Mr F Onafowkan v Moorfields Hospital NHS Foundation Trust: 2201504/2022

EMPLOYMENT TRIBUNALS

Case No 2201504/2022

Between

Mr F OnafowkanClaimant

Moorfields Hospital NHS Foundation TrustRespondent

Before

Employment Judge F Spencer

Ms J Obaseki (instructed by solicitor) for claimant

Mr C McDevitt (instructed by counsel) for respondent

Date 7 March 2025

JUDGMENT

The Judgment of the Tribunal is that: i. The Claimant was not dismissed and his claim of unfair dismissal does not succeed; and ii. The Claimant’s claim of direct race discrimination does not succeed; iii. The claims are dismissed .

REASONS

These written reasons, following judgment and reasons given orally on 7 March 2025, are sent to the parties at the request of the Respondent.

[1]By a claim submitted on 25 March 2022 the Claimant brings claims of constructive unfair dismissal and direct race discrimination.

[2]The issues in this case were clarified at a preliminary hearing before Employment Judge Klimov on 7 July 2022. The claim is about the Respondent “withdrawing” the offer it had made to the Claimant for the role of Associate Practitioner Theatre, at Band 4. It is the claimant’s claim that that “withdrawal” was both an act of direct race discrimination and a breach of trust and confidence entitling him to resign.

[3]In relation to his claim of direct race discrimination The Claimant relies on colour (black) as a protected characteristic. In so far as the direct discrimination claim is concerned the Claimant relies on two comparators namely Robin Ifi, and Claraselle Baranchea. An application to add additional comparators was refused at an earlier hearing before Employment Judge Joffe.

[4]At the start of this hearing the Claimant clarified that the comparison he was making for the purposes of his direct discrimination claim was with those who were white and those who were of Asian origin. It was a significant part of the Claimant’s case that there was a culture of preferential treatment within the department in which the Claimant worked for those of Filipino origin.

[5]The Tribunal heard evidence from the Claimant. He also submitted two witness statements in support of his case, although the witnesses were not in attendance. One was from Ms Jack, formerly a scrub nurse working alongside the Claimant at St George’s Hospital and the other was from Ms Davies, the Claimant’s former line manager and a scrub nurse. We accepted those into evidence - although in the event they did not assist us. Ms Davies evidence was to the effect that the Claimant was good at his job – a fact that was not in dispute. Ms Jack’s evidence was that there appeared to be favouritism towards Filipino staff, but was vague and unspecific. We did not consider that, in the absence of specifics, we could rely on her evidence

[6]For the Respondent we heard evidence from thisa. Mr W Sanni, Ward unit Manager

b. Mr C Tsounis, Divisional Head of Nursing

c. Ms C Real, Matron

d. Ms C Brookes, Lead Nurse for Clinical Innovation and Safety, who dealt with the Claimant’s grievance after the Claimant had resigned.# Relevant law Direct race discrimination

Relevant law

[7]Section 39 of the Equality Act 2010 prohibits an employer discriminating against or victimising its employees by dismissing them or subjecting them to any other detriment.

[8]Section 13 defines direct discrimination as follows:- “A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others. Race is a protected characteristic.

[9]Section 13 focuses on “less favourable” treatment. A claimant must compare his or her treatment with that of another actual or hypothetical person who does not share the same protected characteristic in comparing whether the employee has been treated less favourably than another. Section 23 of the Equality Act provides that “on a comparison of cases for the purposes of section 13… there must be no material difference between the circumstances relating to each case.” Is not necessary for all the circumstances to be the same provided that the circumstances are materially similar. In other words for the comparison to be valid like must be compared with like.

[10]However (as was noted by Lord Scott in Shamoon v Chief Constable of the Royal Ulster Constabulary

2003 ICR 337

, HL) the fact that there is a material difference does not prevent the ‘comparator’ having some evidential value for the claimant capable of supporting the requisite inference of discrimination, though the evidential value will be weakened by material differences in circumstances. Such a comparator “may, in conjunction with other material, justify the tribunal in drawing the inference that the claimant was treated less favourably than he would have been treated if he had been the comparator.”

[11]Proving and finding discrimination is always difficult because it involves making a finding about a person’s state of mind and why he has acted in a certain way towards another, in circumstances where he may not even be conscious of the underlying reason and will in any event be determined to explain his motives or reasons for what he has done in a way which does not involve discrimination.

