Member McPherson Tribunal Member Whistler Mrs L M Sloan v Dumfries and Galloway Health Board — 2021

The claimant worked as a senior secretary in the respondent's ENT department and her employment ended on 23 August 2019 after a phased retirement arrangement. She claimed that she had been constructively dismissed because of alleged environmental problems in the new hospital building, the introduction of time and motion diaries, restrictions on flexi time, the way stalking concerns were handled, and meetings said to have shown a lack of trust and confidence. The tribunal rejected the constructive dismissal claim in full and found no breach of the implied term of trust and confidence, either individually or cumulatively.

On the workplace environment, the tribunal found that the claimant was not required to work in a building with low temperature or poor air quality. It accepted the respondent's evidence that the building was monitored by the BEMS system, that Serco call-outs found temperatures within range, and that the air was fresh and filtered. It noted that complaints were concentrated around the transition to the new building and then subsided, and it did not accept the claimant's evidence that the environment remained below standard or that the headaches she reported were shown to be caused by the workplace.

The tribunal also found that the time and motion exercise was a fair management tool applied to all relevant secretaries and that the claimant was not required to work beyond her contracted hours. The flexi time emails from Ms Parker were found to have communicated the respondent's position, and the tribunal held that flexi time was not a contractual right. On the stalking issue, it found that managers responded supportively, referred the claimant to occupational health, asked whether they could contact the police, and took no further action once the claimant refused permission. The tribunal also rejected the suggestion that meetings in March and April 2019 destroyed trust and confidence, noting that the occupational health letter sent before the claimant had seen it was an error but not a fundamental breach.

The indirect sex and age discrimination claims were dismissed because the tribunal found that the alleged PCP, namely requiring work in an environment below the required temperature and air quality standard, was not established on the evidence. Even if such a PCP had existed, the tribunal held that there was no evidence that women or older workers were put at a particular disadvantage. The menopause evidence did not show that women generally were more sensitive to cold or poor air quality than men, and there was no evidential basis for concluding that older workers as a group were disadvantaged.