Ms C O’Brien v Cheshire & Wirral Partnership NHS Foundation Trust — 2023

Ms C O’Brien was employed as a ward manager from 20 July 2009 and was dismissed with immediate effect on 30 March 2021 after an investigation into alleged shortfalls in contracted hours and overtime claims. The respondent accepted that she had a disability at the relevant time, namely anxiety, depression and PTSD. The tribunal also recorded that she had made a flexible working request on 3 September 2018, which was refused on 28 November 2018 and again on appeal on 17 January 2019.

On the unfair dismissal claims, the tribunal accepted that Mr Johnston genuinely believed the claimant had committed misconduct and that there were reasonable grounds for that belief based on the investigation report, roster data and fob/CCTV evidence. Applying the Burchell/Iceland Frozen Foods approach and s.98(4) ERA 1996, it held that the investigation, disciplinary hearing and appeal were overall fair and that dismissal fell within the band of reasonable responses, despite concerns about delay, the failure to begin informally, and the later decision to seek a third opinion after a manager had suggested an informal route. The tribunal also rejected the theory that the dismissal was because the claimant had made a statutory flexible working request.

On the breach of contract claim, the tribunal held that the claimant had not fundamentally breached her contract so as to justify summary dismissal. It found that, in practice, there was a degree of flexibility for senior managers about work done away from the ward and that the claimant had not dishonestly claimed overtime. The tribunal awarded damages of £10,269.96 for 12 weeks' notice, subject to tax and national insurance deductions.

The disability discrimination claims were partly successful in reasoning but not in result. On reasonable adjustments, the tribunal found that requiring the claimant to work five days per week, together with the commuting burden, placed her at a substantial disadvantage, and that not starting with the informal procedure in early 2019 would have been a reasonable adjustment because it would have allowed her to explain the hours issue while the events were still fresh in memory. However, that claim was out of time, the tribunal refused to extend time on the just and equitable basis, and the claim was dismissed. The tribunal rejected the other reasonable-adjustments theories, including the CCTV and reference-period arguments, and it rejected the section 15 claim because the claimant did not prove that the dismissal arose in consequence of disability.

The tribunal dismissed the victimisation claim because the flexible working request and the 19 October 2018 email were not protected acts. It also dismissed the section 47E/48 flexible-working detriment claim, finding that the investigation into working hours was not started because the claimant had made a flexible working request but because of the advice given to management. The only monetary award made by the tribunal was the contractual notice payment.