[12]It is for this reason that the burden of proof, is set out at Section 136. It is for the Claimant to prove facts from which the Tribunal could conclude in the absence of any other explanation that the Respondent has contravened the Equality Act. Once the Claimant has shown these primary facts then the burden shifts to the Respondent and discrimination is presumed unless the Respondent can show otherwise .

[13]At the first stage the claimant must prove “a prima facie case”. That does not mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As was said by the Court of Appel in Madarassy v Nomura International

2007 ICR 867

and approved by the Supreme Court in Hewage v Grampian Health Board

2012 ICR 1054

he continued (pp. 878-9): “56. … “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude that on the balance of probabilities the Respondent had committed and act of unlawful discrimination .”

[14]It is however not necessary in every case for the tribunal to specifically identify a two-stage process. There was nothing wrong in principle in the tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal pointed out in Laing v Manchester City Council

2006 IRLR 748

“If the tribunal acts on the principle that the burden of proof may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever. Unfair Constructive Dismissal

[15]Section 95(1)(c) of the Employment Rights Act 1996 provides that an employee is taken to be dismissed by his employer if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

[16]It is established law that(i) conduct giving rise to a constructive dismissal must involve a fundamental breach of contract by the employer;

(ii) the breach must be an effective cause of the employee’s resignation; and (ii) the employee must not, by his or her conduct, have affirmed the contract before resigning.

[17]In this case the Claimant claims breach of the implied term that the employer should not, without reasonable and proper cause, conduct itself in a way that is calculated or likely to destroy or seriously damage the relationship of mutual trust and confidence that exists between an employee and her employer. Both limbs of that test are important; conduct which destroys trust and confidence is not in breach of contract if there is reasonable and proper cause. A breach of the implied term of trust and confidence is necessarily a repudiatory breach of contract

[18]It is irrelevant that the employer does not intend to damage this relationship, provided that the effect of the employer’s conduct, judged sensibly and reasonably, is such that the employee cannot be expected to put up with it. It is the impact of the employer’s behaviour (assessed objectively) on the employee that is significant - not the intention of the employer (Malik v BCCI

[1997] IRLR 462

). It is not however enough to show that the employer has behaved unreasonably although “reasonableness is one of the tools in the employment tribunal’s factual analysis kit for deciding whether there has been a fundamental breach” . Buckland v Bournemouth University Higher Education Corporation

2010 IRLR 445

[19]In Kaur v Leeds Teaching Hospitals NHS Trust

2018 EWCA civ 978

the Court of Appeal listed 5 questions that it should be sufficient ask in order to determine whether an employee has been constructively dismissed; i. what was the most recent act (or omission) on the part of the employer which the employee says cause, or triggered, his or her resignation? ii. Has he or she affirmed the contract since that act? iii. If not, was that act (or omission) by itself a repudiatory breach of contract? iv. If not, was it nevertheless part of a course of conduct comprising several acts and omissions which together amounted to a (repudiatory) breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of the previous possible affirmation). v. Did the employee resign in response (or partly in response) to that breach? Relevant facts

[20]The Claimant was employed by the Respondent as a Theatre Assistant at band 3 from 7 April 2014. He was a respected and valued member of the team. The Claimant told us that he had a very good rapport with his line manager, Mr Villaflores. (Mr Villaflores no longer works for the Respondent.) The Claimant is black of African origin.

[21]In September 2020 the Respondent advertised for the role of a Theatre Assistant Practitioner, at Band 4. There were two positions on offer. This was a newly created role and had not existed before. Documents in the bundle establish that in December 2019 it was agreed that the Foundation Degree in Clinical Assistant Practice (or equivalent) would be an essential requirement for the role. (See p168) The job was then put through job matching and approved.

[22]The Claimant was away from the workplace from 31 August 2020 to 27 September 2020 when the job was first advertised and so did not appreciate that the job was open for applications. The advert had been on the NHS job portal for two weeks and had also been mentioned by the Claimant’s manager during the team huddle wile the Claimant was away. While the Claimant was away the Respondent appointed to 1 of the two posts.

[23]On 12 October 2020 (183) the Claimant complained that he had not been made aware of the role. He also complained on 14 October to Mr Tsounis (185). Mr Tsounis acknowledged his complaints on 15th October (184) by return. The Claimant was told that the position would be readvertised . The Claimant spoke informally to Ms Real in theatre. We do not accept the Claimant’s claim that the Respondent did not acknowledge his concerns for three weeks or that Ms Real didn’t acknowledge or reply to his email, for more than three weeks.

