Member L Millar Tribunal Member P Kelman Mrs C Rafferty v Represented by:- Mr S Smith - Solicitor Mansfield Care Limited — 2021

Mrs Rafferty was employed as a registered nurse at Argyll care home from 23 March 2018 until her dismissal on 28 February 2019. In early January 2019 a drug administration error occurred which was not reported or recorded as it should have been. The tribunal found that the claimant later became aware of the failure to notify the Care Inspectorate, the GP, the family, social work and senior management, and that she raised the matter with Ms O'Rourke and later with the nurse involved. The Care Inspectorate later upheld the complaint about the drug error and noted that the service manager should have ensured the relevant parties were notified and the error recorded.

The tribunal accepted that the claimant was involved in alerting management to the issue, but it found that the respondents did not react negatively to the disclosure itself. When senior management became aware on 12 February, they immediately notified the relevant bodies and began investigating the failings of Ms O'Rourke and the nurse. Mr McKay's investigation report recommended disciplinary action for those two staff members and also recommended further investigation of the claimant's behaviour, based on what he had observed in his meeting with her and on statements from other employees. The tribunal found that recommendation about the claimant arose from behaviour concerns, not from the protected disclosures.

The claimant was later contacted by Ms Donaldson about an investigatory meeting concerning alleged aggression and attitude towards colleagues, and then by Ms Woods on 28 February 2019. The tribunal found that the call with Ms Woods went badly and that Ms Woods decided during that call to dismiss the claimant because of her perceived conduct, behaviour and attitude towards staff and managers, including the interactions with Mr McKay, Ms Donaldson and Ms Woods, together with information from other employees. It held that the reason, or principal reason, for dismissal was not that the claimant had made protected disclosures.

The tribunal noted shortcomings in the respondents' handling of the matter, including the absence of a distinct whistleblowing policy, Mr McKay's misunderstanding of whistleblowing, and the failure to follow the disciplinary procedure or respond to the appeal letter. It also considered that the claimant had been more confrontational than was warranted and that this contributed to the escalation. Those procedural and management failings did not persuade the tribunal that dismissal was caused by the protected disclosures, so the section 103A claim failed and no compensation was awarded.