MS FADIPE (COUNSEL) FOR THE v Respondent — 2023

The Claimant, Mr Simon Morgan, was employed as Pharmacy Manager and Responsible Pharmacist at St Davids. The dispute concerned the Respondent’s decision to move St Davids onto MAX:E modelling for the 2021/22 year, which led to a reduction in budgeted staff hours and a consultation process about how those hours would be implemented. The Tribunal found that the Respondent considered the Claimant’s concerns about patient and staff safety, explained the basis for the hours allocation, and was entitled to prefer its own informed and reasoned view about the appropriate staffing model.

On the constructive unfair dismissal complaint, the Tribunal rejected the pleaded allegations that the Respondent had failed to address the Claimant’s concerns, decided in advance that staff reductions would occur regardless of consultation, failed to consult him, or wrongly excluded him from the consultation. It found that the consultation was about the implementation of the agreed hours, not about reopening the hours decision itself, and that the Claimant’s role was not at risk of redundancy. The grievance outcome and the consultation documentation did not amount to a fundamental breach of contract, either individually or cumulatively. The Tribunal also found that the Claimant had already decided to resign by 24 November 2021 at the latest, and that any alleged breaches would in any event have been waived by delay.

On the protected disclosures complaint, the Tribunal found that the Claimant did make protected disclosures on 19 September 2021, 28 October 2021, 29 October 2021, 18 November 2021 and 3 December 2021. It accepted that he genuinely and reasonably believed the allocated hours could endanger patient and staff safety and that the disclosures were made in the public interest. However, it held that the GPhC standards were not legal obligations for section 43B(1)(b) ERA 1996, that the Claimant was not relying on the Medicines (Pharmacies) (Responsible Pharmacist) Regulations 2008 in a way that could satisfy the statutory test, and that the consultation was not a sham or a means of concealing information. Because the Respondent did not commit a fundamental breach in response to the disclosures, the automatic unfair dismissal complaint also failed.