Miss Jessica Thorpe v Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust — 2024

The claimant, a Band 3 Nursing Assistant who had begun a nursing degree apprenticeship, was suspended on 30 April 2020 following matters connected to the death of patient X. The tribunal did not make findings on the underlying allegations themselves. The suspension continued until the claimant resigned on 11 November 2022. The tribunal found that the respondent breached the implied term of mutual trust and confidence through the prolonged suspension, by failing to provide a disciplinary outcome letter after the 21 July 2021 disciplinary hearing, by failing to explain the continued suspension thereafter, and by not addressing the claimant's grievance lodged on 21 October 2021.

The tribunal concluded that the claimant did not affirm the contract before resigning; the period between 20 October and 11 November 2022 was a reasonable time for her to consider whether a successful return to work was realistic. The respondent did not advance a case that any dismissal was for a potentially fair reason under s.98 ERA, so the claimant was unfairly (constructively) dismissed under s.95(1)(c) ERA.

On the wages claim, the tribunal held that during suspension the claimant was contractually entitled to 'full pay with average enhancements', which on its ordinary meaning included enhancements for her usual shift pattern and an amount reflecting average overtime, but did not extend to bank work. The shortfall amounted to a series of unlawful deductions. The respondent was also in breach of contract by continuing the suspension from 10 August 2021 at the latest. Quantum of remedy was reserved.