founded and is dismissed.

REASONS

[1]The Claimant is a litigant in person and the Respondent was represented by Mr Griffiths of Counsel. The Claimant brings claims of public interest disclosure detriment, direct race discrimination and unfair dismissal.

[2]We spent a proportion of the morning of the first day, on case management:a. The Claimant raised concern that a copy of the Investigation Report [180] had been heavily redacted, removing names of employees. Counsel for the Respondent agreed that this had been inappropriate and agreed that an unredacted copy would be provided to the Claimant during further reading time;

b. an application had been made by the Respondent prior to the hearing for its first witness, Evidence Chapwanya, to give her evidence remotely as she was currently on maternity leave with a 12-week baby, residing in Surrey some 5 hours away. This was granted by consent and she gave such evidence remotely; and

c. One of the Claimant’s witnesses, Evangeline Nwaigwe, was in attendance to give evidence in person but was also breast-feeding. Accommodations were made for Evangeline Nwaigwe to bring her baby to the Tribunal.

[3]The list of issues, as set by Judge Russell at case management hearing on 30 October 2025, was discussed and agreed as set out in the Appendix to this Reserved Judgment:a. In relation to the unfair dismissal claim, the Claimant confirmed that she was not seeking to claim that the reason or principal reason she was dismissed was because she made a protected disclosure, accepting that the reason for her dismissal was the incident on 3 June 2025 regarding counter-signing of medication. This was raised again in submissions when I reminded the Claimant she had not brought a claim of automatic unfair dismissal;

b. The parties were informed that whilst this was a liability only hearing, I would be considering contributory conduct and Polkey adjustments and these were explained to the Claimant;

c. In relation to the protected disclosure detriments, the Claimant confirmed that her case was that the disclosures were qualifying and in turn protected only because they were made to the employer and she was not claiming that any disclosure was protected because she had made any disclosure to the patient’s GP as implied at §18 and §19 of the Claimant’s witness statement.

[4]Finally, Mr Griffiths raised that the Respondent employer, an FCA Mutual Society registered under the Co-operative and Community Benefit Societies Act 2014 had transferred its undertakings to Pobl Homes and Communities Limited and had ceased to exist in January 2026 and that this transfer applied to all rights and liabilities not just to those of staff employed by the transferring entity at date of transfer i.e. it transferred any liability for the Claimant’s claims; that the name of that company had then been changed to Codi Homes and Communities Limited. He considered it appropriate to raise this issue.

[5]Mr Grifffiths was directed to send any evidence that he relied on to the Claimant and it was agreed that we would discuss this later in the hearing after the Claimant had the opportunity to consider such documentation and the relevant legislation. The Respondent was subsequently directed to prepare a short witness statement, attaching relevant documents, in relation to the dissolution of Linc-Cymru and one of the Respondent’s witnesses, a director of the Mr Gary Hortop did so, evidencing that Pobl Homes and Communities Limited had, following the transfer, changed its names to Codi Homes and Communities Limited. The Claimant was provided with the opportunity to question him on this issue and declined to do so having no further questions of him.

[6]It was agreed on the final day during submissions and after having received an unchallenged additional witness statement from Gary Hortop on the issue that Codi Homes and Communities Limited would be added as a second respondent.

[7]The Claimant was reminded at case management stage of the relevant legal principles in relation to her claims and the burden of proof and encouraged to keep a copy of the list of issues before her when questioning the Respondent’s witnesses.

Evidence

[8]I heard evidence from the Claimant, and froma. Cynthia Shenxane, an ex-colleague of the Claimant, previously a nurse at the Respondent; and

b. Evangeline Nwaigwe, again an ex-colleague of the Claimant.

[9]I also heard evidence from the following witnesses for the Respondent, from:a. Evidence Chapwanya, Deputy Nursing Home Manager (by video), investigating manager;

b. Jade Frias, Nursing Home Manager, dismissing manager; and

c. Gary Hortop, Director of Care and Support, appeal manager

[10]All witnesses relied upon witness statements which were taken as read and they were then subject to cross examination, my questions and reexamination.

[11]I was referred selectively to documents contained in a 342 bundle (“Bundle”) and, on the second day of the hearing and as a result of the Claimant contending in live evidence that she had not received a copy of the invite letter to the disciplinary hearing at which she was dismissed, in compliance with their ongoing obligation of disclosure both parties provided copies of relevant email exchanges which were admitted into evidence. These were added to the Bundle [343].

[12]As indicated an additional statement evidence was also permitted from Gary Hortop regarding the dissolution of the Linc-Cymru and admitted in evidence as neither the Claimant nor the Tribunal had any additional questions.

[13]There was a short adjournment on the fourth and what had been anticipated to be the final day of the hearing, due to my unexpected unavailability which was communicated to the parties early that day when a further fifth day was added. On that last day the parties provided lengthy oral submissions and the Claimant read out her submissions that she had prepared. Due to the length of the oral submissions, I confirmed that a reserved judgment would be gibven.

Findings of fact

[14]At the date of the Claimant’s dismissal, Linc-Cymru Housing Association Ltd (‘Linc’-Cymru) was a subsidiary of Pobl Group Limited and part of the Pobl Group.

