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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Epsom & St Helier University Hospitals NHS Trust v Starling [2018] UKEAT 0069_18_2911 (29 November 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0069_18_2911.html Cite as: [2018] UKEAT 0069_18_2911, [2018] UKEAT 69_18_2911 |
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At the Tribunal | |
Before
HER HONOUR JUDGE KATHERINE TUCKER
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JAKE EVANS
For the Appellant | MR LANCE HARRIS (of Counsel) Instructed by: Capsticks Solicitors LLP 1 St Georges Road Wimbledon London SW19 4DR |
For the Respondent | MS RACHEL BARRETT (of Counsel) Instructed by: Martin Searle Solicitors 9 Marlborough Place Brighton BN1 1UB |
SUMMARY
UNFAIR DISMISSAL – Constructive dismissal
An Employment Tribunal did not err in concluding that a member of staff had been constructively unfairly dismissed when she resigned in response to the issuing of an informal "Improvement Notice" in a manner which was inconsistent with the Respondent's own policy.
HER HONOUR JUDGE KATHERINE TUCKER
The facts
"RE: Improvement Notice issued on 8th July 2015
…
At this meeting I explained that I was concerned that on Tuesday 9th June 2015 you failed to charge the incubators for the following day's egg collection. This put the patient's whole IVF cycle at risk.
Whilst no harm came to the patient because we arranged for her egg collection to take place at another unit in London, this incident has resulted in a financial loss to the Trust.
I appreciate that once you realised that you had failed to appropriately manage the incubators that you then notified Carolyn Croucher who was then able to take steps to resolve this matter.
Whilst you informed Carolyn as soon as you were aware, this remains a very serious oversight, resulting in a risk to our patients (sic) IVF cycle as well as a financial loss to the Trust.
I have, therefore, decided that it would be appropriate to issue you with an Improvement Notice to ensure that in future you take the appropriate steps regarding the charging of the incubators in order to prevent any further incidents.
Should there be any further issues of this nature; formal action may be taken under the Trusts Disciplinary Policy. The purpose of raising this with you informally and issuing this informal notice is to ensure that you have been provided with the opportunity to improve, and therefore I hope that any future formal disciplinary action will not be necessary.
A copy of this notice will be kept on your personnel file. However, it does not form part of your disciplinary records.
Please do not hesitate to contact me if you have any further queries regarding this matter."
The letter was stated to have been issued by Heidi Barron (Ms Barron, the Matron for the unit).
"3. SUMMARY
Where a problem clearly exists, the Trust encourages informal discussions between staff and their managers/supervisors. The discussion is intended as a basis for advising staff. These informal discussions should be followed up with an Improvement Notice letter to the member of staff outlining the expectations that have been set, and that if these expectations are not met the formal disciplinary procedure will be followed. The formal disciplinary procedure will begin when the informal discussion and subsequent Improvement Notice has failed to achieve the desired effect or when an offense is serious enough to warrant formal action."
"This policy is designed to help and encourage employees to achieve and maintain high standards of conduct and to ensure that employees are treated fairly and consistently in all disciplinary matters."
"17. PRELIMINARY INVESTIGATION STAGE
The Manager should seek HR advice and guidance when a potential disciplinary matter arises. If the Manager considers that an Improvement Notice is appropriate in the circumstances they should follow the process as outlined in Sections 3 and 15 of this policy.
…"
(Section 15 is not relevant to this appeal because it relates to unauthorised absence.) The paragraph continues:
"…
It is the responsibility of the Manager, with advice from Human Resources, to consider the allegations and judge what investigation is appropriate on the basis of the information available at that time."
"18. IMPROVEMENT NOTICE
Where a problem exists with regards to a member of staffs [sic] conduct a manager may have an informal discussion with the member of staff. This discussion is intended as a basis for advising staff on conduct concerns. The manager will have an informal meeting with the member of staff and this may be followed up with an informal Improvement Notice letter to the staff member advising them on the issue(s) discussed and the manager's expectations going forward. Any such letter will not form part of an employee's disciplinary records. Formal steps may be taken under this procedure if the matter is not resolved, or if informal discussion is not appropriate (for example, because of the seriousness of the allegation). …"
An example of the letter to be sent is contained within the disciplinary procedure at Appendix F. Importantly, in that example, the letter refers to a meeting having taken place prior to the Improvement Notice being issued. The letter starts, "I am writing further to our informal meeting held on: …" and then a suggestion that the date, time, and venue of the meeting should be set out. The opening words of the example are, "At this meeting I explained that I was concerned that you had …" and then a gap is left, clearly for the manager to complete what the concern was. It continues:
"I asked you if you had any comments in relation to this matter, you said [add in comments from individual].
We agreed that going forward [add here what was agreed / the manager's expectations regarding future improvement of issue]."
"28. We find that the service of the Improvement Notice and the change to the rota each contributed to the Claimant's decision to resign from the ACU and move to a theatre role on a flexible retirement basis."
