Mr Ryan McNaught, Friend For the v Ms B Varney, Operations Director — 2019

Mrs Sarah Clough worked as a Senior Health Care Assistant at Rivermead View after transferring to the respondent under TUPE. She raised written concerns in December 2017 and January 2018 about MRSA information sharing, staff conduct following a resident incident, underpayment after completing advanced medication training, and a collapsed stair lift. She was then suspended after the respondent discovered derogatory text messages and concerns about the care of resident EW, and she was dismissed for gross misconduct with effect from 16 March 2018.

The tribunal found that the claimant had made four protected public interest disclosures within ss.43B and 43C ERA 1996, but accepted Ms Varney's evidence that those disclosures were not known to her when she decided to dismiss and were not part of the dismissal decision. The tribunal held that the reason for dismissal was gross misconduct, not the disclosures, and that Mr Clarkson refused to process the appeal because it was out of time rather than because of any protected disclosure. The unfair dismissal claim under s.103A ERA 1996 was therefore dismissed.

The holiday pay claim was also dismissed. The tribunal found that there was no written agreement permitting carry-over of untaken holiday from the 2017 holiday year and that, for the period from 1 January 2018 to 16 March 2018, the respondent had already paid the claimant for 37.28 hours of accrued holiday entitlement in her final pay. On that basis, no accrued but untaken holiday pay remained due at termination.

The tribunal upheld two unlawful deduction from wages claims. The first was the conceded omission of one week's pay, being 33 hours at £9.50 per hour, totalling £313.50. The second related to the claimant's advanced medication qualification: the tribunal preferred her evidence that the respondent had received the certificate and found she should have been paid £9.50 per hour from 13 April 2017 until 31 December 2017, rather than £8.50 per hour. It assessed that underpayment at £1,610.00, bringing the total award to £1,923.50.