[15]Linc-Cymru was responsible for the operation of a number of residential care homes, including Ty Coch Nursing Home (“Ty Coch”) located in Cardiff and registered to provide care for approximately 68 residents above 55 years of age, including those needing palliative/end of life care, dementia care as well as general nursing care. It is regulated by Care Inspectorate Wales (CIW).

[16]The Claimant identifies as a black, African Nigerian woman. She was initially employed by Linc -Cymru as a Senior Nursing Care Assistant from 7 April 2022 but by November 2023, she had qualified and was registered by the Nursing and Midwifery Council (‘NMC’) as a nurse, having moved in the August of 2022 to Ty Coch Nursing Home, a home owned by Linc (“Ty Coch”).

[17]The Claimant reported to Evidence Chapwanya, Deputy Nursing Home Manager of Ty Coch, who herself had moved to Ty Coch in August 2024. From September 2024, Jade Frias also moved to Ty Coch to become its Nursing Home Manager.

[18]Fom November 2023, on qualification, the Claimant became employed as a Nurse, working days and reporting to the Registered Nursing Home Manager at Ty Coch and was employed on terms and conditions set out in a Statement of Main Terms and Conditions signed on 15 December 2023 (“Statement of Terms”) until her dismissal on 26 June 2025 [69].

[19]This Statement of Terms provided at §17/18 that the Claimant was required to comply with the rules, policies and procedures of the Respondent including:a. a Disciplinary Policy, which was available on Linc-Cymru’s intranet [254]; and

b. its Medication Policy [267].

[20]In live evidence the Claimant accepted that these were policies that applied to her and she was bound to follow them.

[21]In relation to the Disciplinary Policy, Clause 3 and Clause 4 set out what was considered to be gross misconduct and examples of the types of offences normally regarded as gross misconduct that included:a. Any act which places a service user at risk of harm, or potential risk of harm;

b. Deliberate failure to follow guidance and instruction in relation to the care of service users, including, but not limited to care plans, moving and handling procedures, and procedures relating to the safe administration of medication;

c. Failure to report any incident, concern, or act of poor practice which places service users, residents or tenants at risk.

[22]It contained a section relating to potential outcomes, including informal, first and final written warning and dismissal, with reference to the fact that the employer reserved the right to implement the procedure at any stage of the disciplinary process dependent on the alleged misconduct. Warnings would remain on file for 6 months if first and 12 months if final.

[23]The Medication Policy provided a framework for safe practice (Clause 1) and in particular, there was as part of that policy a section entitled ‘Procedure for Controlled Drugs’ [274] that provided as follows: ‘Where the medication is a Controlled Drug, one Registered Nurse plus another Registered Nurse/care staff trained in the procedure, must be involved in checking and administration. Stock recorded in the Controlled Drug Register must be checked and the medication dispensed and administered by the two staff, with one acting as witness. The remaining total must be entered in the Controlled Drug Register and both staff sign to confirm and witness administration.’

[24]It is an agreed fact that Controlled Drug policies state that there must be two witnesses for the administration of a controlled drug. When being questioned in live evidence, the Claimant specifically accepted that the Medication Policy applied to her and every other nurse at Linc.

[25]Each service user prescribed a controlled drug would have a record within the Controlled Drug Register (or Book as it has been referred to in these proceedings) that stood as a record of the type and quantity of the drug they were prescribed, the date the supply was obtained, who gave the medication to the user and who witnessed the drug being given [248]. This was recorded by the individual giving the medication signing the Register in Column 9, as well as the witness o the giving of the medication signing the Register in Column 10. A further column within the record indicated the balance of the drug left in stock as well as the supplier.

[26]Along the bottom of each page of the Register was recorded the following ‘Column 9 must be completed by the signature of the person administering or disposing of the drug. Column 10 must be completed by the signature of the person witnessing the administration or disposal.

[27]To complete the picture with regard to drug administration, the Respondent also had software whereby the drugs administered to patients, whether controlled drugs or otherwise, were recorded. This was known as the Electronic Medication Administration Record System (‘EMARS’ or ‘MARS’) and staff were provided with electronic devices, tablets, to record the administration of the drug into EMARS which they would log into using a dedicated PIN, confidential and personal to them to identify them on the system.

[28]The Claimant during her disciplinary and in this litigation attempted to suggest that this Medication Policy had been superseded by the record in EMARS, what she termed a ‘new policy’ and that as a consequence the Controlled Drugs Register was simply a record of stock and no morel that the Respondent applied the incorrect policy when taking disciplinary action that led to her dismissal. This position was not supported by her own witnesses who confirmed in live evidence that they would not depart from the Procedure for Controlled Drugs.

[29]I did not accept the Claimant’s evidence. I found that the terms of Medication Policy and in particular, the Procedure for Controlled Drugs within that policy, were the policies and procedures applicable at the time of the Claimant’s dismissal and that this remained unvaried by the EMARS system; that no one within the Respondent would reasonably consider that there was no longer a requirement to comply with the Procedure for Controlled Drugs. Protected Disclosure

[30]Within a care setting medication errors can and do arise and it is not in dispute that in around the first or second week of October 2024, a medication error arose that involved a double dosage of the anticoagulant ‘Edoxaban’ to a patient. What caused that double dosage was not clear and I decline to make findings beyond the fact that Jade Frias was involved in the entering of a patient’s medication into the EMAS system i.e. booking in, and that subsequently there was a medication error for that particular patient.

