Protected disclosure claim fails: probationary dismissal for capability upheld
A regional manager dismissed during her probationary period for capability reasons lost her claim that she was automatically unfairly dismissed for whistleblowing. The tribunal found her protected disclosure played no part in the decision.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant made one protected disclosure on 13 September 2017 about unsafe staffing levels at Time Court care home.
- The claimant was dismissed during her probationary period on 9 January 2018 for capability reasons.
- The tribunal found that the protected disclosure played no part in the decision to dismiss.
- The claimant alleged a racially discriminatory remark was made at the dismissal meeting, but the tribunal found it was not said.
- The claimant's claims of race discrimination and victimisation were dismissed.
- The Employment Appeal Tribunal remitted the case for further consideration of whether the line manager's report was tainted by the disclosure; the tribunal found it was not.
Timeline
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Claimant started employment
Claimant appointed as Regional Manager for Sanctuary Care Ltd, subject to six months' probation.
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Protected disclosure made
At a budget meeting for Time Court care home, the claimant and the home manager stated that staffing levels were unsafe, requiring an additional senior staff member.
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Budget review meeting
The request for additional staff at Time Court was discussed and approved at a wider budget review meeting.
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Positive report from line manager
Mrs Cranfield emailed Ms Earl stating the claimant was doing well, though the tribunal later found this was not a complete assessment.
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Probation review invitation
Mrs Cranfield emailed the claimant inviting her to a probationary review, listing performance concerns. The claimant had earlier that day emailed about a staffing issue for a resident supported by Greenwich Council.
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Probation review meeting and dismissal
Ms O'Connor conducted the probation review and decided to dismiss the claimant due to lack of capability, based on the claimant's presentation at the meeting and Mrs Cranfield's report.
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Protected act and resignation
The claimant sent an email alleging race discrimination (protected act) and confirmed her resignation, which was treated as dismissal by the respondent.
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First substantive hearing began
The tribunal heard evidence over seven days in February and October 2020.
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Original judgment sent
The tribunal dismissed all claims, finding the protected disclosure was not the reason for dismissal.
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EAT judgment
The Employment Appeal Tribunal upheld the claimant's appeal on one ground and remitted the case for further consideration of whether Mrs Cranfield's report was tainted by the protected disclosure.
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Remitted hearing
The same tribunal panel heard further evidence from Mrs Cranfield and Ms O'Connor over three days.
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Final judgment
The tribunal confirmed its original decision, finding Mrs Cranfield's report was not tainted by the protected disclosure.
The legal issue
The tribunal had to decide whether the claimant's protected disclosure was the reason or main reason for her dismissal, and whether she was discriminated against on grounds of race or victimised for making a protected act.
The outcome
The tribunal dismissed all claims, finding that the claimant's protected disclosure about unsafe staffing levels was not the reason or main reason for her dismissal. The decision to dismiss was based on capability concerns identified during her probationary period.
Key reasons included:
- The tribunal accepted the respondent's evidence that the dismissal was for capability reasons, not because of the protected disclosure.
- The claimant's allegations of a racially discriminatory remark and victimisation were not supported by the evidence.
- The Employment Appeal Tribunal had remitted the case for further consideration of whether the line manager's report was tainted by the disclosure, but the tribunal found it was not.
No compensation was awarded as the claims were dismissed.
Lessons & takeaways
- A protected disclosure does not automatically protect an employee from dismissal for other valid reasons, such as capability.
- Probationary periods allow employers to assess performance, and a dismissal for genuine capability concerns during probation is likely to be upheld.
- Allegations of discrimination or victimisation must be supported by credible evidence; tribunals will scrutinise claims carefully.
- Litigants in person face challenges in presenting complex whistleblowing and discrimination claims; legal representation can help navigate procedural hurdles.
What this case shows in practice
This case illustrates the difficulty of proving that a protected disclosure was the reason for dismissal when the employer can demonstrate a genuine capability concern. The claimant, a regional manager in her probationary period, raised concerns about unsafe staffing levels at a care home. However, the tribunal accepted that the decision to dismiss was based on performance issues identified by her line manager and the probation review meeting, not the disclosure.
What the losing side could have done differently
The claimant faced procedural challenges as a litigant in person, including incomplete disclosure of documents. The tribunal noted that a 94-page bundle of evidence considered by the dismissing officer was not initially provided to the claimant, which caused delays. While the tribunal ultimately found no unfairness, having legal representation might have helped ensure earlier disclosure and clearer presentation of her case.
Why the result matters for similar claims
This case reinforces that whistleblowing protection is not a 'trump card' against dismissal for other genuine reasons. Employees who make protected disclosures must still meet performance standards, and employers can dismiss for capability if they have proper evidence. The case also highlights the importance of clear documentation and fair process during probationary periods, even when a disclosure has been made.
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