In a recent case called Laurels Family Assessment v Kay, Ms Kay worked as a family support worker. She alleged that she told the service manager (Ms Wilkinson) that she had seen a colleague at work on a “comedown” from recreational drugs. She also said she reported this to an external visitor collecting safeguarding information for Ofsted at a meeting on 13 September 2022. On the same day, Ms Kay was called to a disciplinary hearing with Ms Wilkinson and dismissed for gross misconduct.
The tribunal (by a majority of the two lay members) found that Ms Kay had made two protected disclosures: one to Ms Wilkinson and one to the external visitor. The majority decided that the main reason for her dismissal was that she had made those disclosures.
The Laurels appealed to the Employment Appeal Tribunal (EAT) on two grounds:
- Perversity: the majority’s conclusions were not supported by the evidence or findings of fact.
- The tribunal failed to properly consider an agreed fact: Ms Kay had not correctly recorded medication, which could amount to gross misconduct and undermine the finding that whistleblowing was the main reason for dismissal.
The EAT dismissed the appeal and upheld the tribunal’s decision:
- The threshold for a perversity challenge is very high. Here, there was evidence to support the majority’s findings, so the challenge failed.
The tribunal gave adequate reasons for its conclusion on the reason for dismissal. It had considered the medication recording issue but found it had already been treated as a training matter before being raised again as potential gross misconduct. This did not prevent whistleblowing being the principal reason for dismissal.