Ms P George v BUPA Care Homes (CFH Care) Ltd (England and Wales : Public Interest Disclosure : Race Discrimination : Unfair Dismissal : Unlawful Deduction from Wages) -[2017] UKET 3200682/2016- (21 December 2017)

Key Facts

Issues

• The Tribunal considered whether the Claimant suffered an unauthorised deduction from wages, specifically regarding alleged additional pay for her role as Unit Manager. The Tribunal found that the Claimant did not prove her claim and dismissed it. The Tribunal determined that there was no evidence to support the Claimant's assertion of an additional entitlement of £3.00 per hour, and the Respondent's evidence about a £1.00 per hour overtime incentive was preferred.
• The Tribunal assessed whether the Claimant was subjected to detriment as a result of her protected disclosures. The Tribunal found that the Claimant was not subjected to any detriment because of a protected disclosure, dismissing the claim under Section 47B of the Employment Rights Act 1996. The Tribunal determined that the Respondent's actions (including the investigation and suspension) were related to the Claimant's management style and conduct, not her protected disclosures.
• The Tribunal determined whether the Claimant's resignation constituted constructive unfair dismissal under Section 103A or Section 98 of the Employment Rights Act 1996. The Tribunal found that the Claimant was not dismissed within the definition of Section 95 ERA 1996, and both claims of unfair dismissal failed. The Tribunal concluded that the Respondent had reasonable and proper cause for their actions, and the Claimant was not entitled to resign and treat herself as dismissed.
• The Tribunal examined whether the Claimant's allegations about staffing levels, dropped medication, and non-accidental injuries constituted protected disclosures under Section 43B of the Employment Rights Act 1996. The Tribunal found that some disclosures (on 17 December 2015, 11 January 2016, and around 7 January 2016) were protected disclosures, but the Claimant failed to prove that these disclosures were a material influence in any detriment she suffered.

Holdings

Legal Principles

• The court applied the implied term of good faith in the employment relationship, requiring employers to act in a manner that does not destroy or seriously damage the relationship of trust and confidence between employer and employee.
• The court determined that for a protected disclosure to constitute a material influence on detriment or dismissal, it must be more than a trivial influence. The court found that the Respondent's actions were not causally linked to the Claimant's protected disclosures.
• The court examined whether the Respondent breached the implied term of trust and confidence in the employment contract, requiring the employer not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
• The court applied a standard of proof requiring the Claimant to prove her allegations by the balance of probabilities, finding her evidence unreliable and preferring the evidence of the Respondent's witnesses.
• The court held that for a disclosure to be protected, the employee must have a reasonable belief that it was made in the public interest, which requires consideration of the circumstances, including the number affected, nature of interests, and extent of effect.
• The court established that a protected disclosure requires the disclosure of information that reasonably tends to show a breach of legal obligations or risk to health and safety, particularly relevant to the vulnerable residents in the care home setting.

Precedent Name

• Koreshi v Abertawe Bro Morgannwg University Local Health Board
• Tullett Prebon Plc v BGC Brokers LLP
• Cavendish Munro Professional Risks Management Ltd v Geduld
• Western Union Payment Services UK Ltd v Anastasiou
• Chesterton Global Ltd v Nurmohamed
• Blackbay Ventures Ltd v Gahir
• Fecitt v NHS Manchester
• Kilraine v London Borough of Wandsworth
• Western Excavating Ltd v Sharp
• Waltham Forest London Borough Council – v- Omilaju

Cited Statute

Judge Name

• Employment Judge Russell
• Ms M Long
• Mr M Sparham

Passage Text

• Mr Romaine knew that there had been a Speak Up report (although not its contents) and the Claimant had repeated some of her concerns in her investigation meeting, but not in detail. Nevertheless, his decision to recommend disciplinary action was entirely unrelated to any disclosure but solely due to the very serious allegations of what amounted to bullying and for which there appeared to be strong primary evidence.
• It is not the role of the Tribunal to decide whether or not the Claimant's allegations of abuse and/or poor practice at the Respondent are true. Rather, we must consider whether the Claimant disclosed information which she reasonably believed tended to show a relevant breach.
• Overall, and even after stepping back and looking at the alleged detriments holistically, we are not satisfied that any protected disclosure was a material influence on the decision taken by Mr Ncube to start an investigation, that of Mr Romaine to suspend the Claimant and later recommend a disciplinary hearing or the manner in which the investigation was concluded. The Claimant was not subjected to any detriment because of a protected disclosure.