Claimant v NHS Lothian
Outcome
Individual claims
Original claim brought as unfair dismissal. This is a preliminary hearing on an application to amend; the substantive claim has not yet been heard. Final hearing listed for April 2025.
Application to amend to include automatic unfair dismissal under s.103A ERA 1996 (whistleblowing) was allowed. Tribunal found that while out of time, it was not significantly so, and prejudice to claimant outweighed prejudice to respondent. Substantive claim not yet heard.
Underlying protected disclosure claim relates to claimant reporting inappropriate sexual conduct involving a patient in June 2022. Whether this amounts to a protected disclosure is a legal issue to be determined at final hearing.
Application to amend to include detriment claim under s.47B ERA refused. Tribunal found significant time bar issues (alleged detriments from June/July 2022, application January 2025), lack of clarity on what specific detriments were alleged, and that allowing amendment would likely require discharge of final hearing.
Facts
The claimant, an Office Manager, resigned on 22 August 2024. She had reported an incident in June 2022 concerning inappropriate sexual conduct involving a patient with serious neurological damage and cognitive impairment. She believed this constituted abuse and reported it to nursing staff and senior management. The claimant brought an unfair dismissal claim in October 2024, and subsequently applied to amend to add automatic unfair dismissal (whistleblowing) and detriment claims. The respondent objected to the amendment.
Decision
This was a preliminary hearing on case management dealt with on the papers. The tribunal allowed the amendment to add an automatic unfair dismissal claim under s.103A ERA 1996, finding that while out of time, it was not significantly so, and the prejudice to the claimant outweighed that to the respondent. The application to add a detriment claim under s.47B was refused due to significant time bar issues and lack of clarity on the specific allegations.
Practical note
Tribunals will apply Selkent principles flexibly in whistleblowing cases, balancing time bar issues against the public interest in protecting whistleblowers, but require clear particularisation of detriment claims to avoid prejudice to respondents.
Legal authorities cited
Statutes
Case details
- Case number
- 8001723/2024
- Decision date
- 28 February 2025
- Hearing type
- preliminary
- Hearing days
- 1
- Classification
- contested
Respondent
- Name
- NHS Lothian
- Sector
- —
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Office Manager
Claimant representation
- Represented
- Yes
- Rep type
- lay rep