Miss C Ellis v York & Scarborough Teaching Hospitals — 2023

Miss C Ellis worked as a midwife for York & Scarborough Teaching Hospitals from 21 October 2019. The tribunal identified the claim as constructive unfair dismissal under section 95(1)(c) ERA 1996 and applied the implied term of trust and confidence, referring in its reasons to authorities including Western Excavating and Malik. The respondent said that, if dismissal were found, it would rely on some other substantial reason, but that issue was only considered as part of the constructive dismissal analysis.

The tribunal held that it was understandable for the respondent to deal formally with allegations that the claimant had slept on duty and shared confidential information, because sleeping on duty could amount to gross misconduct under the disciplinary policy. It found no case to answer on those allegations and rejected the criticism of the HR adviser who attended the investigation meeting. It also held that the complaint about the respondent’s later failure to acknowledge the resignation or grant an exit interview could not have contributed to the decision to resign because it happened after the resignation.

The decisive breach was the handling of the claimant’s formal bullying and harassment grievance raised on 28 September 2021. The tribunal found the process was grossly inadequate because of severe delay, failure to investigate properly, failure to interview the witnesses the claimant had identified, the report not being sent to the claimant until June 2022, and an assumption that the claimant and LS had resolved matters without checking that with the claimant. It also found that the respondent focused on mediation and reconciliation even though the claimant had made clear that mediation was not suitable for her, and that this conduct was likely to destroy or seriously damage trust and confidence. The tribunal found there was no reasonable and proper cause for handling the grievance in that way.

The tribunal accepted that there were practical roster constraints and held that the failure to guarantee that the claimant and LS would not work together was not itself a breach because the respondent had reasonable and proper cause, although it noted that the situation was likely to damage trust and confidence. It concluded that the grievance-handling breach played a part in the claimant’s resignation on 30 June 2022, shortly after she had received and discussed the grievance outcome. The tribunal rejected an attempt to introduce a separate last-straw argument at the end of the hearing, found the dismissal constructively unfair, and stated that remedy would be dealt with separately.