Background:

The claimant was employed as a residential social worker from 20th July 2020 until 22nd April 2021. References were sought before commencing employment but they could not be described as ‘glowing’ with one failing to answer the question as to whether the claimant would be re-employed and another saying ‘no’.  The employment was terminated during an extended probationary period.  The nine months, as outlined by the Tribunal, generated a series of alleged incidents and it was difficult to set those out in a logical order.

The claimant alleges that she made disclosures to the RQIA Inspector in October 2020.  These related to health and safety concerns relating to the garden, malpractice, the risks to the service users and a lack of governance.  The claimant found out that she was pregnant in early January 2021.  She informed a member of staff of this and at the Tribunal she made a claim for sex discrimination.

The Tribunal felt the need to remind the parties to the limited jurisdiction of the Tribunal and that it would not be a public inquiry into issues relating to care provision.  This continued throughout the case with the Tribunal noting the level of hostility between the parties.

As a result of the dismissal and other matters arising from the above the claimant brought claims for unfair dismissal on the basis of protected disclosures as well as sex discrimination.

Outcome:

The overarching matter that arose from this (very lengthy) judgment was the confrontational nature of the litigation conducted by the claimant.   There were allegations that all of the respondent’s witnesses were lying and were trying to get rid of the claimant. This was not a position that the Tribunal was able to accept.   The Tribunal found that there was a disruptive and confrontational nature that was adopted against line management throughout the employment.   There were ‘fixed views’ as seen with the matter relating to the back garden where she sought to ensure that matters were put in place well before the child, known as SJ, was going to be placed in the garden.

It was found that the claimant had made ‘wild’ and ‘unsubstantiated’ allegations in her employment and was unable to back down and retract from those allegations.  This related to another employee misappropriating public funds, another making her feel ‘unsafe’ and an allegation that another employee was going to remove chairs because the claimant was pregnant.  As a result, the Tribunal found that the decision to dismiss within the probationary period (and before the right to unfair dismissal arises under the legislation) was brought upon by the claimant rather than being based upon protected disclosures or pregnancy. As a result, all claims were dismissed.

Practical Guidance for Employers:

The fact that the dismissal here was made before the crystallisation of the statutory right against unfair dismissal did have the effect of simplifying this (very factually complex) case.   It is clearly difficult for management to deal with a confrontational member of staff who causes frustration within the workplace. This demonstrates the use of probation periods – there are still difficulties with the points raised by the claimant here such as protected disclosures yet the Tribunal was able to look beyond those to the conduct of the claimant.  Employers should be mindful of overall conduct of an employee and confident with their decisions in such situations.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/