Member A Shanahan Tribunal Member E Hossack Ms Pauline Sanson v Forth Valley Health Board — 2021

The claimant, a third-year mental health nursing student on placement with Forth Valley Health Board, brought a claim alleging detriment for making protected disclosures under section 47B of the Employment Rights Act 1996. The alleged detriments were removal from Ward 5 at Forth Valley Royal Hospital, being blocked from bank shifts on Wards 1-5, being blocked from all bank shifts for a period, not returning to Russell Park, and being prevented from being granted a CP6 placement with the respondent. She sought compensation, with schedules referring to figures including £985,000 and later a range of £635,000 to £980,000, but the claim was dismissed and no award was made.

The tribunal found that the claimant had not proved the protected disclosures relied on in her pleaded case. It held that the 14 June 2019 email to Catherine Quinn did not amount to a protected disclosure and noted that the claimant accepted this in evidence. It also found that the 18 June email to Ross Cheape and the matters said to have been raised with Leanne Blair did not establish protected disclosures. The tribunal found that the concerns raised at the relevant time were about the claimant's own treatment on placement rather than patient care, and did not meet the public interest test in section 43B of the 1996 Act.

The tribunal accepted that later emails sent by the claimant to public bodies and individuals from about September 2019 raised concerns that could properly be the subject of public interest disclosure, but those later communications were not part of the pleaded case and post-dated the detriments relied on. The tribunal recorded that the respondent's Executive Nurse Director, Angela Wallace, and the management team treated those later allegations seriously, checked for red flags in incident reports, complaints, concerns, violent or aggressive incidents, nursing care assurance data and unannounced inspections, and found nothing in the data suggesting that the mental health unit or Ward 5 were outliers.

The tribunal further found that, even if protected disclosures had been established, the claimant had not shown the alleged detriments were caused by them. It accepted that the Ward 5 placement ended because relationships on the placement had broken down and the claimant agreed she should move; the restriction on Wards 1-5 bank shifts was linked to staff overlap and the possibility of contact with people she had accused of mistreating her; the Russell Park placement ended after concerns arising from the placement meeting and the claimant accepted this was not to do with whistleblowing; and the difficulty in providing a further CP6 placement related to the breakdown of previous placements, limited suitable mental health placements and subsequent arrangements with Lothian Health Board and later with the respondent.

The tribunal had more difficulty with the evidence about the temporary late-2020 ban on all bank shifts, noting that the explanation was vague and that Ms Hudson could not give a coherent explanation beyond saying she had made the decision with HR. However, it accepted Ms Hudson's evidence that the decision was not made to punish the claimant and found it had not been established that she knew of any potential protected disclosures. The tribunal concluded that the claimant failed to establish protected disclosures or causation, and unanimously dismissed the claim.