Mrs L Harris v East Lancashire Hospitals NHS Trust — 2019

The tribunal considered whether the claimant’s resignation on 1 January 2018 amounted to a constructive dismissal. The claimant relied on alleged breaches of the implied term of trust and confidence arising from the respondent’s handling of a medicines incident on 22 February 2017, including the absence of a proper reflective review, changes to her reflective statement, restrictions on her duties, the decision to begin a disciplinary investigation, and matters in December 2017 said to be the final straw.

The tribunal found that the respondent did not carry out the reflective review in the way envisaged by its policy and that there were shortcomings in communications and documentation. However, it found those failings were relatively minor, did not amount to bullying, and did not objectively meet the Malik threshold. The restriction on the claimant administering medication was found to have reasonable and proper cause. The tribunal also found that the claimant’s managers were entitled to regard the incident as serious, and that Jonathan Smith had reasonable and proper cause to initiate a disciplinary investigation on 1 March 2017 based on the rapid review, the policy framework, HR discussions, and concerns about the claimant’s insight into the incident.

As to the alleged final straws in December 2017, the tribunal found that the 20 December 2017 bullying and harassment outcome letter could be criticised in some respects, but did not amount to a breach of trust and confidence either alone or cumulatively. The sickness absence letter of 21 December 2017 was found to be unobjectionable, and the lack of response to the claimant’s without prejudice proposal was not a breach. The tribunal concluded there was no fundamental breach of contract by the Trust, so the claimant had not been dismissed within s.95(1)(c), and the unfair dismissal complaint was dismissed.