Mrs T Perez v East Kent Hospital University Trust — 2022

Mrs T Perez worked for East Kent Hospital University Trust from 20 March 2017 until she resigned with immediate effect on 9 December 2019. The tribunal found that she raised constructive unfair dismissal, wrongful dismissal and breach of contract claims, relying on alleged breaches of the implied term of trust and confidence arising from two disciplinary processes over Facebook posts and Datix clinical incidents, together with later management action in her new role.

On the Facebook matter, the tribunal accepted that the claimant’s posts were inappropriate and that they caused upset on the ward. It found it was reasonable for the respondent to treat the matter formally and refer it to disciplinary hearing, rather than deal with it informally. The tribunal rejected the claimant’s comparison with the investigating officer’s own Facebook posts and found they were not materially similar. It also found that the claimant’s lack of familiarity with the respondent’s policies did not make the disciplinary process unreasonable, given her professional obligations as a nurse and the NMC Code.

On the Datix incidents, the tribunal found it was reasonable to investigate the claimant’s care of patient SW and the ward incident on 14 February 2019, and reasonable to refer the matter to a disciplinary panel. It rejected the allegation that the investigation was biased or that witness notes had been falsified. It also found there was a proper basis not to investigate two other nurses, because the evidence showed they had made entries or escalated concerns and the claimant had not. The tribunal accepted that the final disciplinary outcome on 26 November 2019 was a final written warning for failure to keep records, and it did not interfere with that sanction.

The tribunal also considered the claimant’s new post as a Macmillan Lung Clinical Nurse Specialist and the concerns raised by colleagues while she was on supervised practice. It found those concerns were genuine and not merely a consequence of supervision. The proposed performance improvement process and meeting on 11 December 2019 were not, viewed objectively, a repudiatory breach. Although the tribunal accepted that the claimant resigned at least partly in response to the proposed PIP meeting, it held that this did not amount to conduct likely to destroy or seriously damage trust and confidence. It therefore dismissed the constructive unfair dismissal claim, and because no dismissal was found, it also dismissed the wrongful dismissal and breach of contract claims. No remedy issues were reached.