Ms T Winterbourne v The Barrowford Surgery — 2021

Ms Winterbourne had worked at the practice for about 21 years and was the practice manager. After she went off sick in September 2019, the respondent discovered a large backlog of unopened emails and other management tasks that the tribunal found had not been actioned, including insurance, NHS paperwork, flu jab payment and DBS checks. On 4 November 2019 Dr Ashworth held an informal without prejudice meeting with her. The tribunal held this was a protected conversation within s.111A ERA 1996 and found it was aimed at ending the employment relationship on agreed terms because he had lost trust and confidence in her role performance.

The claimant's solicitors then sent grievance correspondence on 12 December 2019, 13 January 2020 and 30 September 2020. The tribunal found Dr Ashworth did not repudiate the contract by not processing those grievances in the way suggested by the claimant; he discussed the first grievance with staff, considered the correspondence to be part of settlement negotiations, and continued to invite welfare and ill-health review meetings. It found the claimant refused to attend meetings, insisted that contact be through solicitors, and did not provide a medical report or prognosis despite being offered telephone, written or represented attendance options.

The tribunal held that the respondent's conduct, viewed as a whole, did not amount to a repudiatory breach of the implied term of trust and confidence. It found the claimant did not resign in response to any breach, had affirmed the contract by remaining on sick leave and continuing negotiations for around 15 months, and in any event would have been dismissed fairly for gross misconduct and/or ill-health capability within a month. The constructive unfair dismissal claim and the wrongful dismissal claim were both dismissed, no monetary award was made, and the tribunal also found contributory fault and that any compensation would have been reduced to nil if it had been payable.