Ms A Want v Hounslow and Richmond Community Healthcare NHS Trust: 2301451/2016
| Judgment Date | 07 February 2019 |
| Published date | 26 April 2018 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case No: 2301451/2016
1
Reserved judgment
Between
Claimant: Ms A Want
Respondent: Hounslow and Richmond Community Healthcare
NHS Trust
Heard at London South Employment Tribunal on 14 – 18 & 21 - 25
August 2017 and in chambers 16 & 17 October 2017
Before Employment Judge Baron
Lay Members: Mrs J S Muir & Mrs C Upshall
Representation:
Claimant: Timothy Yarnell – The Claimant’s husband
Respondent: Ben Cooper QC
JUDGMENT
It is the unanimous judgment of the Tribunal that the claims are dismissed.
REASONS
Introduction
1 I must first of all apologise for the delay in the issuing of this judgment.
This has been caused by a combination of the large number of factual
allegations being made, the substantial volume of documents to be
considered, the significant shortage of judicial resources, and the
availability of the lay members to meet in chambers to deliberate.
2 The Claimant was employed by the Respondent from 27 July 2015 until
25 April 2016. On 4 August 2016 she presented a claim to the Tribunal.
Her principal claims are that she was subjected to detriments on the
ground of having made protected disclosures. She is further claiming that
she was constructively unfairly dismissed, the reason or principal reason
being the making of the disclosures. The Claimant had not been employed
for two years and did not therefore have the ‘ordinary’ right not to be
unfairly dismissed.
3 The Claimant gave evidence herself and did not call any other witnesses.
Evidence for the Respondent was given by the following:
1
1
The names are in alphabetical order and the job title shown is the one at the relevant time.
Case No: 2301451/2016
2
Dawn Barnett – Operational Support Services and Primary Care
Manager
2
Louise Brem-Wilson – Voluntary Services Coordinator
Pauline Chacksfield – Operational Support Services and Systems
Team Leader
Stuart Cornish – Emergency Planning Manager
Siobhan Gregory – Director of Quality and Clinical Excellence
Kulvinder Jhita – Business Support Manager
Richard Jones – Interim HR Advisor 24.02.16 - 30.05.16
Ross Lambdon – Operational Support Services Team Leader
Martyn Schofield – Head of Quality and Patient Safety.
4 This case involves a great number of documents and much detail. The
particulars of claim attached to the claim form ET1 was 40 pages long of
single spaced printing, consisting of 212 paragraphs. The Claimant’s
witness statement consisted of 273 paragraphs. We were provided with a
trial bundle of documents containing over 1,200 pages. There was also
another lever arch file of policy documents. We have only taken into
account the documents, or parts of documents, which were either referred
to in the witness statements or mentioned at the hearing.
The claims and the issues
5 The nature of the claims being made is summarised in paragraph
numbered 1 above. There is a list of issues which we set out below insofar
as they relate to the merits of the claims as opposed to any remedies for
the Claimant. We understand that the list is agreed save for the two points
highlighted as not being agreed.
A. JURISDICTION
Time Limits
1. Does the Claimant complain of any acts, or deliberate failures to act,
that occurred more than three months prior to the date on which she
presented her complaint to the employment tribunal (4 August 2016),
subject to any extension of time afforded by the ACAS EC process,
such that are they prima facie out of time? In determining this question
the tribunal will consider whether any act or failure to act is part of a
series of similar acts or failures, such that the relevant date should be
determined by reference to the last of them.
2. If so, was it reasonably practicable for the Claimant to present her
complaint before the end of that period of three months?
3. If not, did she present her complaint within a further reasonable
period?
B. AUTOMATIC UNFAIR DISMISSAL
Dismissal
4. Was the Claimant dismissed? The Claimant says that she was
constructively dismissed whereas the Respondent says that the
Claimant voluntarily resigned. In particular:
2
That is how Ms Barnett described herself in her witness statement but we note that in emails
she signed herself as ‘Operational Support Services & Health & Well Being Manager’. No doubt
nothing turns on the point.
Case No: 2301451/2016
3
a. Did the Respondent commit a fundamental breach of the
Claimant’s contract of employment?
b. The Claimant alleges the following specific breaches of contract of
employment:
i. failing to conduct a DBS check for the Claimant’s role
during her temporary redeployment (breach of section 14.4
of the Claimant’s contract of employment);
ii. failing to afford the Claimant an appropriate, timely and
suitably independent grievance procedure (breach of
section 20.1 of the Claimant’s contract of employment);
c. The Claimant further alleges that the Respondent breached (i) the
implied term of trust and confidence and/or (ii) the implied term to
provide a safe system of work. The Claimant relies on the
following alleged acts or omissions as individual breaches of
contract:
i. failing to implement actions arising from an Occupational
Health Assessment completed on 29 December 2015 either
at all or in a timely manner;
ii. failing to implement actions arising from a Stress Risk
Assessment completed on 23 March 2016 either at all or in
a timely manner;
iii. not considering the Claimant for redeployment to potential
roles that the Claimant should have been considered for;
iv. failing to investigate the Claimant’s allegations that she was
being subjected to detriment as a direct result of making a
Protected Disclosure; and
v. failing to support the Claimant, both prior to, and following a
diagnosis of stress and depression, in respect of the
matters identified at paragraph 9 below.
d. If the Respondent committed a fundamental breach of the
Claimant’s contract of employment, did the Claimant waive the
breach and affirm the contract in response to any of those alleged
breaches?
e. Further, and in the alternative, did the Respondent commit a series
of breaches of the implied term of trust and confidence and/or the
implied term to provide a safe system of work (detailed in section
4b-c above and section 9 below) such that, in combination, those
breaches amounted to a fundamental breach of contract?
f. The Claimant relies on the e-mail sent from Richard Jones on 20
April 2016 as the last straw, which she believes evidenced two
simultaneous issues: firstly, the Respondent’s failure to consider
the Claimant’s offer of paid or unpaid leave, instead requiring her
to take indefinite sick leave, pending resolution of her work
situation, namely the unresolved investigations and redeployment;
and secondly, that the absence of any specified actions in this e-
mail demonstrated that the Respondent planned no imminent
action to address the ongoing failure to act to resolve the
investigations and redeployment.
g. If so, did the Claimant resign in response to that fundamental
breach of contract?
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