Mrs M Peiu v Leonard Cheshire Disability — 2020

The claimant, a nurse at Ty Cwm, brought claims arising out of the respondent's handling of the SU1 matter, later safeguarding contact about SU2, the disciplinary process that followed, and the June 2017 NMC hearing. The tribunal found that the claimant was of Romanian national origin, but that the direct race discrimination complaint focused on the content and use of Ms Gulliver's NMC statement rather than on any materially similar comparator treatment involving SM or ME.

The tribunal accepted that the claimant made a qualifying protected disclosure on 25 September 2016 when she contacted the out-of-hours social work service about SU2. It found that she genuinely, and reasonably, believed that SU2 was being pressed to sign a document and that his welfare may have been at risk, although her motives were mixed and included concern about her own treatment. The tribunal held that the protected disclosure materially influenced the decision to start a disciplinary investigation on 30 September 2016, but that complaint was out of time and time was not extended.

The tribunal rejected the race discrimination and victimisation complaints. It found Ms Gulliver's June 2016 NMC witness statement was an honest response to questions from the NMC caseworker and not treatment because of race or because the claimant had brought grievances. It also rejected the allegations that, during the NMC hearing, the respondent antagonistically stated its case, failed to produce original documents, refused staff association support, or disclosed confidential information to SU1's family. The tribunal also rejected the automatic unfair dismissal claim under s.103A ERA because the reason for dismissal was found to be misconduct, not the protected disclosure.

The tribunal found that Ms Wilkinson decided to suspend the claimant on 30 September 2016 because of the claimant's refusal to attend the meeting that day and leaving early without notifying her, rather than because of race, grievances, or the protected disclosure. Ms Browning later dismissed the claimant on 6 November 2017 because she considered the claimant had acted inappropriately in relation to SU2, in contacting safeguarding and social work, in involving other staff and a service user, and in refusing the meeting and leaving early. Mr Clubb upheld the dismissal on appeal on 18 January 2018.

Although the tribunal accepted that misconduct was the respondent's stated reason, it held that the ordinary unfair dismissal process was unfair under s.98(4) ERA 1996. The tribunal was concerned by the loss of key evidence, including interview notes from SU2 and Ms Wilkinson, the long delay in progressing the investigation, the failure to send the claimant her full interview notes and other relevant material, and the lack of review of the suspension. It said these defects, viewed in the round and having regard to the respondent's size and resources, meant the dismissal fell outside the band of reasonable responses. The unfair dismissal claim therefore succeeded and the case was listed to proceed to remedy.