Miss K Letherby v Abraham Nursing Homes Ltd — 2022

Miss K Letherby was employed by Abraham Nursing Homes Ltd as a senior care assistant and had returned part-time after maternity leave on 18 April 2020. She resigned with immediate effect on 5 May 2021 after disciplinary proceedings; a part-time worker less-favourable-treatment allegation raised in the further and better particulars was withdrawn at the hearing.

The tribunal identified five alleged disclosures in the grievance email sent to Mr Zaher Sheikh on 30 December 2020. It held that the complaint about a lack of communication and the allegation about Claire Webber being on her phone after OT's fall were not qualifying disclosures, but the disclosures about resident KW, the Covid-related staff isolation issue, and Christmas Day staffing and care concerns were qualifying disclosures. It found that the claimant reasonably believed those disclosures were in the public interest and tended to show risks to health and safety and breaches of legal obligation, and that later disclosures to Care Inspectorate Wales, the Local Health Board and safeguarding in January 2021 were protected under s43G ERA 1996.

The tribunal found four detriments: suspension on 13 January 2021, the request for consent to access medical records on 22 January 2021, the handling of the grievance and investigation, and the disciplinary process. It held that the suspension lacked a proper basis, the medical-record request was unreasonable, the grievance was not handled in accordance with the ACAS Code, and the 5 May 2021 disciplinary hearing was unprofessional, biased and belittling. The tribunal also drew adverse inferences from the respondent's failure to disclose key documents and from Mr Sheikh's evidence.

Those detriments were materially influenced by the protected disclosures, and the same conduct cumulatively breached trust and confidence so that the claimant was constructively dismissed when she resigned on 5 May 2021. The tribunal upheld both automatic unfair dismissal under s103A ERA 1996 and ordinary unfair dismissal, found no bad faith, no contributory conduct and no Polkey reduction, and awarded £2,360.60 basic award and £3,216.15 compensatory award, plus £16,875 for injury to feelings. The compensatory award comprised £2,575.20 lost wages to 28 July 2021, £33.60 pension loss and £250 for loss of statutory rights. No interest was awarded and recoupment provisions applied.