Miss J Thorpe v Cumbria,Northumberland, Tyne and Wear NHS Foundation Trust: 2500300/2023
EMPLOYMENT TRIBUNALS
Case No 2500300/2023
Between
Miss J ThorpeClaimantCumbria,Northumberland, Tyne and Wear NHS Foundation TrustRespondent
Before
Employment Judge Loy (siting alone)Mr A Tinnion (instructed by counsel) for claimantMiss M Martin (instructed by counsel) for respondentDate 10 July 2024
JUDGMENT
The unanimous Judgment of the Employment Tribunal is that:-[1]The claimants claim for constructive unfair constructive dismissal is well founded and succeeds.[2]The claimant’s claims of unlawful deduction from wages is well founded and succeeds.[3]The claimant’s claims of breach of contract is well founded and succeeds. 10.5 Reserved judgment with reasons – rule 61 1 March 2017
REASONS
Conclusions
[1]By a claim form presented on 14 February 2023 the claimant claims: 1.1. constructive unfair dismissal contrary to section 95(1)(c) and section 98 Employment Rights Act 1996 (ERA); 1.2. unlawful deduction from wages contrary to section 13 and section 23(1) ERA; and 1.3. further and in the alternative to 1.2 above , damages for breach of contract under section 3 Employment Tribunals Act 1996 and Article 3 of the Extension of Jurisdiction Order 1994.[2]In its response form dated 21 March 2023, the respondent denied all liability.
The issues to be determined
[3]Constructive unfair dismissal 3.1. Did the Claimant’s employment contract contain an implied term imposing a duty on the parties not to, without reasonable and proper cause, engage in conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (the “Implied Term”)?[4]If it did, did the following conduct by the respondent occur: 4.1. The respondent’s delay in dealing with claimant’s case from 30 April 2020 (date claimant suspended) to 11 November 2022 (date of resignation) [Amended PoC, para. 25(i)] [claimant’s case is that breach began by no later than 1 August 2020, remained an ongoing breach until claimant’s resignation on 11 November 2022; 4.2. The respondent suspended the claimant from 30 April 2020 to 11 November 2022 [Amended PoC, para. 25(ii)]. The claimant’s case is that breach began by no later than 1 August 2020, and remained 10.5 Reserved judgment with reasons – rule 61 2 March 2017 an ongoing breach until claimant’s resignation on 11 November 2022; 4.3. The respondent did not provide the claimant with a disciplinary outcome letter following the disciplinary hearing meeting on 21 July 2021 [Amended PoC, para 25(iii)(a)]. The claimant’s case is that the breach began by no later than 28 July 2020, and remained an ongoing breach until the claimant’s resignation on 11 November 4.4. The respondent did not provide the claimant with a letter explaining claimant’s continued suspension after 21 July 2021 [Amended PoC, para. 25(iii)(c)]. The claimant’s case is that the breach began by no later than 28 July 2020, remained an ongoing breach until claimant’s resignation on 11 November 2022; 4.5. The respondent ignored the claimant’s grievance lodged 21 October 2021 [Amended PoC, para. 25(iii)(d)].The claimant’s case is that the breach began by no later than 28 October 2021 and remained an ongoing breach until the claimant’s resignation on 11 November 2022.[5]To the extent the conduct occurred, did the respondent thereby breach the Implied Term? In particular(a) was the respondent’s conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence between the claimant and the respondent, and(b) if it was, did the respondent have reasonable and proper cause for that conduct?[6]Did the claimant resign in response (in whole or part) to one (or more) breach of the Implied Term?[7]If yes, did the claimant timely resign in response to one (or more) breach of the Implied Term, or did she unduly delay resigning in response to the breach, thereby losing the right to resign and claim constructive dismissal? 10.5 Reserved judgment with reasons – rule 61 3 March 2017[8]Unlawful deduction from wages 8.1. The claimant alleges that during the period of suspension she was paid her basic wage (rather than her “normal wage” which included shift allowance, overtime and unsociable hours payments). She alleges that there was no ongoing contractual basis for her continued suspension after August 2020, and claims the difference in her basic pay and normal play for the period of “wrongful suspension” for unlawful deduction from wages. She states that the period of wrongful suspension resulted in an ongoing loss of £12,000 per annum. 8.2. What is the amount of wages that were properly payable to the claimant at the time she was suspended? 8.3. Did the respondent make a deduction from the claimant’s wages which: 8.3.1. Was not required or permitted under the terms of the claimant’s contract of employment or under statute; or 8.3.2. The claimant had not given their written consent for. 8.4. If so, has there been a series of unlawful deductions?[9]Breach of contract 9.1. The claimant accepts that the respondent has a contractual right to suspend in accordance with the implied terms at paragraph 32 of her Grounds of Complaint. The claimant says that a reasonably competent investigation should have concluded at 3 months, and therefore by August 2020, there was no ongoing contractual basis for the continued suspension and the respondent was thereafter in breach of contract. 9.2. Did the respondent breach the claimant’s contract of employment by continuing to suspend her after August 2020? 9.3. If so, did the breach of contract cause the claimant to suffer loss during the period of suspension from August 2020 - November 2022? Evidence 8. The tribunal was provided with an agreed bundle of documents of 1410 pages. References in this judgement to the bundle are marked [ ]. 10.5 Reserved judgment with reasons – rule 61 4 March 2017 9. The claimant gave evidence on her own behalf. The claimant produced a witness statement of 62 paragraphs over 12 pages. The claimant was cross-examined by Miss Martin.[10]The respondent called three witnesses: 10.1. Ramona Duguid, the respondent’s Chief Operating Officer. Mrs Duguid produced a written witness statement of 72 paragraphs over 12 pages. Mrs Duguid was cross-examined by Mr Tinnion. 10.2. Gemma Rutherford, the respondent’s Group Head of Workforce and Organisational Development who produced a written witness statement of 28 paragraphs over 6 pages. Ms Rutherford was cross-examined by Mr Tinnion. 10.3. Angela Faill, the respondent’s Associate Director of Information Governance and Mental Health Legislation, who produced a written witness statement of 29 paragraphs over 6 pages. Ms Faill is also the respondent’s Data Protection Officer. Ms Faill was cross-examined by Mr Tinnion. A Note on the Findings of Fact[11]A central feature of the evidence in this case, was the allegations made by patient X against the claimant together with how the respondent managed its approach to the investigations to which the death of patient X gave rise.[12]The issues in dispute in this matter do not depend on the factual accuracy or otherwise of the allegations made by patient X. The tribunal therefore wants to make it clear at the outset both that it is unnecessary for the tribunal to express a view on the accuracy or otherwise of the allegations themselves or to make its own findings on the accuracy or otherwise of those allegations.[13]The tribunal therefore makes no attempt to address, let alone to make factual findings as to whether or not any of those allegations were accurate 10.5 Reserved judgment with reasons – rule 61 5 March 2017 Findings Of Fact[14]All of the tribunal’s findings of fact were made on the balance of probability.[15]The claimant joined the respondent NHS Foundation Trust on 31 May 2016 as a Band 2 Healthcare Assistant. On 26 March 2018, she was promoted to a Band 3 Nursing Assistant. In January 2020, the claimant started a 4 year nursing degree apprenticeship at Sunderland University. This was a course that the claimant could undertake while continuing her role on the ward. At that stage, the claimant was well on her way to pursuing her career as a professional nurse in healthcare.[16]The claimant was given a contract of employment [322-330]. That contract incorporated Agenda for Change. Agenda for Change is a national collective agreement applying to all NHS staff up to a certain level including that of the claimant. The claimant was entitled to be paid for basic contractual hours. If those was basic contractual hours included work for weekends, nightshift or evenings, the claimant received pay enhancements under Agenda for Change.[17]The claimant also had a contract for bank work. This enabled the claimant to work additional hours over and above her basic contractual hours. The claimant took advantage of the opportunity for additional bank work which allowed her to increase her overall level of pay.[18]The claimant was assigned to Ward Z . There are four wards on the Clinic all of which provide a secure facility for males with mental disorders/illnesses who have come into contact with the criminal justice system. Patient X was a patient in the Ward Z at the time relevant to these proceedings. Patient X had been referred from a prison facility.[19]Patient X was a patient on Ward Z and was therefore a patient to whom the claimant was responsible for providing clinical care. On 27 April 2020, patient X alleged that he was having an inappropriate relationship with the claimant. The claimant gave evidence that patient X had prior to that date made allegations about his relationship with the claimant that was untrue. Patient X had apparently said that the claimant was pregnant with his child. The claimant said that supervision records should have reflected that she reported these allegation to her superiors, but no such supervision records were produced by the respondent in these proceedings.[20]On 30 April 2020, the claimant was suspended by Helen Goudie (Clinical Manager). On 14 May 2020, the claimant was informed by Sandra Barker, 10.5 Reserved judgment with reasons – rule 61 6 March 2017 Associate Nurse Director, that she was to be subject to a disciplinary investigation [439]. That letter sets out the allegations as follows: ‘[that you] 1. Engaged in a relationship with a patient which breached professional boundaries; 2. Accessed and updated service user data on RiO was unauthorised and without consent; 3. Disclosed confidential information relating to the patient group and Trust.[21]The patient referred to first allegation is patient X. The letter does not mention the claimant’s suspension. However, it was common ground that the claimant had been suspended by Helen Goudie on 30 April 2020. The letter also said that Helen Goudie had been appointed as Investigatory Officer.[22]On 28 May 2020, the claimant was interviewed by Helen Goudie. The claimant was supported by her trade union representative, Mark Goodall. The notes are not disputed by the claimant, although she is understandably critical that the notes were not provided to her for many months.[23]There then started a series of extensions to her suspension. The claimant suspension was subject to monthly extensions in June, July, August, October, November and December 2020. The letters reflecting those extensions are in the bundle. Those letters are essentially in like form and identify the reason for the extension as the safeguarding allegations made against the claimant and the ongoing investigation. There was no review and extension letter in September 2020. There was no review and extension letter prior to the claimant’s disciplinary hearing in July 2021, some seven months after the final review and extension letter in December 2020.[24]The respondent’s disciplinary policy is at [102-125]. At paragraph 10 of the policy suspension is addressed. The relevant parts of that policy in relation to pay during suspension and the periodic review of extensions to the period of suspension are in the following terms: 10.5 Reserved judgment with reasons – rule 61 7 March 2017 ‘Suspension 10.1 There may be circumstances where it is necessary to suspend an employee; this will be on full pay with average enhancements… While a case is being investigated … 10.12 The Considering Manager must conduct a formal review in the event that a suspension continues beyond three months to ensure that appropriate progress is made. This will be reported to the Corporate Decision Team by the Executive Director of Workforce and Organisational Development.[25]There was a dispute about precisely what was meant by ‘average enhancements’. It was common ground that (somewhat unhelpfully) neither the respondent’s disciplinary policy or Agenda for Change define that term. The claimant’s position was that she should, in simple terms, not be financially disadvantaged as a consequence of her suspension. She should therefore have been paid essentially what she would have been paid had she not been suspended.[26]The respondent (somewhat later in the piece) acknowledged that the claimant had received only her basic pay. The respondent sought to rectify that by making a subsequent lump sum payment that the tribunal will come to below. The difference between what the claimant says she should have received whilst suspended and what she did receive (even when adjusted by the subsequent lump sum payment) is what the claimant claims by way of unlawful deduction from wages.[27]The claimant very sensibly accepted that patient X’s allegation entitled the respondent to suspend her. What was at the heart of the dispute between the parties, was the duration of that suspension. The claimant said that a reasonably competent investigation and disciplinary hearing would have been concluded within three months of her suspension. The effect would be that she should have been allowed to return to work on the terms communicated to her at the end of the disciplinary hearing on 21 July 2021 by no later than 1 August 2021.[28]The point of substance is that the claimant says that the investigation and disciplinary hearing should reasonably have been resolved within three months 10.5 Reserved judgment with reasons – rule 61 8 March 2017 (or there or thereabouts) and the fact that they were not and in the circumstances in which they were not, amounted to breaches of implied term of mutual trust and confidence in the claimant’s contract of employment.