Did an employee's lengthy suspension ground a claim for whistleblowing detriment or race discrimination?
Not on the facts of this case, held the EAT in Uwalaka v Southern Health Foundation NHS Trust.
Suspension for Alleged Misconduct
Mr Uwalaka was an agency worker employed by NHS Professionals Ltd, an NHS-owned agency company, which provided his services to Southern Health Foundation NHS Trust.
He was suspended following an allegation of misconduct, and thereafter was placed in a state of limbo because NHS Professionals Ltd failed to carry out any proper investigation into the allegation.
The tribunal was highly critical of both the Agency Company and SHF for the way in which Mr Uwalaka was treated, however it dismissed his claims for whistleblowing detriment and race discrimination.
The EAT remarked that the treatment of Mr Uwalaka was ‘appalling’. By the time of the EAT hearing, almost three years after the suspension, no steps had been taken to conclude the investigation and to lift the suspension.
Mr Uwalaka had to communicate these facts to any prospective employer and his suspension meant he was unable to work for SHF.
Despite this shoddy treatment, the tribunal's conclusion that the treatment complained of did not arise from discrimination or whistleblowing was upheld as being open to it on the evidence.
EAT judgements available online
The EAT regretted it was no more able than the tribunal was to help Mr Uwalaka. But it suggested to him that, when he had to disclose the circumstances to a prospective employer, he should provide a copy of the EAT's judgment and that of the employment tribunal - each being available online.
Kate Fretten, Employment Partner, says “Despite both the Agency and SHF being cleared of whistleblowing detriment and race discrimination, this case exposes some serious shortcomings in procedure. An employee being left in such a state of limbo for three years is, as the EAT state, appalling".
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