Mr R Sturch v Atlas Care Services Limited At a Full Hearing by CVP — 2021

The claimant, a regional manager and registered nurse, was dismissed on 13 November 2018 for gross misconduct after he administered incorrect medication to service user MA on 6 October 2018. The tribunal found that the claimant admitted in his 8 October 2018 statement that he had not completed the proper checks before giving the medication, and that the respondent carried out a reasonable investigation before the disciplinary hearing and appeal.

On the ordinary unfair dismissal claim, the tribunal applied the Burchell approach and section 98(4) ERA 1996. It found that Mr Watts had a genuine belief, based on reasonable grounds, that the claimant had committed misconduct, that the investigation was proportionate, and that the disciplinary hearing was not tainted by unfairness despite Mr Watts having both investigated and heard the matter. It also found that the subsequent appeal before Mr Claridge was a substantive reconsideration, not a mere formality, and that dismissal fell within the range of reasonable responses.

On whistleblowing, the tribunal found that the claimant had not made qualifying disclosures within sections 43B and 43C ERA 1996. It rejected the alleged pre-suspension verbal disclosures about staffing and Working Time Regulations, found that several later emails were requests for information rather than disclosures, and held that comments made during the disciplinary and appeal process, and after dismissal, could not found a claim that he was dismissed for protected disclosures. It also found that the alleged disclosures were not made in the public interest but were self-interested attempts to explain the medication incident.

On disability discrimination, the tribunal accepted that the claimant was disabled by reason of dyslexia but found that the respondent did not know of that disability until the claim was presented. It did not accept that the TUPE paperwork showing dyslexia had been received by the respondent, and it found that the claimant did not raise dyslexia or ask for additional time at any stage of the disciplinary or appeal process. As a result, the reasonable adjustments duty under sections 20 and 21 EQA 2010 was not engaged. All claims were dismissed and no award was made.