Muchererah v Rushcliffe Independent Hospitals: EAT dismisses perversity challenge over whistleblowing dismissal

The Employment Appeal Tribunal has dismissed an appeal against an employment tribunal's finding that a nurse dismissed during her probationary period had not made either of the protected disclosures she relied upon, in a judgement handed down by His Honour Judge Auerbach.

Emmah Muchererah was employed as Clinical Lead at Mill Lodge Hospital, operated by Rushcliffe Independent Hospitals (Kegworth) Ltd, from April 2020 until she was told in November 2020 that she had not passed her probation, with dismissal taking effect in December that year. Acting as a litigant in person before Employment Judge M Butler at Leicester, she brought complaints of automatic unfair dismissal on the grounds that she had made protected disclosures, asserted a statutory right relating to working time, and raised health and safety concerns, together with a claim for unpaid overtime. All were dismissed.

The claimant identified two protected disclosures underpinning her whistleblowing complaint. The first was said to have been made to the hospital's Medical Director, Dr Singh, concerning a consultant psychiatrist's alleged breach of restrictions on his practising certificate. The second was an email allegedly sent to Derbyshire Healthcare NHS Foundation Trust regarding the treatment of a patient. The tribunal found that neither disclosure was in fact made, citing inconsistencies between the account given at a preliminary hearing, the claimant's witness statement and her oral evidence, and noted the absence of any email evidencing the second disclosure.

On appeal, represented by Emma Darlow Stearn of counsel, the claimant argued that the tribunal's rejection of the first disclosure rested on two demonstrably incorrect statements, namely that she had given no information or detail about what was said to Dr Singh. She pointed to passages in her witness statement referring to having raised concerns with him directly. HHJ Auerbach accepted that a perversity challenge faced a high threshold, applying the guidance in Yeboah v Crofton and Stewart v Cleveland Guest (Engineering) Ltd, and concluded that the tribunal's reasoning, read as a whole and in context, showed it had properly considered the shifting nature of the claimant's account rather than overlooking her evidence. The passages relied upon did not show that the claimant had given a clear account of what was specifically said to Dr Singh on the occasion in question, and the ground was dismissed.

A second ground challenged the tribunal's findings that the claimant had raised health and safety concerns about her working hours on only one occasion and had never asserted her rights under the Working Time Regulations 1998. Counsel for the claimant pointed to a series of contemporaneous emails and supervision notes documenting long working hours. The EAT found that while this material showed the claimant flagging her workload generally, it did not demonstrate that she had specifically raised the risk to her safety, framed as concern about driving while fatigued, on more than the single occasion identified by the tribunal, nor that she had connected her hours to the statutory 48-hour limit.

The final ground concerned a claim for unpaid overtime totalling 223 excess hours and 200 on-call hours. The tribunal had found that, under the claimant's contract, only one overtime timesheet had ever been submitted and authorised by her manager, and that no broader agreement to pay for additional hours existed. The EAT held that the documentary evidence relied upon on appeal, including an email sent after the claimant's dismissal, did not undermine that finding, and rejected this ground.

Counsel for the respondent, Lisa Hatch, succeeded on all three grounds, and the appeal was dismissed in its entirety.