Case 1403938/2018 · Employment Tribunal
- MR J MCMAHON FOR THE v Respondent — 2021
- Case reference
- 1403938/2018
- Decision date
- 27 January 2021
- Jurisdiction
- England & Wales
- Judge
- Employment Judge Midgely
- Panel members
- Ms C Date, Ms C Lloyd Jennings
Parties
1 namedClaimant
- MR J MCMAHON FOR THE
Respondent
- —
Key findings
Tribunal's reasoningAnita Howarth was employed by Genesis Cancer Care UK Ltd as a Senior Therapy Radiographer at Portsmouth from 12 October 2009 until her summary dismissal for gross misconduct on 18 July 2018. The tribunal found that most of the January 2018 complaints she emailed about Centre Leader Ms Atkinson were personal or managerial in nature, but one complaint about pre-treatment scanning and patient safety was capable of being a protected disclosure within s.43B(1)(d) ERA 1996 and was reasonably believed to be in the public interest.
The tribunal rejected the whistleblowing detriment claim. It held that there was no evidence that the January disclosure caused the claimant's suspension, any interference with witness evidence, or the dismissal decision. The tribunal found the suspension decision to be inevitable in light of the June 2018 incident, rejected the allegation that Ms Atkinson sought to interfere with evidence, and found no evidence that Ms Atkinson influenced the dismissal.
On unfair dismissal, the tribunal accepted that the respondent's belief in misconduct was the genuine reason for dismissal and applied the Burchell questions. It held that the investigation was reasonable, that Ms Beaumont's conclusions were rationally open to her, and that dismissal fell within the range of reasonable responses. The appeal was also dismissed on the basis that Mr Gearing reasonably concluded that the disciplinary outcome and sanction were justified.
On the breach of contract / wrongful dismissal claim, the tribunal could not make a finding that the claimant physically assaulted Ms Foreshaw or that she made a false allegation about being assaulted. However, on the claimant's own account and the contemporaneous evidence, it found that she was abusive, confrontational, followed Ms Foreshaw, touched her phone, and prolonged the confrontation. The tribunal held that this conduct amounted to a fundamental breach of contract justifying dismissal without notice, so that claim was also dismissed.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Whistleblowing | The tribunal found that at least one January 2018 disclosure, concerning pre-treatment scanning and patient safety, was capable of being a protected disclosure made in the public interest, but held that there was no evidence that the disclosure caused the June 2018 suspension or the later dismissal-related detriments. | Dismissed | — | — |
| Unfair dismissal | Dismissed under s.98(2) ERA 1996 and the Burchell questions; the tribunal accepted that the respondent genuinely believed misconduct had occurred, that the investigation and appeal were within the range of reasonable responses, and that summary dismissal was a reasonable sanction. | Dismissed | — | — |
| Breach of contract | The claim concerned notice pay / wrongful dismissal. Although the tribunal could not find on the evidence that the claimant physically assaulted Ms Foreshaw or made a false allegation, it found that her own conduct was sufficiently serious to amount to a fundamental breach justifying dismissal without notice. | Dismissed | — | — |
Legal tests applied
4 references- s.43B(1)(d) ERA 1996
- s.98(2) ERA 1996
- Burchell questions
- range of reasonable responses
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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