Mrs H Dickinson v Leeds Teaching Hospital Trust: 1811264/2018

EMPLOYMENT TRIBUNALS

Case No 1811264/2018

Between

Mr K Dickinson (Husband)Claimant

Ms L Bairstow (Counsel)Respondent

Before

Employment Judge Rogerson

Ms L Bairstow (instructed by Counsel) for respondent

Date 29 April 2019

JUDGMENT

The complaint of constructive unfair dismissal fails and is dismissed. JUDGMENT having been sent to the parties on 28 March 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The claimant brings a complaint of unfair constructive dismissal. It is for the claimant to prove dismissal. She relies upon section 95(1)(c) of the Employment Rights Act 1996, that she “terminated the contract under which she is employed with notice in circumstances in which she is entitled to terminate it without notice, by reason of, the employer’s conduct”.

[2]“Whether an employee is “entitled” to terminate her contract “without notice” by reason of the employers conduct and claim constructive dismissal must be determined in accordance with the law of contract. “An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract: or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice but the conduct in either case must be sufficiently serious to entitle him to leave at once. (Per Lord Denning MR in Western Excavating (ECC)Ltd -v- Sharp

1978 IRLR 27

C).

[3]The claimant must establish there was a fundamental breach of contract on the part of the respondent, that breach caused her to resign and that she did not delay to long before resigning thus affirming the contract and losing the right to claim constructive dismissal.

[4]The fundamental breaches the claimant identifies and relies upon are express breaches of her contract: her grade at 8c and her position as a consultant: breaches of the agenda for change terms and conditions section 26, 31.9 (annex 24). She also relies on a breach of the implied term of trust and confidence, relying on a series of acts by the respondent in 2018, culminating in a last straw incident on 12 October 2018, which resulted in her resignation on 13 October 2018, with notice expiring on 21 October 2018.

[5]The implied term of trust and confidence term is a term that “the employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee. Any breach of this implied term is a fundamental breach amounting to a repudiation since it necessarily goes to the root of the contract. To constitute a breach of this implied term, it is not necessary to show that the employer intended any repudiation of the contract. The employment tribunal’s function is to look at the employer’s conduct as a whole, and determine whether it is such that its cumulative effect judged sensibly and reasonably is such that the employee cannot be expected to put up with it”. (Woods-v-WMCar Services(Peterborough)Ltd1981 IRLR 347 EAT).

[6]The last straw the claimant relies upon is: “On 12 October 2018, when Sally Lane in the presence of Mike Phillpott informed staff, including the claimant that there would be no more jobs at band 8c. This meant that the claimant would be down banded from band c to an unspecified lower grade”.

[7]The Court of Appeal in the case of London Borough of Waltham Forest-v- Omilaju

2005 IRLR 35

CA has given helpful guidance on the final straw. “Its essential quality is that when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to the breach although what it adds may be relatively insignificant so long as it is not utterly trivial. The final straw, viewed in isolation, need not be unreasonable or blameworthy conduct. However, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer. The test of whether the employees trust and confidence has been undermined is objective”.

[8]It is helpful to set out that legal context before setting out the Employment Judges findings of fact and how the law is applied to the findings in the conclusions reached.

[9]In making the findings of fact, the Employment Judge heard evidence for the claimant, from the claimant and for the respondent from Jane Clawson (deputy Director of Human Resources Sheffield Children’s Hospital NHS Foundation Trust), Fraser McPherson (Senior HR Manager), Dr Sally Ann Lane (Clinical Director and Consultant Cellular Pathologist) and Dr Ruth Susan Charlton (Clinical Service Lead (Scientific Service Genetics). The Employment Judge also saw documents produced from an agreed bundle of documents. From that evidence the following findings of fact are made:9.1 The claimant was employed by the respondent as a Consultant Clinical Scientist, Band 8C, based in Leeds, from 4 July 1988 to her resignation on 13 October 2018 giving notice to 22 October 2018, subsequently extended to 30 October 2018.

9.2 The claimant has over thirty years of unblemished service with the respondent, and no criticism is made of her performance, conduct or service.

9.3 In 2017, NHS England issued an invitation to tender for the NHS ‘Genomic Plan’, a Genomic Laboratory Hub working within local Genomic labs. NHS England gave notice that all existing contracts for Genomic services would terminate on 30 September 2018. The consequence of this for the respondent was that the work and funding for that work would no longer exist after that date.

