Mr J Castle, Counsel For the v Respondent — 2022

The claimant was a therapist at Hayes Grove who stopped attending the respondent's site after the lockdown period began in March 2020. The dispute concerned whether she could work from home, whether she should attend the hospital to deliver therapy by telephone from site, and whether the respondent's response to her concerns amounted to protected disclosure detriment, health and safety detriment, breach of contract, constructive dismissal and unlawful deduction of wages. The tribunal noted the pandemic context and said it had to assess the parties' conduct without hindsight.

The tribunal found that the claimant made protected disclosures between 24 March and 30 March 2020, in her formal grievance and appeal, and in later July correspondence, because she reasonably believed that requiring her to attend site during the pandemic could breach legal obligations and endanger health and safety. It held that belief remained reasonable until 14 August 2020, after a detailed meeting at which the respondent explained its control measures and operational arrangements. From that point the claimant could no longer reasonably maintain the same belief, beyond the unavoidable risk presented by Covid.

On the whistleblowing and health and safety complaints, the tribunal distinguished between the disclosure itself and causation. It found that salary withholding from 24 March 2020 and the later threat of disciplinary action up to 14 August 2020 were detriments on health and safety grounds under ss44 and 100 ERA 1996, but it did not find the necessary causal link for the detriments alleged under s47B ERA 1996. The diversion of work from the claimant was treated as a detriment in principle, but the tribunal found the causal link to the protected disclosures or danger belief was not made out.

The tribunal accepted that the respondent was entitled to organise its operation as it saw fit, including requiring on-site attendance, centralising contact with patients and prioritising IT licences. It nevertheless found serious flaws in the first-stage grievance process: the claimant's case was not properly engaged with, the notes did not fairly reflect some of what she said, and the invitation to meet four senior managers while her grievance was live was poorly timed. The appeal stage, conducted by Mr Bloor, was more detailed and more appropriate, but it did not cure the earlier flaws or restore trust and confidence.

On contract and dismissal, the tribunal rejected allegations that the home-working refusal or the restriction on patient contact were themselves breaches of contract. It found breaches of the implied term of trust and confidence in the handling of pay, the suspension of clinical supervision funding from June 2020, the grievance process and the disciplinary step taken before 14 August 2020. The claimant resigned on 8 September 2020 in response to that conduct and was held to have been constructively dismissed. The dismissal was found to be unfair, and automatically unfair to the extent it was based on her health and safety refusal to attend work while her reasonable belief in serious and imminent danger still subsisted.