Dr Ambreen Malik v CAS Behavioural Health Limited and 1 other — 2021

The tribunal found that Dr Malik made protected disclosures about a blue bag containing powder found in patient AG's room on 17 September 2015. It accepted that the disclosure at the root cause analysis interview, the follow-up email to Dr Romero, later conversations with Dr Romero and solicitor Andrew Parsons, and her evidence at the coroner's inquest were qualifying disclosures. The tribunal held that she reasonably believed the information tended to show a criminal offence and that she believed disclosure was in the public interest.

On the detriment claims, the tribunal held that several of the alleged retaliatory acts were detriments linked to the disclosures, including the initial suspension, the suspension email, increased supervision, undermining conduct, the attempt to remove the appraisal lead role, the grievance handling and aspects of later treatment. It found, however, that those claims were out of time and did not form a series of similar acts ending with the in-time complaint. It rejected the claims based on the removal of support, the pay rise complaint, the conference funding refusal and the proposed move to another hospital, and held that it was reasonably practicable for the earlier complaints to have been brought in time. The only whistleblowing detriment it upheld as in time was Dr Burton's referral to the GMC and the description sent to the GMC liaison officer on 18 October 2017.

The automatic unfair dismissal claim under section 103A ERA 1996 failed because the tribunal found the claimant was not dismissed for making protected disclosures. Her ordinary unfair dismissal claim succeeded. Applying the section 98(4) ERA 1996 and Burchell principles, the tribunal found the investigation, disciplinary hearing and appeal into the July 2017 covert medication incident were seriously flawed: key witnesses were not interviewed, the hospital's own policy was not properly considered, senior management and HR were heavily involved, and the dismissing officer was a peer with limited experience. It held that the respondent did not establish a genuine and reasonable belief in gross misconduct, and that dismissal was outside the range of reasonable responses.

The wrongful dismissal claim also succeeded. The tribunal found that Dr Malik had followed the respondent's policy in the circumstances it accepted, that there was no wilful breach or gross negligence, and that she was dismissed without notice in breach of contract. The reasons supplied do not record any monetary award.