Ms L Hertel v Represented by: Mr A Lyons - Barrister [Instructed by Messrs BDBF]15 Western Isles Health Board — 2024

The claimant was employed as Associate Medical Director from 30 November 2020. The tribunal found that some of her concerns about ligature points and mental health service provision were qualifying protected disclosures, including disclosures to Dr McAuley on 13 December 2020 and 25 January 2021, and disclosures at a meeting on 9 June 2021 and later in June 2021 and September 2021. Other alleged disclosures were not established on the evidence.

The whistleblowing detriment claim failed. The tribunal held that several alleged detriments were out of time, but it considered the later matters anyway and found that the exclusion from the 23 June 2021 IJB meeting, the delay in setting out concerns about her conduct, the investigation, the attendance-management process, the first written warning, the redeployment steps, the appointment of Ms Bozkurt to chair the absence hearing, the dismissal, and the appeal outcome were not materially influenced by protected disclosures. The tribunal accepted the respondent's evidence that it was concerned with the manner in which concerns were raised and with the claimant's conduct and absence, rather than with the fact that disclosures were made.

The automatic unfair dismissal claim was dismissed. The tribunal found that the sole reason for dismissal was capability: the claimant had been absent from work from 16 September 2021, her prognosis for returning to the Associate Medical Director role was uncertain, and the respondent concluded there was no realistic prospect of a return within a reasonable timeframe. The tribunal did not accept that protected disclosures were the reason for dismissal.

The ordinary unfair dismissal claim was also dismissed. Applying section 98(4) ERA 1996 and the band of reasonable responses approach, the tribunal found that the respondent had obtained occupational health advice, considered support, consulted the claimant, and considered alternatives including redeployment. It held that proceeding directly to stage 3 of the Attendance Policy was permitted on the facts and that dismissal for capability was fair and reasonable.

The disability discrimination claims were dismissed. For the section 15 claim, the tribunal found that the respondent knew of the LADA diagnosis but did not know, and could not reasonably have been expected to know, of the claimant's Adjustment Disorder until August 2023; it also found that the relevant treatment was not because of something arising in consequence of disability and that the respondent's aims in managing attendance, service needs, and patient and staff safety justified its actions. The indirect discrimination and reasonable-adjustments claims failed because the claimant did not establish a relevant PCP causing a substantial disadvantage, and the tribunal found the respondent had already taken all reasonable steps. The refusal to exercise discretion to pay contractual sick pay was also rejected on the facts. No monetary award was made.