Claimant v Respondent — 2024

The claimant worked as a personal assistant from 3 February 2020 until dismissal on 10 December 2020. The hearing was on liability only. The tribunal found that the respondent, a disabled person who employed PAs to assist with daily living and healthcare-related tasks, used the claimant in a role that included care, driving the mobility vehicle, and overnight cover. It also found that the respondent's approach to the claimant changed during November 2020, after earlier friendly arrangements had begun to break down.

On protected disclosures, the tribunal held that PD2 and PD4 were qualifying disclosures made to the claimant's employer. PD2 was the claimant telling the respondent, on 25 October 2020, that she had been in contact with someone who had Covid-19 and should not attend until tested. PD4 was the claimant telling the respondent and another PA that starting Peristeen bowel irrigation without medical advice put the respondent's health at risk. The tribunal found both disclosures were made in the public interest. By contrast, PD1 and PD3, which concerned insurance for the mobility vehicle and the securing of the wheelchair, were not protected disclosures because the claimant was asking about insurance and her own potential liability rather than making a qualifying disclosure of information.

The tribunal rejected the respondent's stated reasons for dismissal insofar as they relied on a chest infection and, as the principal reason, inconsistent timekeeping. It found that the respondent's own explanation of 'gross insubordination' referred to the claimant questioning the Peristeen regime and other care arrangements. The tribunal concluded that the principal reason for dismissal was that the claimant had made protected disclosures, so the dismissal was automatically unfair under section 103A ERA 1996. PD4 was found to be the main trigger, with PD2 also contributing to the deterioration in relations.

On detriments, D2 succeeded because the refusal to let the claimant take annual leave on 28 October 2020 was materially influenced by PD2. D1 also succeeded: from the payslip dated 27 November 2020 the claimant was paid £380 per week rather than £480, and the tribunal found that reduction was materially influenced by PD2 and PD4, with PD4 the main trigger. D3 failed because the shift had been reallocated before the claimant reported a negative Covid test result, and the tribunal found that act was not done on the ground of any protected disclosure. The tribunal also held that D1 and D2 formed part of a series of similar acts, so the detriment claims were in time.

On the other claims, the tribunal found that 1.8 weeks of holiday remained unpaid at termination, but the amount payable was left for the remedy hearing because the daily rate was still to be decided. It found an unauthorised deduction of £100 per week from wages from 27 November 2020 onwards. The breach of contract claim failed: the respondent had paid £760 in lieu of notice, which exceeded the claimant's contractual and statutory notice entitlement of £480, and the later requirement to sleep over was not a contractual breach because the contract required 24-hour cover. Remedy was listed for 29 January 2024, so no monetary award was determined in this judgment.