Mrs L Hamilton v Sandwell and West Birmingham Hospitals NHS Trust — 2021

Mrs L Hamilton, a 64-year-old Caribbean mixed-race senior HCA, worked in the respondent's oncology service. After the 2017 restructure and closure of the City Hospital oncology unit, she was deployed to Newton 5. The tribunal accepted that the move and later job-search process were not handled as well as they could have been, and that the claimant felt insecure and underused, but found that the respondent's plan was deployment into generic roles rather than redundancy.

The tribunal dismissed all direct discrimination complaints. It found no proved hostility by AT, no age-based reason for the 17 December 2018 hours conversation, no racial motive in the cleaning rota, the signing issue, the instruction that she remained until 5pm, or the decision not to consider her for MB's Band 4 post. On the Band 4 issue, the tribunal held that the Assistant Practitioner role was materially different from the claimant's Band 3 Senior HCA role and required different qualifications and clinical responsibilities.

The harassment complaints were also dismissed. The tribunal held that the conduct relied on either was not proved as alleged or, where it did occur, was not related to age, race or sex. It therefore did not need to resolve the effect limb in detail. The tribunal also rejected victimisation. It accepted that the claimant's March and May 2019 grievances were protected acts, but held that the complaints about CR failed because she was acting as the claimant's UNISON representative, not in the course of employment with the respondent, and the other alleged detriments did not arise because of the protected acts.

On time limits, the tribunal found that allegations before 10 April 2019 were out of time but extended time on a just and equitable basis because the evidence was already assembled and there was no prejudice to the respondent. The tribunal further found that the claimant was told verbally on 27 October 2019 that her second grievance was upheld, with a written outcome following on 24 December 2019, although the delay was excessive.

The constructive unfair dismissal claim failed. The tribunal held that the grievance delays and the failure to issue the written outcome within 10 working days were unfortunate and contrary to the procedure, but not a repudiatory breach or a breach of the implied term of trust and confidence. It concluded that the claimant had not resigned in response to such a breach, so there was no constructive dismissal and no unfair dismissal award.