Ms N McLelland v Represented by Mr S Smith Solicitor Community Lifestyles Limited — 2021

The claimant was employed from 13 February 2019 as a support worker and was on probation, with confirmation in post dependent on probation and SSSC registration. She brought a claim of automatic unfair dismissal under s.103A ERA 1996. The tribunal recorded that she lacked the continuous service needed for an ordinary unfair dismissal claim, so the case proceeded as a whistleblowing dismissal claim.

The tribunal considered three alleged disclosures. It held that the email of 18 March 2019, complaining about the condition of service user A's room and care arrangements, was not a protected disclosure. It accepted that the email of 11 July 2019 to David Meiklejohn was a protected disclosure under s.43B(1)(b) in relation to record-keeping or paperwork issues, but rejected the argument that it was also protected under s.43B(1)(d) as a health and safety disclosure. It reached the same conclusion about the email of 23 August 2019 to the Care Inspectorate: protected only as to paperwork issues, not as a health and safety disclosure.

On causation, the tribunal found that the dismissal was not because the claimant had made protected disclosures. It relied on evidence that complaints about the claimant arose from service users and colleagues, that the Care Inspectorate asked Glasgow City Council to investigate, and that the resulting investigation was independent of the respondent. It accepted that service user A and service user R had raised concerns about the claimant, and that the respondent's decision-maker, Ms Ramsay, dismissed the claimant because she had failed to meet the required standard in her practice and had not successfully completed probation. The claim was therefore dismissed.