Claimant v NHS Professionals Ltd and Coventry and Warwickshire Partnership NHS Trust — 2019

The tribunal found that the claimant worked for NHS Professionals as a flexible worker, with employment only during individual assignments and no overarching contract between assignments. It held that she had not accrued two years' continuous employment before the 17 October 2017 exclusion from shifts at Spencer Ward, and that the exclusion letter was not a dismissal because it said NHS Professionals would no longer offer assignments. The unfair dismissal complaint therefore failed on both qualifying service and dismissal, and the tribunal also said it was out of time.

On the race discrimination allegations against R1, the tribunal rejected the contention that Jane Hewitt's failure to interview the claimant after her statement was discriminatory, finding that R1's disciplinary policy only said a flexible worker may be interviewed and that the claimant had already provided a detailed written account. It also found that the exclusion from further shifts on 17 October 2017 resulted from the complaint being risk-ranked at 12 and from standard procedure, not from race. The same was true of the appeal outcome letter of 5 June 2018: the tribunal found it was an accurate reflection of the appeal discussion and that there was no evidence of racial motivation. The earlier R1 discrimination allegations were out of time, and the tribunal would not have extended time on a just and equitable basis.

On the discrimination claim against R2, the tribunal accepted that ED made the complaint on 17 October 2017 because the claimant had said she administered zopiclone without a written prescription and because ED had been instructed to make the complaint. It found no credible evidence that the complaint was because of race, and no proper comparator case was made out. The tribunal also found that SS's decision on 4 April 2018 not to allow the claimant to return to work at R2 was based on safe-practice concerns, including the view that a doctor could not authorise a verbal instruction to the bleep holder in the way suggested, and that SS did not know the claimant's identity when making the decision.

The victimisation complaint failed because the grievance of 5 December 2017 was the protected act relied on, but the tribunal found the decision to refer the matter to a disciplinary hearing had already been made on 24 November 2017. The tribunal therefore held that the disciplinary process could not have been imposed because of the protected act. All claims were dismissed and no award was made.