Members: Elizabeth Farrell Andie Grant Mrs May Hendry v Represented by: Mr S Miller -15 Solicitor Ayrshire and Arran Health Board — 2017

Mrs Hendry had been employed by Ayrshire and Arran Health Board as a Dental Practice Adviser since 2001. The dispute arose from her handling of concerns about dentists including Michael Morrow and Donald Morrison, the referral and investigation process that followed, and the Board's decision in 2015 to set up an external review of its systems and processes for managing performance concerns in primary care.

The tribunal held that none of the claimant's alleged disclosures were protected disclosures within s.43B ERA 1996. It accepted that she had passed information about clinical standards, infection control and mis-claiming to senior managers and to John Cameron, but found she was acting as the gateway through which such matters were channelled in her DPA role, rather than making disclosures in the reasonable belief that she was acting in the public interest.

For that reason, the whistleblowing detriment complaint under s.47B and the automatic unfair dismissal complaint under s.103A were dismissed. The tribunal nevertheless found that a number of the complained-of events did occur, including the piecemeal disclosure of allegations to the claimant, restrictions on her speaking to Mr Burns and Mr Cameron, the confused remit and conduct of the external review, and the circulation of the review report without being marked confidential. It held, however, that those actions were driven by the respondent's desire to appease the complaining dentists and its inability to deal robustly with them, not by the fact that the claimant had made disclosures.

On constructive dismissal, the tribunal found that the respondent breached the implied term of trust and confidence by failing to deal properly with the complaints and with the claimant's grievance, by not robustly rebutting the allegation that she had doctored a letter, and by failing to answer the allegations before responding to the GDC. It also found that the respondent missed opportunities to make clear that the complaints were unfounded and to set out the basis on which the claimant's account had been accepted.

The tribunal held that Mr McHattie's 10 December 2015 letter to the GDC was part of the cumulative breach and was the last straw that prompted the claimant's resignation on 18 January 2016. It therefore found that she had been constructively and unfairly dismissed under ss.95 and 98 ERA 1996. No remedy was assessed in this liability judgment, and the tribunal recorded that a remedy hearing would be arranged if the parties could not resolve the issue.