Mrs M Durojaiye v St Mary’s Care Ltd — 2018

Mrs Durojaiye had worked for St Mary's Care Ltd since 2000. The tribunal noted serious problems with the respondent's record-keeping and disclosure, and that only Ms Patel gave evidence for the respondent. It found that the claimant was disabled by reason of her back pain, but not by reason of anxiety and depression during the material period.

The discrimination claims mostly failed. The tribunal rejected direct discrimination, discrimination arising from disability, and indirect discrimination. It found that the claimant's complaints about PPE, workstations and staffing were not established as unlawful indirect discrimination, and that the claim based on sleeping tablets failed because those tablets were not shown to arise in consequence of the claimant's back disability. The reasonable adjustments claim succeeded only in relation to the respondent's failure to carry out risk assessments when the claimant returned to Jasmine Wing in May 2017 and after her September 2018 accident; the physical-feature complaint about the chair failed because another chair was available.

On whistleblowing, the tribunal accepted that the claimant made disclosures about staffing shortages, care standards, PPE and related matters, and that she reasonably believed those disclosures were in the public interest, except for the workstation complaint which it treated differently. It nevertheless dismissed the detriment claim. The September 2016 allegations were out of time, the later pay and PPE disputes were not shown to have been materially caused by protected disclosures, and the 2 November 2018 suspension was not found to have been materially influenced by any protected disclosure.

The dismissal findings were in the claimant's favour. The tribunal held that the way the respondent dealt with the claimant after the 2 November 2018 suspension, including the timing and content of the 12 November 2018 settlement offer, the failure to complete the grievance and subject access request process, and the invitation to a disciplinary meeting on 7 December 2018, amounted to a repudiatory breach of trust and confidence. It held that the claimant was constructively unfairly dismissed and wrongfully dismissed, and that the evidence of the settlement discussion was admissible because the tribunal found improper behaviour for the purposes of s.111A ERA 1996.

The pay findings were partly determined and partly left for remedy. The tribunal found unlawful deductions from wages, including sick pay and other wage shortfalls, and held that recovery for deductions was limited to the statutory two-year period. It found that the claimant should have been paid for specific periods in 2017 and 2018, that she had outstanding annual leave of two weeks from the 2017/2018 leave year, and that £47.37 spent on PPE should be repaid. It also found that the respondent failed to provide timely or clear payslips and failed to process the claimant's workplace pension enrolment. A remedy hearing was listed because most sums had not been finally quantified.