Mr L Patricius Respondent The Royal Star and Garter Homes v Ms Y Barlay, Representative — 2020

Mr L Patricius started work for the respondent on 25 February 2019 as a registered nurse on the Lister dementia ward. He had declared dyslexia when applying for the role, and the tribunal recorded that the respondent conceded disability in respect of dyslexia and dyscalculia; for the purposes of its conclusions it proceeded on the basis that the additional conditions relied on were disabilities as well. The case arose from events between February and May 2020, including concerns about medication-room cupboards and fridges, the use of the Wellpad medication-scanning system, a suspension on 7 May 2020, and the claimant's resignation on 29 May 2020.

The tribunal found that Mr Brown's February 2020 and May 2020 investigatory meetings were poor practice because they were sprung on the claimant without prior warning and were recorded in circumstances where consent was not clearly free and informed. It nevertheless held that the first complaint the claimant made about Mr Brown's conduct was not a qualifying disclosure because it lacked the required public interest element. By contrast, the complaint about Ms Donaldson's treatment of a resident was found to be a protected disclosure under s.43B ERA 1996 because the claimant reasonably believed it concerned a matter affecting a vulnerable service user and the health or safety of an individual.

Even so, the tribunal found no causal link between that protected disclosure and the steps the respondent took. It held that the investigation into Wellpad compliance, the suspension, and the later NMC referral were driven by concerns about the claimant's medication practice and professional safety, not because he had made a protected disclosure. Applying s.95 and s.103A ERA 1996, the automatic unfair dismissal claim therefore failed. The breach of contract claim for notice pay also failed because the claimant resigned with immediate effect and was not entitled to notice money.

The discrimination claims were all dismissed. On direct race discrimination, the tribunal held that Mr Pay was not in materially the same circumstances for the comparator exercise, that the alleged differential treatment was not established, and that Ms Donaldson's 'running around like a headless chicken' remark was not shown to be race-related. The reasonable adjustments claim failed because the respondent did not know, and could not reasonably have been expected to know, the nature of any disadvantage or the adjustments the claimant said he needed. The harassment claim failed for the same reason: the conduct complained of was not found to be related to race.

The victimisation claim failed because, although the grievance letter of 29 May 2020 was a protected act, the tribunal found the grievance was considered and the NMC referral was prompted by practice concerns rather than by the discrimination allegations. The Working Time Regulations claim failed because the tribunal accepted there were occasions when the claimant was unable to take a break, but held that Regulation 10(1) did not apply in light of Regulation 21(c)(i) given the nature of the work and the respondent's business. No remedy was awarded on any claim.