Ms Alexandra McMillan v ESPH Healthcare Limited — 2022

Ms Alexandra McMillan worked for ESPH Healthcare Limited from 1 February 2018 and was promoted to Exercise Manager in November 2019. After furlough began on 24 March 2020, she raised concerns about whether staff could work while furloughed, whether invoices could be raised for work done, and later about the flexible furlough arrangements. The tribunal held that only the 26 March 2020 exchange, where she said she would not raise an invoice unless it was confirmed in writing that she could work whilst furloughed, amounted to a protected disclosure. The earlier 24 March, 28 March, 25 June and 29 June communications were not protected disclosures.

The whistleblowing detriment claim failed. The tribunal found that the decision on 30 June 2020 to stop the claimant doing Front of House duties was linked to the reopening of the Clinic business and the return of Hannah, the previous incumbent, rather than to any protected disclosure. The automatic unfair dismissal claim under s.103A ERA 1996 also failed. Although the tribunal accepted that the 26 March 2020 disclosure was protected, it found that the reason for the redundancy process was cost reduction arising from the pandemic, including a genuine plan to remove the Exercise Manager layer and allow the directors to absorb those duties.

The ordinary unfair dismissal claim succeeded. The tribunal found there was a genuine redundancy situation, that consultation between 15 and 29 July 2020 was meaningful, and that the claimant’s alternatives were considered, including the possibility of continued furlough and freelance work. It also found that a wider pooling exercise was not actively undertaken, but that in the small business context the respondent was entitled to treat the Exercise Manager role as a unique post and to pursue cost savings quickly.

The dismissal was nevertheless unfair because of defects at appeal stage. The appeal officer did not put all relevant allegations to Mr Sharp, incorrectly treated written disclosure as a legal requirement, did not speak to the additional witnesses she had said she would approach, and the tribunal had doubts about the independence of an appeal run by a consultant from a linked company of the respondent’s HR advisers. The tribunal therefore held the dismissal unfair overall, but no remedy was determined at that hearing and the parties were encouraged to resolve remedy privately or request a remedy hearing.