[24]In any event, as only one of the two positions had been filled the Respondent readvertised the position in November 2020 and the Claimant applied.

[25]In the meantime the Claimant’s complaint about not having been informed of the first recruitment round had been referred to HR. On 2 December 2020 (six weeks after he had made his complaints) the Claimant was invited to a meeting to look into his grievance. The Claimant responded the next day (3 December 2020) saying that he was baffled as to why this matter was coming up again and that “to the best of my knowledge this matter had been discussed and resolved as appropriate at the time,” and that “my matron had reach out to me and the subject matter was put to sleep. My working relationship remains solid with the matron, and I have no reason to disrespect her leadership or decision-making”. At his request the meeting was therefore cancelled. (213)

[26]It is a significant part of the Claimant’s case that the advertisement and person specification for the new role that he saw online did not require a Foundation degree in Clinical Assistant Practice or equivalent; and that it referred only to a diploma. He says that the Job description and person specification that appeared in the bundle had been edited. We do not accept that evidence. We are satisfied that the advertisement that was posted internally was as it appears at page 104 of the bundle and that the person specification for the role was as it appears at page 151. Both clearly state that an essential requirement all for the role was that the individual should have a Foundation Degree in Clinical Assistant Practice or equivalent. Other documents in the bule make it clear that this was to be an essential requirement for the role.

[27]The Claimant applied stating, correctly, that he had a Health and Social Care Diploma at NCFE level. It is apparent that Mr Villaflores did not check whether the Claimant’s diploma was equivalent to the Foundation Degree and the Claimant was shortlisted for interview as one of three interviewees. He was interviewed by Mr Sanni, a Ward Unit Manager, and Mr Villaflores, Theatre Manager.

[28]The interview panel understood or assumed that this qualification was equivalent to, or higher than, the Foundation Degree, but no checks were made as to their equivalence. Mr Sanni’s evidence was that, at interview, the Claimant showed a strong understanding of the role and was able to demonstrate the core competencies associated with it. The Claimant was successful at interview and on 9 December 2020 he was sent an offer letter. He accepted the offer and Ms Real announced to his colleagues that the Claimant had been successful.

[29]However the issue of whether the Claimant had an equivalent qualification was raised by Mr Tsounis shortly after the Claimant had been offered the role. When Mr Villaflores said that he had not seen the diploma or checked whether it was equivalent to the foundation degree, Mr Tsounis asked Mr Villaflores to send him the Claimant’s diploma. Mr. Tsounis then forwarded it to the education department for them to check whether the Claimant’s diploma could be classed as equivalent to the Clinical Assistant Practice foundation degree..

[30]On 21 December 2020 the Education Department (353) told Mr Tsounis that the Claimant’s diploma was level 3 and not equivalent to the foundation degree in Clinical Assistant Practice which was level 5.

[31]The evidence of Mr Tsounis was that, aside from the level of the qualification, the two diplomas were not comparable. The Claimant’s diploma focused on health and social care, whereas the Clinical Assistant Practice degree focused on the acute setting, with students being offered a combination of academic models and placement on acute wards. In the view of Mr Tsounis, the Claimant should not have been shortlisted or interviewed as he did not meet the essential criteria, and the Trust could not allow someone who was insufficiently trained to do such an important job. We have no reason to doubt that evidence.

[32]There was some delay before this was communicated to the Claimant. Ms Real says that she was on leave. When the Claimant enquired about a start date for the new job Ms Real emailed the Claimant on January 7th apologizing for the delay and saying that they were waiting for clarification regarding the role and would come back to him as soon as possible. (219) It was her evidence that she herself was not told that the Claimant’s diploma was not equivalent to the Foundation Degree until 11th January.

[33]As it happened the other individual who had been offered the role in October, who is Indian, also did not have the necessary qualifications.

[34]The Respondent met internally in early February to discuss what to do. On 10 February 2021 the Claimant met with Ms Real and Mr Villaflores. They explained that the Claimant could not start the role as he did not have one of the essential requirements. However the Respondent would work with him to assist him gain the necessary qualification and told him that the role would be held open for him until such time as he had obtained it. They hoped that he would get the qualification within the next 18 months. However the Claimant would have to stay in his current role at Band 3 until he had obtained the relevant qualification. The other successful candidate was also told on 10th February that he would need to get the relevant qualification.

