Miss Jacqueline Henshall v Guy’s and St Thomas’ NHS Foundation Trust By CVP — 2020

Miss Jacqueline Henshall worked for Guy's and St Thomas' NHS Foundation Trust as Head of Private Patients from 14 December 2015 until her dismissal in December 2019. The tribunal recorded that she withdrew her direct age discrimination claim at the start of the hearing and withdrew her reasonable adjustments claim on day 5. It also struck out several unparticularised whistleblowing detriment allegations before hearing the remaining issues.

On disability, the tribunal applied the Equality Act 2010 definition and the authorities it cited on impairment, substantial adverse effect, and long-term effect. Although the claimant had a head injury in the workplace accident on 19 September 2017, the tribunal found that by 18 April 2018 her condition had not lasted, and was not expected to last, 12 months, and that the respondent did not know she was disabled. It therefore dismissed both the direct disability discrimination claim and the disability-arising claim. Even if disability had been made out, the tribunal found that the investigation and dismissal were driven by performance, conduct, and staff relationship concerns that pre-dated the accident and by later complaints from staff, not by disability.

The whistleblowing claim failed because the tribunal found that the alleged detriments either pre-dated the protected disclosures, were not causally linked to them, or were not made out on the facts. The disclosures relied on included the grievance of 3 April 2018 and later emails about health and safety concerns. The tribunal also rejected the dismissal aspect of the whistleblowing case, finding that the reason for dismissal was not the making of protected disclosures but the same performance, conduct, and relationship concerns. It noted that some alleged detriments had been struck out for lack of particulars.

The unfair dismissal claim was dismissed. The respondent showed a fair reason, described by the tribunal as some other substantial reason, alternatively conduct and capability, and the tribunal held that the dismissal was reasonable under section 98(4) ERA 1996. It considered that any procedural defect in the absence of a dismissal meeting was cured by the appeal process and said that, even if dismissal had been unfair, compensation would have been reduced by 100% for contributory fault or under Polkey. The wages claim also failed: the salary claim was out of time, the annual leave point was not particularised, the PILON argument failed because a non-contractual payment in lieu of notice was not wages, and the alleged £613.25 overpayment deduction was authorised by the contract. No award was made.