9.4 As a result, on 30 April 2018, a partnership of five organisations (the hospitals in Leeds, Sheffield and Newcastle and two other private partners) was created, called Genetic North-East Quadrant ‘GNEQ’ in order to bid for that work with NHS England. In paragraph 4 of the claimant’s witness statement she acknowledges that the “bid identified a new job structure which would replace the existing job structures within the laboratories” at Leeds Sheffield and Newcastle.

9.5 Given the proposed change of three separate service providers reduced to one service provider, covering a wider geographical area. this was clearly a substantial reorganisation of the Genomic Testing Services

9.6 A staff briefing document was issued in May 2018, which is at pages 94 in the bundle. That makes it clear that there were to be two phases in the proposed restructure. Phase one was to deal with the more senior management grades, some of which were expected to be determined by way of a selection process, because there were more people than roles available, then Phase two would follow for the other posts, because those roles were more likely to be impacted because of decisions made in phase one.

9.7 From the first consultation it was made clear to all, that the “staff displaced by this process will be considered for other roles available in the structure or wider where appropriate and as an alternative to redundancy where possible”.

9.8 A timeline was proposed with a go live date of 1 October 2018, setting out all the intended steps, vis a vis external processes and internal consultation processes. The document also made it clear that if the bid was unsuccessful and the work went elsewhere, the staff could transfer to the successful bidder.

9.9 A series of questions and answers were provided from as early as May 2018, demonstrating the open and transparent approach that was taken with the respondent trying to provide as much information as it could.

9.10 The specific conduct of the employer relied upon as a breach of the implied term of trust and confidence is set out in the claimant’s further and better particulars, (pages 39 and 40) and in her witness statement. The first allegation is that on an unspecified date, Dr Ruth Charlton (claimant’s line manager) made the claimant feel awkward and obstructive when the claimant opposed saving costs by reducing some follow up cancer testing. The respondent had sought more specific information about this allegation but the claimant was unable to provide any further details. Dr Charlton in her evidence denies she did anything to make the claimant feel ‘obstructive and awkward’. The only discussion she could think it related to was leukaemia testing in 2017.There was a discussion in a management meeting about a suggestion from another clinical lead as to whether some of the testing the team was undertaking was necessary. She recalls the claimant disagreed and no changes were made to the testing regime. The claimant has not provided sufficient evidence to support her allegation that Dr Charlton’s conduct was a breach of the implied term of trust and confidence.

9.11 The second allegation is that the claimant refused to sign off “Idylla reports” and again was made to feel awkward and obstructive. The respondent had again sought more specific information about this allegation but the claimant was unable to provide any further details. In cross examination she identified a reference to a comment made in her appraisal in June 2018, that Ruth Charlton had said Sally Lane was getting ‘impatient’ but was not sure if the claimant was being referred to specifically. Again, the conduct complained about lacks sufficient details to support an allegation of a breach of the trust and confidence term.

9.12 In the claimant’s witness statement this background of ‘disagreement/conflict’ is she suggests the reason why she was excluded from the mobilisation group subsequently created to facilitate the amalgamation of the three laboratories in Leeds, Newcastle and Sheffield. Within the five organisations in GNEQ, approximately fifty individuals were involved so there had to be an exercise for selecting representatives for the mobilisation groups from each organisation. If the claimant’s proposition is correct that all affected employees should have been part of the mobilisation group, that would be neither practical or reasonable.

9.13 In cross examination, the claimant accepted that either herself or Paul Roberts were reasonable candidates for inclusion in that mobilisation group. She accepted that Paul Roberts had line management skills that she did not have, and it was not unreasonable for him to be selected instead of her. He had some ‘disagreements’ with the respondent which indicated that was not a barrier to selection. There was reasonable and proper cause for Paul Roberts to be selected instead of the claimant and no evidence of any actual disadvantage caused to the claimant, by not being selected onto the mobilisation group, in the selection process for posts that followed in July of 2018.

9.14 Three further complaints are made about the consultation process by the claimant. It was a breach of Section 26 of the NHS terms and conditions, 2 mathematical errors had been made in the documentation provided on 4 June 2018 and 27 June 2018, the consultation process was one day short and failed to answer all the questions raised by staff. The complaint that the claimant had no representation at the first consultation meeting was withdrawn by the claimant and was not relied upon as an alleged breach of the implied term.

