Even though a worker has made a protected disclosure (blown the whistle), the Employment Appeal Tribunal (EAT) held In Uwalaka v Southern Health Foundation NHS Trust they will not necessarily be deemed to have suffered a detriment just because they were subsequently suspended, if the facts show that the suspension was the result of an unrelated allegation.

Basic facts

Mr Uwalaka was employed as an agency worker by NHS Professionals Ltd (NHSP) but worked at the Trust. Following an allegation of misconduct in May 2016 by a patient, he was suspended and restricted from working on any Trust premises. However, as he was not told initially why he had been suspended, he assumed it was because he had made a disclosure to the Care Quality Commission (CQC) in March about understaffing.

He was then invited by NHSP to an investigatory meeting. It produced a short and inconclusive report which hinted at possible misconduct but without providing any evidence. In July NHSP lifted the suspension, but the restriction remained in place.

Mr Uwalaka lodged tribunal claims that he had been subject to detriments because he made a protected disclosure to the CQC and/or that he was discriminated against on grounds of race. This took two forms: first, his suspension from work by NHSP; and, second, the refusal by the Trust to lift the restriction on him working for them.

Tribunal decision

With regard to the suspension/restriction, the tribunal said that it was reasonable for the Trust to have requested it and for the agency to implement it. The Trust could not therefore be said to have “subjected” him to it as only the agency had the power to impose it. In any event, the detriment was not because of the protected disclosure but because of the need to conduct an investigation. Nor was the refusal to lift the restriction a detriment as it was not imposed because of the protected disclosure but because the Trust had a duty to its patients.

With regard to the discrimination claims, the tribunal held that the Trust had provided a satisfactory explanation as to why it had behaved the way it did. Namely the need to carry out a proper investigation into the allegations made by the patient. There were, therefore, no facts from which it could infer discrimination.

Despite dismissing both his claims, however, the tribunal was very critical of the way the matter had been handled by both the Trust and the agency, in particular the lack of an adequate investigation and the way in which things had been allowed to drift.

EAT decision

The EAT agreed that the situation was “appalling”, not least because by the time of the hearing, almost three years later, neither the agency nor the Trust had taken steps to conclude the investigation nor to lift the suspension.

Notwithstanding this “shoddy treatment”, the EAT held that it was no more able to help him than the tribunal. With regard to the alleged detriment the findings of the tribunal were “entirely permissible” in relation to each of them in that the actions that were taken by the Trust had nothing to do with the fact that Mr Uwalaka had made a protected disclosure.

Turning to the discrimination claim, the EAT held that the tribunal had taken a prudent “belt and braces approach” to the question of the shifting burden of proof and had made a finding that there was no evidence whatsoever from which they could infer, never mind conclude, that discrimination played any part in the way in which the Trust had acted.

The appeal therefore failed.