[31]The Claimant was not personally involved in either the booking in or the medication error. Her evidence was that she became aware of the medication error on her return to work when she was told of the medication error by Evidence Chapwanya. It is accepted by the Respondent that it was Evidence Chapwanya that had disclosed to the Claimant that Jade Frias had witnessed the incorrect entering of a patient’s medication into the EMAS system i.e. the booking in, and that this had resulted in a medication error of a double dosage to a patient of that medication.

[32]The Claimant relies on what she said in that conversation as her protected disclosure.

[33]Whilst the disclosure is not pleaded in the ET1 [13], the Claimant responded to a request for further and better particulars in relation to the disclosure [53]. At the outset of this hearing the Claimant agreed that the disclosure relied on was that reflected in the list of issues prepared by Judge Russell that:a. she told Evidence Chapwanya that Jade Frias had not completed the relevant Accident and Emergency (“A&I”) paperwork following the error.

b. She says that the alleged wrongdoing she disclosed was Jade Frias’ failure to complete the paperwork.

[34]From the evidence I had before me I made the following findings of fact:a. The Claimant asked Evidence Chapwanya a question – she asked if Jade Frias was aware of the medication error and Evidence Chapwanya confirmed that she was. This was not a disclosure of information by the Claimant.

b. The Claimant asked a further question of Evidence Chapwanya – she asked what action had been taken. Again, this was not a disclosure of information by the Claimant.

c. The Claimant’s evidence is that Evidence Chapwanya responded to her that ‘Jade has safeguarded herself’. This was denied by Evidence Chapwanya in live evidence. I was not persuaded on the evidence before me that the Claimant had proven that Evidence Chapwanya had said these words. However, if that finding is wrong, even if this had been said by Evidence Chapwanya, this again was not a disclosure of any information by the Claimant to her employer.

[35]The Claimant further gave evidence that she considered that the Accident and Incident Report had not been completed or the recorded on the ‘App’ for such matters, known as ‘Nourish’. Whilst again that might be right and may very well have been a real and genuine concern for the Claimant, I did not find on the evidence before me that the Claimant told Evidence Chapwanya that Jade Frias had not completed the relevant Accident & Incident Report. She disclosed no information regarding this.

[36]The Claimant provided no other evidence, whether in her statement or in live evidence as to what other information, if any, she disclosed. This was despite me reminding her at the outset of the hearing that in public interest disclosure cases, the relevant evidence is what was said that was relied on as the qualifying disclosure.

[37]I therefore found that the Claimant had not conveyed any facts to Evidence Chapwanya that could amount to a disclosure of information that was capable of amounting to a qualifying disclosure. October 2024 Medication Error

[38]The Claimant was personally involved in a number of other and further medication errors over the course of 2024/2025.

[39]Linc’s procedure for newly admitted patients involved the admitting nurse checking the resident’s medication to ensure that they have sufficient for the resident during the Respondent’s monthly medication 28-day cycle and if not, if the stock was low when the patient was admitted, interim medication would then need to be requested to synchronize with that monthly cycle [145].

[40]On 12 October 2024, a new resident admitted to Ty Coch had not been administered their dementia medication for 4 days. Whilst the Claimant had not been the admitting nurse on duty when this patient had first been admitted to Ty Coch, she had been on duty over the subsequent days that this medication had been missed, had noted the medication error and had failed to address that.

[41]The Claimant was asked to undertake some reflective practice on her own involvement in the incident [92] and an investigation was undertaken with Evidence Chapwanya being tasked with the investigation. She interviewed the Claimant.

[42]Evidence Chapwanya’s conclusion was that there had not been one act that had caused the incident, but a series of communication and documentation breakdowns, noting that the Claimant had also missed opportunities to order the patient their medication. In reaching this conclusion, I found that she took into account the Claimant’s account that she had given her during her investigation as well as the further information that the Claimant had subsequently provided to HR on 11 November 2024 [99].

[43]She did not recommend formal disciplinary action but on 18 November 2024, the Claimant was issued with a Letter of Concern [111]. The letter further informed her that if such an issue arose again, disciplinary action may be taken.

[44]I was satisfied that the Respondent had reasonably investigated the incident in accordance with its policies, the Claimant had been given full opportunity, alongside other work colleagues also involved in this incident, to explain her involvement with the patient and that that this had included the Claimant having an opportunity to provide Evidence Chapwanya with further information before the conclusion of her investigation and decision to issue a Letter of Concern. November 2024 Medication Error

[45]The Claimant was involved in a further incident a few weeks later, when Evidence Chapwanya noticed that another resident had, on 22 and 23 November 2024, been incorrectly given a double dose of Omeprazole, a medication used to treat gastric issues [131]. Again, an investigation was undertaken with Evidence Chapwanya again the investigating officer. She subsequently prepared her investigation report [132].

[46]Her report reflects that the allegation against the Claimant was that whilst the Claimant discovered that an error had been made in relation to the dosage of the drug on 21 November 2024, the Claimant had not cancelled the double dosage on the EMAR system and the patient had subsequently been administered the double dosage again on the two consecutive days of 22 and 23 November 2024.

