Ms E Ellis v St Helens and Knowsley Teaching Hospitals NHS Trust — 2020

The tribunal found that some of the earlier matters relied on by the claimant did not breach the implied term of trust and confidence, but that by 5 August 2019 the handling of her grievance did. There had been a significant unexplained delay before the grievance meeting and the investigation was superficial, relying on written answers from colleagues without giving the claimant a further opportunity to respond. The tribunal also found that the handling of her transfer requests and the short-notice cancellation of the appeal meeting contributed to the cumulative breach. The claimant resigned in response and had not affirmed the contract, so she was constructively and unfairly dismissed.

The automatic unfair dismissal claim failed because the tribunal was not satisfied that the claimant's flexible working request, proposed request, or asserted s.80H grounds were the reason or principal reason for the dismissal. The statutory flexible working complaints also failed: the tribunal found the request had been dealt with promptly and in a reasonable manner, and that the refusal was not based on incorrect facts. The respondent was entitled to consider how it expected the ANTT role to be performed going forward, including the on-site and ward-focused elements of the role.

The indirect sex discrimination claim succeeded in part. The tribunal accepted that the requirement to work on site during core hours on any three out of five weekdays was a PCP. It found that the working during core hours element was justified by the respondent's aim of delivering the ANTT service, but the respondent had not justified the refusal to give fixed working days. The tribunal also found that the respondent unreasonably failed to comply with the ACAS Code because of the unreasonable delay in arranging the grievance meeting. Remedy was left to a further hearing.