Mrs R Bonney v Medway NHS Foundation Trust and 1 other — 2019

The tribunal found that the Claimant started work in April 2019 amid confusion about the role she had been recruited to perform. The confusion over whether she was in TOPs, Emergency Medicine or Acute Medicine was attributed to administrative error, miscommunication and wider disarray at the Trust, not to race. Although there were concerns about the rota, the tribunal found the Claimant was not underperforming in any meaningful sense and had not been given sufficient support for the operational work she had been asked to do.

On 10 September 2019 Mr McLaren told the Claimant he thought she was not operationally strong enough for the coming pressures in Acute Medicine and proposed that she move to TOPs. The tribunal held that this was a proposal rather than a direct instruction, but one that plainly conveyed criticism of her competence. It then found that on 12 September 2019 Mr McEnroe offered the Claimant a role in the Transformation Team's Delivery Unit, that she accepted the offer, and that contemporaneous emails showed Mr Tabner and others were preparing to on-board her. When HR later discovered that the move had not been processed through the proper procedures, the offer was withdrawn.

The tribunal held that the withdrawal of the Delivery Unit role, and the later grievance handling, were breaches of the implied term of trust and confidence. It found that Mr Tabner and Mr McEnroe gave inaccurate evidence in the grievance investigation, that the grievance report wrongly proceeded on unsupported assumptions about performance and suitability, and that the grievance outcome misdescribed the Delivery Unit episode as a misunderstanding or miscommunication. The grievance appeal outcome was treated as the final straw. On that basis the Claimant was constructively dismissed, and the tribunal also held that there had been a constructive wrongful dismissal against the First Respondent.

The race discrimination and race harassment claims failed. The tribunal accepted that there was limited racial diversity in management, but it found the reason for the September 2019 move was concern about the Claimant's ability to handle the pressures in Acute Medicine, not race. It also rejected the comparator case based on Kelly Ratcliffe and Tim Gosden, and found the complained-of harassment incidents were either unrelated to race or not objectively capable of creating a proscribed environment. The statutory unfair dismissal claim failed because the Claimant lacked the necessary continuity of service, and the redundancy payment claim failed because there was no redundancy situation and no qualifying service. Remedy was left to be agreed, or failing that listed for a remedy hearing.