[47]As part of her investigation Evidence Chapwanya accessed and considered the EMAR chart and met with the Claimant on 5 December 2024. Her investigation report reflects that she found that:a. the duplication had been due to Boots pharmacy duplicating the morning medication;

b. whilst the Claimant realized their error on 21 November 2024 and noted it on the EMAR, she had failed to cancel the duplicate dosage but that this had been during a challenging day with two unwell residents;

c. the Claimant had herself then administered the duplicate dosage on the following day forgetting that there had been the error in the dosage; and

d. on the subsequent day, another nurse had also administered duplicate dosage before the error had been discovered by Evidence Chapwanya who had arranged for the GP to be contacted and the patient’s next of kin.

[48]Evidence Chapwanya noted within her report that the Claimant had been given a letter of concern on 14 November 2024 following the previous medication error and the short space of time between the two incidents. She recommended that the Claimant progress to a disciplinary as the Claimant had now made two medication errors in one month with the previous medication error resulting in a letter of concern [134].

[49]The Claimant was subsequently invited to a disciplinary hearing on 7 January 2025. Within that letter the Claimant was warned that the allegation was serious, put vulnerable patients at risk and could result in action up to written warning. Following that hearing the Claimant:a. received a 6-month written warning [165];

b. placed on a two month performance management plan (“PMP”) [167]; and

c. undertook a medication competency assessment on retraining in January 2025 [145].

[50]Whilst the Claimant gave evidence that she accepted that she had been placed on a PMP, she maintained that she had not received a full copy of the PMP documentation and had only received copies of the documents at [170] onward, not having received copies of the documents at [167-169]. Notwithstanding that, she did accept that she had been told that the management were concerned that she had committed medication errors which had resulted in residents being overdosed, that she was expected to follow the seven rights of medical administration set out in the PMP and that she was to rectify issues with medication immediately. She had provided her initials acknowledging the content had been discussed in large sections.

[51]I therefore found that it was more likely than not that the Claimant was aware of the content of the PMP, which she signed at various meetings, evidencing that she accepted what she was told; that she knew what was expected of her and knew that she needed to improve. Incident: 3 June 2025

[52]On 3 June 2025, following the admission of a Ty Coch resident to hospital, the Respondent was notified by the hospital that they had discovered that a medication error had arisen; that the patient had a Controlled Drug applied to them which had not been prescribed for them, namely Buprenorphine, an opioid based relief patch.

[53]Evidence Chapwanya was asked to investigate the incident and subsequently prepared an investigation report that reflected that her investigation had focused on how the error had arisen and how to prevent such an incident occurring again [174].

[54]Her report also reflected that as part of her investigation she had obtained a statement and reflective accounts from the Claimant and the two other nurses involved in the incident, a bank nurse ‘Annette’ Vaughan and another staff nurse, ‘Ranga’ Munhenga. To establish how the medication error had occurred she had also subsequently interviewed all three as part of the process on 19 June 2026 [180][183][189].

[55]She had collated and reviewed the following documents:a. The Controlled Medication Books to establish the process that had been followed;

b. The online EMAR to check the time of entry of the relief patch administered; and

c. The first written warning that the Claimant had been issue don 7 January 2025.

[56]Within her investigation report she set out the summary of evidence that she had found that included the following:a. That the bank nurse, Annette, had admitted to administering the Controlled Drug without supervision due to the time sensitive native of the medication and had administered the patch to the wrong resident after becoming distracted;

b. Annette had stated that she had then asked a nurse, Ranga, to sign the EMAR, that he had done so but that this had been denied by him. His evidence was that he had not it, had not administered the medication and was unaware of the incident until it had been reported;

c. The EMAR entry had been timed at 17.51;

d. Annette had further confirmed that she had then been unable to find Ranga to sign the Controlled Drug Register and had instead asked the Claimant to sign it despite the Claimant not having witnessed the medication being prepared or administered;

e. That there had been a problem with the synchronization of the tablet /device that Ranga had been using to complete EMAR entries earlier that day and that at some point that day, in relation to a different resident, Ranga had temporarily shared with Annette his PIN.

[57]In relation to the Claimant’s involvement in the incident, Evidence Chapwanya’s report reflects that during the investigation, the Claimant admitted:a. signing the Controlled Drug Register to confirm medication had been removed and checked, despite not having being present for its checking or administration as she had seen the signature on the EMAR and trusted the bank nurse, Annette [177];

b. that she had asked the Bank Nurse, Annette, to back date the time in the Controlled Drug Register to 17.51 to ‘match’ the EMAR entry;

c. that she did not verify whether the medication had been correctly administered nor did she confirm with the nurse if they had done so;

d. that she understood the correct medication protocol and that she had not followed it.

