Mr M Gavin v Nottinghamshire Healthcare NHS Foundation Trust Heard: in Nottingham, as a hybrid hearing with the respondent’s witnesses attending via CVP — 2022

The claimant, a Band 3 Healthcare Assistant at the respondent NHS Trust, brought a whistleblowing detriment claim under section 47B ERA 1996. The tribunal found that his 6 August 2018 email about patient care and bank staff conduct on Lister ward was a protected disclosure, as were the patient-care concerns disclosed to Lorraine Lockley on 10 January 2019 and the email to the Chief Executive on 8 May 2019. It found no protected disclosure in the alleged October 2018 coffee-shop meeting, insufficient evidence of a disclosure on 12 December 2018 to two Band 6 Healthcare Assistants, and insufficient evidence of the content of the alleged disclosures to the CQC and NHS England.

On detriment, the tribunal accepted that the respondent did not further investigate the August 2018 concerns while the claimant was off sick and noted that it could have picked them up when he returned in October 2018, but it found that omission was caused by the claimant's sickness absence, his request for an informal approach, and the absence of any continuing problem at that time, not by the protected disclosure. It found the complaints raised in December 2018 and January 2019 were investigated thoroughly and appropriately by Lorraine Lockley and Lynne Alsop, with no failure to investigate amounting to a detriment on the ground of protected disclosures.

The tribunal rejected the allegation that the claimant's sickness was questioned after his complaints to the Chief Executive, CQC and NHS England. It found that Richard Fuller and Peter Wright accepted the absence was work related but concluded that it fell within the exclusion in the respondent's Injury Allowance policy for sickness absence arising from disputes relating to employment matters. Their decisions were based on the dispute between the claimant and Angela Beardmore and not on the claimant's whistleblowing disclosures.

The tribunal also rejected the complaint about inappropriate redeployment roles. It found that the claimant had asked for redeployment only after the grievance and whistleblowing outcomes, and that the respondent then tried to assist him by circulating Band 3 vacancies, including an automated alert that happened to include two Band 3/4 secretarial roles. The claimant obtained a Band 3 role at Retford Hospital quickly, and the tribunal found there was no detriment and no causal link to protected disclosures. The claim was therefore dismissed in full.