Susan Brannan v Navigo health and Social Care CIC — 2022

The tribunal accepted that Susan Brannan made four qualifying disclosures between 3 June and 2 October 2019 about patient safety and staffing on the Konar ward, including concerns about a force-feeding incident, staff falling asleep or leaving shifts early, and the standard of care. It found that the respondent knew of the earlier disclosures, but not, on the evidence, of the 2 October disclosure to the chairman before the later complaint from Leanne Grimes. The tribunal rejected the suggestion that Ms Nwokedie had manipulated events or procured the dismissal, and held that this was not a Jhuti/Iago situation.

For the section 103A ERA claim, the tribunal found that the principal reason for dismissal was misconduct, namely the allegations that the claimant had made racist or inappropriate comments, rather than the protected disclosures. It accepted that Mr Reeve and, on appeal, Ms Lewington were deciding the case on the misconduct allegations before them. The automatic unfair dismissal claim was therefore dismissed.

For the ordinary unfair dismissal claim, the tribunal accepted that the respondent genuinely believed the claimant had made the alleged comments and that suspension was within the range of reasonable responses. However, it found material defects in the investigation and appeal, including the failure to check the rota for one allegation, the failure to interview other witnesses to the car incident, and the appeal officer's reliance on a 'triangulation of evidence' approach without properly weighing the contradictory direct evidence. Those flaws fatally undermined the fairness of the appeal and the dismissal was held to be unfair. The tribunal did not make a Polkey deduction, because it could not know what the additional witnesses would have said, but it did find contributory fault and reduced both the basic and compensatory awards by 50%; no final monetary award was fixed in this judgment and the case was listed for a remedy hearing.