9.15 Looking at those complaints in turn, first the breach of Section 26 (page 45) refers to ‘joint consultation machinery’. The breach of section 26 is pleaded as an express fundamental breach of the claimant’s contract of employment. This section is about arrangements the respondent should make for ‘joint consultative committees’, with the union which was not relevant to the facts relied upon in this case. The respondent had during this process produced a staff consultation document which was provided to the staff as part of individual consultation process having collectively consulted with the union. It was reasonable and proper conduct for them to do this as a starting point to the employee consultation process. The respondent had engaged in a consultation process collectively with the recognised unions and individually with employees (including the claimant) They were required to do this given the numbers of staff affected and the potential outcome of redundancy/TUPE transfer. It was not an express breach of contract, because Section 26 did not apply and had not been breached.

9.16 The second complaint is 2 mathematical errors in the documents. Mr Dickinson in closing submissions continues to rely upon those errors identified at page 146 where the figures are 10.8 and should be 9.8. It is clearly an error because the boxes do give the correct numbers but have been added up incorrectly in the final box. It would be clear from that document that this was an apparent mistake and anybody, including the claimant, could easily pick that up when they read the document in full. That error had no impact on the process and the claimant does not say what consequence it had on her. It was just an error not unreasonable conduct. Objectively viewed it was not conduct that was likely to seriously destroy or damage trust and confidence and breach the implied term.

9.17 The second error that is relied upon as a fundamental breach of contract is the letter that the claimant was sent at the end of the consultation period which inaccurately referred to 2nd July as the end of the consultation instead of 3 July. The claimant knew from all the prior communications the 30-day period was to end on 3 July (for example pages 224 to 225 specifically identify that date). The fact that one letter at the end of the process gives the wrong date does not change the fact that there was a 30- day consultation period. Again, there is no consequence prejudice or unfairness caused to the claimant. It is clearly just an error and not a breach of the implied term of trust and confidence.

9.18 The third complaint the claimant makes is that the respondent did not answer all the questions raised by staff during the consultation process. Looking at the information that was provided in the consultation process the questions and answers were grouped into themes and answered to reflect as far as it was possible the concerns raised by individuals. The large number of questions and answers produced during that process shows how thorough and detailed the approach was. Not every question was answered and that approach adopted by the respondent was proportionate given the complexities involved dealing with three different laboratories and staff spread across a wide geographical area. The respondent acted with reasonable and proper cause in dealing with questions in the consultation process and was not in breach of the implied term of trust and confidence.

9.19 A further criticism the claimant makes is that the respondent did not respond to her alternative proposals that they should carry on as before, and not make any changes. The employer did not have a choice when the funding was lost there was a real need to reorganise the business because the contract was about to be terminated. The respondent had to follow the path they saw as most likely to retain the work and to preserve jobs. It was not acting without reasonable and proper cause by doing so and has not fundamentally breached the implied term of trust and confidence.

9.20 A final issue in relation to the consultation process the complaint that five individuals were added to the process late on and the consultation process should have been extended. A shorter process may have had an impact on those five individuals, but the claimant had the full 30-day consultation period and there was no breach of her contract of employment. Additionally, none of those 5 individuals were involved in the selection process the claimant was involved in. The respondent had explained why those five individuals had to be added into the process at a later stage and that late addition had no impact on the claimant. There was no breach of trust and confidence.

9.21 Dealing then with the application process and whether there was an unfair interview process, which was in the Employment Judges view, the real crux of this case. There was one position of Lead Scientist Band 8C post in phase one and the claimant chose to apply for that post, because she wanted it. Her contention that she was forced to apply is not made out on the facts. In the consultation document the respondent clearly identifies that where more than one individual was affected by the reorganisation, an interview selection process would be used to appoint to that role. They also identified the potential legal consequences if a role was found to be a suitable alternative employment and how that would impact on any redundancy payment entitlement. In the consultation document it is made clear that employees are not forced to apply and they were invited to speak to human resources with any queries if they were in any doubt about the process. A clear timetable of the process with dates was provided in the consultation document in July 2018 so that the claimant and other employees knew what to expect.

9.22 The claimant and Paul Roberts applied for the post and were interviewed on 19 July 2018, by the same panel. Having seen the interview notes the claimant accepts she didn’t perform as well as Paul Roberts. She was not prepared for some of the questions and ‘fluffed’ some of the answers.

