Mr S Miah v North East London NHS Foundation Trust — 2023

The Claimant was employed as a Reablement Support Worker from 4 March 2019. The tribunal found that the role could require personal care, even though the original job description was not fully clear, and that this became clearer during induction and shadowing. In relation to the April 2019 mask complaints, it found that the Respondent did not issue face masks pre-COVID, did provide other PPE, and had a risk-assessed position that masks were not required for the work the Claimant was doing.

The tribunal accepted that the Claimant raised concerns on 17 April 2019 by email about being asked to undertake personal care without a face mask or correct PPE, but it held that his belief that the matters disclosed tended to show a health and safety risk or breach of legal obligation was not reasonable. It relied on the evidence that Helen Moody told him masks were not needed, that the Infection Prevention and Control policy did not assist him, and that his stated concern was largely about smells and personal discomfort rather than a reasonable view of airborne risk. On that basis, the tribunal found that no protected disclosures were made.

The whistleblowing detriment complaints were all dismissed. The tribunal found that removal from clinical duties, the disciplinary terms of reference, the added allegations, the investigation report, the conduct of the disciplinary hearing, the later minutes amendment, the handling of the complaint against Z, the issue about return to the original post, the HR advice to Z, the wording of the Z allegation, and the treatment of the Claimant's evidence were all explained by conduct concerns, administrative error, or genuine management decisions, not by the making of protected disclosures.

On the dismissal claims, the tribunal found that the decisive event was the 22 July 2019 incident with Z. It accepted Z's and Mr Ali's accounts, rejected the Claimant's more extreme account, and found that the Claimant harassed Z on the basis of Z's sexual orientation. It held that Joseph Lindo's dismissal decision was based on gross misconduct, that the protected disclosure case played no part in that decision, and that summary dismissal was justified, so both the s.103A automatic unfair dismissal claim and the wrongful dismissal claim failed.

The two sexual harassment claims also failed. As to Z, the tribunal found that Z did not sexually harass the Claimant and that the Claimant's allegations about Z's behaviour were not credible. As to Margaret Staples, it found that the alleged comments about "come to play" and condoms were not proved as alleged, and that it was not reasonable to infer a sexual meaning from them. The victimisation claim about the Ms Staples complaint in the terms of reference also failed: the tribunal found the inclusion was based on a concern about bad faith and later remained in the document by oversight, and it held that the complaint was out of time with no just and equitable extension. All claims were dismissed and no remedy was awarded.