[29]On or around September 2020, during the suspension she started a social media profile called ‘Slice of Jess’. This started as a as an Instagram account where she uploaded images of food she had made. This is known as becoming a social media influencer and by the time of her witness statement in November 2023 the claimant accrued 50,000 followers. Around the same time, the claimant started making YouTube videos. By the time her witness statement was made, the claimant had 25,000 subscribers to her channel. She made some 580 videos in three years which is approximately three videos per week. This is capable of generating money from Google who place advertisements based on their own algorithm, which presumably assesses the commercial value of the volume and profile of a person’s followers/subscribers.[30]On 5 October 2020, the claimant attended a second interview [572-585]. At this meeting, the claimant was told that a new investigating officer, Anthony Deery (Group Nurse Director), had been appointed to replace Helen Goudie. The explanation given was that Helen Goudie should not have been the investigating officer in the first place because she was the person who suspended the claimant.[31]In the terms of paragraph 13.1 [113], ‘the Considering Manager[i.e. the investigating officer] must not be the same as the Manager that suspended the employee’. The rationale is to ensure impartiality from initial decision to suspend. Plainly that was a matter known to the respondent from the point of suspension on 30 April 2020.[32]The claimant does not dispute the accuracy of the notes of her second interview. What she says, is that just in the same way as the first interview, there was no reference to a mobile phone number. As will become clear in due course, the issue of whether or not the claimant was in regular contact with patient X became a feature of the prolonged suspension of the claimant. The point the claimant makes is that is not a matter which features in either of her first two interviews, whereas it became a central factor in the intervention by Mrs Duguid in preventing the implementation of the outcome delivered orally at the disciplinary hearing on 21 July 2021 and her continued suspension for some 16 months after that. 10.5 Reserved judgment with reasons – rule 61 9 March 2017[33]This is the matter which comes to be known as the ‘pink phone’ issue. The pink phone looms large in the justification for the continuation of the claimant suspension from 21 July 2021 onwards. In simple terms, the respondent under Mrs Duguid’s direction justified the claimants ongoing suspension because of concerns that the pink phone may be used by the claimant to contact patient X on a very large number of occasions before the claimant’s initial suspension on 30 April 2020.[34]On 14 December 2020, the claimant says that she spoke to Rachael Aitken, Ward Manager of the ward on which the claimant worked. The claimant says that Ms Aitken had told Rachael that a nurse on Aidan Ward had been overheard saying that this nurse wished that the claimant dead.[35]On 31 December 2020, patient X died. The claimant was not informed of the patient’s death at that stage. As things transpired, patient X’s death was found to be caused by a known but rare reaction to his medication.[36]On 13 January 2021, the claimant was sent the investigation report [614 – 642]. The investigation report included 13 statements taken from ward staff amongst. The claimant was told there would be a disciplinary hearing on 22 January 2022.[37]At this point, the claimant had been suspended for approximately nine months. The claimant criticises the respondent for its apparent inactivity between July 2020 and December 2020. The respondent brought no evidence to explain this delay. The claimant also remarks that the mobile phone number that was used to call the number the ward was only disclosed to her at this stage.[38]By a letter of 25 January 2021, Elaine Fletcher (Group Nurse Director) informed the claimant that the disciplinary hearing arranged for 22 January 2021 was to be postponed. Importantly, it was Mark Goodall, the claimant’s RCN trade union representative, who requested this postponement. The reason given for the postponement was to allow the claimant and Mr Goodall additional time to review the investigation report and its appendices. The disciplinary hearing was then rearranged for 2 March 2021. The first rearranged date of 2 March 2021, was again postponed because the claimant wanted further information to be collated. It was then rescheduled for a third time on 18 March 2021. That third rearranged date was postponed again at the request of the claimant who had raised concerns about not receiving information that she had requested.[39]In April 2021, Mrs Duguid joined the respondent as its Chief Operating Officer. Mrs Duguid explained that she was briefed on current/ongoing investigations as 10.5 Reserved judgment with reasons – rule 61 10 March 2017 part of her induction process. This included a briefing in relation to the disciplinary investigation in relation to the claimant. Accordingly, Mrs Duguid was aware of the outstanding investigation involving the claimant and the potential for a disciplinary hearing before the disciplinary hearing took place on 21 July 2021.[40]Mrs Duguid also became aware that there was a police investigation into the circumstances of patient X’s death. Patient X had died some eight months after the claimant had been suspended and some four months before Mrs Duguid took up her appointment. Mrs Duguid was also aware that there would be a police investigation, and that the Trust would need to carry out a Serious Incident Investigation, a Safeguarding review and that there would be Coronial proceedings.[41]Mrs Duguid said, and the tribunal accepts, that the death of a patient under the care of the respondent was a significant issue that needed to be investigated robustly. The tribunal also accepted that it was the in the interests of patient safety for that to take place. The tribunal also notes that the interests of patient X’s family would also need to be taken into account by the respondent.[42]At paragraph 14 of her witness statement, Mrs Duguid says that ‘With the benefit of hindsight it may have been appropriate for me to intervene and adjourn the hearing on the basis of the police investigation was ongoing. However, I was concerned that there had already been a significant delay to the disciplinary process and I had not been involved in the investigation findings or the detailed evidence from staff which had been provided’[43]The tribunal also noted that there was no reference by the parties to any provision in the disciplinary procedure (or any other procedure) which reserves the right of the respondent to suspend its employees in circumstances where multidisciplinary processes need to be undertaken and completed. Indeed, this case may have been a good deal simpler if there had been such a right and the claimant had been suspended under it.[44]On 19 May 2021,the claimant received a threatening telephone call from a withheld number. The claimant was told to ‘take this as a warning’. The claimant says she recognised the voice as that of Lauren Matthews, a nurse on the ward 10.5 Reserved judgment with reasons – rule 61 11 March 2017 on which the claimant worked . The claimant reported this threatening call to the Trust and the police.[45]At paragraph 22 of the claimant’s witness statement, the claimant complains of a further delay in the process to allow further enquiries about my supervision records and the mobile phone. She says that the second investigator report doesn’t appear until 27 May 2021 and that she has no idea why it took another five months for this report to be produced. The report is at [700 – 717]. The claimant does not refer in her statement to her own request through her trade union representative for the disciplinary hearing to be postponed. Nor does the claimant refer to the reasons why the second rearranged hearing 4 to March 2021 and the third rearranged hearing of 18 March 2021 were postponed.[46]The Tribunal is not suggesting that it was unreasonable for the claimant to require further time, but to be fair to the respondent it would have been more candid to explain that it was not solely at the respondent’s behest that matters had not proceed on previous occasions. In any event, by 27 May 2021 the concern by the respondent that the pink phone was a phone used by the claimant to contact patient X had become explicitly included in the case against her in respect of the first allegation that there had been an inappropriate relationship with patient X.[47]On 5 July 2021, the Trust received confirmation from the police that the police were content for the Trust to progress its own internal serious incident review into the circumstances that had led to patient X’s death. The police had previously asked in January 2021 for the Trust to hold off from doing so.[48]On 21 July 2021, the disciplinary hearing took place. This was during the Covid pandemic and was accordingly held by Teams. The hearing was chaired by Elaine Fletcher, Group Nurse Director. It was at this meeting that the claimant first learned of the death of patient X. At the end of that hearing, the claimant was told the outcome orally. The claimant was told that she was to receive a first written warning in respect of the second allegation that the claimant had accessed and updated user data from the respondent’s patient record database without authority or consent. By obvious implication the first and third allegations have not been upheld. The most serious of the allegations was the first allegation: that the claimant had engaged in a relationship with a patient which breached professional boundaries. That was patient X. 10.5 Reserved judgment with reasons – rule 61 12 March 2017[49]The claimant was told by Elaine Fletcher that she would receive a letter confirming the outcome. Plainly, it is an ordinary and natural expectation that, having been given the outcome orally, the claimant would receive written confirmation. It was common ground that the claimant never received any letter confirming the outcome of the disciplinary hearing 2021 before her resignation on 11 November 2022.[50]The undated letter at [951 – 957] was disclosed to the claimant in the course of these proceedings. There was no dispute that this was the draft letter that Elaine Fletcher told the claimant that she would receive following the oral outcome she was given at the end of the disciplinary hearing. That letter makes clear that the first allegation was not been upheld. The letter also makes clear that the third allegation had not been upheld. The letter confirms that the second allegation had been upheld and confirms the sanction in the same terms as were communicated verbally to the claimant on 21 July 2021.[51]The letter also says as follows regarding the claimant suspension: ‘Your suspension is now lifted and you will be contacted to arrange a return to work, taking into account an[y] support needed’[52]In relation to the first allegation, the undated and unsent letter says as follows: ‘The panel felt that whilst if there was no conclusive evidence that there was a relationship between you and patient X there may have been a blurring of boundaries due to the fact that patient X responded well to you. It is not felt that this was managed robustly by ward management, or that you receive the correct level of support and guidance around this. Therefore this allegation is not upheld’[53]Elaine Fletcher did not give evidence to the tribunal. However, it is not in dispute that this undated, unsent letter reflected precisely the oral outcome that the claimant had received at the end of the hearing on 21 July 2021. It is also not in dispute that Elaine Fletcher did not consider that patient X’s allegation of an intimate relationship with the claimant had not been established on the evidence that she heard. It is also pertinent that Elaine Fletcher appeared to be reading from a document when she verbally informed the claimant of the outcome of the disciplinary hearing. 10.5 Reserved judgment with reasons – rule 61 13 March 2017[54]When the claimant left the disciplinary hearing on 21 July 2021, some one year and three months after her suspension, that she reasonably understood that: 54.1. The first allegation had not been upheld. 54.2. The first allegation was the most serious allegation. An allegation of inappropriate behaviour towards patient X. 54.3. The second allegation had been upheld. 54.4. She would be receiving a first written warning effective for 12 months because the second allegation had been upheld. 54.5. The third allegation had not been upheld. 54.6. She would be returning to work as soon as the practicalities could be arranged. 54.7. The claimant suspension would be lifted to enable a return to work to take place.[55]The claimant did not receive any written confirmation of the oral outcome which she received at the end of the disciplinary hearing. Instead, on 30 July 2021, the claimant received a letter from Mrs Duguid, the respondent’s Chief Operating Officer [791]. The letter informed the claimant as follows: ‘Dear Jessica I am writing to you following the disciplinary hearing held on 21 July 2021. Unfortunately, we are not in a position to reach a conclusion of this process given the connectivity your case has with other investigations which are active and involve other agencies. I understand this will be potentially distressing for you given the period of time you have been suspended from work. It is important for me to stress that this decision is in the interests of ensuring the integrity of other investigations which have not yet concluded. …’ 10.5 Reserved judgment with reasons – rule 61 14 March 2017[56]The letter goes on to anticipate a meeting in person or via Teams to discuss the contents of the letter.[57]Mrs Duguid’s evidence at paragraphs 17 and following of her witness statement, was that she ‘subsequently reviewed the full disciplinary investigation file and all the supporting statements from 13 members of staff.’ This includes one of the staff member statements (which was available prior to the disciplinary hearing) in which patient X apparently disclosed that he/she had been in an intimate relationship with the claimant for some months. It included a reference to patient X saying that he/she was stressed about this and the impact it might have on him/her being sent back to prison if the relationship was discovered. This is also when Mrs Duguid became aware of the 280 calls that had been made to the ward payphone form a mobile number which came to be known as the pink mobile phone [612 – 613].[58]Mrs Duguid also made reference in her witness statement to the contemporaneous view of the responsible clinician for patient X. The responsible clinician said that patient X did not express delusional thoughts or have a history of raising unfounded concerns. The responsible clinician also refers to alleged details of a sexual nature and an alleged intimate relationship that patient X had told them that he/she was having with the claimant. The responsible clinician also refers to the fact that patient X was ‘extremely worried’ about the potential consequences for himself and the claimant.[59]Mrs Duguid explained that she had two principal concerns. First, the existence of an active police investigation into the circumstances of the death of patient X; and, secondly, the clinical deterioration of patient X which was documented in staff statements [532, 533 & 543].[60]Looked at objectively, the claimant’s concern was not just that she had been suspended for such an elongated period, but that she understood that she would be returning to work and that her suspension had by necessary implication was about to be lifted.[61]In addition, the statement that the Trust was not in a position to reach a conclusion of ‘this process’ can only reasonably be understood as a reference to the disciplinary process. Looked at objectively, that process had been concluded with the outcome being that referred to in paragraph 48 above. In the tribunal’s assessment, there was no reasonable basis for Mrs Duguid to suggest that the disciplinary process had not already ended and that the claimant’s suspension 10.5 Reserved judgment with reasons – rule 61 15 March 2017 was about to be lifted. At the risk of stating the obvious, Elaine Fletcher could not have been anticipating the claimant’s return to work after the conclusion of the disciplinary hearing on 21 July 2021, without implicitly envisaging that the claimant’s suspension would be lifted.[62]In reality, Mrs Duguid had supervened at the level of Executive Director to countermand the outcome that Elaine Fletcher had reached. As Mrs Duguid says at paragraph 14 of her witness statement, she may with the benefit of hindsight have been better served by intervening earlier. However, she did not. This left the claimant in an entirely unsatisfactory position. She had been suspended for well over a year. She had been given the outcome of a disciplinary hearing the effect of which was that she would be returning to work subject to a written warning. However, she was now being told by an Executive Director, who had not to her knowledge previously been involved in the matter, that was no longer the case.[63]On 10 August 2021, Mrs Duguid attended a meeting with the police to discuss the status of the investigations. Mrs Duguid tells us in her witness statement that amongst other things she shared with the police the fact that 280 calls had been made from a specific phone number to ward on which the claimant wor. It is clear that Mrs Duguid was sharing this information with the police because of their greater investigatory powers which could potentially be used to trace the owner of the pink mobile phone.[64]On 11 August 2021, the claimant had her first meeting with Mrs Duguid. This meeting was again held by Teams. The upshot of the meeting was that the claimant was told that the Trust would not be bringing her back to work until two further processes had been concluded: first, the police investigation into the death of patient X; and, secondly, the Trust’s own Serious Incident process.[65]Neither of these two investigations were unknown to the Trust when the claimant disciplinary hearing was concluded on 21 July 2021. By this time, Mrs Duguid had been in post for over four months and on her own evidence she had become aware of and familiarised herself with the issues surrounding patient X’s death and the claimant’s disciplinary process. The apparent necessity for these two processes to be concluded would no doubt have come as a surprise to the claimant who had been led to understand on 21 July 2021 that she would shortly be returning to work. 10.5 Reserved judgment with reasons – rule 61 16 March 2017[66]The claimant’s position was that she thought that she had already demonstrated the pink phone could not be hers due to evidence she had already produced that an 11 minute call and a separate 6 minute call from the mobile phone number had been made at the same time that the claimant was able to produce two photographs of herself in a social setting in neither of which she was using any phone at all. The claimant also raised her own concerns at this meeting about the threatening phone calls she had received in respect of which the Trust had (to the claimant’s knowledge) not looked into.[67]The tribunal formed the view that Mrs Duguid was very seriously concerned that the pink phone belonged to the claimant and that it was the claimant who had made the 280 calls that were made from it to the ward on which the claimant worked . Mrs Duguid’s subsequent attempts to persuade the police to use their investigatory powers investigative powers fortified the tribunal’s view in this regard. It appeared the tribunal that Mrs Duguid was not satisfied that the disciplinary investigation had run down (or through lack of its own investigatory powers been unable to run down) this aspect of the allegation that patient X and the claimant had been in an inappropriate relationship. For Mrs Duguid, this raised continuing safeguarding concerns and related issues of patient safety which in her executive capacity she prioritised over acknowledging the finality of the disciplinary hearing on 12 July 2021.[68]Mrs Duguid again wrote to the claimant on 12 August 2021 [812]. That letter addressed the reason for not permitting the claimant to return to work in the following terms: ‘it is important that the status of [the police] investigation is concluded in order to be clear on the information shared between agencies and any implications or additional elements of the investigation which may need to be considered. The Trust is working with the Police in the sharing of information and relevant disclosures, which I confirmed would potentially include some of the information gathered as part of the disciplinary investigation into breach of professional boundaries by you and this deceased patient. The supporting evidence obtained as part of this investigation, and the outcome reached is likely to be shared with the Police. The Police may also want to speak to you as part of concluding their investigation. 10.5 Reserved judgment with reasons – rule 61 17 March 2017 In addition to this, I also confirmed that the Police have now confirmed that the Trust can commence the internal serious incident investigation into the death of this patient, which may also include factors relevant to the allegations made in your disciplinary investigation. Whilst I realise this is a stressful time for you, for the reasons outlined above it is in the interests of protecting you and also the integrity of other investigations which need to conclude for you to remain suspended from work at this time. I have noted the concerns you also raised [i.e. the threatening phone calls], which I realise you have raised previously and I can confirm that these matters will be looked into when the timing is appropriate for us to do so.’[69]Accordingly, Mrs Duguid made it explicitly clear in her letter that the status of the claimant at the time for her meeting of 11 August 2021 (and ongoing) was that of being suspended from work.[70]It is important to state that the tribunal accepted that at all times Mrs Duguid was acting out of what she saw as professional obligation to prioritise patient safety. Mrs Duguid’s evidence was that she realised that the different processes that were undertaken in serious matters such as the death of a patient were not stitched together. As the tribunal understood it, Mrs Duguid wanted to establish a broader approach from the Trust so that the processes did not work in silos but worked more holistically. There was nothing wrong with that position in principle.[71]However, what happened here in the tribunal’s view was that Mrs Duguid sought to superimpose that holistic approach i.e. when the disciplinary hearing had effectively concluded. Mrs Duguid saw the danger in this which was that the claimant might be returned to work in circumstances where other investigations (the police investigation, the Trust’s Serious Incident investigation its Safeguarding review and the coronial process) might come to conclusions about the relationship between the claimant and patient X which were different and possibly inconsistent with the decision of the Trust at the disciplinary stage not.[72]Mrs Duguid’s position was that the processes needed to be undertaken with an overarching managerial oversight. However, in this particular case the tribunal concluded that Mrs Duguid was also very concerned in particular about the evidence of the pink phone and the volume of calls that had been made from an unidentified phone number to a phone on the ward on which the claimant worked during the period leading up to the claimant’s investigation and ending no later than her suspension on 30 April 2020. 10.5 Reserved judgment with reasons – rule 61 18 March 2017[73]As the tribunal understood it, Mrs Duguid’s concern was that there may have been a connection between an inappropriate relationship between the claimant and patient X and a decline in patient X’s mental health. Mrs Duguid also referred to the view of patient X’s responsible clinician that patient X summarised Mrs Duguid’s witness statement that patient X ‘did not express delusional thoughts or have a history of raising unfounded concerns. This statement also included details of a sexual nature and an intimate relationship between the claimant and patient X, which patient X had disclosed to the responsible clinician [612]’ - see paragraph 21 of Mrs Duguid’s witness statement.[74]On 13 September 2021, the Trust’s Serious Incident Report was concluded. The material conclusion was: ‘No significant findings were identified during the scope of the investigation, and therefore no findings or recommendations will be reported [1246].[75]A second Teams meeting between the claimant Mrs Duguid took place on 14 September 2021. There is no note of this meeting and neither the claimant nor Mrs Duguid gave evidence about what was said at that meeting.[76]On 20 October 2021, the claimant raised a grievance which she sent to the Trust’s Chief Executive. At paragraph 34 of her witness statement, the claimant summarises the complaints as follows:• Withholding my disciplinary outcome letter and keeping my case open• Failing to provide me with regular updates• I was receiving basic pay only and losing about £1,000 a month in earnings[77]On 21 October 2021 [829], the Trust completed its Serious incident Investigation. The claimant made the point that she was not interviewed as part of the process that led up to that outcome.[78]Mrs Duguid’s position on the claimant’s grievance is set out at paragraph 37 of her witness statement. She says that she agreed that the claimant’s grievance would be looked at independently after the police investigation had concluded. The parties to that agreement appear to have been Mrs Duguid and the Executive 10.5 Reserved judgment with reasons – rule 61 19 March 2017 Director of the Workforce, Gemma Rutherford. It was not suggested that the claimant agreed to that approach.[79]On 17 December 2021, Ms Faill (Associate Director of Information Governance and Mental Health Legislation) sent an email to Mrs Duguid which confirms that the police considered that ‘there was no role/line of enquiry for them therefore our [Serious Incident Investigation] and their findings were being submitted to the Coroner. [The police] did say that the Coroner may or may not ask about this…’ [836-837]. This information appears to have been acknowledged by Mrs Duguid on 13 January 2022 [838]. The claimant was not approached by the police for the purposes of their investigation. It would appear to follow from this that the claimant’s grievance could now be proceeded with given that that the claimant’s grievance had been held in abeyance until the police investigation had concluded.[80]On 14 January 2022, Peter Astbury (Head of Clinical Risk, Incidents and Investigations) informs Mrs Duguid that he had spoken to the Trust’s legal advisers in connection with the Coroner’s inquiry and that ‘the pre-inquest review will likely give us a much better idea of how interested the Coroner is going to be on the HR side of things as at this time we can’t really can’t predict how much weight the coroner is going to give to it.’ [840].[81]Mrs Duguid’s evidence at paragraph 42 of her witness statement, was that she still did not think it was appropriate to bring the claimant back to work. This was because in Mrs Duguid’s view it was unclear whether or not the coroner would be considering the disciplinary investigation findings.[82]On 29 April 2022, Mrs Duguid emailed the claimant to set up a meeting to update her. Mrs Duguid also referred to the need for a Safeguarding review to be completed.[83]On 28 May 2022, a third meeting took place between Mrs Duguid and the claimant. The claimant’s notes of this meeting are at [851-862]. 10.5 Reserved judgment with reasons – rule 61 20 March 2017[84]The claimant comments that in the intervening nine months since her disciplinary hearing, she had received no extension letter regarding her suspension nor any letter regarding a review of her suspension. The claimant also points out that she had heard nothing further about the grievance she had submitted over seven months previously.