A Kemp Dr Fiona McClean v Highland Health Board — 2018

Dr Fiona McClean was employed by Highland Health Board as a Clinical Psychologist. In 2015 she began spending two days a week on an Adult Diagnostic Service for adults with autism across Argyll and Bute, but the new work was not formally taken through a revised job description and job evaluation process. The tribunal found that the Claimant was not clearly told that the arrangement was being funded on an 'at risk' non-recurring basis, that management of the ADS side of her role was unclear for a prolonged period, and that communications about the service were inadequate in several respects.

The claim for unlawful deduction from wages failed on jurisdiction. The tribunal accepted the Respondents' submission that the Claimant was in substance seeking to challenge the absence of regrading and the failure to progress the job evaluation process, which was not a straightforward claim for a quantified sum properly payable under section 13 of the 1996 Act. The tribunal therefore dismissed that claim without deciding it on the merits.

The dismissal claim succeeded. Dr McClean had secured approval for a nine-month secondment to a specialist autism clinic, but in December 2017 that permission was withdrawn after the HSCP financial position worsened and the IJB approved a recovery plan that included cancelling secondments. The tribunal held that the way the withdrawal was handled, including the lack of consultation with the Claimant and the absence of any completed secondment agreement or agreed notice provision, destroyed trust and confidence and amounted to a constructive dismissal. It also accepted that earlier issues about funding, line management and communications formed part of a cumulative 'last straw' picture.

On fairness, the tribunal found that the dismissal was unfair under section 98(4), but it applied a Polkey-style assessment and concluded that a reasonable consultation process would probably still have led to termination of the secondment because of the exceptional financial circumstances. Compensation was therefore limited to 12 days' loss, plus pension loss, giving a compensatory award of £1,227.93. The basic award was £3,810, and the total award was £5,037.93.