Can a failure to follow a disciplinary procedure qualify as constructive dismissal?

In the case of Epsom & St Helier University Hospitals NHS Trust v Starling, the Employment Appeal Tribunal (EAT) were tasked with deciding whether an employer who failed to follow their own disciplinary process breached the implied duty of trust and confidence.

The claimant in this case was a nurse with almost 40 years’ service. On the day in question, she was tasked with switching on incubators in readiness for an IVF treatment procedure that was to take place the following day. This was extremely time sensitive and integral to ensure the patient’s IVF cycle was not put at risk. However, the claimant had to leave work early following a suspected mini-stroke and failed to carry out this task.

Upon realisation of this, the claimant informed her colleagues, however, by that time it was too late for the procedure to take place as planned. All parties accepted that this could have potentially had significant consequences for the patient as well as resulting in substantial costs for the Trust.

The Trust’s disciplinary policy indicated that, in situations where the performance of an employee had raised concerns, an informal meeting should take place to discuss the situation. At the end of this meeting, an ‘informal improvement notice’ could be issued. This notice did not carry the same weight as a disciplinary warning but was considered the first informal stage of a disciplinary process.

The claimant’s manager was informed that an ‘informal improvement notice’ should be issued for a failure to turn on the incubators and this was provided to the claimant, despite the fact no meeting had taken place beforehand. The failure to hold the meeting meant the manager was unaware of the reason why the claimant had left work early. The claimant disputed this decision, arguing that a meeting should have been held with her first, however the employer decided that the decision should stand and the claimant resigned from her position.

The claimant proceeded to claim constructive dismissal and the initial employment tribunal (ET) upheld her claim. The ET found that there was no reasonable, or proper, cause for the employer not to speak to the claimant first before issuing the improvement notice. The tribunal outlined that a failure to hold a meeting was likely to seriously damage the mutual trust and confidence between the claimant and the Trust, particularly given the claimant’s long service. In their view, failing to hold the meeting meant that the dismissal decision was made without full knowledge of the facts.

The Trust proceeded to appeal this decision with the EAT, however, the EAT dismissed this appeal and agreed with the findings of the ET. They confirmed that the Trust had clearly not followed the correct procedure for the issuing of an ‘improvement notice’ as set out within their own disciplinary policy. As the claimant had resigned in response to the Trust’s conduct, the ET was correct to find there was a breach of the implied term of mutual trust and confidence.

This decision should remind employers of the importance of following their own procedure when dealing with disciplinary action. Even in situations where misconduct could potentially cause significant reputational damage, failing to follow disciplinary procedures could open the door to claims of constructive dismissal.

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