Mrs Samara Pearce v Porthaven Care Homes No3 Limited — 2023

Mrs Samara Pearce was employed by Porthaven Care Homes No3 Limited as a carer from 1 June 2020 until her dismissal on 19 October 2021. The tribunal found that the claimant had a disability, identified by the respondent as PTSD, and that the respondent knew of it throughout the employment. It also found that the claimant's working pattern had repeatedly changed because of her husband's shifts and her family circumstances, and that the contractual position between the parties had become a zero-hours style arrangement in practice, despite confusing paperwork.

On 21 July 2021 the claimant emailed management raising concerns that a resident had been overdosed on medication and that this had been covered up. The tribunal held that this was a protected disclosure within section 43B ERA 1996 because it disclosed information, was made in the public interest, and tended to show a potential danger to health or safety and a possible failure to comply with legal obligations. However, applying the Fecitt approach to detriment, it found that the alleged whistleblowing detriments were not proved to have been caused by that disclosure.

The tribunal accepted that Rachel Joyce cancelled four shifts in response to the claimant's email, but found that two of those shifts had in fact been cancelled by the claimant herself and that the remaining two had been cancelled by mistake because the email was misunderstood. It also found that the later absence of shifts was explained by the covid situation at the home and by ongoing contractual discussions about whether the claimant would work 12-hour shifts or move to the bank arrangement. The tribunal found that Carla Kell had not removed the claimant's employee status as alleged, and that the bank-style paperwork had been drafted incorrectly but did not reflect a dismissal or loss of employee status.

The automatic unfair dismissal claim under section 103A ERA 1996 also failed. The tribunal held that the principal reason for the dismissal on 19 October 2021 was the claimant's inability to commit to either the 12-hour shift pattern or the bank contract, rather than the protected disclosure. The reasonable adjustments claim under sections 20 and 21 Equality Act 2010 failed because the working-hours provision did not put the claimant at a substantial disadvantage by reason of her disability: the tribunal found that the reason she could not reliably work the full shifts was her husband's rota and her daughter's needs, not her PTSD. The unlawful deduction from wages claim failed because the tribunal found no contractual entitlement to a guaranteed minimum of 12 hours' pay per week regardless of hours worked, so no unlawful deduction was established. No monetary remedy was awarded.