[35]We do not accept that the Claimant was told that he had to withdraw his acceptance, or that was he pressurised to withdraw. Admittedly he was told that a new, and onerous, condition had been imposed, but he was not told to withdraw. In his witness statement the Claimant says that the pressure from his line manager became unbearable, and he was fearful of losing his job, but in answers to questions from the Tribunal the Claimant said that he had, at all times, had a very god rapport with Mr Villaflores.

[36]We have no doubt that the Claimant was extremely disappointed with this news. His success in getting the post had been communicated to others with whom he worked, and this was a blow. We are, however, satisfied that this was a mistake on the part of Mr Villaflores, the recruiting manager who had not checked that the Claimant (or the other appointee) had met the essential criteria for the role.

[37]The Claimant says that others were appointed to Band 4 roles without the Foundation Degree and that the withdrawal of the job or the imposition of an additional , and onerous condition, was an act of race discrimination.. He relies on two comparators Mr Ifi and Ms Baranchea. Neither assist him. First Mr Ifi is black. If indeed he was treated more favourably than the Claimant, that does not suggest that any less favourable treatment is because of race. Secondly, and in any event , Mr Ifi had not applied for the role for which the Claimant had applied. He had been appointed as a band 4 in 2017, well before the role for which the Claimant applied had been created. He had also, before being appointed to his band 4 role, undertaken a specialised two-year training course. As for Ms Baranchea, she was an Ophthalmic Technician in a band 3 role and had remained in her Band 3 role throughout her time with the trust. She had not applied for the role for which the Claimant had been interviewed and appointed. Neither Mr Ifi nor Ms Baranchea, were in materially similar circumstances. Neither had been more favourably treated.

[38]In fact the only individual who was in materially similar circumstances to the Claimant was the other successful candidate. He was Indian and he received the same treatment as that afforded to the Claimant in that he was told that in order to take up the role he would need to complete the foundation degree in Clinical Assistant Practice.

[39]In evidence the Claimant referred, rather vaguely ,to an individual who had been allowed to take up a Band 4 role in Croydon without the necessary foundation degree. The Tribunal understands that this was an individual called Ms Jafari-Khorasani, but permission to add her as a further comparator had earlier been refused by Employment Judge Joffe. In any event, we had no reason to doubt Mr Tsounis’s evidence that this individual was also not allowed to start the role until she had completed the necessary qualification.

[40]There was no material from which we could infer that a hypothetical white individual or a hypothetical individual of Asian origin would not have been treated in exactly the same way as the Claimant.

[41]The Respondent’s evidence, which was not challenged by the Claimant was that the other successful candidate began the Foundation course but subsequently resigned for other reasons.

[42]On 9th April, a Mr Zaman from HR recruitment emailed the Claimant to the effect that the post would be held for him to complete the level 5 course and asked how he wish to proceed. The Claimant responded on 12th April with a series of questions (226). Unsurprisingly the Claimant wanted to know, if his diploma was not level 5, why he was shortlisted for the role; why this was not discussed during the interview and why was it announced to the team that he had been appointed and why it had taken three months to communicate with him about this. He wanted to know why a person in Croydon had been appointed to a Band 4 post while still “on the Course” whereas he would have to wait till he had finished the course. He also asked why he should do another diploma instead of “a proper nursing degree”

[43]Mr Villaflores responded on 16th April with answers to those questions (224). Mr Villaflores explained that he had not been aware when the Claimant was interviewed, that his diploma in health and social care was not at level 5 and equivalent to the foundation degree, that this had been discussed with him as soon as they were aware that it was a problem, but at the time that Mr Villaflores made the offer, he had not been aware that there was a problem. He apologised for the time it took before he had spoken to the Claimant about this on 10 February. The Claimant was told that the individual in Croydon was already a Band 4 and was doing the course, whereas the Claimant told Mr Villaflores that he did not want to do the course. Mr Villaflores encouraged the Claimant to take the course and said that, if he wished to take a nursing degree instead, they could discuss this and find out how to access it. Mr Villaflores said he would “gladly support” the Claimant on this.

[44]The Claimant responded on 19th April in somewhat unclear terms but again asking about “the person in Croydon who is doing the job already” . (223). After this nothing much happened, and the Claimant continued in his band 3 role. There was no evidence before us that the Claimant had made any further enquiries about pursuing a nursing degree.