[58]As a result of her findings Evidence Chapwanya concluded that:a. had Annette been a permanent employee, the matter would have proceeded to a disciplinary but that as she was a bank nurse, the Respondent discontinue using her services;

b. Ranga had consistently had stated that he had no involvement and had not been approached for assistance, but that as he had shared his PIN and tablet with the staff nurse earlier that day, he was to attend further refresher training on medication;

c. the Claimant had not followed the correct medication procedure and had received a first written warning on 7 January 2025 together with a letter of concern on 14 November 2024. She noted that although the Claimant had not administered the medication, she had signed the Controlled Drugs Register and could have identified the error had she observed and verified that the resident had not received the medication correctly. Disciplinary Hearing

[59]As a result on 23 June 2025 the Claimant was suspended from duty [197] and on 24 June 2025 the Claimant was sent an email inviting her to a disciplinary hearing arranged to be held on 26 June 2025 and conducted by Jade Frias [343][199]. The letter set out the disciplinary allegations against her personally as follows:a. that on 3 June 2025, the Claimant had not followed the appropriate medication administration protocols. Specifically, she had signed the Controlled Drug Register confirming that the Buprenorphine 10mcg pain relief patch had been checked and removed from the medication storage ready to be administered to resident correctly, when in fact this had not occurred and that she did not co-sign and check together with her colleague as the Buprenorphine pain relief patch had been administered prior to the Claimant signing the Controlled Drugs Register;

b. that the Claimant did not then check that the resident had received the pain relief patch correctly and the previous patch removed and that she had not checked with her colleague, who had signed the EMAR system on the tablet device, whether he had witnessed the medication being given; and

c. that this had resulted in the incorrect resident being issued the Buprenorphine pain relief patch on 3 June 2025.

[60]The letter noted that the Claimant had already received a Letter of Concern in relation to a medication error made on 12 October 2024, and had been issued with a first written warning in January 2025, again because of medication errors and that it had therefore been decided, following the recent investigation, to escalate this case and proceed to a disciplinary hearing. Disciplinary Hearing

[61]The hearing took place as arranged on 26 June 2025 and the Claimant attended with her chosen companion Cynthia Shenxane who, whilst not an employee of the Respondent, was permitted as an ex-colleague/member of staff. Notes of the meeting were contained in the Bundle [203] and I accepted as an accurate reflection of the matters discussed.

[62]At the disciplinary hearing, the Claimant:a. confirmed that she knew that two nurses had to administer the medication and sign the EMAR together in accordance with the Medication policy;

b. that the agency nurse, Annette had asked her to sign the Controlled Drug Register and that whilst she had noted that the medication had already been administered, she had agreed to sign it having checked the EMAR and noting that Ranga had signed that;

c. She accepted that this was not best practice but that she had felt it was acceptable to sign the Controlled Drugs book without having witnessed the patch administration as she had trusted the agency nurse, Annette.

[63]In relation to her signature being timed to the time of the administration, the Claimant maintained that the signing of the Controlled Drugs Register was just the witnessing of stock being used to ensure that the stock tallied, and that signing of EMAR was the confirmation of witnessing administration of the drug although she accepted that she had lapsed in her duty in signing and backdating the time in the Controlled Drug Register [206].

[64]At the end of the hearing the Claimant confirmed that she would sign after she had administered or witnessed the administration of a Controlled drug and she accepted that the matter was serious.

[65]The hearing was adjourned whilst the allegations were considered. On return, it was confirmed to the Claimant that patient safety was the priority, that there had been a breach of the Respondent’s procedures and that this was the third time that the Claimant had been involved in a medication error. Jade Frias further concluded that she had not seen any learning or improvement from the previous incidents despite the Claimant being aware of the Respondent’s policies; she was not satisfied that she had seen that the Claimant could change.

[66]She concluded that signing the Controlled Drug book without witnessing the medication administration, to give the appearance of compliance was a falsification of the Respondent record and amounted to gross misconduct. She noted that the Claimant had not checked the drug had been administered correctly even knowing that it was a controlled drug

[67]She concluded that signing the register and backdating it irreparably damaged trust and confidence and that she considered she had not choice other than to dismiss the Claimant. Dismissal letter

[68]The letter confirming the decision was sent to the Claimant on 3 July 2025 and again is incorporated by reference into these reasons [225]. The letter provided the Claimant with confirmation of her right to appeal. The Claimant was invited to an appeal hearing to be heard on 9 July 2025 and she was advised of her right to be accompanied [219].

[69]The appeal was considered by Gary Hortop Director of Care and Support and I found that his letter confirming his decision reflected the matters discussed at the appeal, the Claimant having raised concerns around the investigation and that felt victimized by Jade Frias and this had had a bearing on the dismissal.

[70]His conclusions on the investigation, which I found to be a reasonable response, was that the investigation had been robust and through and took into account the Claimant’s understanding of the policies around the administration of medication particularly controlled drugs. He noted the letter of concern and live written warning. He considered the Claimant’s concerns that there had been favouritism towards Ranga, and the Claimant’s concerns regarding the knowledge and experience of those who had dealt with the investigation and disciplinary.

[71]I found that he was satisfied that a full and reasonable investigation had been undertaken, a finding that was not undermined on questioning of him by the Claimant.

[72]He also addressed the Claimant’s concerns on whether Jade Frias did not like her, a matter the Claimant relies in part for her protected disclosure detriment case with her view based on information that colleagues who had told her, colleagues who did not give evidence at this hearing. The Claimant’s concern that Jade Frias had overlooked her for a Lead Nurse position because she did not like the Claimant was addressed. It is clear that the Claimant was informed that the requirement for a Lead Nurse was for a lead working nights as the home had been given a Priority Action Notice from Care Inspectorate Wales.

[73]This was again addressed at the final hearing, the Claimant claiming that Jade Frias advertising the lead nurse as a night position was an act of direct race discrimination as the Claimant was unable to apply for the role.

