A care home worker who was told ‘you have no friends’ by a manager after she complained her health and safety concerns were not being taken seriously was constructively dismissed, an employment tribunal has found.
Ms Pywell suffered an “abusive outburst” from a manager which left her feeling “degraded and intimidated” and unable to return to her job at Primrose Lodge care home in Leicestershire.
Pywell was open at work about her mental health difficulties and her manager, Ms Bacon, knew she was seeing a psychiatrist.
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She raised several concerns about safe staffing levels, patient safety and the actions or omissions of a colleague during her time at the care home, which the tribunal in Nottingham agreed amounted to protected disclosures. These included claims that a colleague had been rough with residents, had missed medications and had poked residents in the eye. She claimed these concerns were not taken seriously and the person involved was not disciplined.
She also raised a concern about staff moving between care homes during the Covid-19 pandemic. Primrose Lodge is on the same plot of land as Lingdale Lodge, another care home run by the respondent.
The claimant experienced friction with a colleague, an assistant manager, who had been recruited to sit above her at Primrose Lodge. She attended a resident’s funeral on 26 March 2021, and after this she met with the assistant manager and Bacon. She was not in uniform.
Bacon and the claimant met privately after this meeting, and Pywell raised concerns about the assistant manager as well as staff moving between care homes during the Covid-19 pandemic. The claimant alleged this exchange became heated and Bacon started to shout at her. She claimed Bacon said “no wonder you have no friends”, “where is your f***ing uniform”, and “go on, f*** off”.
Pywell did not return to her job and was signed off work by her doctor. She later raised a grievance about the exchange with Bacon, her concerns about safety, and disability discrimination, but the investigator did not complete any form of the investigation report. A letter in May informed the claimant that her grievance was not upheld.
The tribunal found that this grievance process was extremely poor because the investigator carried out no direct investigation, did not complete any paperwork, and did not carry out any investigation into the disability discrimination allegation.
Pywell resigned from the organisation in July 2021 and brought a tribunal claim for constructive dismissal, direct disability discrimination, harassment related to disability and detriment following a protected disclosure.
The tribunal found that the exchange with Bacon and the poor grievance process was likely to destroy or seriously damage mutual trust and confidence between the two parties. This meant her resignation amounted to constructive dismissal.
The judgment in Ms S Pywell v JW Nunn t/a Primrose Lodge says: “No employee should be expected to be told to ‘f*** off’ directly by a manager speaking in anger. No employee should be expected to stand being the victim of a personal attack about their life or their character. No employee should be expected to stand being the victim of a direct threat from their manager, whatever the circumstances.
“Ms Bacon’s actions, on behalf of the respondent, constitute a serious breach of the claimant’s employment contract which she was entitled to accept, resign and claim constructive dismissal.”
The tribunal dismissed her whistleblowing detriment claim, finding that she did make some protected disclosures, but these were either taken on board or investigated by the respondent. It said the detriments she suffered did not relate to these disclosures.
Her disability discrimination and harassment claims were also dismissed as the tribnal found she was not treated less favourably because of her disability.
“We do not consider that any of the claimant’s treatment was caused by or related to her disability, or done as a result of a protected disclosure she made. These claims are consequently dismissed. We consider that the respondent’s management and processes would have resulted in any person being treated equally poorly in these circumstances, and there was no influence on those failings from the disclosures or any protected characteristic,” Employment Judge Ash Fredericks-Bowyer said.
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