9.23 Because this was apparent from the reading prior to hearing any evidence, the Employment Judge clarified and agreed those facts with the claimant at the beginning of the case. The claimant accepted Paul Roberts performed better in interview and that he was selected for the role on that basis. With that clarification it was difficult to see how the claimant argues that the respondent has breached the implied term of mutual trust and confidence by ‘failing to give the claimant a fair interview for the job for which she applied”. She knew the selection process was by way of an interview. She knew in advance when the interviews would take place so had time to prepare herself for that process. She saw the interview notes, and had not challenged the scores given by the panel. She had the opportunity at this hearing to cross examine two members of the panel, Dr Lane and Jane Clawson. She had seen their witness statements in advance of this hearing. Dr Lane says that Paul Roberts showed an ability to lead the team across the wider partnership rather than the Leeds Trust alone, and that was a requirement of the post that applicants were expected to demonstrate. This aspect of a wider leadership approach was not apparent from the claimant’s interview. Jane Clawson’s evidence was the claimant presented as being angry from the tone and answers she gave. When challenged in cross examination, she stood by her comments because that was her impression at the time. It was clear from all the evidence that based upon the claimant’s performance at interview Paul Roberts was the better candidate and that was the reason why he was selected for the post. The scoring of all the four interviewers confirms a much higher scoring for Mr Roberts and that it was not a close contest. There was a clear and marked difference in performance. That may well be because the claimant was unfamiliar with the interview process itself having been in her post for so long. Mr Roberts had unsuccessfully applied for other roles before this interview took place. Those facts are not influenced by the employer, they are the consequences of Mr Roberts choices and his experience prior to his interview.

9.24 For completeness sake, the claimant has implied, but did not put to Dr Lane any suggestion that her scoring was influenced by any previous disagreement. There was no evidence to support that allegation which does not explain the scoring of the other three interviewers which was consistent with Dr Lane or the claimant’s acceptance of her poor performance in the interview. In conclusion the interview process was fair conducted with reasonable and proper cause and there was no breach of the implied term.

9.25 Dealing with the next complaint in time, which is the respondent’s alleged refusal on 20 July 2018 to “say whether the claimant had been deemed appointable to this job contrary to paragraph 31.9 of the NHS Terms and Conditions”. In her witness statement (paragraph 27) the claimant states “I asked Sally Lane if I had been considered appointable to the post. She refused to answer. Paragraph 31.9 states that an unsuccessful applicant for a job is entitled to know the reasons why he/she was unsuccessful” This is an alleged express fundamental breach of contract.

9.26 Dr Lane’s witness statement explains the sequence of events and contact after the interviews and her account is supported by the emails in the bundle. She was contacted by the claimant on 30 July who had inadvertently been informed by Paul Roberts that he had been appointed in the role. The claimant wanted to know about the implications of that on her role. She does not ask why she was not selected. Dr Lane responds by email on the same date asking the claimant for a convenient time to call/meet to discuss this. The claimant’s email in response states “in view of the serious implications for me caused by Paul’s appointment. I should be grateful if you would let me have your responses to my question by email.”

9.27 Section 31 is about “recruitment promotion and staff development”. Section 31.8 states that selection should always be a competitive process except disability/heath/maternity/similar situation. This supports the process adopted by the respondent in the reorganisation. The exact wording of section 31.9 is “all applicants where they request it are entitled to know the reasons why their application has been unsuccessful”. The question the claimant wanted answering was whether she was appointable, not why she was unsuccessful which is not required by section 31.9. Dr Lane offered the claimant that opportunity, but the claimant did not take it up. There was no express breach of her contract of employment.

9.28 Dr Lane responded to the claimant’s email by referring it on to Mr McPherson, Human Resources, to deal as he was better placed to advise the claimant about the implications on her role. In her email she tells the claimant “I am sorry you don’t wish to discuss the outcome of the interview with me”.

9.29 Mr McPherson was very clear and unambiguous in his email reply. He answered the specific questions raised about the impact on the claimant’s existing role, so that she would be left in no doubt about the respondent’s position going forward. He states in his email “there is no impact on your employment with LTHT nor on the role or responsibilities you currently undertake”. He understood that he could/would be held to account for that statement, if there was in fact any impact. He does makes it clear however that “there are processes that are still outstanding and until those processes are complete no decision can be made”. The claimant already knew the process was not complete because phase one was not complete and as at the date of this hearing, is still ongoing because not all the posts identified have been filled. Mr McPherson was making it clear nothing could/would change vis a vis the claimant’s contract of employment.

