What happened?
In 2018, a specialist nurse, referred to here as the Claimant, told managers at the NHS trust she worked for that a colleague was treating her badly in a grievance. They agreed with her. They spoke to him. However, nothing changed.
Mediation was suggested in May 2019. It did not happen until December 2019, a delay the Trust itself later accepted was unreasonable, and once it was over, nobody checked whether it had made any difference.
Then the colleague made a complaint about the Claimant. She waited five months to be told verbally that there was no case to answer, and ten months for this decision to be confirmed in writing. She was also told that elements of her own behaviour had caused concern, but never told which elements, despite her asking repeatedly. Somewhere in the middle of all this, he stopped making her a cup of tea when he made one for the rest of the team. That is the bit the press ran with.
By October 2021 she began a period of sickness absence due to stress, and her grievance appeal recommended that a senior nurse take oversight of supporting her return to work. Someone was appointed three days later, which sounds like the moment it all turned around, except nobody told her who had been appointed. She chased, personally and through her union, and heard nothing at all. In early January 2022, she resigned.
What did the tribunal decide?
Her claim of constructive unfair dismissal succeeded. The tribunal found the Trusthad failed to act appropriately in relation to her grievance, doing little beyond speaking to the colleague accused and suggesting actions it then did not follow through on. It also failed to put the grievance appeal recommendation in place in good time, meaning no one at the Trust contacted the Claimant for weeks afterwards. The Trust argued the silence did not amount to a breach of the implied term of trust and confidence. The tribunal disagreed, because the appeal had raised her hopes of resolution, and then nothing followed. The parties later agreed compensation of £41,000.
In plain terms, every employment contract includes an implied duty of trust and confidence between the employer and the employee. If an employer breaches this, the employee can resign and claim they were constructively dismissed.
What can employers take from this?
- Give every recommendation made in a grievance or appeal outcome a named owner, a deadline and a date to check the owner completed it.Make sure you keep the employee updated so they know where matters stand.
- Recognise when informal management has run its course and escalate matters to a formal process rather than repeating the same conversation.
- Be specific if you raise a concern about someone’s behaviour so they can respond to it. Keep contemporaneous notes of all meetings and conversations regarding any such issues.
To understand more about how to prove constructive dismissal, check out our blog here to keep your business in the know.
So it was never £41,000 for a cup of tea. It was £41,000 for failures to appropriately address misconduct, failures to implement recommendations and failures to keep in touch with an employee on sickness absence due to stress.
If you would like a hand reviewing how your grievance outcomes are tracked, or training your managers on handling workplace conflict, we would love to help. Drop us a line at enquiries@thrivelaw.co.uk or call us on 0113 861 8101. Check out our founder’s Jodie Hill Youtube Channel for more case summaries like these, employment law tips and tricks and how to keep your business thriving!
Sources
Full judgment on GOV.UK: Mrs S Hamilton v Epsom and St Helier University Hospitals NHS Trust, 2302014/2022
Coverage: Nursing Times
Coverage: Personnel Today
