Ms J Anderson and Mr D Frew Ms A Henderson v Represented by: Mr M Lappin - Lay Representative GCRM Limited and 2 others — 2023

Ms Henderson was an embryologist and laboratory manager at the Glasgow fertility clinic. The tribunal found that she made two broad categories of disclosures: concerns about the suitability and success of egg freezing and thawing processes, and concerns about staffing, workload, skills mix, equipment, lab space and the risk of errors and incidents. It accepted that she made the disclosures to management and that she believed she was acting in the public interest.

The tribunal held that the embryology disclosures were not protected disclosures because her belief that the respondent was breaching a legal obligation was not objectively reasonable. It found there was insufficient evidence to support a conclusion that the freeze/thaw process or patient information fell below HFEA requirements, and that the respondent's procedures met Licence Condition T72.

By contrast, the staffing disclosures were protected. The tribunal accepted that her repeated oral and written complaints about shortages, training, workload, fatigue, equipment and the impact of increasing patient numbers were sufficiently detailed to amount to information, and that it was objectively reasonable for her to believe they tended to show breaches of HFEA regulatory principles 7, 8 and 9 and licence conditions T2, T12 and T17. Those disclosures included the later grievance and grievance hearing material.

The tribunal found that dismissal was a detriment under section 47B ERA and that the protected staffing disclosures had a material influence on the decision to dismiss. It held that Mr Tomnay and Ms Young significantly influenced Ms Tracey's decision, but the first respondent alone was liable for the detriment because they were acting within the scope of their roles or authority. The automatic unfair dismissal claim under section 103A failed because the disclosures were not the sole or principal reason for dismissal.

On the ordinary unfair dismissal claim, the tribunal found the reason for dismissal was conduct. After appeal, the dismissal rested on the wrong media incident, the nitrogen tanks incident and the Vitrolife expert issue, with the unification allegation falling away. Applying Burchell and section 98(4), the tribunal held there were not reasonable grounds to conclude that she was guilty of misconduct or gross negligence, and the investigation was not reasonable because it took too long, lacked a final report, omitted relevant witnesses and documents, and left the claimant without key material. Dismissal was outside the band of reasonable responses.

The tribunal rejected contributory fault, a Polkey deduction, and the alternative submission that she could fairly have been dismissed for some other substantial reason. Remedy was not determined in this judgment and was left to a separate hearing.