"Further to previous correspondence on my illness, operation, and surrounding issues. I note, in particular, that I have yet to receive a response to the letter sent to you on the 27 July 2015 concerning an "Improvement Notice" issued by you on the 8 July 2015 on the instructions of Dr Croucher.
This was a matter, as the letter identifies, which caused (and continues to cause) me much stress and on which I feel particularly aggrieved and was an issue, aggravated by my illness, which very much influenced my decision to leave.
I have now recovered sufficiently to properly consider my future and feel that my decision to leave, issued to a greater extent under duress and the stress of my illness, together with its surrounding circumstances, was an ill considered reaction taken at a time where my judgement was significantly impaired by illness.
…
I therefore wish to advise you that I am withdrawing my letter of 24 July 2015, informing you of my resignation and as a result will not be resigning on the 29th February 2016."
"64. The next issue is therefore whether the Claimant was entitled to give notice so that there was a dismissal within section 95(1)(c) of the Employment Rights Act 1996. We were referred by both Miss Barrett and Mr Harris to Western Excavating (ECC) Ltd relating to the concept of a repudiatory breach, and to Malik relating to the implied term as to mutual trust and confidence. Those authorities are well known and we will not set out any extracts from them.
65. The term implied into all contracts of employment is that neither party must without reasonable and proper cause conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties. The function of the Tribunal in such circumstances is to look objectively at the employer's conduct as a whole, and decide whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it. Any breach of such term is of necessity a fundamental breach. The conduct amounting to a breach of that term may be a series of actions which cumulatively amount to a repudiation of the contract by the employer.
66. There are two alleged breaches in question. The first relates to the change of the rota, and the second to the issuing of the Improvement Notice. There may be some ambiguity in the way that the list of issues has been drafted, in that the reference to the implied term is only in connection with the issuing of the Improvement Notice, and not the change of the rota. Both counsel appeared to accept that each matter was said to be a breach of the implied term."
"72. Mr Harris submitted that the issuing of the Notice was entirely appropriate because of the seriousness of the incident. Further, Matron Barron met the Claimant and discussed what had happened with her. He drew attention to the comment in the Claimant's witness statement that she had not been given a chance to defend herself, and that her complaint was about the procedure. He submitted that Matron Barron had in fact discussed the matter with the Claimant.
…
74. We agree with Mr Harris that the complaint by the Claimant is really that the Notice was issued without there having been a prior discussion with the Claimant. We conclude that it would clearly have been preferable for Dr Croucher or Matron Barron to have had a discussion with each of the Claimant and Nurse Higgins to find out what had occurred before deciding to issue the Notice. That accords with the spirit of the policy. What we have to decide is whether the failure to do so in the circumstances amounted to a breach of the implied term.
…
76. We have concluded that what the Respondent did was likely seriously to damage the trust and confidence which the Claimant had in it. The Respondent's policy clearly anticipates that there will be an informal meeting with the employee before a decision is made to issue a Notice. If there had been such a meeting then Dr Croucher (or Matron Barron) would have been fully informed of what had occurred, and would have been able to make a decision in full knowledge of the facts. The Notice was prepared without there having been such a meeting.
77. The serving of a Notice is said in paragraph 18 of the disciplinary policy not to form part of the employee's disciplinary records, but the procedure forms part of the disciplinary policy. Further, in the introductory para' a clear link is made between the issuing of such a Notice and the more formal procedure:
The formal disciplinary procedure will begin when this informal discussion and subsequent Improvement Notice had failed to achieve the desired effect or when an offense is serious enough to warrant formal action.
78. It is of the essence of fairness that appropriate enquiries be made before any disciplinary sanction is imposed. Although not considering the issue of fairness within section 98(4) of the 1976 Act at this stage, we do consider that point to be a material one when considering the issue as to whether there had been a breach of the implied term. Further, the Claimant had been employed for nearly 40 years. There had not been any previous disciplinary incidents. She was entitled to receive better treatment than this.
79. There is the further point raised by Mr Harris that the Claimant sought to return to work in the ACU. We are required to consider the actions of the Respondent in July 2015 on an objective basis, and our conclusions are set out above. We have also concluded that the Claimant resigned partly as a result of the service of the Improvement Notice. The fact that the Claimant later sought to return to work in the ACU does not affect the decision we have made. The Claimant explained to us her nervousness about returning to work in the Theatre as a Band 6, and we can understand her reasons for seeking to return to the ACU despite what had occurred."
The Respondent's submissions
Ground 1: error in respect of the requirements of the implied term of trust and confidence
Ground 3: error in eliding the requirements to be taken in respect of formal and informal disciplinary action
Ground 2: failure to consider whether the Respondent had acted with reasonable and proper cause
Ground 4: affirmation of contract
The Claimant's submissions
Grounds 1 and 3
Ground 2
Ground 4
The law
Analysis and conclusions
Ground 1
Ground 3
Ground 2
Ground 4
Concluding remarks