A nursery worker who raised concerns about her colleagues’ conduct was unfairly dismissed because she had made a protected disclosure, an employment tribunal (ET) has ruled.
Diane Aitken, who worked as an early years officer for Fife Council in Scotland, claimed she was ostracised by her co-workers after she reported concerns that an injury sustained by an unsupervised child was not properly recorded.
The tribunal found her dismissal following an extended period of sick leave was “inextricably linked” to the disclosure she made, and was therefore unfair.
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It also found that Aitken, who was diagnosed with depression after undergoing treatment for cancer, had been discriminated against on the grounds of her disability.
Aitken had been employed by Fife Council since 2004. She began working in a nursery attached to Newburgh Primary School in 2008 and the tribunal heard there were no reported issues until the events leading to her dismissal.
In 2015, Aitken underwent treatment for skin cancer. An operation to remove the cancer proved successful, and the tribunal heard she felt she made a good recovery, but she was diagnosed with depression in December of that year.
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Around the same time, she expressed concerns with the school’s headteacher that the children were expected to change in a disused toilet with no heating. When nothing was done, she reported the issue to the Care Inspectorate, after which the school immediately arranged for an electric heater to be placed in the room.
Following this, the tribunal heard Aitken felt the headteacher came to view her as a “nuisance”.
In June 2016, a new support worker was hired to care for a child with cerebral palsy. The court heard Aitken worried the new worker did not have the necessary manual handling training and understood the individual was a friend of the headteacher.
Although relationships among nursery staff were described as good prior to that point, in summer 2016 the tribunal heard Aitken believed a “clique” had formed with four of the staff, ostracising her. The tribunal heard she was “singled out and not involved in discussion or meetings”.
Around March 2017, the child under the new support worker’s care hurt himself while playing unsupervised. Aitken was concerned her colleague did not record the incident or inform the child’s guardians, and reported her concerns to the headteacher.
The headteacher was reportedly “extremely angry” with Aitken for raising the issue, and claimed it had already been dealt with. Unsatisfied, Aitken made a report to the Scottish Social Services Council (SSSC) and the Care Inspectorate.
The tribunal heard that Aitken’s relationships with her colleagues fell to a “new low” following the report, leading Aitken to raise a formal grievance. At the same time, the four other staff members raised a grievance against her.
Aitken claimed that at one point all four colleagues had called in sick, leaving herself and one other member of staff to deal with all the children in the nursery.
Following a protracted grievance procedure involving all parties and heard by the council throughout the summer of 2017, Aitken was informed the grievance she raised would not be upheld, and that she would be moved to another workplace as the behaviour she had described in the grievance was “not corroborated”.
When she returned to work following the grievance outcome, Aitken reported that she felt “intimidated”, and following advice from her GP, she went off work sick.
She appealed the grievance outcome, applying for the complaint to be escalated, but this was unsuccessful.
Aitken was provided a list of alternative locations where she could work, but was unable to accept any due to transport issues.
In November 2017, she was called for an attendance review meeting, and was told she was still unable to return to work at Newburgh. An occupational health report submitted to the council advised that Aitken was likely to be considered as disabled under the Equality Act, due to her depression and anxiety.
Over the next months, the council carried out a redeployment process, but no alternative workplace was found due to her anxiety and transport problems.
On 30 October 2018, a capability hearing took place where it was decided that Aitken should be dismissed on the grounds of ill-health. The independent manager responsible for this decision told the tribunal she understood there to be no option of Aitken returning to work at Newburgh. Aitken appealed the dismissal, but was unsuccessful.
The respondent claimed Aitken was dismissed purely on the grounds of capability, but the tribunal said this claim “was not established on the facts”.
It ruled that the claimant’s grievance, which led to the redeployment process and her extended sick leave, was “inextricably linked with the protected disclosure which she made regarding [the child with cerebral palsy].” As the principal reason for Aitken’s dismissal was found to be the fact that she blew the whistle on her colleague, her dismissal was automatically unfair.
It was also found the decision not to allow the Aitken to return to her role at Newburgh amounted to disability discrimination. The ET ruled that allowing her to return to work would have amounted to a reasonable adjustment, to allow her to manage her increasing anxiety and depression, which the council refused to accommodate.
Sharon McKenzie, Fife Council’s head of human resources, said the organisation is a “responsible employer”, and although it is considering the judgment, was unable to discuss details of individual current or former employees.
She added that “any other appropriate actions have been taken”.
Paul Holcroft, associate director at Croner, said the case “illustrates an employer’s predicament when an employee blows the whistle on the employer’s practices. “Despite any bad feeling that this may cause between individuals, employees are protected against any detriment or dismissal because of a qualifying disclosure.
“A dismissal which takes place quickly afterwards begs questions about whether the disclosure was the catalyst. Often, employers may try to attribute the dismissal to another reason, but an employment tribunal will look closely at the circumstances and, in this case, see through the disguise,” he said.
Sarah Armstrong, partner at Gunnercooke, added: “Employers must ensure that staff are not ostracised, victimised or disciplined as a result of making such a disclosure”, and advised they should “put in place a whistleblowing policy to convey the importance the employer attaches to identifying and remedying wrongdoing, and to make clear what will happen to those who victimise genuine whistleblowers”.
Aitken could not be reached for comment. A remedy hearing will be held at a later date.