Epsom & St Helier University Hospitals NHS Trust v Starling

An employer’s informal conduct procedure must be applied consistently with its own terms. Where the procedure requires a discussion with the employee before an Improvement Notice is issued, issuing the notice without first obtaining the employee’s account may, objectively, seriously damage mutual trust and confidence.

The required discussion need not be a formal or minuted investigation. A light-touch opportunity to explain the relevant circumstances may suffice. An informal notice may still be materially relevant because it records conduct concerns and may inform the employer’s response to a later incident.

Whether conduct amounts to a fundamental breach remains fact-sensitive. An appellate tribunal should not substitute its own assessment where the Employment Tribunal made no error of law.

The claimant, a long-serving fertility nurse, failed to switch on incubators after becoming suddenly unwell at work. The Trust issued her with an informal Improvement Notice without first discussing the incident with her. The notice was subsequently rescinded, but only after she had resigned.

The Employment Tribunal held that the manner in which the notice had been issued breached the implied term of mutual trust and confidence. It found that the claimant had resigned partly in response to that breach and had therefore been constructively unfairly dismissed. Her disability-discrimination claims were dismissed.

The Trust appealed, contending that the Tribunal had misconstrued its policy, treated an informal measure as a disciplinary sanction, failed to consider reasonable and proper cause, and should have found affirmation of the contract.

1. Appeal dismissed. The Employment Tribunal made no error of law in holding that the Trust had constructively unfairly dismissed the claimant.
2. The alleged breach was not the mere issuing of an Improvement Notice. It was the decision to issue it without first speaking to the claimant. Properly construed, the Trust’s disciplinary policy required, once an issue was to be handled informally, a meeting or discussion enabling the manager to understand the employee’s account before deciding whether a notice was necessary.
3. That requirement did not impose a formal investigatory or minuted meeting. A light-touch conversation would have sufficed. The Trust did not follow its informal procedure and therefore did not learn material information about the claimant’s sudden illness and attendance at A&E before issuing the notice.
4. The notice was informal and was not part of the formal disciplinary record. It was nevertheless relevant to both parties because it recorded a conduct incident and could properly be taken into account if a similar incident later arose. The Employment Tribunal did not improperly equate informal and formal disciplinary processes. Its reference to a disciplinary “sanction” was inapt but did not undermine its reasoning when read as a whole.
5. The Tribunal had correctly directed itself on the implied term of mutual trust and confidence. Its reasoning addressed the seriousness of the underlying error and the absence of reasonable and proper cause for failing to speak to the claimant before issuing the notice. The conclusion that the conduct was likely seriously to damage trust and confidence was a fact-sensitive assessment open to the Tribunal.
6. The proposed affirmation point had not been argued below. It depended on unresolved evidence concerning the claimant’s health and her ability to engage with correspondence during her absence. It was not a discrete point of law or an obvious knockout point, and did not fall within the exceptions relied on from Secretary of State for Health v Rance, [2007] IRLR 665.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s finding of constructive unfair dismissal was upheld.
• Employment Tribunal (London South): The claimant’s constructive-unfair-dismissal claim succeeded. Her disability-discrimination claims were dismissed.