9.30 Other employees were similarly affected. Dr Charlton confirmed she is in a similar situation and nothing has changed. She is still in her current roles which is expected to continue until at least April 2019.

9.31 On 31 July 2018, the claimant’s sent an email in response, which is described as her ‘ultimatum’ (page 338). At the end of her email she says “I will not agree to any change to my job role. If I am downgraded this would be a fundamental breach of my contract of employment and I would consider myself to have been the subject of a constructive dismissal”. Clearly the claimant’s ultimatum is contingent on an actual downgrading of her role by the Trust.

9.32 The last straw the claimant relies upon is the conversation that takes place at a meeting on 12 October 2018. As already outlined at the beginning of this decision, a last straw cannot be an entirely innocuous event, it must be something that ‘contributes’ to the earlier breaches in order to ‘revive’ them. The difficulty for the claimant based on the findings of fact is that there are no earlier breaches of the implied term of trust and confidence which can be revived by any last straw.

9.33 Despite that conclusion, I will deal with my findings of fact about 12 October 2018 meeting. Context is important and the context is not disputed. It is set out at paragraph 60 of Dr Lane’s witness statement. She refers to a general meeting with Band 8 staff not a specific meeting relating to the claimant. In that meeting there was discussion about what was going to happen in relation to phase two. Dr Lane accepts she probably did say it was very unlikely that going forward there would be any 8C positions in the second phase. That would not have come as a great surprise when phase 2 was always about other less senior posts. However, that did not change the situation for the claimant or the assurance personally given by Mr McPherson confirming to her that she would carry on in her Band 8C role until the process was concluded and a decision was made at the end of that process. This was because the respondent did not know what was going to happen in relation to the GNEQ partnership and the claimant was always the employee of the respondent not GNEQ. Mr McPherson had already informed the claimant there was no change to her role with the respondent, and nothing Dr Lane said in this meeting changed that. When the claimant had initially asked about the implications on her role the reason Dr Lane directed her to HR for a response, was because they were better placed to answer the question asked.

9.34 The claimant had said that for her ultimatum to be carried out her role had to downgraded. That did not happen on 12 October 2018 or at any time prior to her resignation.

9.35 On 13 October 2018, the claimant resigned. In her resignation letter she states: “At the meeting on Friday 12 October 2018 with Band 8 members of the Genetics Management Team Sally Lane finally gave definitive confirmation that no further Band 8C jobs would be available during the next phase of the restructuring. The Trust decision to downgrade me from my present Band 8C clearly constitutes a fundamental breach of my contract of employment. I am not prepared to acquiesce in this, I accept the breach and the consequent termination of my employment, I therefore inform you that as a result I formally resign from my employment with effect from the end of the day Monday 22 October 2018.”

9.36 Factually, the assertion highlighted in that letter is incorrect. As at 13 October 2018, there was no decision by the Trust to downgrade the claimant role. The claimant jumped the gun and acted in haste at a time when there was no breach of contract or any anticipatory breach of contract, with the assurances given to the claimant on 31 July 2018 that there was no impact on her role. At the time, the claimant accepted those reassurances at face value because she continued to work in her role from the 31 July 2018 to her resignation on 13 October 2018. The information given on the 12 October 2018 did not change that position. If the process of change had been completed by this date and a decision was made to downgrade the role, the respondent would have had to agree that with the claimant or terminate the contract with notice and offer re-engagement on the new terms. However, it had never got to that stage when the claimant resigned.

9.37 Dr Charlton did try to persuade the claimant to reconsider her decision because she had misconstrued the situation. Instead of the claimant reflecting upon her decision she sent a short curt reply closing the door to any more discussions.

9.38 Going back to the words of Lord Denning in Western Excavating ECC Limited -v- Sharpe, he said “an employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice but the conduct in either case must be sufficiently serious to entitle him to leave at once”.

9.39 Based on the findings of fact made there was nothing the Trust did by the 13 October 2018 that would show to the claimant that it no longer intended to be bound by one or more of the essential terms of the contract. The claimant’s decision to resign was not caused by any breach of contract by the employer. The claimant resigned prematurely for her own subjective reasons, based upon her not getting the role she wanted, her unhappiness with that and more generally with the changes the respondent was making because of the reorganisation. The claimant has not proved a dismissal that meets the requirements of Section 95(1)(c), and therefore her claim of unfair dismissal fails and is dismissed.