[85]At the meeting on 28 May 2022, the claimant says she was given yet further reasons for the delay in her return to work: first an upcoming pre-inquest review hearing to be conducted as part of the coronial process and, secondly, the Trust’s need to undertake a safeguarding report.[86]By this stage, the claimant had been suspended for over a year. The claimant had been told in August 2021 that, notwithstanding the outcome of her disciplinary hearing, she would not be allowed to return to work until the conclusion of the police investigation into the death of patient X and the respondent own serious investigation into that incident. Those matters appear by the time of the third meeting with Mrs Duguid to have been concluded.[87]Now the claimant was being told there were two more (previously unmentioned) processes that needed to be undertaken before she could return to work. The claimant says that she was nonetheless assured by Mrs Duguid at this meeting that both the pre-inquest review hearing and the safeguarding report would be concluded by 30 June 2021 i.e. within a further month.[88]At the meeting of 28 May 2022, the claimant made a further request for the notes of the disciplinary hearing on 21 July 2021 and again raised the issue of the shortfall in the payments that she had been receiving during her very lengthy period of suspension.[89]On 16 June 2022, Mrs Duguid prepared the terms of reference for the safeguarding report [863 – 865]. Paragraph 4.4 of the terms of reference is in the following terms: 10.5 Reserved judgment with reasons – rule 61 21 March 2017 ‘If there are no further issues identified by the Coroner or from the Safeguarding review the Trust will be looking to support staff member JT returning to work and recommencing their nurse training.’[90]On 20 June 2022, the pre-inquest review took place. Mrs Duguid says in her statement at paragraph 50 that she still did not regard it appropriate for the claimant to come back to work. This was because it was ‘still a possibility’ that HM Coroner would ask questions in respect of the serious incident report and/or about a side note which on legal advice the respondent had provided to the coroner. The side note was not made available to the tribunal.[91]The next communication with the claimant was Mrs Duguid’s letter of 8 July 2022 [879 – 880]. Mrs Duguid informed the claimant that the Trust had received no request for information from the police regarding either the disciplinary investigation generally or the particular matter of the alleged inappropriate relationship between the claimant and patient X. Mrs Duguid goes on to inform the claimant that the Trust had shared its internal serious investigation report with the Coroner in advance of the pre-inquest hearing. Mrs Duguid’s letter goes on to say the following: ‘The Trust has had the pre-inquest meeting was preparing the necessary information to support the lines of enquiry. As part of this, the legal advisers to the Trust are reviewing what information we may need to supply in the context of the Human Resource investigation involving you and the deceased patient. A further meeting to discuss this is being arranged and I cannot comment further on this at this stage. … As part of this safeguarding review, I have shared specific points of reference from the disciplinary investigation, including the inability to determine the source of a regular mobile phone number used to contact the deceased patient. I confirmed at our meeting that following the pre-inquest hearing and the conclusion of the safeguarding review, I was hopeful we would be in a position to move forward provided these items did not have any further considerations in July. Unfortunately, these two matters have not concluded. 10.5 Reserved judgment with reasons – rule 61 22 March 2017 I realise the length of time you been suspended from work and you will be disappointed we are not in a position to move forwards. However, it is essential for me to stress again, but the conclusion of these matters are important.’[92]On 19 July 2022, the respondent Safeguarding review was concluded.[93]Also in July 2022, the claimant received what purported to be two payments in respect of a shortfall in the pay that she had received during her period of suspension. The first payment was for two years’ arrears of holiday pay and the second payment was for arrears of pay owing to the claimant in respect of her suspension. The suspension pay was £214.68 x 26 months giving a total of £5,581.68. The arrears of holiday pay in respect of each year that the claimant had been suspended was £1,900 for the first year and £2,900 for the second year.[94]On 14 September 2022, the claimant received another threatening call from a withheld number. She reported the matter to the police. The claimant told Mrs Duguid about this further call in their meeting of 20 October 2022.[95]On 2 August 2022, the claimant made a subject access request [892] in an effort to obtain the disciplinary notes from her disciplinary hearing on 21 July 2012 (over one year previously).[96]On 3 October 2022, the claimant sent what she describes in her witness statement as a final letter (in fact an email) to the Trust [898-899]. The email was sent to a broad range of executive and senior managers at the Trust. It is worth setting out the claimant’s email in full. ‘Dear all As you may know, I have been suspended since April 2020. I was called to a disciplinary hearing in July 2020 where I received a warning for inappropriate use of a laptop. Since then, my paid suspension has continued without lawful reason. A grievance submitted by me in October 2021 has been ignored. It is my belief all of this arises from the death of a patient on [the ward on which the claimant worked] , investigations into it by the Police and other Agencies, and a misplaced view that I am in some way accountable for these events, which is wrong and without any lawful basis. 10.5 Reserved judgment with reasons – rule 61 23 March 2017 Once again, I seem to have dropped off the radar yet again, please could one or more of you respond to the following points, as I have had no communication from anyone in the Trust for over a month.• Welfare phone calls - These have appeared to have stopped with no warning. My last phone call was on 18 August, with a scheduled call on 5 September at 3 pm with Heather Turner who did not ring, and also did not respond to my email enquiring the absence of her call.• Missing information - I requested during my phone calls with Heather Turner & Gemma Rutherford for a breakdown of my payment of the sum that I was paid on 11 July. I also requested a copy of my payslips. Neither have been provided.• Subject Access Request - I filed a subject access request with the disclosures department on 2 August, I was asked for proof of ID which was provided on 8 August. I was advised that this took 30 days to provide a response, and to date I have not heard back.• Meetings with Ramona Duguid & my union rep - I was advised of actions to be complete by the end of June, however I have not heard anything since then.• Grievance - I filed a grievance in October 2021 with John Lawlor who passed this to Lynne Shaw. She advised it would be dealt with in due course, and although I have been advised that this would not be looked into straight away, we are now nearly a year down the line, is this a normal or reasonable length of time for the Trust to respond to staff concerns? I feel that I have been very patient over the last 29 months of this suspension, and 14 months since my disciplinary hearing where I was advised of the end of that hearing via a written letter read out to myself and my union rep that I would be returning to work shortly. This letter along with the notes from the hearing appear to be withheld from myself as I have requested these multiple times. 10.5 Reserved judgment with reasons – rule 61 24 March 2017 I feel as though there is some sort of cover up in process, intended to keep me out of the workplace and from discussing matters with colleagues. I’ve been left with no choice but to send this email to you all collectively, as individually, I appear to have been ignored. I hope to hear from one or all of you soon with a resolution to my situation. I am a healthcare professional who was been sitting at home on paid suspension for 29 months and that cannot be in the public interest. Thanks Jess’.[97]Much of that email is a simple statement of facts. The only area with which the tribunal disagrees is in relation to the suggestion that there is some form of cover up. The tribunal rejects that interpretation wholeheartedly. What has happened here in the tribunal’s judgement is that Mrs Duguid was committed to prioritising the interests of patient X over all other factors. Given her professional designation and her role within the respondent, that is plainly a responsible position to adopt. As Mrs Duguid says herself, this is a question of balancing competing priorities. That is not an easy task to do, and nor does Mrs Duguid suggest that it is.[98]The tribunal has also come to the conclusion that Mrs Duguid had her own very serious doubts about whether or not the claimant had in fact engaged in an inappropriate relationship with patient X. Mrs Duguid was not looking to cover that up. Far from it, she was determined to get to the bottom of it by whatever means she reasonably could. In the tribunal’s view, Mrs Duguid was heavily influenced by a number of significant matters: 98.1. The professional view of patient X’s responsible clinician who stated that patient X did was not prone to expressing delusional thoughts about the claimant and had no clinical history of raising unfounded concerns; 98.2. The coincidence of some 280 calls being made from an unidentified source to the ward on which the claimant worked when, first, the claimant was on shift and, secondly, patient X had reported that there was a second mobile phone being used to enable his communications with the claimant; and 10.5 Reserved judgment with reasons – rule 61 25 March 2017 98.3. The possibility that an inappropriate relationship with the claimant may have been a contributing factor to a deterioration in the mental health of patient X who may have been concerned about being sent back to prison if the relationship became known.[99]The tribunal wishes to emphasise that it has not and does not need to come to any conclusion about whether or not those concerns were well-founded. The tribunal simply records what it understands to be the concerns operating on the mind of Mrs Duguid at the time as the underlying reason she continued the claimant’s suspension and the consequential delay.[100]Mrs Duguid’s reply to the claimant’s email to the claimant’s email of 3 October 2022 [898] is also worth setting out in full to demonstrate the respective positions adopted by the claimant and the respondent in the immediate lead up to the claimant’s resignation on 11 November 2022. Mrs Duguid replies in the following terms: ‘Dear Jess Thank you for your email, which I briefly discussed with Lynne and James yesterday. I realise the time you have been suspended from work is both significant and exceptional in relation to the circumstances. Whilst I accept the information and clarity you are seeking as to next steps may feel like this is not progressing, however there is a significant amount of work being taken forward in relation to the Coronial process relating to the death of the patient who made allegations that they were in a relationship with you. It is essential for both you and the family of the deceased that we ensure appropriate safeguards are in place given the nature of this inquest, which is an ‘Article 2 inquest’. The inquest is scheduled for mid-October. It would be appropriate to arrange to meet as soon as possible after the inquest therefore I will ask Emma to arrange a meeting before the end of October Whilst I can’t pre-empt any of the outcome of the inquests or lines of inquiry, I will discuss the scenarios we need to plan for in advance of when we meet so that I can hopefully be in a position to offer you more clarity when we meet before the end of October. 10.5 Reserved judgment with reasons – rule 61 26 March 2017 I will follow up the welfare calls, we have had some staff absences however this should not affect the calls to you and I’m sorry this has. I am not involved in the subject access requests process but I will make Angela Faill aware of the concerns you have raised with delays. I will get Emma to get a date set for us this week so you know this is in the diary. With best wishes Ramona’[101]Mrs Duguid’s reply does not address the contention that the claimant’s grievance has been ignored, her request for a breakdown of monies that are owed or for the failure to conclude matters by 30 June 2022.[102]On 13 October 2022, the inquest into the death of patient X concluded. It was common ground that the claimant was not contacted by the Coroner’s Office in the same way that she had not been contacted by the police or the Trust in relation to its Serious Incident investigation or the Safeguarding Review. The cause of death was identified as complications arising from prescribed medication.[103]On 20 October 2022, a fourth meeting took place between the claimant to Mrs Duguid. The claimant’s notes of that meeting are at [913 – 923]. At this meeting the claimant told Mrs Duguid about the further threatening phone call she had received on 14 September 2022.[104]Also at this meeting, Mrs Duguid made further reference to the pink mobile phone which the claimant took as an insinuation that her denial that the mobile phone was hers had not been accepted by Mrs Duguid. A discussion also took place about members of staff having raised concerns about the alleged relationship between the claimant and patient X. The claimant objected to the characterisation by Mrs Duguid of such ongoing concerns as ‘human behaviour is human behaviour’. The implication was that Mrs Duguid was powerless to prevent staff on the ward from continuing to discuss their concerns about the claimant’s relationship with patient X. The claimant regarded such matters as gossip which could have been and should have been stamped out by the respondent.