Mr J Thomas v Waypoints Care Group Limited — 2019

Mr Thomas made two protected disclosures that the respondent admitted: the written complaint of 27 December 2017 and the letter to Dorset Adult Safeguarding Triage Team on 13 February 2018. The tribunal found that the respondent was entitled to investigate the note-writing issue arising from 24 December 2017, and that the meeting on 19 January 2018 was a normal management response and not an actionable detriment. It also found that the minutes of that meeting sent to the claimant were the complete minutes, even though they were not verbatim.

The tribunal accepted that Mr Harrison’s decision on 11 April 2018 to place the claimant under investigation was materially influenced by the protected disclosures. It rejected the respondent’s explanation for the investigation as unpersuasive, found no proper basis for the allegation that the claimant had discriminated against staff on the basis of ethnicity, and concluded that the disclosures were more than a trivial influence on the decision to investigate. It did not find that any further steps in the process were themselves influenced by the disclosures, including the refusal to disclose residents’ documents, the alleged predetermination of discipline, or the handwritten notes from the 8 May 2018 meeting.

Although the tribunal found a proved whistleblowing detriment, it held that the complaint was out of time. Applying section 48(3) and section 48(4) of the Employment Rights Act 1996, and referring to Hale v Brighton and Sussex University Hospitals and South Western Ambulance Service NHS Foundation Trust v King, it held that there was no continuing act and that the only proven detrimental act was the 11 April 2018 decision to investigate. The claim was presented on 15 September 2018, outside the three-month period, and there was no evidence that it had not been reasonably practicable to present it in time.

The automatically unfair dismissal claim also failed. The tribunal recorded that, between the close of the claimant’s evidence and the start of the respondent’s case, Mr Thomas said he no longer pursued an assertion that he was an employee. On that basis the claim of automatically unfair dismissal could not succeed. The final outcome was that the claim was dismissed, with no monetary award made.