[74]I was not persuaded that the Claimant had demonstrated that there were any facts that could lead me to conclude or infer that the role was advertised as a night position for any reason other than a response to the CIW report.

[75]The Claimant did not work nights but her assertion that this meant that she could not apply for a night role did not initially appear logical. It appears she was suggesting that because she had child care issues she could not apply for a night role. Whilst that may be right, I found nothing in the evidence before me to find or infer that the role was advertised because of that or in turn, and of more relevance, because the Claimant was Nigerian, black and/or African.

[76]The role was again readvertised it appears after the initial successful candidate left. Again, I was not persuaded on the evidence before me that the role was simply given to a night nurse. Rather on the evidence I found that it was more likely than not that the role was readvertised, the Claimant did not apply and the role was again filled.

[77]Gary Hortop concluded his letter to the Claimant that he had considered whether there was an alternative to dismissal but due to the seriousness of the findings and potential consequences, he was satisfied that there was no reasonable alternative. He noted that this was the third medication error in thre months and that to permit the Claimant to continue was too much of a risk to residents’ safety and wellbeing. He confirmed that the decision was upheld and the appeal process was concluded.

[78]It appears that the Claimant was reported to the NMC but I make no positive findings on the outcome of that process nor do I consider the outcome relevant to the fairness or otherwise of the internal disciplinary process.

[79]On 13 July 2025 the Claimant commenced early conciliation that ended on 21 July 2025 and on 26 July 2025, the Claimant filed her ET1. The Law Protected disclosure

The Law

[80]Under section 43A Employment Rights Act 1996 (“ERA”), a worker makes a protected disclosure in certain circumstances. To be a protected disclosure, it must be a qualifying disclosure. A qualifying disclosure must fall within section 43B ERA and also must be made in accordance with any of sections 43C to 43H ERA.

[81]Section 43B says: “(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,

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

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

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”

[82]Section 43C provides: “Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person…”

[83]There are therefore a number of requirements before a disclosure is a qualifying disclosure. The first is that the disclosure must be of information tending to show one or more of the types of wrongdoing set out at Section 43B. The ordinary meaning of providing ‘information’ is ‘conveying facts’ (Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

, EAT) that “…..has to have sufficient factual content and specificity such that it is capable of tending to show one of the matters in subsection (1)” (Kilraine v London Borough of Wandsworth

[2018] ICR 185

). Determining that is a matter for evaluative judgment by the Tribunal in light of all of the facts of the case.

[84]Section 43B(1) also requires that in order for any disclosure to qualify for protection, the disclosure must, in the reasonable belief’ of the worker: be made in the public interest, and tend to show that one, of the six relevant failures, has occurred, is occurring or is likely to occur.

[85]The test is a subjective one, with the focus on what the worker in question believed rather than what anyone else might or might not have believed in the same circumstances. That it is made in the context of an employment disagreement does not preclude that conclusion. Detriment short of dismissal - s47B ERA 1996

[86]Section 47B ERA 1996 provides that a worker has the right not be subjected to any detriment by any act, or deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[87]In any detriment claim under that provision, it is for the Respondent as the employer to show the ground on which any act, or deliberate failure to act, was done (s.48(2) ERA 1996). This means that once the Claimant has proven, on the balance of probabilities, that there was a protected disclosure, there was a detriment, and the Respondent subjected the Claimant to that detriment, the burden will shift to the Respondent to prove that the worker was not subjected to the detriment on the ground that she had made the protected disclosure. If the Tribunal can find no evidence to indicate the ground on which a Respondent subjected a Claimant to a detriment, it does not follow that the claim succeeds by default (Kuzel v Roche Products Ltd

2008 ICR 799

, CA).

[88]It may be appropriate for a tribunal to draw inferences as to the real reason for the employer’s action on the basis of its principal findings of fact. The approach to drawing inferences in a detriment claim (International Petroleum Ltd and ors v Osipov and ors EAT 0058/17. In Fecitt and ors v NHS Manchester (Public Concern at Work intervening) ICR 372, CA, Elias LJ gave guidance that causation is satisfied where the protected disclosure materially (in the sense of more than trivially) influences the employer’s treatment of the whistleblower. s.13 EqA 2010 Direct Race Discrimination

[89]Section 13(1) provides that a person(a) (A) discriminates against another person

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[90]The provisions are designed to combat discrimination and it is not possible to infer unlawful discrimination merely from the fact that an employer has acted unreasonably: Glasgow City Council v Zafar

[1998] ICR 120

and in Nagarajan v London Regional Transport and others

[1999] IRLR 527

HL, the House of Lords held that the Trubunal must consider the reason why the less favourable treatment has occurred or, why the Claimant received less favourable treatment. The concept of treating someone “less favourably” inherently requires some form of comparison. Section 23 provides that when comparing cases for the purpose of Section 13 “there must be no material difference between the circumstances related to each case.”

[91]In Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

Lord Scott noted that this means, in most cases, the tribunal should consider how the Claimant would have been treated if they had not had the protected characteristic. This is often referred to as the hypothetical comparator.

