Mrs J Achaski v East Lancashire Hospitals NHS Trust — 2020

The tribunal found that the claimant’s sole claim was unfair dismissal based on alleged constructive dismissal. It examined two alleged breaches: the reference given by Julie Cornall in July 2018, and the grievance fact-finding meeting on 3 January 2019 proceeding without the claimant’s union representative.

On the reference, the tribunal accepted that some entries were speculative and that a statement that the manager would not re-employ the claimant was capable of damaging trust and confidence. However, it found that Julie Cornall gave the reference honestly, on the basis of her own observations and genuinely held views about the effect of the endoscopy role on the claimant’s health, and therefore acted with reasonable and proper cause. The tribunal accordingly held that the reference did not amount to a fundamental breach of the implied term of trust and confidence.

As to the grievance meeting, the tribunal was not satisfied that the claimant had been pressurised into proceeding without her representative. It further held that, even if there had been some breach of procedure, it would have been minor and not a fundamental breach. In any event, that event occurred after the claimant had already given notice of retirement on 4 December 2018, so it could not support constructive dismissal. The tribunal also found, in the alternative, that the claimant had affirmed any earlier breach by participating in mediation and delaying resignation, and that her resignation was more directly caused by her wider circumstances, including exhaustion of sick pay and her decision to take early retirement.