[105]The meeting also discussed the claimant’s outstanding grievance. Mrs Duguid asked the claimant what parts of the grievance she wished to pursue in the light 10.5 Reserved judgment with reasons – rule 61 27 March 2017 of her imminent return to work. I don’t regard that as Mrs Duguid sidestepping the fact that the grievance had not been dealt with since it was raised on 20 October 2021.[106]By letter dated 28 October 2021 [926-927] Mrs Duguid wrote to the claimant to summarise the claimant’s position now that the disciplinary investigation; the police investigation; the Serious Incident investigation; the Safeguarding Review and the coronial investigation had all now been completed. The most material parts of that letter read as follows: ‘Dear Jess … Given that these matters have concluded I confirmed at our meeting that we are now in a position to return you to work following your suspension in relation to this matter. I confirm that it would be sensible to put in place some experienced nursing pastoral support for you in the first instance to talk through the steps we need to take in getting you back to work. I am pleased that Vida Morris will be the contact person who will be supporting you with this and I have asked Vida to make contact with you to arrange the next steps. At our meeting I also confirmed that the letter following your disciplinary hearing would be sent to you… You also raised a grievance against the Trust and agreed to review the elements of this with your union representative in relation to the areas you would like to be taken forward and reviewed. This has been an exceptional case for the Trust and I realise the length of time you been suspended from work. I will ensure the learning from disciplinary cases which involved active police investigations surrounding the death of patients are taken into account when panel hearings are convened in order to ensure all elements are fully considered in the very rare and exceptional cases such as this one. …’[107]Vida Morris is an experienced Senior Nurse for Pastoral Care and Development. The tribunal accepted Mrs Duguid’s evidence that she selected Vida Morris because of the impact of the long period of suspension and surrounding circumstances would have had on the claimant both personally and 10.5 Reserved judgment with reasons – rule 61 28 March 2017 professionally. Mrs Duguid also says in her witness statement that the concerns that the claimant had about ‘gossip’ from ward staff would be another matter that the claimant could discuss with Vida Morris.[108]It was Mrs Duguid’s expectation that the claimant will now be returning to work with the support and assistance of Vida Morris. The tribunal accepted that this was a legitimate expectation on Mrs Duguid’s part bearing in mind that Mrs Duguid had expressly told the claimant orally on 20 October 2022 and in writing on 28 October 2022 that ‘I confirmed at our meeting that we are now in a position to return you to work following your suspension in relation to this matter.’[109]The tribunal accepts that by 20 October 2022 the respondent’s position was that the claimant would be returning to work. Those are matters that Mrs Duguid wanted the claimant to discuss with Vida Morris. That said, the tribunal also noted Mrs Duguid’s evidence at paragraph 62 of the witness statement that ‘a secure unit was no longer considered appropriate.’ Mrs Duguid does not elaborate on that caveat. The tribunal understood that as a reference back to one of the caveats to the claimant’s return to work that was discussed on 21 July 2021 and which are set out at in the unsent letter that Elaine Fletcher had been expecting to send to the claimant following the disciplinary on 21 July 2021 [956]. The relevant caveat is as follows: ‘That you were transferred from [the ward on which the claimant worked\]. I will explore the options available and you will be contacted separately to confirm this.’[110]That of course, did not, preclude the claimant being returned in July 2021 to Cuthbert, Cuthbert Annex or Oswin wards, all of which are secure facilities within the Clinic.[111]In respect of the claimant’s grievance, Mrs Duguid’s position was that the claimant agreed at the meeting of 20 October 2022 to review her grievance with her union representative to confirm which elements of the grievance she wished to take forward in the light of the fact that she was now returning to work. Mrs Duguid says that the claimant did not get in touch with her or anyone else from the Trust following that meeting regarding her wishes in respect of her grievance. Mrs Duguid tasked the Executive Director of Workforce and Organisational Development (Gemma Rutherford) to pick up the grievance next steps to ensure that they were looked at independently for the claimant. 10.5 Reserved judgment with reasons – rule 61 29 March 2017[112]The claimant knew on the basis of Mrs Duguid’s letter of 28 October 2022 and the preceding meeting on 20 October 2022 that Vida Morris had been appointed to oversee and facilitate the claimant’s return to work. The claimant was informed both at the meeting of 20 October 2022 and in the subsequent letter of 28 October 2022 that she should anticipate contact being made by Vida Morris.[113]Vida Morris contacted the claimant by email on 8 November 2022 [934 – 936] and asked the claimant to give her a call or to provide a contact number so she could give the claimant a call to discuss the arrangements for the claimant’s return to work. Ms Morris sent the same message as she had left by email on 8 November 2022 to the claimant by a letter sent recorded delivery to the claimant’s home address [934 – 955].[114]By a letter dated 11 November 2022, the claimant resigned her employment [938 – 939]. In her witness statement, the claimant explained that there had been a three week delay before the promised contact from Vida Morris transpired. By this, the tribunal understands the claimant is be referring to the period between her meeting with Mrs Duguid on 20 October 2022 and receipt of the email message from Vida Morris on 8 November 2022. The claimant also received a letter by recorded delivery and there was no suggestion that the claimant had been attempting to contact was Vida Morris or anyone else in that period of three weeks.[115]In her letter of resignation, the claimant provides the following reasons for her decision to resign: 115.1. She did not receive an outcome letter following the disciplinary hearing on 21 July 2021; 115.2. She continues to be the subject of insinuations that the pink mobile phone belonged to her and, by implication, had been used to contact the patient X; 115.3. The failure on the part of the Trust to address the ongoing gossip about the alleged relationship between herself and patient X and the failure to investigate the threatening phone calls that the claimant had reported to the Trust; 10.5 Reserved judgment with reasons – rule 61 30 March 2017 115.4. The Trust had ignored her grievance; 115.5. The financial and emotional impact of the whole process on her; and 115.6. The underpayment of monies owed to her.[116]The claimant rejects the respondent’s assertion in these proceedings that the reason for the claimant’s resignation that she wanted a to pursue her career as a Social Media Influencer. The tribunal accepts the claimant’s evidence that the ‘Slice of Jess’ was only started during the period of suspension initially as a hobby. The tribunal notes that the significant success of a Slice of Jess which was attracting some 50,000 followers. The claimant’s tax returns show that her income from Google rose from £4,211.00 in 2021 to £19,222.00 in 2023.[117]On 14 November 2022, Vida Morris contacted Ms Faill asking whether Ms fail had heard from the claimant. Both Vida Morris and Ms Faill were at this stage unaware that the claimant had resigned. Also on 14 November 2032, Vida Morris contacted the claimants to book a support meeting [940]. Ms Faill and Vida Morris then became aware that evidence had been overtaken by the claimant’s resignation on 11 November 2022.[118]The claimant also claims a shortfall in the average enhancements to her basic pay that she says she should have received during the period of her suspension.[119]First, the claimant says that the period taken by the respondent to calculate average enhancements was artificially low because it ran from 30 April to 31 May 2020. The claimant point out that she was suspended throughout May 2020.[120]The claimant also challenges the basis of calculation of average enhancements. The way in which the Trust calculated the average enhancements was to adjust the basic pay for the enhanced pay elements that were payable during the hours which the claimant was required to work within her scheduled shift pattern. That method of calculation would include enhanced pay elements for weekends, bank holidays etc. cetera within the scheduled shift pattern. The claimant says that the average enhancements should also include additional regular work that she undertook such as overtime and bank work.[121]The claimant also claims for a shortfall in pay after the period which it contends any reasonable investigation disciplinary hearing would have concluded i.e. by 31 July 2020. The claimant therefore claims damages for breach of contract between 1 August 2020 and the date of resignation on 11 November 2022. The 10.5 Reserved judgment with reasons – rule 61 31 March 2017 claimant also claims loss of the pension contributions that she would have received on top of her wages which she estimates to be about £5000 per year.[122]After the claimant resigned she obtained employment as a Care Worker in the private sector where she worked on an ‘as and when required basis’. The claimant applied for a job as a Band 2 Health Care Assistant with Northumbria Healthcare, the status of which was outstanding at the date of these proceedings. The relevant law Constructive dismissal
The relevant law
[123]Section 95 Employment Rights Act 1996 (ERA) sets out the circumstances in which an employee is dismissed: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if) –a. the contract under which he is employed is terminated by the employer (whether with or without notice),b. he is employed under a limited-term contract and that contract terminates by virtue of the limiting event without being renewed under the same contract, orc. 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.”[124]Plainly, if an employee has been expressly dismissed by his employer then section 95(1)(a) applies, and there is no need for the employee to show that he has been constructively dismissed. The test of whether an employee has been constructively dismissal is as set out in section 95(1)(c) ERA and is the statutory version of a principle originally established at common law. However, where there has been no express dismissal and there has been no termination by virtue of a limiting event under section 95(1)(b), it will be for the employee to show that the 10.5 Reserved judgment with reasons – rule 61 32 March 2017 provisions of section 95(1)(c) have been satisfied and that s/he has been constructively dismissed .[125]If an employee who has resigned his/her employment is unable to show that the provisions of section 95 (1)(c) have been satisfied, that employee will not be treated as having been dismissed. It follows that if an employee has resigned and not been dismissed s/he cannot assert a right not to have been unfairly dismissed. If an employee does satisfy the provisions of section 95(1)(c) then his/her resignation would be treated as a dismissal for the purposes of the law of unfair dismissal set out in Part X ERA.[126]Importantly, satisfying section 95(1)(c) establishes only that a claimant has been dismissed. Provided that the employee satisfies the other qualifying conditions to bringing a claim of unfair dismissal (such as any requirement for a qualifying period of service), that employee has the right not to be unfairly dismissed and the right to bring proceedings in the Employment Tribunal complaining of unfair dismissal. An Employment Tribunal might nevertheless find in appropriate circumstances that a constructive dismissal is fair where that dismissal is for a potentially fair reason under section 98(1) or(2) ERA and that the claimant’s constructive dismissal for that reason meets the requirements of fairness under section 98(4) ERA.[127]In order to establish that the requirements of the section 95(1)(c) are met, the employee must show: 127.1. there was a fundamental breach of contract on the part of the employer that repudiated the contract of employment; 127.2. the employer’s breach caused the employee to resign; and 127.3. the employee did not delay too long before resigning, thereby affirming the contract. Breach of contract[128]The first step is to identify the term of the contract of employment which is said to have been breached by the employer, and to consider whether there has been a breach of that term. The breach relied upon may be of either an express or 10.5 Reserved judgment with reasons – rule 61 33 March 2017 implied term or, where the breach has not yet occurred, an anticipatory breach of an express or implied term.[129]The term relied upon by both claimants is the implied term of trust and confidence. Breach of the implied term of mutual trust and confidence is the breach most frequently relied on in constructive dismissal cases. The term provides that employers (and employees) will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the parties – Malik v Bank of Credit and Commerce International SA 1997 ICR 606, HL.[130]In cases where a breach of the implied term is alleged, the Tribunal’s function is not the same as the range of reasonable responses test. That test applies in relation to the statutory test for unfair dismissal, not the contractual test for constructive dismissal.