This employee had less than 2 year’s service, but when he was dismissed for ‘performance’ he brought a claim for unfair dismissal due to blowing the whistle on bad practice in a private hospital.
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CASE NO: xxx
IN THE EMPLOYMENT TRIBUNAL [NAME OF TRIBUNAL]
PARTICULARS OF CLAIM
- [Employee] was employed as a [Job Title]. [Company] is a [Type of Company].
- [Employee] hereby brings the following claims:-
- Automatically unfair dismissal by reason of ‘whistleblowing’, or making a protected disclosure, contrary to s.103A Employment Right Act 1996
- Wrongful dismissal; and
- Non-existent written statement of employment particulars contrary to the Employment Act 2002.
- [Company] ostensibly dismissed [Employee] for failing his probation, but at no point was [Employee] ever informed via any formal supervision session that he was failing to perform to required standards. In fact quite the contrary – [Employee] was taken out for lunch by [Company CEO] on several occasions during his tenure, and was informed that he was doing a good job and that his role was secure within the organisation. These conversations took place as recently as the 28th November [Year date], where in her presence a [Director] of [Company], reiterated this point.
Written statement of employment particulars
2. At no point during his tenure was [Employee] offered a formal Job Description. In fact his role was broadened twice during his tenure to have involvement with services that he was not originally supposed to have operational responsibility for. He was informed by [Company CEO] that this was happening due to his high skill base and ability to make an impact on these services, some of which were failing.
3. There is email evidence dating back as far as February [Year date] (before [Employee] commenced his post) that a detailed job description would be offered by [Company CEO]. This was never issued. [Employee] also requested to be issued with both a contract of employment and job description by email in August [Year date]. Despite an email response from [Company CEO] stating that these would be issued, this did not take place.
4. [Employee] raised this issue at the end of probation meeting with [Company] on 02 December [Year date] [Employee] once again questioned how performance could be measure in the absence of a job description. [Company CEO] looked visibly embarrassed at this line of questioning, stating that [HR Manager] had been tasked to do this. The [Company Chairman] appeared shocked during this conversation. He did not know of the significant operational failure in not providing [Employee] with the necessary structure and guidance to perform his duties.
5. On 8th February [Year date], the following 2 emails were sent by [Company CEO], outlining relevant matters:
From: [Company CEO]
Subject: FW: REVISED JOB OFFER – strictly private and confidential
To: [[email protected]]
Date: Tuesday, 8 February, [Year date], 18:05
as discussed I am going to offer additional incentives to the overall package as follows:
Car allowance of 5K per annum
Pension of 6% after the probationary period.
Achievable bonus of up to £30k per annum based on achieving
90% occupancy at each service managed this will be £15k for [Place] and £15k for [Place].
I will be drawing up with you a detailed job description for this new role.
You will be reporting to me as Chief Executive.
I do not want to pay a 20% recruitment fee on the additional salary and benefits as you will appreciate.
From: [Company CEO]
Subject: RE: REVISED JOB OFFER – strictly private and confidential
To: [[email protected]]
Date: Tuesday, 8 February, [Year date], 21:34
My email constitutes a formal job offer and has been authorised by [Company Chairman] and [Company Owner] . As you have this in writing albeit via email it is A Contract and therefore legally binding upon [Employee].
The offer is dependent upon a clear CRB and references. You will receive a letter from [HR Manager] and a contract of employment as per normal practice.
The issue about confidentiality relates to your fellow [Company Directors] who will be impacted by the new role and reporting line but this is for me to resolve as you work your notice. Your new role has been created by me as a result of a restructure which is necessary for the business going forward.
The [HR manager] is [Name] who you have met.
I will start the ball rolling tomorrow in terms of formal correspondence. [HR Manager] will clarify the company mileage allowance – however you will be able to claim up to 45p per mile on tax – I assume you already do this as the company mileage allowance will be below this figure.
- [Company] states that [Employee] was dismissed during his probation period, and therefore was only paid one month’s notice pay rather than the three months to which he would have been entitled had he passed his probation. But the probationary period was only 6 months, and [Employee] was dismissed in the 7th month of his employment, therefore he was not dismissed during his probationary period.
- On 2nd December [Year date], [Employee] became aware of a meeting taking place at [Location]. He had not been invited to this meeting but became aware of it due to the fact that he was on site that day. The meeting involved most of the other senior managers.
- After the meeting had finished, [Employee] sought clarity as to what the meeting had been about. He was informed that it had been a meeting to plan the admission of a profoundly deaf patient from [Place]. [Employee] was surprised that this meeting had taken place in his absence, as from a regulatory perspective he was defined as the ‘Nominated Individual’ for the establishment and was therefore responsible for the ensuring that the patients admitted to the service can be appropriately cared for.
- [Employee] had already stated during September and December [Year date] to [ CEO], [Director of Marketing] and [Director of Nursing] his significant concerns with admitting this individual to the hospital in question as there are no staff that are competent in the use of British Sign Language, whilst the placement that the individual is currently in is a specialist deaf person’s service. There was also a significant history within this hospital (a hearing person’s service) of having previously managed the care of a deaf person poorly due to inadequate resources. This view was also shared by [Employee 2], who was tasked with conducting the assessment visit for the patient in question.
[Employee] was actively excluded from this meeting due to the fact that he would raise significant professional objections to [Hospital name] admitting this patient despite being inadequately prepared to do so. He was being treated unfavourably by reason of his protected disclosure.
- Following a senior management meeting held at [Hospital name] Head Office in [Place], on or around 11th July [Year date] [Employee] was party to a conversation with [Chairman]. This conversation centred on a [Company 2 Commissioner] who divulged during this conversation that he was planning to offer some kind of payment to [Employee] in exchange for him referring a cohort of patients to [Names of] hospitals.
- [Employee] was shocked at the revelation and made a protected disclosure to [ CEO] on the same day. She confirmed to [Employee] that this was indeed [Hospital 2 Commissioner’s] intention, and she had no intention of trying to stop him.
- [Employee] was dismissed from [Company] on 2nd December [Year date] due to the fact that he would not endorse both poor practice in relation to patient care and questionable conduct in relation to [Company 2 Commissioner].
AND [EMPLOYEE] CLAIMS:
 Damages for unfair dismissal
 Damages for wrongful dismissal
 Damages for victimisation caused by whistleblowing
 Damages for lack of employment particulars
 Any other remedy as the court thinks fit