Mrs Joan Boyle v Represented by: Ms J Forrest - Solicitor BMI Healthcare Ltd — 2019

Mrs Joan Boyle had 26 years' service with BMI Healthcare Ltd and worked as Quality and Risk Manager at Carrick Glen hospital. After the hospital was announced as closing on 6 December 2017, she sent letters on 9 January 2018 to six consultants, including Dr RN, offering Quest Clinic as a possible alternative location for private practice. The tribunal found that she sent the letters against the background that staff and consultants believed Carrick Glen was closing, and that she had discussed the clinic with management before writing.

The respondent commenced an investigation on 5 February 2018 and relied on allegations that the claimant had disclosed confidential information and used it for the benefit of Quest Clinic. Mr Clark conducted the investigation, Ms Sloey chaired the disciplinary hearing, and Mr Rosenblatt heard the appeal. The tribunal found the investigation flawed because the consultants who received the letters were not interviewed, relevant emails and minutes about the closure were not obtained, and the allegations were not precisely framed. It also found that allegation 1 lacked reasonable grounds because the information about closure was not confidential, and that the wording of allegation 2 changed between the hearing and the dismissal letter.

The tribunal accepted that allegation 2, as amended, could be sustained in the sense that the claimant had used information that Carrick Glen was closing to write to consultants offering an alternative place for private practice, and that she had done so without written permission in breach of clauses 10 and 11 of her contract and the Business Conduct policy. However, it found that Ms Sloey approached the matter on a closed basis, treated the closure of Carrick Glen as irrelevant, and failed to weigh the claimant's explanation and mitigation. The tribunal also rejected the adverse view taken of the claimant's lack of remorse, noting that she had repeatedly said she regretted sending the letters.

The appeal did not cure those defects. The tribunal found that Mr Rosenblatt did not come to the appeal with an open mind, misunderstood key findings from the disciplinary stage, treated the information as confidential when Ms Sloey had accepted it was not, failed to notice the changed wording of allegation 2, and continued to regard the hospital's closure as irrelevant. It also found that he was influenced by the fact that overturning the dismissal would have resulted in the claimant receiving a redundancy payment. On that basis, the tribunal held that the dismissal fell outside the band of reasonable responses and was unfair.

On remedy, the tribunal rejected a Polkey reduction and found no contributory conduct reduction because the claimant's conduct was not blameworthy in the context of the announced closure. It also rejected the argument that she had failed to mitigate her loss, accepting that she had searched for work and that from 1 August 2018 she worked 20 hours per week at Quest Clinic on a salary of £20,000 because the business could not support more. The tribunal awarded a basic award of £15,240 and a compensatory award of £31,088. The reasons explain that the claimant would otherwise have received an enhanced redundancy payment of £46,328.44, but the formal order is for £46,328 in total.