[131]An example that has been given by the Employment Appeal Tribunal (EAT) to illustrate the reasonable and proper cause element of the test is that in any employer who proposes to discipline an employee for misconduct is likely to be doing an act which is capable of seriously damaging or destroying the relationship of trust and confidence between employer and employee, whatever the result of the disciplinary process. However, if the employer had reasonable and proper cause for taking the disciplinary action, the employer cannot be said to be in breach of the implied term of trust and confidence - Hilton v Shiner Ltd Builders Merchants 2001 IRLR 727, EAT.[132]The second element of the test is whether the conduct was calculated or likely to destroy or seriously damage trust and confidence. This requires the Tribunal to consider the circumstances objectively, from the perspective of a reasonable person in the claimant’s position Tullett Prebon plc v BGC Brokers LLP 2011 IRLR 420, CA. The test is met where the employer’s intention is to destroy or seriously damaged trust and confidence, or where the employer’s conduct was likely to have that effect.[133]A breach of the implied term of trust and confidence can be caused by one act, by the cumulative effect of a number of acts or a course of conduct. A last straw incident which triggered the resignation must contribute something to the breach of trust and confidence itself - Omilaju v Waltham Forest London Borough Council 2005 ICR 481, CA. There is no need for there to be proximity in time or in nature between the last straw and previous acts - Logan v Commissioners of Customs and Excise 2004 ICR 1, CA. 10.5 Reserved judgment with reasons – rule 61 34 March 2017 Fundamental breach[134]If there has been a breach of contract, the breach must be fundamental. This requires considering whether the conduct is: “a significant breach going to the root of the contract of employment, which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.” Western Excavating (ECC) Ltd v Sharp 1998 ICR 221, CA.[135]Fundamental breach is probably synonymous with repudiatory breach, that is a breach which is a repudiation of the whole contract - Photo Production Ltd v Securicor Transport Ltd 1980 ACA 27, HL.[136]This stage is not needed where the Tribunal has found that there was a breach of the implied term of trust and confidence: any breach of that term is a fundamental breach necessarily going to the root of the contract – Morrow v Safeway Stores plc 2002 IRLR, EAT.[137]Whether a breach of a term is a fundamental breach is a question of fact and degree. Some points about this:a. the effect on the employee is relevant;b. the employer’s subjective intention is not a key part of the test. It may be relevant, but the intention must be judged objectively - Leeds Dental Team Ltd v Rose 2014 ICR 94, EAT.[138]Some cases have considered whether an employer can remedy a fundamental breach of contract before the employee accepts it. Other than an anticipatory breach of contract, which may be withdrawn up to the moment of acceptance, a fundamental breach of contract cannot be remedied by the wrongdoer. After a fundamental breach has occurred, it remains open to the employee to agree to affirm the contract, or to accept the fundamental breach once it has occurred, whatever action the employer takes following the fundamental breach. This means that the only option available to the employer who wants to correct their action is to invite the employee to affirm the contract - Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908, CA. 10.5 Reserved judgment with reasons – rule 61 35 March 2017[139]However, there is a distinction between a fundamental breach of contract that cannot be remedied, and action taken by an employer that prevents the breach of contract occurring or becoming a fundamental breach – Assamoi v Spirit Pub Company (Services) Ltd EAT 0059/11. Resignation[140]If the employer fundamentally breaches the contract of employment, the employee may accept the repudiation and terminate the contract by resigning, either with or without notice. The contract comes to an end at the time of the communication of the resignation to the employer. If the employer is in continuing breach of contract, the employee can resign at any point to while it is continuing – Reid v Camphill Engravers 1990 ICR, EAT.[141]The employee may resign by words or conduct. For example, an employee’s failure to return to work following maternity leave has been considered sufficient to communicate acceptance of the employer’s fundamental breaches of contract.[142]There are some conflicting authorities as to the relevance of an earlier fundamental breach by the employee, with some authority suggesting that an employee cannot allege constructive dismissal if s/he is in breach of contract him/herself - RDF media group plc v Clements 2008 IRLR 207, QBD . However, there appears to be acceptance that if one party commits a fundamental or repeated breach that the other does not accepted as bringing the contract to an end, the contract and the obligations under it continue. The obligation of trust and confidence is not suspended when one party breaches the contract, and so it remains open to an employee who has committed a fundamental breach to accept a later repudiation by the employer and end the contract -Atkinson v Community Gateway Association 2015 ICR 1, EAT.[143]In Aberdeen City Council v McNeill 2015 ICR 27 the claimant committed acts of gross misconduct, including sexual harassment and being intoxicated at work. He claimed constructive dismissal in relation to the disciplinary investigation, which the employer carried out in a way which breached the implied term of trust and confidence. The Court of session rejected the employer’s argument that the employee’s breaches prevented the employee from relying on a later breach of trust and confidence by the employer. However, the employee’s own breach could be relevant to compensation. For example, in a complaint of constructive unfair dismissal, breaches such as misconduct could be found to be contributory conduct resulting in a reduction to the basic and compensatory awards. 10.5 Reserved judgment with reasons – rule 61 36 March 2017 Resignation caused by breach of contract[144]The breach must have caused the resignation, but it need not be the only cause. The test is whether the employee resigned in response to the conduct which constituted the breach. This is a question of fact for the Tribunal.[145]Once an employer’s fundamental breach has been established, the Tribunal should ask whether the employee has accepted the breach and treated the contract of employment as at an end. It does not matter if the employee also objected to other actions (or inactions) by the employer that were not a breach of contract. Constructive dismissal is made out if the employee resigned at least partly in response to the employer’s fundamental breach of contract - Logan V Celyn House Ltd EAT 0069/12. The crucial question is whether the repudiatory breach played a part in the dismissal, i.e. whether it was one of the factors relied on by the employee when resigning Abby cars (West Hornden) Ltd v Ford EAT 0427/07. Delay and affirmation[146]If the employee waits too long after becoming aware of the breach of contract before resigning, s/he may be taken to have affirmed the contract. The question is whether the employee has shown an intention to continue in employment, rather than an intention to resign. This will depend on the particular circumstances of the case. Factors relevant to this question include the employee’s conduct, as well as the length of time which has passed since the breach.[147]In Alan v Robles [1969] 1 WLR 1193 it was held that delay in itself may not constitute affirmation of the contract, but if it was prolonged maybe evidence of an implied affirmation.[148]In WE Cox Toner (International) Ltd v Crook ICR 823 the EAT provided the following guidance of affirmation: 10.5 Reserved judgment with reasons – rule 61 37 March 2017 ‘… if the innocent party calls on the guilty party for further performance of the contract, he will normally be taken to have affirmed the contract since his conduct is only consistent with the continued existence of the contractual obligation. Moreover, if the innocent party himself does acts which are only consistent with the continued existence of the contract, such acts will normally show affirmation of the contract. However, if the innocent party further performs the contract to a limited extent but at the same time makes it clear that he is reserving his rights to accept the repudiation or is only continuing so as to allow the guilty party to remedy the breach, such further performance does not prejudice his right subsequently to accept the repudiation.’[149]When finding on the facts of that particular case that the claimant had affirmed the contract during the six-month period in which continues to work but there was also ongoing correspondence about the allegation, the EAT said this: ‘We find the question whether or not Mr Crook affirmed the contract difficult. On the one hand, throughout that period Mr Crook was objecting to the repudiatory conduct and the company was continuing to repeat the wrongful allegations. On the other hand, there must be some limit to the length of time during which an employee can continue to be employed and receive his salary at the same time as keeping open his right to say that the employer has repudiated the contract under which he is being paid.’[150]In addition to affirmation by delaying, the employee may affirm the contract by taking action which is consistent with employment continuing, irrespective of the timeframe, for example, considering alternative roles, accepting a promotion or a pay rise.[151]Where there is a continuing cumulative breach of the implied term, the employee is entitled to rely on the totality of the employer’s acts even if she has previously affirmed the contract. The effect of the last straw is to revive the employee’s rights to resign.[152]In a case where a number of breaches of contract are relied on by the claimant, the Tribunal may be assisted by the step-by-step approach of Lord Justice Underhill in Kaur v Leeds Teaching Hospitals [2018] E WCA Civ 978:a. What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, the resignation?b. Has the employee affirmed the contract since the act? If so, there cannot be a constructive dismissal in respect of that act or earlier acts. 10.5 Reserved judgment with reasons – rule 61 38 March 2017c. If not, was that act (or omission) by itself a repudiatory breach of contract?d. If not, was it nevertheless a part of a course of conduct comprising several acts and/or omissions which, viewed cumulatively, amounted to a breach of the implied term of trust and confidence? If it was, there is no need for any separate consideration of a possible previous affirmation.e. Did the employee resign in response (or partly in response) to that breach?[153]It follows that if the last straw was part of a course of conduct which cumulatively amounted to a breach of the implied term, affirmation of the earlier acts does not need to be considered: the last straw revives the right to resign even if there has been an earlier affirmation. However, if the last straw is not part of a course of conduct which breaches the implied term, the Tribunal will have to consider whether earlier acts have been affirmed. In such a case, the claimant can succeed in establishing constructive dismissal if:a. there has been no affirmation of the contract by the claimant;b. the earlier act or course of conduct was repudiatory; andc. the earlier act or course of conduct at least contributed to the eventual decision to resign. Unlawful deduction from wages[154]Section 13 Employment Rights Act 1996 sets out the circumstances in which an employer will have made an unlawful deduction from the employee’s wages. It provides: 13 Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or 10.5 Reserved judgment with reasons – rule 61 39 March 2017 (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.(4) Subsection (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.(5) For the purposes of this section a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.(6) For the purposes of this section an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.(7) This section does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. 10.5 Reserved judgment with reasons – rule 61 40 March 2017[155]Section 14 Employment Rights Act 1996 sets out the circumstances where a deduction is excepted from the general principle of unlawful deductions provided for in section 13. Insofar as is relevant to these proceedings the applicable exceptions in section 14 provide: 14 Excepted deductions. (1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a) an overpayment of wages, or (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker… (4) Section 13 does not apply to a deduction from a worker’s wages made by his employer in pursuance of any arrangements which have been established— (a) in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or (b) otherwise with the prior agreement or consent of the worker signified in writing, and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person. The contractual jurisdiction of the employment tribunal[156]The employment Tribunal has jurisdiction under article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 to hear a contractual claim by an employee where the claim arises or is outstanding on termination of employment and relates to: 155.1. a claim for damages for breach of the employment contract or other contracts connected with employment; 10.5 Reserved judgment with reasons – rule 61 41 March 2017 155.2. a claim for a sum due under the contract.[157]The order also allows a contract claim by an employer if it is presented at a time where the employee has a contract claim against the employer before the employment Tribunal (articles 4(d) and 8(a)). If the employee’s claim is subsequently withdrawn, settled or dismissed, the employer’s claim can still proceed. 156. Certain breach of contract claims are specifically excluded from the Tribunal’s jurisdiction under article 4, but none of those exclusions are of application in the present case. 157. The amount recoverable (whether by an employee or employer) in the employment Tribunal under a contract claim is £25,000. That is a total for all contractual claims relating to the same contract.
