Mr N Aghayere For the v Respondent — 2019

At a hearing in London Central on 30 April to 3 May 2019, Employment Judge Hodgson with Mr J Carroll and Mr P Secher considered Ms S Nkwanyuo's claims against Chelsea and Westminster NHS Foundation Trust. The tribunal first addressed whistleblowing. It held that the claimant had not properly identified any protected disclosure in the claim form, amendment application, further particulars, cross-examination, or submissions. The broad themes later advanced - staff shortages on shifts, wrong mix of skilled staff, and borrowing equipment from other service areas - were found to be routine staffing issues arising in the course of her role, and not shown to be disclosures of information made in the public interest or tending to show a relevant failure under s.43B ERA 1996.

On the unfair dismissal claim, the tribunal accepted that the respondent dismissed the claimant for conduct-related reasons centred on her having worked three back-to-back 12.5 hour shifts on 15 June 2015, 22 May 2016 and 26 June 2016 after work at Homerton. It accepted the investigation was sufficient to establish those shifts and that the conduct was serious, but held that the disciplinary process was unfair because the panel proceeded with the hearing on 10 July 2017 after receiving her resignation email at 09:11, without first contacting her or adjourning to explain that the resignation would not be accepted. The tribunal held that her non-attendance was neither persistent nor without good reason, because she believed she had ended her employment immediately. Applying section 98(4) ERA 1996, the Burchell approach, Iceland Frozen Foods, and the ACAS Code considerations, it found that no reasonable employer would have refused an adjournment in these circumstances, especially where the panel knew the decision could lead to an NMC referral.

The whistleblowing detriment claim also failed. The tribunal found clear and appropriate reasons for the March 2017 suspension, based on the respondent's concern about unsafe working practices, and no evidence that any alleged disclosure was a material reason for that step. It also found that the post-dismissal reference was a standard reference prepared in accordance with the Trust's usual process and that it recorded the claimant's dismissal factually and without adverse commentary. Because there were no protected disclosures, the tribunal held there was no basis for the automatic unfair dismissal claim or the detriment claim.