Miss L Duggan v Beechdale Care Limited — 2021

Miss Duggan was employed as a care assistant at Beechdale Manor Care Home. The tribunal found that a Collective Letter left under Mr Kay-Warner’s office door in February 2019 complained that staffing was unsafe, and that the claimant also made a protected disclosure on 19 March 2019 when she told Mr Kay-Warner that staffing was insufficient and the residents were unsafe. The tribunal held that both disclosures were made in the public interest, were disclosures of information, and were protected disclosures for the purposes of sections 43B and 43C ERA 1996.

The dismissal arose after two residents on the ground floor were not given breakfast on 19 March 2019. The tribunal accepted the claimant’s evidence that the morning was delayed by handover and that staffing and support on the ground floor were more limited in practice than the respondent suggested. It found that Mr Kay-Warner formed a premature view that the claimant had deliberately failed to feed the residents to 'make a point', relied selectively on witness evidence, failed to carry out as much investigation as was reasonable, and did not approach the disciplinary hearing with an open mind. It also found that the notes of the disciplinary hearing had been edited to remove material comments from Ms McLaughlin.

The tribunal further found that the appeal did not cure those defects. Mr Khatkar’s review was limited, he did not conduct a meaningful investigation of the matters raised by the claimant, and the appeal letter gave no reasons beyond upholding the decision. The tribunal held that the process as a whole was unfair under section 98(4) ERA 1996, and that there was a breach of the Acas Code because the appeal was handled by someone who had already been involved in the disciplinary decision-making. It also held that no contributory fault reduction or Polkey deduction would be appropriate if compensation were later considered.

On the whistleblowing claim, the tribunal found that although the claimant had made protected disclosures, the principal reason for dismissal was not that she had made them. It found that the respondent dismissed her because Mr Kay-Warner believed she had deliberately neglected the residents, even though that belief was not reasonably grounded. The unlawful deduction from wages claim was withdrawn after the claimant confirmed that there had been no underpayment. The judgment was liability-only and the case was listed for a later hearing on remedy and costs.