Conclusions
[158]Applying the law to the facts as tribunal has found them in relation to each of the allegations the tribunal has come to the following conclusions. Constructive unfair dismissal Issue 1: Did the claimant’s employment contract contained an implied term imposing a duty on the parties not to, without reasonable and proper cause, engage in conduct calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (the Implied Term)?[159]It was common ground that the Implied Term (or the Malik terms as the respondent referred to it in closing submissions) was a term of the claimant’s contract of employment. The tribunal therefore proceeded on that agreed basis. Issue 2.2.1: Did the respondent delay in dealing with the claimant’s case from 30 April 2020 (the date the claimant was suspended) to 11 November 2022 (the date the claimant resigned)?[160]On any view, there was a considerable elapse of time in dealing with the investigation and determination of the claimant’s disciplinary process. From 10.5 Reserved judgment with reasons – rule 61 42 March 2017 suspension on 30 April 2020 to the meeting on 20 October 2022 when the claimant was told she was to be permitted to return to work is a period of some 29 months. Even allowing for the seriousness of the allegation and the multiple processes that took place, that is an enormous period over which to be suspended from work.[161]The timeline and the events that took place within it are to a material extent not in dispute. The legal effect of those events and consequences is what lies between the parties.[162]The tribunal does not accept the respondent’s submission that a reasonably competent investigation and disciplinary process would have taken no more than three months. The tribunal did not hear from Elaine Fletcher or anyone else involved in the process that led up to the disciplinary hearing on 21 July 2021. However, the tribunal is aware of the seriousness of the allegation made by patient X and that they were 13 witness statements taken as part of the investigation. The alternative submission from the claimant, that the whole process should have taken no more than a year implicitly recognises the complexity and time involved.[163]The Trust also had to take into account that eight months after the claimant’s suspension, patient X died. The Trust was thereafter dealing with both an extremely serious allegation of an inappropriate relationship between patient X and the claimant and then an extremely serious incident in the death of a patient for unexplained reasons while in the care of the Trust. The tribunal also heard evidence from Mrs Duguid that Covid was at least in part a reason why matters did not progress more quickly than they did.[164]Thereafter, Mrs Duguid made the decision to continue to suspend the claimant pending the resolution of all the procedures related to the death of patient X before allowing the claimant to return to work. The tribunal had no evidence about the length of time that it would normally take for a police investigation to run its course. The tribunal has no evidence from which it can infer any delay on the part of the police or of the coroner. The real issue here is not delay but the lawfulness of the Trust’s decision not to allow the claimant to return to work after the disciplinary hearing on 21 July 2021, but rather to insist on her continued suspension until the four subsequent processes all reached their conclusion.[165]In the circumstances, the tribunal does not consider that the elapse of time occasioned by any particular part of the processes that the Trust required to be concluded before the claimant was allowed to return to work to be really the 10.5 Reserved judgment with reasons – rule 61 43 March 2017 central point for its consideration. The central point was whether the Trust’s decision to continue the claimant’s suspension lawfully exercised. Issue 2.2.2: Did the respondent suspend the claimant from 30 April 2020 to 11 November 2022?[166]It was not in dispute that the claimant was suspended from work for 30 April 2020 until 20 October 2022. There was a dispute as to whether the claimant remained suspended from 20 October 2022 until her resignation on 11 November 2022.[167]The claimant says that she remain suspended until she might actually return to work. That contingency was overtaken by her resignation.[168]The respondent disagrees. The respondent says that Mrs Duguid made it clear at the meeting on 20 October 2022 that the claimant could return to work. The respondent points out that in Mrs Duguid’s letter of 28 October 2022 confirming the outcome of the meeting on 20 October 2022, she refers to the claimant’s suspension in the past tense. The respondent says it is not necessary to say expressly that the claimant’s suspension was lifted since the entire rationale of the meeting on 20 October 2022 was to inform the claimant that the path was now clear for her to return to work.[169]The tribunal concludes that the claimant did remain suspended from work after the meeting of 20 October 2022, but solely for the purpose of giving effect to the arrangements necessary for the claimant to return to work after such a significant period of suspension. It would not have been responsible for Mrs Duguid to immediately lift the suspension and require the claimant the following day to present for work. That is why Mrs Duguid made the arrangements for an experienced nurse with pastoral responsibilities to ensure that the claimant’s return to work was managed in the best interests of the claimant, the respondent and the Trust’s patients.[170]Nevertheless, the tribunal finds that the claimant did remain suspended at the point that she resigned. 10.5 Reserved judgment with reasons – rule 61 44 March 2017 Issue 2.2.3: Did the respondent provide the claimant with the disciplinary outcome letter following a disciplinary hearing meeting on 21 July 2021?[171]The respondent accepts in its submissions that no disciplinary outcome letter was sent to the claimant at any time following the disciplinary hearing on 21 July 2021 and before her resignation. This was despite the outcome of the hearing being communicated to the claimant verbally on the day and despite repeated requests for written confirmation.[172]The tribunal does not agree with the respondent’s submission that, ‘By definition, the outcome letter signifies the conclusion of the matter.’ In the tribunal’s judgment, the disciplinary process ended on 21 July 2021 when Elaine Fletcher verbally communicated the outcome of the disciplinary hearing to the claimant in unequivocal terms. The allegation that the claimant had been involved in an inappropriate relationship with patient X was not upheld. The unsent outcome letter disclosed in these proceedings is entirely consistent with what the claimant says Elaine Fletcher told her on 21 July 2021 at the end of the disciplinary hearing.[173]The claimant was also told at the end of the hearing that she was to be given ra written warning on the basis that the second allegation (that she had accessed user data without authority or consent) had been upheld.[174]As the respondent points out, Elaine Fletcher was not called as a witness, so the tribunal did not have the benefit of her input. That leaves the tribunal with the documentary evidence referred to which in the tribunal’s view is incapable of any other reasonable interpretation than that the disciplinary process was finalised on 21 July 2021. All that remained outstanding was the confirmation letter. The only reason that letter was not sent was because Mrs Duguid intervened due to her own concerns about whether all lines of enquiry had been run down and the need in her view to await further processes to be concluded before the claimant should be allowed to return to work. Issue 2.2.4: Did the respondent provide the claimant with a letter explaining the claimant’s continued suspension after 21 July 2021?[175]The claimant accepts that the respondent was issued with a letter explaining her suspension after 21 July 2021. That is the letter from Mrs Duguid to the claimant of 12 August 2021 [812-813]. The claimant was issued with another letter 10.5 Reserved judgment with reasons – rule 61 45 March 2017 explaining her continued suspension. That is the letter from Mrs Duguid to the claimant of 8 July 2022 [879-880].[176]That latter letter starts, ‘I am writing to provide a further update in relation to the circumstances of your ongoing suspension from the Trust.’ The letter then goes on to do just that. The claimant was also told why her suspension was ongoing in each of the meetings that the claimant had with Mrs Duguid.[177]The claimant was accordingly not kept in the dark about the reason for her continued suspension. Mrs Duguid repeated at meetings and in writing why the claimant remain suspended. The reason for continued suspension was that Mrs Duguid did not consider it appropriate for the claimant to return to work whilst a succession of processes/investigations that might conceivably cast some light on the allegation that the claimant had had an inappropriate relationship with patient X remained incomplete. Issue 2.2.5 Did the respondent ignore the claimant’s grievance lodged on 20 October 2021?[178]The claimant’s position is that her grievance was simply not progressed prior to her resignation on 11 November 2022.[179]The claimant says that no action at all was taken to progress her grievance: no one was appointed to investigate it; no meetings were called to discuss it with the claimant; and no outcomes were reached.[180]The only material mention of the grievance is at the meeting of 20 October 2022 (the first anniversary of the grievance) at which it was suggested by the respondent that the claimant and her trade union representative were invited, in the light of the decision to allow the claimant to return to work, to identify which parts of the grievance she still wished to pursue.[181]The reality of the situation was that Trust decided not to do anything about the claimant’s grievance until the various processes had run their course. This was consistent with the respondent’s approach to the claimant’s disciplinary process. Both the disciplinary and the grievance processes were effectively stayed until the four additional processes connected with the death of patient X had run their course. It is probably a matter of semantics whether that amounts to ‘ignoring’ the claimant’s grievance. The tribunal’s view is that the respondent took a 10.5 Reserved judgment with reasons – rule 61 46 March 2017 conscious decision not to progress the claimant’s grievance pending the completion of other processes. Issue 2.3: Did the respondent’s conduct breach the Implied Term?[182]The tribunal considers that the respondent acted in a way that was likely to destroy or seriously damaged the relationship of trust and confidence between the claimant and the respondent in each of the following ways: 182.1. Mrs Duguid’s decision to intervene to continue the disciplinary process when it had in fact already ended on 21 July 2021; 182.2. Mrs Duguid’s decision to continue to suspend the claimant after the end of the disciplinary process on 21 July 2021; 182.3. Mrs Duguid’s ongoing decisions to continue the claimant’s suspension while the police investigation, the Serious Incident investigation, the Safeguarding Review and the coronial process ran their course; and 182.4. The respondent’s decision not to progress the claimant’s grievance after it was brought on 20 October 2021.[183]The tribunal also accepts the claimant’s points about the serious adverse effects the prolonged suspension had on the claimant’s work experience and skills; her relationship with colleagues; and her Nursing Assistant Apprenticeship degree. Mrs Duguid accepted these adverse effects in cross examination.[184]The tribunal does not accept that the respondent’s failure to provide the outcome letter is really the important point. The tribunal considers that the disciplinary process was at an end at the point at which Elaine Fletcher verbally confirmed the outcome to the claimant on 21 July 2021. The tribunal therefore disagrees with Mrs Duguid that the disciplinary process was not at an end at the point at which she intervened. Indeed, Mrs Duguid was right when she says that she would have been better served by intervening before the disciplinary hearing on 21 July 2021 if she wanted to pause that process pending the other related processes reaching fruition. That said, there was nothing in the policies to which the tribunal was referred which gave the respondent the right to suspend an employee pending the exhaustion of all and any related investigations or procedures. 10.5 Reserved judgment with reasons – rule 61 47 March 2017[185]The next question is whether the respondent had reasonable and proper cause to act in the way that it did.[186]The claimant accepts that there was reasonable and proper cause to suspend her at the initial stage after patient x’s allegation against her.[187]However, the tribunal has found that the claimant’s disciplinary process concluded on 21 July 2021 at the point at which Elaine Fletcher delivered the outcome to the claimant. After that, the only further matter might have remained outstanding was the possibility an appeal against the written warning that the claimant received.[188]The tribunal has concluded that the continued suspension of the claimant after that point was without reasonable and proper cause. The practical effect of the continued suspension was to revoke the finality of the disciplinary hearing and effectively to place the claimant in a position of double jeopardy which lasted for a further 15 months.