[45]The Claimant was off with stress for some time in September ( although we did not have the dates). On 27 September 2021 the Claimant told the Respondent that he would not be going forward with the job. (227) In his email he thanked Mr Villaflores and Ms Real for offering him the job but continued that “after critical analysis and evaluation of the role and external engagement have come to term that I shall not be moving forward in the process and hope you find a better replacement to fill the position.” [sic]

[46]On 6 December (after a further period off with sickness) the Claimant met with Ms Real and HR. The Claimant remained unhappy about the additional condition that had been imposed upon the band 4 position that he had been offered. (232) The Claimant told Ms Real that he had become aware that Mr Ifi had got “the Band 4” and wanted to know what training he had undertaken” He also said that he was aware that there were staff at Croydon and City Road who had not completed the Assistant Practitioner course despite being Band 4. Ms Real told the Claimant that Mr Ifi had completed a technician course at City Road and had undertaken in-house training in 2016. She also told the Claimant that if he wanted to do the nursing course she would support him, and that she would contact the education team to find out if he was able to undertake the nursing course. The (unchallenged) note of the meeting with Ms Real also documents that she told him that he was a valued member of staff.

[47]On 29 December 2021 the Claimant resigned (238) giving one month’s notice. He said that “the unfair treatment during the recent band 4 leads me to believe my services aren’t appreciated and I have been deliberately sidelined and looked down upon”. At the same time he raised a formal grievance about the recruitment process (239). In his grievance he says that he has been “discriminated against at work here in Moorfields in the past, but I considered this to be the height it.”

[48]The Claimant met with Ms Thomas (interim Theatre Manager) and HR to try and resolve the grievance informally (265) and on 7June the Trust commissioned Ms Brooks to conduct a grievance investigation.

[49]As that investigation occurred after the Claimant had left the Respondent’s employment it is not relevant to his claim of unfair constructive dismissal or race discrimination. Conclusions Race discrimination

Conclusions

[50]The Claimant was told on 10 February 2021 that he would have to complete a Foundation Degree before he would be permitted to take up the Band 4 post. The Claimnt did not contact ACAS until 17th January 2022. As such the act of less favourable treatment relied upon by the Claimant (the withdrawal of the job offer) is significantly out of time. Mr McDevitt submits that the Tribunal has no jurisdiction to consider that complaint as it was a single act with continuing consequences and there was no continuing act of pleaded discrimination which was within the appropriate time limits.

[51]The Tribunal agrees with Mr McDevitt that the pleaded act of less favourable treatment was a single act with continuing consequences rather than a continuing act of discrimination. The claim is outside the primary time-limit. No reasons were advanced as to why it would be just and equitable to consider the claim out of time, and there was nothing in the Claimant’s evidence which suggested that he was complaining of a continuing act of discrimination. The Tribunal does not have jurisdiction to consider it.

[52]However, having heard all the evidence, we are in a position to say that had the claim been in time it would not have been successful. There was no material before us which would lead us to infer that the requirement, belatedly imposed on the Claimant to complete a foundation degree before taking up the job offer, was in any way influenced by his race.

[53]Documentation in the bundle establishes clearly that the Foundation Degree was an essential requirement of the post, and that the appointing manager failed to realise that the Claimant did not have the relevant qualifications. There is nothing to suggest that had the Claimant not been black he would have been permitted to start the role without this qualification. As we have already said the evidence suggests quite the contrary, since the other successful candidate (of Asian origin) was also informed that he was required to undertake the Foundation Degree before taking up the post. Although the Claimant believed that exceptions had been made for others, the evidence which was before the tribunal did not bear that out.

[54]In evidence he told the Tribunal that he considered that Matron (Ms Real) was the individual who discriminated against him and that she was the one who made the relevant decision to withdraw the job offer. We do not accept that. It is clear from the documents in the bundle that the Claimant did not meet the essential requirements of the role and should not have been shortlisted or interviewed . To the extent that a decision was made to insist upon the successful candidates having the essential criteria for the role it was Mr Tsounis who made that decision, but he imposed that requirement on both candidates.

[55]As explained above neither Mr Ifi nor Ms Baranchea were in materially similar circumstances to the Claimant. Nor did they assist the Claimant evidentially in suggesting how a hypothetical comparator would have been treated.

[56]There is no evidence before the Tribunal from which we could conclude that the withdrawal of the job offer (or at least the imposition of additional terms on a previously unconditional job offer) was less favourable treatment because of the Claimant’s race.

