Mrs J Percival v Bridgewater Community Healthcare NHS Foundation Trust: 2401264/2016
| Judgment Date | 23 October 2017 |
| Date | 23 October 2017 |
| Citation | 2401264/2016 |
| Published date | 04 December 2017 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
RESERVED JUDGMENT Case No. 2401264/2016
1
EMPLOYMENT TRIBUNALS
Claimant: Mrs J Percival
Respondent:
Bridgewater Community Healthcare NHS Foundation Trust
HELD AT:
Liverpool ON: 9 and 10 May 2017
15 and 19 May 2017
(in Chambers)
27 September 2017
(in Chambers)
BEFORE: Employment Judge Shotter
Mr A G Barker
Mr P Gates
REPRESENTATION:
Claimant:
Respondent:
Mr R Percival, Husband
Mr J Crosfill, Counsel
JUDGMENT
The unanimous judgment of the Tribunal is that: -
1. The claimant made a protected disclosure and her claim for detriment 15 to
25 on the grounds that she has made a protected disclosure contrary to
section 47B of the Employment Rights Act 1996 is not well-founded and is
dismissed.
2. The claim in relation to detriment 16 is dismissed on withdrawal by the
claimant.
3. Detriments 1 to 14 were not presented before the end of the period of 3
months beginning with the date of the act or the failure to act which the
complaint relates in accordance with S.48(3)(a) ERA, it was reasonably
practicable for he claimant to have presented her complaints in time, the
Tribunal did not have the jurisdiction to consider the detriments 1 to 14 and
the complaints are dismissed.
RESERVED JUDGMENT Case No. 2401264/2016
2
REASONS
Preamble
1. By a claim form received on 6 May 2016 (date of issue by ACAS of the early
conciliation certificate 8 April 2016) the claimant, who remains employed by the
respondent, alleges she had made 3 protected disclosures which resulted in her
being subjected to 25 detriments from 3 June 2014 through to 25 October 2016. The
claimant alleged in her Claim Form she had made protected disclosures concerning
confidential patient information, inaccurate reporting of data during a contract query
with the commissioners leading up to a contract bid, and safeguarding concerns. The
claimant maintained there was a “dishonest intent” on the part of higher
management employed by the respondent to “cover up” their failures. As a
consequence, she had been ignored, policy and procedures had not been followed,
timeframes had been “extinguished” and the detrimental effect of a “two-year
campaign” had been damaging to her health.
2. The respondent denied that the claimant had made protected disclosures as
alleged and if she had, had not been subjected to any detriment on the grounds that
she had made a protected disclosure. It is accepted that the respondent did not deal
with any of the issues raised by the claimant at a meeting on 23 April 2014 under its
whistle-blowing policy as it did not consider the communication amounted to a
protected disclosure, in the belief it was a grievance. The respondent maintains the
claimant’s disclosures concerned her own personal working environment and
relationships within the team, she did not state that she had any concerns in relation
to patient safety, confidentiality or safeguarding, and nor did she considered the
information she was conveying tended to show that a relevant offence or failure as
detailed in sections 43B(1)(a)-(f) of the Employment Rights Act 1996 had occurred,
or that she was conveying the information with a reasonable belief that doing so was
in the public interest.
The 25 detriments
3. During a case management discussion, the claimant produced details of the
whistle-blowing events and 15 of the detriments she was claiming, which were
accepted as amendments to the claim.
4. At a second case management discussion held on 13 September 2016 the
claimant confirmed she relied on two alleged incidents when protected disclosures
were made, as follows:
(1) Protected disclosure 1 – Information disclosed jointly by the claimant
and Dr Brough orally to Ms Simosa and Mr Scales during a meeting on
23 April 2014, as described in 28 April 2014 email referred to below,
and the claimant’s 29 July 2016 document.
(2) Protected disclosure 2 – information contained in an email dated 28
April 2014 from the claimant and Dr Brough to Mr Scales and Ms
Samosa.
RESERVED JUDGMENT Case No. 2401264/2016
3
Detriments numbered 1-15 to be dealt with by the Tribunal.
5. The claimant confirmed the 15 detriments she was relying upon, which are
paraphrased as follows:
6.1 Detriment 1 – this is an allegation that the Chief Executive, Kate Fallon, ignored
the claimant's email dated 3 June 2014 in contrast with the respondent’s whistle-
blowing policy which stated “where your concerns can be acted upon, actions will
be taken promptly and the appropriate responsible person will respond to you”.
6.2 Detriment 2 – this is an allegation that the claimant had been “snubbed” by
Michael Smith, the Deputy Director of Strategic Development – Sexual Health,
when he responded “thank you for your kind offer but I won’t ask you to get off
your sick bed to come to this meeting” when the claimant requested to attend a
service model meeting during her sickness absence, and her manager, Karen
Armstrong, had informed her that she would require a GP letter to attend the
meeting, which she obtained.
6.3 Detriment 3 – this is an allegation that Kate Fallon deliberately failed to ask for a
report that she had told the claimant that she would request. In the expanded list
of detriments before the Tribunal at the liability hearing (which ran to 16 pages)
the claimant also brought this complaint against Colin Scales and Christine
Samosa, alleging that there had been no response to her 14 July 2014 email
despite Kate Fallon informing her that she had just spoken with Christine Samosa
and had asked her to provide a full response.
6.4 Detriment 4 – this is an allegation that Christine Samosa categorised the
claimant’s protected disclosure as a “grievance” showing she was not taking the
disclosures seriously, and denying the claimant the right to raise her concerns
under the whistle-blowing policy. The claimant alleged this was an attempt by
Christine Samosa and Colin Scales to “extract” themselves from their failure to
adhere to the whistle-blowing policy.
6.5 Detriment 5 – this is an allegation that Christine Samosa on 24 October 2014
sent an email to the claimant informing that “following a review of our disclosures,
they did not meet the definition of whistle-blowing. Christine Samosa failed to
include within her review the missing lab results, a protected disclosure under
health and safety”. The claimant alleged that the 24 October 2014 email left her
feeling she was the “recipient of severe injustice”. It made her fearful of her work
environment and “the steps my employer would take when operating outside of
policy and procedure”.
6.6 Detriment 6 – this is an allegation that in a report written by Christine Samosa
titled “Christine Samosa’s briefing paper Part 2 of board meeting 6 November”
misrepresented the facts at a board meeting held on 6 November 2014 facts,
when she described the joint protected disclosure made on 23 April 2014 as a
single person disclosure, referring to it as a grievance.
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