S Brannan v Navigo Health and Social Care CIC: 2601277/2020
| Judgment Date | 15 December 2021 |
| Citation | 2601277/2020 |
| Date | 15 December 2021 |
| Published date | 13 January 2022 |
| Court | Employment Tribunal |
| Subject Matter | Public Interest Disclosure |
Case Number: 2601277/2020
1
EMPLOYMENT TRIBUNALS
Claimant: Susan Brannan
Respondent: Navigo Health and Social Care CIC
Heard at: Midlands (East) conducted by Cloud Video Platform
On: 21st, 22nd and 23rd September 2021
Before: Employment Judge Broughton
Appearances:
Claimant: In Person
Respondent: Ms Smith - counsel
JUDGMENT
The decision of the Employment Tribunal is that:
1. The claim of automatic unfair dismissal under section 103A ERA is not well
founded and is dismissed.
2. The Tribunal find that the claim of ordinary unfair dismissal under section 94 and
98 ERA is well founded and succeeds subject to a 50% reduction in both the
basic and compensatory award for contributory fault. No Polkey deduction is
made.
REASONS
The Claim
1. The ACAS early conciliation period commenced on the 28 February 2020 and ended
on the 28 March 2020. The claim was issued on the 22 April 2020.
The issues
2. At a preliminary hearing on the 22 July 2020 Employment Judge Dyal identified the
issues to be determined by the Tribunal with the parties and they were agreed to be
as follows;
Case Number: 2601277/2020
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1. Did the claimant may make any protected disclosures?
2. The claimant contends that she disclosed the following information;
a. A on 3 June 2019, told Janine Smith that some of the overseas nursing
staff were not engaging with services users or meeting their needs, that
a service user had been force fed, that staff had been falling asleep on
duty and arriving late to duty.
b. On 26 June 2019, told Freedoms Nwokedie, that the care on the ward
was poor such that there was a view among staff that they would not
want their own parent’s to be cared for on the ward.
c. On 1 October 2019, responded to a staff survey and reported that staff
were uncaring, falling as keep and leaving shifts early to work elsewhere,
leaving staff shortages and putting patient’s safety at risk
d. On 2 October 2019, told Tom Hunter, that service users were vulnerable
and put at risk by staff falling sleep and working in other places
3. In respect of the information disclosed;
a. Did it, in the claimant’s reasonable belief, tend to show that there was or
had been a danger to the health and safety of a services users?
b. Was it, in the claimant’s reasonable belief, in the public interest to make
the disclosures?
Unfair dismissal
4. What was the reason for the claimant’s dismissal:
c. The respondent contends that it was conduct
d. The claimant contends that it was protected disclosure (s) and thus that the
dismissal was unfair by section 103A Employment Rights Act.
5. If the reason for dismissal was a potentially fair one, was it fair in all the
circumstances having regards to s.98 ERA?
3. The claimant does not complain of any acts of detrimental treatment under section
47B Employment Rights Act 1996 (ERA). Her claim is concerned only with the act
of dismissal.
4. At the commencement of today’s hearing, counsel for the respondent informed the
Tribunal that the respondent is no longer disputing that the claimant made the four
qualifying disclosures. The respondent concedes that the claimant on all those
occasions made disclosures which the respondent accepts was a disclosure of
information which in the reasonable belief of the claimant tended to show that the
health and safety of any individual has been, is being or is likely to be endangered,
namely the patients cared for by the respondent and that the claimant held a
reasonable belief that the disclosure of this information was in the public interest
pursuant to section 43B (1)(d) ERA.
5. Counsel for the respondent confirmed, that the only legal issue in dispute as far as
the section 103A ERA claim is concerned is therefore causation; whether the reason
Case Number: 2601277/2020
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for dismissal or if more than one, the principal reason, for dismissal was that the
claimant had a made one or more of those protected disclosures.
6. The issues were otherwise agreed to be as set out in the record of the Preliminary
Hearing (above).
Evidence
7. The claimant produced a witness statement and swore to the truth of it under oath
and was cross examined by the respondent. The claimant also produced a witness
statement from her UNISON Union representative, Ms Anna Kuzemczak . The
claimant had sent into the Tribunal a signed copy however, it was undated. Ms
Kuzemczak did not attend the hearing. The respondent did not object to the
statement of Ms Kuzemczak being admitted into evidence subject to representations
regarding the weight to be attached to it.
8. The respondent called two witnesses who provided witness statements, swore to
their accuracy under oath and were cross examined by the claimant; Mr Michael
John Reeve, Director of Operations of the respondent and Ms Elizabeth Jane
Lewington, Chief Executive of the respondent.
Findings of Fact
9. All findings of fact by this Tribunal are on a balance of probabilities. All the evidence
has been considered, albeit only the evidence and facts relevant to the Tribunal’s
determination of the issues in dispute between the parties is set out in this judgment.
References to page numbers in square brackets, are to page numbers in the agreed
bundle. Words emboldened in quotations reflect the Tribunal’s own emphasis.
Background
10. The claimant was employed by the respondent as a Registered Nurse Practitioner
from 20 February 2010 to 4 December 2019. She summarily dismissed on the
ground of misconduct.
11. The respondent is a not for profit social enterprise which provides mental health care
in North East Lincolnshire.
12. The claimant had worked for the respondent as at the date of termination, for
approximately 9 years and been a Registered Nurse for approximately 25 years.
There is no dispute that the claimant is an experienced and devoted nurse.
13. Ms Lynne Robinson, Clinical Lead held regular supervision meetings with the
claimant.
14. The Senior Operational Manager was Ms Freedom Nwokedie, who was Ms
Robinson’s supervisor. Ms Nwokedie was the person the claimant could raise
concerns directly with, if she had concerns about patient care.
15. Ms Janine Smith, was the Assistant Director into whom Ms Nwokedie directly
reported into.
16. Ms Nwokedie did not give evidence before this Tribunal and no witness statement
was provided by her. The claimant gave evidence about the state of her relationship
with Ms Nwokedie for the period from January 2019. The claimant gave evidence
under cross examination that Ms Nwokedie had not spoken to her since Christmas
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