Mrs L Rooke v NHS Blood and Transplant
Mrs L Rooke v NHS Blood & Transplant 2300130/2022
Facts
The Claimant, Mrs. L Rooke, worked for the Respondent, NHS Blood and Transplant, as a Training and Practice Supervisor from April 2003 until October 2021. She brought claims of constructive unfair dismissal, detriment for making protected disclosures, direct disability discrimination, and failure to make reasonable adjustments.
The Claimant alleged that her role duties were eroded without consultation, she was asked to deliver inadequate training, the Respondent showed apathy by disregarding her email suggesting a new way of working, and she was made to feel unpopular by being compared to Darth Vader. The Respondent denied these allegations, stating some duties were temporarily removed due to Covid-19, the training was not inadequate, the email was not disregarded as her idea was later implemented, and the Darth Vader incident was part of a personality test.
It was determined that the Claimant had a disability of anxiety and low mood for the purposes of the Equality Act 2010 at the relevant times. Her resignation email stated "Due to personal circumstances". She later attempted to rescind her resignation, which the Respondent rejected, citing an operational decision to pause her post due to a review.
The Claimant also alleged making three protected disclosures:
First Disclosure (March 2020) - Concern on Yammer about session staff not having Personal Protective Equipment (PPE).
Second Disclosure (June 2020) - Email expressing concerns about "shortcuts in training".
Third Disclosure (May 2021) - Informing her manager of an omission in a new Donor Safety Check question.
The Respondent denied these were protected disclosures and stated they did not know the Claimant was disabled at the time of rejecting her resignation.
Held
The unanimous decision of the Tribunal was:
The Claimant’s claim of constructive unfair dismissal is not well-founded and is dismissed.
The Claimant’s claim of direct disability discrimination is not well-founded and is dismissed.
The Claimant’s claim of failure to make reasonable adjustments is not well-founded and is dismissed.
The Claimant’s claim of detriment on the ground that she had made one or more protected disclosures is well-founded. Specifically, the refusal to allow the Claimant to rescind her resignation and the Darth Vader Incident were found to be detriments on the ground of a protected disclosure.
Comment
Constructive Unfair Dismissal
The Tribunal found that the Claimant's constructive unfair dismissal claim failed because she had affirmed her contract after the alleged "last straw" (Darth Vader Incident) by attempting to retract her resignation without reserving her rights. Furthermore, the alleged breaches (such as role erosion) were not found to be a fundamental breach of trust and confidence. The Tribunal concluded that the Claimant primarily resigned due to acute stress from caring for her mother and her panic about having to learn a new technological process for work.
Direct Disability Discrimination and Failure to Make Reasonable Adjustments
Both disability discrimination claims were dismissed because the Tribunal found that the Respondent, including key decision-makers, did not know the Claimant was disabled for the purposes of the Equality Act 2010 at the relevant times. The duty to make reasonable adjustments does not arise if the employer does not have this knowledge.
Protected Disclosure Detriments
The First Disclosure (Yammer post) was not a protected disclosure because it was made on a chat forum not routinely monitored by management, meaning it was not adequately reported to the employer.
The Second Disclosure (email about training shortcuts) was not a protected disclosure because it did not actually disclose "information" but rather an unparticularized concern.
The Third Disclosure (Donor Safety Check omission) was a protected disclosure because it clearly disclosed information in the public interest that tended to show the health and safety of individuals was endangered, and it was made to her employer.
Refusal to Rescind Resignation: The Tribunal found that the Respondent's refusal to allow the Claimant to retract her resignation was a detriment caused by the Third Disclosure. The Tribunal drew an adverse inference against the Respondent due to the lack of documentary evidence regarding a recruitment freeze, the mixed and contradictory explanations given to the Claimant at the time, and the lack of credibility of a key witness (Ms. Dee).
Darth Vader Incident: This was also found to be a detriment. The Tribunal concluded it was on the ground that the Claimant had made the protected Third Disclosure, noting that Ms. Harber, who completed the questionnaire, had previously been told she was a "bad representative" for pursuing the Claimant's concerns.