[92]It is well established that where the treatment of which the claimant complains is not overtly because of the protected characteristic, the key question is the “reason why” the decision or action of the respondent was taken. This involves consideration of the mental processes, conscious or subconscious, of the individual(s) responsible; see the decision of the Employment Appeal Tribunal in Amnesty International v Ahmed

[2009] IRLR 884

and the authorities discussed at paragraphs 31- 37. The protected characteristic must have had at least a material influence on the decision in question. Unfair treatment by itself is not discriminatory; what needs to be shown in a direct discrimination claim is that there is worse treatment than that given to an appropriate comparator; Bahl v Law Society

2004 IRLR 799

[93]Section 136 EqA 2010 (2) provides that if there are facts from which the court (which includes a Tribunal) could decide, in the absence of any other explanation, that a person (A) contravenes the provision concerned, the court must hold that the contravention occurred. S.136(2) EqA 2010 does not apply if A shows that A did not contravene the provisions.

[94]Guidance as to the application of the burden of proof was given by the Court of Appeal in Igen v Wong

2005 IRLR 258

as refined in Madarassy v Nomura International Plc

[2007] ICR 867

. The Court of Appeal emphasised that there must be something more than simply a difference in protected characteristic and a difference in treatment for the burden of proof to shift to the respondent. They are not, without more, sufficient material from which a Tribunal could properly conclude that, on the balance of probabilities, the respondent had committed an act of discrimination. Ordinary unfair dismissal – s98 ERA 1996

[95]With unfair dismissal, we first have to consider the reason for the dismissal and whether it was a potentially fair reason for the dismissal.

[96]In this regard, the Respondent bears the burden of proving on balance of probabilities, that the claimant was dismissed for one of the potentially fair reason set out in section 98(2) ERA 1996. The Respondent states that the Claimant was dismissed conduct.

[97]After considering the reason for dismissal, on the presumption that we identified a potentially fair reason for dismissal, we then have to consider whether the application of that reason in the dismissal for the Claimant in the circumstances was fair and reasonable in the circumstances (including the respondent’s size and administrative resources). This should be determined in accordance with equity and the substantial merits of the case and the burden of proof in this regard is neutral.

Conclusions

[98]I deal initially with the protected disclosure and detriments complaints before moving to direct race discrimination and finally unfair dismissal. Protected Disclosure and detriment

[99]What is initially in dispute is whether the Claimant made any disclosure, it being accepted that if it was a qualifying disclosure, it would be a protected disclosure as it was made to Evidence Chapynwa, the Deputy Nursing Home Manager.

[100]I deal with the Claimant’s protected disclosure and detriments claims briefly. I was not persuaded that I had heard any evidence that the Claimant had made any disclosure of information. I would repeat my findings at §34- §37 above.

[101]On the basis that I did not find that the Claimant had made any protected disclosures, it follows that her complaints of detriments are also bound to fail. The complaints of detriment on the grounds that the Claimant had made a protected disclosure are not well founded and are dismissed.

[102]Further, and for the avoidance of doubt, taking into account the Claimant is a litigant in person and that she raised in submissions again how the disclosure permeated the decision to dismiss, if the Claimant has also brought a claim of automatic unfair dismissal because she made a protected dismissal that too is, and/or would have been not well founded for the same reasons, and is dismissed. Direct race discrimination

[103]As reflected in my findings, the Claimant has the burden of proving facts from which I could find or infer discrimination. Inferences are important as it is rare to find direct evidence of discrimination.

[104]I concluded however that the Claimant had not discharged that initial burden. I was not persuaded by the Claimant that the decision to advertise the position as a night position had anything at all to do with the Claimant’s race. That the Claimant had previously had been awarded employee of the month was not a relevant factor in my mind or that this led me to draw any adverse inferences such that the burden of proof was discharged.

[105]Whilst the Claimant did not question Jade Frias on that particular issue and does have some weight as I repeatedly reminded the Claimant that she did need to question the witnesses on her case and challenge them if she did not agree with their evidence, it is limited as I do take into account that the Claimant is a litigant in person. My findings and conclusions are formed on the basis of the cogent and consistent evidence that I had from the Respondent’s witnesses that the decision for Lead Nurse to be based on nights was as business decision following the Respondent receiving a Priority Action Notice.

[106]The Claimant has not proven a prima facie case. The complaint of direct race discrimination is not well founded and is dismissed. Unfair dismissal

[107]I was satisfied that the Respondent has proven that the reason that it dismissed the Claimant was because of her conduct in her involvement in the recording of the administration of the medication Buprenorphine in June 2025. The evidence before me was clear that there had been a medication error, the Claimant was involved in that medication error and the documentation supporting that conclusion was prevalent. I accept that the Respondent’s submissions that these were serious failings that had actual impact on patients and I also had found that this was not the first instance, but the third occasion in 8 months that the Claimant had been involved in medication errors.

[108]Conduct is one of the potentially fair reasons for dismissal.

[109]I then turned to consider whether the Respondent acted reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant. In considering the section 98(4) ERA 1996 in the context of Burchell requirements, I deal with these in reverse order, dealing first with the investigation before moving on to the grounds and the belief. With regard to the investigation, the range of reasonable responses test applies to the scope of the investigation undertaken by the employer, as it does to the dismissal decision as established in Sainsbury plc v Hitt.

[110]I was satisfied that the investigation, in terms of the overall processes adopted by the Respondent, fell within the range of reasonable responses and was a sufficient independent investigation for the following reasons.

