Mrs S Hamilton v Epsom and St Helier University Hospitals NHS Trust — 2024

Mrs Hamilton worked for Epsom and St Helier University Hospitals NHS Trust as a Diabetes Specialist Nurse from 8 October 2012 until her resignation on 5 January 2022. She claimed that she had been constructively unfairly dismissed because the Trust breached the implied term of trust and confidence by failing to address appropriately the behaviour of her colleague Abdool Nayeck, failing properly to uphold her grievance about that behaviour, and failing to implement in a timely way the grievance appeal recommendation that a senior nurse support her return to work. A fourth alleged breach, concerning an alleged indication that resignation would be appropriate, was not pursued.

The Tribunal found that the Trust did not fail to address Mr Nayeck's behaviour at all, but did fail to address it appropriately. It found a continued pattern of inappropriate conduct and communications by Mr Nayeck towards the Claimant after the September 2018 incident, including the Book Incident, his conduct in the May 2019 informal mediation, the October 2019 email exchange about a patient's gym membership request, and the formal mediation in December 2019. The Tribunal found that the Trust's response was limited, that formal mediation was delayed, that there was no follow-up to the mediation, that the Nayeck complaint process took too long, and that the Trust did not act on the recommendation of an independent facilitator or clearly explain the aspects of the Claimant's behaviour said to require improvement.

The Tribunal did not find the alleged grievance failure made out. It held that the Claimant's allegation was specifically that the Trust tolerated targeted and abusive behaviour by Mr Nayeck, and that the Trust had made some attempts to address his behaviour, so that factual allegation was not established. However, the Tribunal found that the Trust did fail to implement, and certainly failed to implement in a timely manner, the grievance appeal recommendation that a senior nurse from the Chief Nurse's Office take oversight of support for the Claimant becoming ready to return to work. The Tribunal preferred the Claimant's evidence that Miss Daniel did not telephone her in December 2021 and found that contact was not made until January 2022, after the Claimant had resigned.

Applying the Malik test, the Tribunal found that the Management Failure and the Implementation Failure, individually and collectively, were without reasonable and proper cause and were likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. It found that the Claimant resigned in response to those breaches, that the Implementation Failure was not innocuous and revived any earlier right to resign, and that she had not affirmed the contract after the grievance appeal outcome. The claim that she was constructively unfairly dismissed succeeded. The Tribunal rejected the Respondent's contributory conduct arguments and found no blameworthy or culpable conduct by the Claimant. The judgment was liability only and recorded no monetary remedy.