Background:

The claimant worked for the respondent from 27th July 2019 until his employment ended on 26th November 2019. The employment was terminated with immediate effect and during the probationary period. The claimant worked night shifts on the first floor of a care home.

There was an incident on 5th October when two members of staff took their break together and left the ground floor unit unsupervised. The claimant was asked to move a resident from the smoking room downstairs to their room on the first floor. The claimant rejected this twice.  This was on the basis that the claimant stated the resident was independent and knows the pin numbers so could move freely. The claimant asserted that this was a protected disclosure and that by making him do this during an unpaid rest break was a detriment. When abiding by the request, the claimant used the ‘f’ word when discussing it with the resident which was found to be wholly inappropriate.

It was following this event that the claimant was informed of it being as alleged misconduct and was being put under supervision. The claimant again asserted that this was a detriment.  The claimant also states that he informed others within the home and outside, namely the NISCC, of the fact that the ground floor was left unsupervised. During the investigation into it, the claimant’s statement was changed which led to some elements, such as the lack of supervision on the ground floor, being removed.

A second incident took place in which the claimant was alleged to have forcefully mishandled a resident who was trying to gain access to the nurse’s station. The respondent took the decision, based upon the evidence of those who were on duty, to dismiss the employee. This was about 40 minutes following the alleged incident.

Outcome:

The Tribunal had to determine whether there had been a protected disclosure. The claimant alleged that there were disclosures in relation to residents being restricted, that being in the smoking room, and the need to be escorted. The claimant also alleged that disclosures were made about the lack of appropriate supervision when other colleagues took their break simultaneously. The Tribunal found that the disclosure about the restriction on residents were not qualifying protected disclosures. The points made about the restriction did not contain the requisite information to qualify as a disclosure, nor were they factually accurate, as the resident in question did not know all of the pin numbers which was the statement by the claimant.

The second issue was the supervision. It was held that there was sufficient public interest in this disclosure and that the claimant reasonably believed that it was in the public interest to disclose. They were made to a member of management of the home. This would mean that all five elements of the statutory definition for a disclosure and it was made to the right individual for it to be a protected disclosure.

The Tribunal had to determine whether there was a detriment to the claimant. It was found that the need to change the statement did amount to a detriment with the claimant feeling frightened and intimidated by the request. Additionally the issue of the supervision gap was not raised by the manager in a NISCC referral which meant the regulator was not given the full details relating to the claimant’s conduct on that night. The claimant did suggest that he was subjected to oppressive and secretive monitoring of his work but there was no evidence to back up that suggestion.

On the issue of the dismissal, the Tribunal found that the reason for dismissal was the claimant’s conduct relating to the two events. The concern was raised in the second incident from staff who had no knowledge of the supervision disclosures made by the claimant.  To that end, it was found that the decision to dismiss was not made as a result of the disclosures.  As a result, there was no unfair dismissal as the claimant did not have the requisite period of continuous service.

For the detriment from protected disclosure, the claimant was awarded a total of £16,270.85.

Practical Guidance for Employers:

This case provides a useful application of the statutory rules in relation to whether a disclosure is protected. This can be seen with one disclosure not being protected due to its lack of information and factual accuracy yet the other was protected as it was made to the line manager within the organisation as well as being made within the public interest.  Whilst it did not link into the dismissal and no unfair dismissal could be found – it did lead to detriment in relation to the claimant’s participation in an investigation into his conduct on the same night as that relating to the supervision disclosure.

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