Ms A Kelly v Mathew Biju Thoppil and 1 other — 2025

Ms A Kelly worked for the second respondent as an Area/Regional Manager from 6 February 2023 until her dismissal in probation on 4 April 2023. The tribunal found she was based mainly at Hyde Nursing Home and was paid £50,000 a year. Her claim for ordinary unfair dismissal was struck out because she had not been employed long enough to bring that claim. Notice pay and holiday pay had been resolved during the hearing and were dealt with in a separate judgment.

On the whistleblowing claim, the tribunal considered three alleged protected disclosures. It found that PD1 and PD2 were not made or were not protected disclosures, and that PD3 was only partly made and was not protected because it was not reasonably believed to be in the public interest or to show a breach of legal obligation. Even if the disclosures had been protected, the tribunal found no causal link between them and the dismissal. The respondent knew, at most, about PD3, and the tribunal found the dismissal was instead for documented probationary failings, especially failure to respond to CQC and social worker complaints and failure to follow the usual protocol after a resident's death.

The disability claims also failed. The respondent conceded that the claimant had a hearing impairment, but the tribunal found there was no evidence that the respondent knew of it during employment. It also found the claimant had not shown that she had a relevant depression, anxiety or stress-related impairment at the time she worked for the respondent. Because the respondent did not know, and could not reasonably have been expected to know, of the relevant impairments, the reasonable adjustments duty was not triggered. The tribunal also rejected the disability harassment allegation, finding that the later version of the alleged remark referring to deafness was not accurate and preferring the contemporaneous complaint record.

The sex-based harassment and discrimination claims were rejected on the facts. The tribunal found that the alleged 'little girl/mummy' remark, the alleged repeated reference to female staff as girls, and the alleged 'chitty chat' remark were not made. It also found the allegation that the claimant was not allowed to leave on time to care for her child was not made out. The direct sex discrimination claim failed because the claimant did not prove less favourable treatment compared with a male comparator in the same material circumstances.

The race claims also failed. The direct race discrimination claim based on the pay difference between the claimant and a Clinical Lead failed because the tribunal found the Clinical Lead was not in the same material circumstances and did a different role requiring nursing qualifications. The indirect race discrimination claim failed because the tribunal found there was no PCP of allowing non-English languages in the workplace and found the workplace communication language was English. The race harassment allegation, that the first respondent spoke about the claimant in another language in her presence, was found to be unsupported and too vague. The unlawful deduction from wages claim for TOIL failed because the contract provided only for time off in lieu, not cash payment at termination, and the claimant did not identify any quantified amount due.