[111]The Claimant had already been supported in her involvement in the first medication error, in having only a letter of concern and no disciplinary action. That was quickly followed however by her involvement in a second medication error and albeit the Claimant was warned, she was also supported by being placed on a PMP and assessed for a continuous period. Whilst the Claimant disputes having seen some of the PMP and/or some of the written documentation itself, I had found that the Claimant knew she was on a PMP and some of the examples had been explained to her.

[112]The investigation process had provided the Claimant with an opportunity to explain her involvement and the Claimant had admitted to signing the Controlled Drug register, despite not at any time having witnessed the administration of the patch to the patient.

[113]The Claimant’s explanation at the disciplinary hearing that the completion of the register was a stock take only, was an incorrect and unreasonable view of the procedure. It was not an explanation that was supported by her own witnesses. I concluded that contrary to the Claimant’s submissions, the Respondent’s disciplinary investigation relied on the correct policy.

[114]It was reasonable for the Respondent to come to the view that the Claimant’s actions were not in line with the Respondent’s procedure. I decline to go as far as to day that the investigation indicated that the Claimant was dangerously unwilling to comply with Medication Policy believing it to be something it was not, as suggested by the Respondent counsel, and indeed, that is not reflected in the decision of the dismissing officer or the appeal officer. The investigation did however demonstrate serious failure to follow policy despite having been warned.

[115]I accepted that on each occasion that the Claimant had been involved in medication errors the Claimant had the benefit of an investigation and an opportunity to explain herself and had been provided with support such that it could reasonably be said that she knew what was expected of her.

[116]I was not persuaded by the Claimant that she had been subjected to different, harsher treatment than others. Evidence from the Respondent had persuaded me that other staff had been dealt with and given outcomes based on their involvement; that others had also received letters of concern and had to consider reflective accounts in relation to previous medication errors.

[117]In relation to the final medication error, I was not persuaded that Ranga and Annette had the same involvement as the Claimant and therefore their positions were so entirely similar to be particularly persuasive. Annette was a bank nurse and it was recommended that she not be used again. Ranga had denied involvement in the signing of the EMAPs such that his involvement differed considerably to the Claimant’s, who had admitted signing the Controlled Drugs Register. Further, that Ranga had not have previous warning and/or was not working under a PMP also supported my conclusion that dealing with the Claimant differently fell within the range of reasonable responses. It was therefore not an unreasonable response to treat each of the Claimant, the bank nurse and Ranga differently.

[118]I therefore concluded that the Respondent had carried out a fair and reasonable investigation which would reach the standard required of a reasonable employer.

[119]Turning to the issue of whether the Respondent’s belief was held on reasonable grounds, I find that it was.

[120]The dismissing officer had evidence before her to conclude that the Claimant had not on 3 June 2025 followed the appropriate medication protocol in that she had signed the Controlled Drug Register confirming that it had been checked and administered correctly when this had not occurred and the Claimant had not witnessed the administration or checked that the patch had been correctly administered when she dad signed the Controlled Drug Register – the Claimant had admitted this in the investigation and disciplinary. The Claimant had not checked that the resident had received the correct medication. The investigation had resulted in confirmation that the Claimant was aware of the Medication Policy and the Controlled Drugs procedure and accepted that she should not have signed unless she had witnessed the medication being applied/administered agreeing that this was not in line with best practice or policy.

[121]The Claimant had admitted backdating the time of the administration so that the Controlled Drug Register aligned with the entry in EMARs and acknowledged that this was wrong. In those circumstances I am satisfied that reasonable grounds had been made out for the belief in the gross misconduct.

[122]Finally, on the issue of genuineness of the Respondent’s belief, did the Respondent reasonably believe that the Claimant committed the misconduct and I find that they did. I concluded that Jade Frias dismissed the Claimant as a result of her conduct that day, that she was not confident that if the Claimant continued, the residents would remain safe after having already given the Claimant a warning, which was live, PMP support and in the context that the Claimant had been involved in three medication errors in 8 months.

[123]I was therefore satisfied in overall terms that the BHS v Burchell test was made out and that there were grounds following a reasonable investigation to lead to a genuine belief that the Claimant had been guilty of the gross misconduct alleged.

[124]I was satisfied that the Respondent had otherwise acted in a procedurally fair manner: the Claimant had been subjected to a reasonable investigation where she had been able to explain her involvement, she had been provided with notice of a disciplinary hearing. She had, I had found, notice of the allegations and evidence to support those allegations and had been entitled to be accompanied at that hearing where again she had been provided with an opportunity to present her case. She had then been afforded a right of appeal.

[125]I had found that the Respondent’s Disciplinary policy specifically provided the employer reserved the right to implement the procedure at any stage of the disciplinary process dependent on the alleged misconduct. I was not persuaded therefore by the Claimant’s submission that there were procedural failures or that dismissal was without adherence to the Respondent’s policy.

[126]Finally, I consider whether or not dismissal fell within the range of reasonable responses and concluded that it did. I was satisfied that the dismissing manager, considered alternatives to dismissal and her consideration of options, including further warning and retraining but a conclusion that she was not reassured that this would happen again, fell within the range of reasonable responses, such that dismissal was within the range of reasonable responses.

[127]On that basis, the claim of unfair dismissal is also not well founded and is dismissed.