Mrs G Itanyi v Sunrise UK Operations Ltd — 2019

Mrs G Itanyi, a senior care assistant at Sunrise UK Operations Ltd, alleged that after a CQC visit in March 2018 she had raised staffing concerns, and that this led to retaliation and to disciplinary action after an overnight shift on 2-3 April 2018. The tribunal found she had told the CQC that the home had resourcing problems, but it did not accept that she had established any retaliatory conversation or threat by the Deputy Manager, noting the limited overlap between them after the inspection and preferring the respondent’s evidence on that issue.

On the unfair dismissal claim, the tribunal found that two colleagues witnessed the claimant sleeping on duty for four or more hours and hearing her snoring. It accepted the respondent’s evidence that, after the claimant said she had been working and asked for the records to be checked, her resident notes were examined and appeared to show the same times and identical activities for more than one resident. Applying s.98 ERA 1996, the Burchell test and the range of reasonable responses approach, the tribunal held that the respondent had a genuine belief in misconduct on reasonable grounds after a reasonable investigation, and that dismissal for gross misconduct was within the range of reasonable responses.

The tribunal also rejected the direct religion or belief discrimination claim. It found that the sleeping allegation was made because the claimant was seen asleep, not because of her Christianity or because she said she was praying. When the claimant later raised the prayer explanation, the witnesses were re-interviewed and both maintained that she had not said she was praying and that she had been asleep for a long period. The tribunal further found that the claimant was not prevented from relying on evidence she wished to advance in the disciplinary process, and that the later appeal allowed her to present additional material about her niece’s accident.

The whistleblowing complaints also failed. The tribunal accepted that the claimant had disclosed staffing concerns to the CQC and treated that as capable of amounting to a protected disclosure, but it found that the disciplinary process and dismissal were triggered by the sleeping allegation reported by a colleague, not by the disclosure. It rejected the claimed detriments, including any allegation that the Deputy Manager threatened to get the claimant dismissed or manufactured the case against her, and concluded that the protected disclosure played no causative role in the decision to dismiss. The appeal was dismissed and the dismissal upheld.