[57]Ms Obaseki invites us to infer discrimination from the fact that there were significant numbers of Filipinos in the department. We have had no concrete numbers but it is clear that the requirement to have the Foundation degree was made an essential requirement of the role, long before the Claimant applied, and was imposed on everyone who applied. Unfair constructive dismissal.

[58]We have no doubt that when the Claimant was told on 10th February that he could not take up the post, for which he had been successfully selected, until he had completed a foundation degree it was a bitter blow. That meant that he would need to remain at his current Band 3 for a further 18 months at least before taking up the post.

[59]Mr McDevitt submits that the case, as pleaded, relies only on the withdrawal of the job offer in February, rather than on the subsequent events. He submits that there was a mistake made, but this was not one which breached trust and confidence. The Claimant had not resigned until the end of December nearly 11 months later and if there was any breach he must be taken to have waived the breach and affirmed the contract.

[60]Ms Obaseki on the other hand submits that this was a last straw case i.e. that the Claimant did not resign simply in response to the withdrawal of the job offer but to numerous smaller matters forming part of a cumulative breach of the implied term trust and confidence. Any such additional matters had not been pleaded, and when asked to identify the matters that she relied on, Ms Obaseki was only able to refer to “a refusal to support the Claimant to do a nursing degree.”

[61]That submission on the part of Ms Obaseki is wrong on the facts. The Respondent did not refuse to support the Claimant to do a nursing degree. It said it would do so and, if the Claimant had taken time to make further enquiries, we have no doubt they would have done so.

[62]Nonetheless we have looked at the circumstances and events which occurred after the Claimant was told of the withdrawal of the original offer, to see whether there were further matters of which the Claimant could complain that might have contributed to a breakdown of trust and confidence. We find that there were none. It may be that the Respondent could have made earlier enquiries about facilitating the Claimant in obtaining a nursing degree, but in the absence of a clear and unequivocal expression of interest from the Claimant, a failure to be more proactive would not contribute to a breach of trust and confidence. We do not accept the evidence in the Claimant’s witness statement that there was relentless, unbearable and threatening pressure from Mr Villaflores to the extent that the Claimant became afraid and fearful of losing his job. The Claimant told us in answer to a question from the Tribunal that there were no issues with Mr Villaflores and that he was a very good manager. The Claimant’s email of 27th September 2021 does not suggest that he has been put under pressure (227). Ms Obaseki in her submissions repeatedly referred to negligence, but did not identify any acts of alleged negligence beyond the original failure to check the required qualifications.

[63]The issue was whether the mistake on the part of the Respondent, and the way they dealt with it subsequently, was a fundamental breach of contract which entitled the Claimant to resign. The Claimant relies on a breach of the implied term of trust and confidence. It is irrelevant that the Respondent did not intend to breach that trust and confidence. The test is whether, looking at all the circumstances objectively from the perspective of a reasonable person in the position of the Claimant the Respondent had shown an intention to abandon, or refuse to perform, the contract.

[64]In this case we find that the Respondent did the best that they could after a significant mistake had been made. The Claimant was reassured that he was valued, that he would be supported if he wished to obtain the relevant qualification and that the post would be kept open for him if he wanted while he obtained that qualification. While the news would have been enormously disappointing to the Claimant, it was not a fundamental breach of the duty of trust and confidence. It was an unfortunate but honest mistake, which the Respondent had no option, but to rectify. The Respondent is a healthcare provider and is required to ensure that those that they appoint to important roles have the skills and qualifications necessary to do them. The Respondent did what they could to soften the blow by telling the Claimant that they would keep the post open for him and that they would support him to undertake the necessary course. We are satisfied that they continued to assure the Claimant of their respect and confidence in him.

[65]Even if the Respondent could have been said to have been in fundamental breach of contract in withdrawing the offer which was made (and offering hm a different , and less attractive, offer) we agree with Mr McDevitt that by waiting some 10 months before resigning, he must be taken to have waived the breach and affirmed the contract. The Claimant was upset at what had happened but could not be said to have continued to “work under protest”. When he told Mr Villaflores on 27th September that he would not be moving forward in the process, the Claimant thanked Mr Villaflores “for taking the time to consider my candidacy and promised to continue in my present role and provide every assistant and be professional.” [sic] He did not raise a grievance until the date of his resignation and between April and December had not complained further.

[66]The Claimant was not constructively dismissed.