Support worker's constructive dismissal claim over suspension and access card safety fails
A support worker who resigned after being suspended following a physical intervention incident lost his claim for constructive unfair dismissal and detriment because of a protected disclosure about a resident's safety.
1 min read · Last updated 18 May 2026
Case details
- #protected-disclosure
- #constructive-dismissal
- #suspension
- #physical-intervention
- #access-card-safety
Key facts
- The claimant made a protected disclosure on 5 June 2021 about a resident's access card posing a safety risk.
- The claimant was suspended on 29 June 2021 after an incident involving physical contact with a resident.
- The claimant resigned on 16 July 2021 citing lack of contact and failure to view CCTV.
- The tribunal found the suspension was justified and not due to the protected disclosure.
- The tribunal found no breach of the implied term of trust and confidence.
Timeline
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Employment started
Claimant commenced employment as a support worker.
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First email about pay
Claimant emailed HR about lower salary compared to colleagues.
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Second email about rota
Claimant emailed about being allocated 41.5 hours instead of contracted 40.
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Protected disclosure about access card
Claimant emailed senior staff about a resident's card allowing unrestricted access, raising safety concerns.
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Incident with resident B
Claimant involved in physical intervention with a resident; CCTV reviewed.
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Suspension
Claimant suspended pending investigation into use of excessive force.
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Investigation meeting
Telephone investigation meeting with David Brum.
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Claimant emails about outcome
Claimant emailed Mr Brum asking for outcome of investigation.
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Claimant emails Sam Sheppard
Claimant expressed anxiety and requested resolution.
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Resignation
Claimant resigned citing lack of contact, failure to view CCTV, and constructive dismissal.
The legal issue
The tribunal had to decide whether the support worker's suspension and the employer's subsequent conduct amounted to a detriment or constructive dismissal because of a protected disclosure he made about a resident's access card posing a safety risk.
The outcome
The tribunal dismissed both claims: the complaint of detriment because of protected disclosures and the complaint of automatic unfair dismissal.
Key reasons:
- The protected disclosure about the access card was made less than three weeks before the incident, but the suspension was due to the physical intervention incident, not the disclosure.
- The suspension was justified as the employer had reasonable grounds to investigate the use of force.
- There was no breach of the implied term of trust and confidence; the employer's actions were proportionate and not motivated by the disclosure.
No compensation was awarded as the claims failed.
Lessons & takeaways
- Making a protected disclosure does not give blanket immunity from disciplinary action if there is a separate, legitimate reason for the employer's actions.
- Employers can suspend an employee pending investigation if there are genuine concerns about misconduct, even if the employee has recently raised a whistleblowing concern.
- A short period of suspension (here, about two weeks) followed by reasonable contact and investigation is unlikely to amount to a breach of trust and confidence.
- Employees considering a constructive dismissal claim must show that the employer's conduct was so serious it destroyed the employment relationship, not just that they were unhappy with the process.
A whistleblowing claim that didn't stick
This case shows that even when an employee makes a protected disclosure, their employer can still take disciplinary action for unrelated misconduct without falling foul of whistleblowing laws. The support worker had raised a legitimate safety concern about a resident's access card, but just weeks later he was involved in a physical intervention with another resident. The tribunal accepted that the suspension that followed was about the physical incident, not the disclosure.
What the employer did right
Pathway for Care Ltd had a clear reason to investigate: the support worker had used physical force on a resident. The tribunal noted that the employer conducted a prompt investigation, held a telephone meeting, and maintained some contact during the suspension. Although the support worker felt the employer failed to view CCTV or keep him informed, the tribunal found these were not breaches of trust and confidence, especially given the short period of suspension (under three weeks) before he resigned.
Why the result matters
For employees, this case is a reminder that whistleblowing protection does not prevent an employer from taking reasonable steps to investigate potential misconduct. For employers, it shows that a prompt, proportionate response to an incident can defeat a constructive dismissal claim, even where a recent protected disclosure exists. The tribunal also refused the employer's costs application, noting that the claim was not without reasonable prospect given the timing of events and the employer's weak evidence on training and supervision.
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