[189]That is not to say that there is an absolute bar against double jeopardy in disciplinary matters. There may be cases where new evidence comes to light making it entirely proper for an employer to revisit a previously decided upon issue. However, this was not one of those cases. This was a situation where Mrs Duguid took a different view to Elaine Fletcher on precisely the same facts. The respondent had known since December 2020 that a police investigation would take place. When that was used as a reason for the claimant’s continued suspension by Mrs Duguid she was relying not on any evidence acquired after the facts available at the time of the disciplinary hearing. She was simply takin a different approach to the same circumstances.[190]The reality of the situation was that Mrs Duguid remained concerned that there was a link between the pink mobile phone and the claimant. If such a link could have been established, the allegation of an inappropriate relationship could potentially have been established. Mrs Duguid’s efforts to enable the police to track down the owner of the pink mobile phone is evidence to that effect. 10.5 Reserved judgment with reasons – rule 61 48 March 2017[191]The respondent knew from 10 August 2021 that the police were not going to take any further action in relation to the claimant. The first reason given to the claimant for her continued suspension was by then no longer an issue. It was by that stage clear to the respondent that the reason for patient x’s death was a reaction to normal levels of a prescribed drug.[192]Mrs Duguid then decided that the claimant should not return pending the conclusion of another process, the Trust’s own Serious Incident Investigation. The respondent knew from 13 September 2021 that this investigation had produced no significant findings and had made no recommendations.[193]By 21 October 2021, Mrs Faill was telling the police that the respondent was in a position to confirm the outcome of the disciplinary to the claimant. Yet, the claimant remained suspended for a further year while the respondent completed a Safeguarding Review and awaited the outcome of the coronial inquest. At no stage since the conclusion of the claimant’s disciplinary process on 21 July 2021 had the claimant been spoken to by the Trust, the police or the coroner.[194]In these circumstances, the tribunal has concluded that there was no reasonable and proper cause for the claimant’s continued suspension and/or being placed in double jeopardy after 21 July 2021.[195]The tribunal acknowledges Mrs Duguid’s laudable commitment to patient safety and also acknowledges the difficulty of balancing the competing interests of patient safety and the employment rights of the claimant. However, on the facts of this particular case, the claimant remained suspended in the hope that one process or another might turn up some additional evidence that had not been available to Elaine Fletcher and which might incriminate the claimant. That does not appear to the tribunal to amount to a reasonable and proper cause to keep the claimant suspended after, at the very latest the conclusion of the police investigation on 10 August 2021.[196]The tribunal does not consider that the withholding of the grievance outcome letter adds much to the conclusions it has already reached. In reality, withholding 10.5 Reserved judgment with reasons – rule 61 49 March 2017 then outcome letter was part and parcel of respondent’s decision to keep the claimant suspended until all of the processes which might conceivably reveal fresh evidence had been concluded. The same goes for the way in which the respondent dealt with the claimant’s grievance. The respondent had simply decided that nothing would be done to assist the claimant until it was clear that nothing further was going to emerge. Issue 2.4: Did the claimant resign in response to one (or more) breach of the Implied Term?[197]The claimant’s position is that her letter of resignation makes it abundantly clear that it was the breaches of contract by the respondent which caused her to resign. That letter does indeed refer to the period of the claimant’s suspension, the failure to provide an outcome letter after the 21 July 2021 disciplinary hearing and the failure to address the claimant’s grievance. The claimant says that these are all matters underpinning the breach of the implied term of trust and confidence.[198]The claimant dismisses as a ‘fanciful’ the suggestion that the real and sole reason for the claimant’s resignation was that she decided to pursue a career as a social media influencer based on the success she had with a Slice of Jess.[199]The respondent says that there is a real issue in relation to the causation between any breach of the Implied Term and the claimant’s resignation. The respondent says it is surprising that for over two years the claimant had been chasing the respondent for positive news about her return to work and yet the claimant chose to resign at the point at which her wishes were granted.[200]The respondent fairly points out that the claimant had been deeply critical of the time taken to resolve matters describing the amount of time it had taken to conclude matters as ‘extortionate’ and referring to the ‘devastating’ impact on her well-being. Yet, it was at the very point that the situation had been resolved in her favour and her that she chose to resign.[201]The respondent says that the real reason the claimant resigned was because she preferred to pursue a career independent of healthcare as a social media influencer. Although not expressed in such terms, the respondent’s position appeared to be that the claimant was content to receive her pay over an extended period while she got her social media career up and running. 10.5 Reserved judgment with reasons – rule 61 50 March 2017[202]The tribunal accepted the respondent’s point which was pursued in cross examination of the claimant that a very considerable amount of time had to be invested in the claimant’s social media activities in order for it to generate the level of content that it did and for which the claimant started to receive an increasingly large amount of income. That culminated in October/November 2022 when the claimant earned over £3000 and over £2000 respectively.[203]The tribunal accepts that the claimant’s desire to pursue a career as a social media influencer and to work elsewhere than the respondent were both reasons that were influential on her decision to resign. In that regard, the tribunal has considerable sympathy for the respondent’s position. It is after all an oddity of this case that after over 2 years of calling on the respondent to perform its side of the contract, the claimant resigned when in other contexts the breach might be considered as having been remedied.[204]However, the tribunal must apply the applicable legal principles. There is no restriction on the innocent party to a repudiatory breach from seeking to earn money from other activities that are not expressly or impliedly prohibited by the contract of employment. If the duration of the claimant’s suspension gave her an opportunity to explore the potential for social media activities to generate income then so be it.[205]The test of causation is referred to in paragraphs 144-145 above. It is a relatively low bar. The crucial question is whether the fundamental breach played a part in the dismissal in the sense that it was one of the factors relied upon by the employee when resigning. The law is clear that that the breaches do not need to be the only cause of the resignation.[206]While the tribunal had considerable reservations about the claimant’s motivation in waiting to resign until the respondent had effectively given her everything she wanted, ultimately the tribunal cannot conclude as a matter of fact that the breaches in question were not at least a part of the reason for the claimant’s resignation. 10.5 Reserved judgment with reasons – rule 61 51 March 2017[207]The respondent points out that the claimant was not cross-examined about the honesty or sincerity of the reasons she gave for resigning in her letter of dismissal. However, it was plainly implicit in the way in which the respondent put its case that the respondent was saying that the claimant was content to take her pay while she looked to pursue an entirely different career.[208]The tribunal has taken all that into account when concluding that as a matter of fact the breaches identified by the claimant in her letter of resignation were a contributing and effective cause of her resignation. In those circumstances, the relatively low threshold of causation in this aspect of the claimant’s case has been met.[209]The tribunal concludes that the respondent was in breach of the Implied Term from at the latest 10 August 2021 by continuing to suspend the claimant and placing her in a position of potential double jeopardy when there was no reasonable and proper cause to do so.[210]The next issue for consideration is the effect of the respondent’s decision on 20 October 2021 to inform the claimant that she was to be permitted to return to work. The background to this meeting is that the respondent has been in continuing breach of the Implied Term for over a year. The claimant has been repeatedly calling on the respondent to perform its obligations under the contract of employment, most notably by raising a grievance, to no avail. Issue 2.5: Did the claimant timely resign in response to one (or more) breach of the Implied Term, or did the claimant unduly delay resigning in response to the breach, thereby losing the right to resign and claim constructive dismissal?[211]There is no constructive dismissal if the employee affirms the contract after and despite the employer’s repudiation. The correct approach is to look at the circumstances as a whole to see if the claimant has conducted herself in a way which is consistent only with keeping the contract alive. 10.5 Reserved judgment with reasons – rule 61 52 March 2017[212]Looking first of all at the question of delay and the continued acceptance of pay. There is no rule that delay is in and of itself conclusive of affirmation. Throughout the period of the respondent’s continuing breach the claimant was making it clear that she objected to not being allowed back to work and to not being given confirmation that the disciplinary process had ended on 21 July 2021. Due to the nature of the respondent’s repudiation, the claimant was prevented from carrying out any duties since the respondent was depriving her of the opportunity to do so.[213]While it is true to say that the claimant was receiving pay throughout the 30 months of her suspension, it also has to be acknowledged that it was at the respondent’s instigation that she was put in the position of being unable to perform her side of the contract of employment. Further, it was the respondent who repeatedly continued the claimant’s suspension while different processes ran their course. This was not a case where the respondent said at the outset that the claimant would remain suspended until each and every process was concluded. Rather, the respondent decide to postpone the claimant’s return to work on a rolling basis as each of the processes concluded.[214]In these circumstances, the tribunal concludes that the claimant was entitled to a reasonable period of time after confirmation that she was to return to work within which to accept the respondent’s ongoing repudiation or to affirm the contract of employment. The tribunal further concludes that the period between 20 October and 11 November 2022 was in the overall context of this particular case a reasonable period for the claimant to reflect on whether there was any reasonable prospect of her making a successful return to work.[215]The tribunal also notes that at the meeting of 20 October 2022, Mrs Duguid was still not prepared to let the issue of the pink mobile phone lie which did not suggest to the claimant that she would be returning with a clean slate. In all of the circumstances, the tribunal has concluded that the claimant did not affirm the contract of employment before she accepted the respondent’s repudiation by resigning. Accordingly,. The tribunal finds that the claimant was dismissed within the terms of section 95(1)(c) ERA.[216]The respondent has realistically not advanced a case that any dismissal was either for a potentially fair reason and fair in all the circumstances of the case 10.5 Reserved judgment with reasons – rule 61 53 March 2017 within the terms of section 98 ERA. Accordingly, the claimant was unfairly dismissed. Unlawful deduction from wages Issue: What is the amount of wages that were properly payable to the claimant at the time she was suspended? Did the respondent make a deduction from the claimant’s wages which was not required or permitted under the terms of the claimant’s contract of employment or under statute or the claimant had not given their written consent for? If so, has there been a series of unlawful deductions?[217]The tribunal has concluded that the claimant was suspended between 30 April 2020 and 11 November. The entitlement to pay during the period of the claimant’s suspension is set out at para 10.1 [109-112] of the pre 2021 disciplinary policy and para 9.1 of the post 2021 policy are in the same terms in relation to pay. The claimant was contractually entitled to ‘full pay with average enhancements.’[218]The amount that was properly payable to the claimant in her monthly salary instalments ought therefore have equated to ‘full pay with average enhancement’. The difficulty lies in interpreting what is meant by that term. It was common ground that Agenda for Change does not define that term and so is of no assistance to its interpretation.[219]The ordinary and natural meaning of that term is that full pay includes any enhancements to the plain rate of pay for the hours worked in the normal course of an employee’s usual shift pattern. The hours within that pattern that would attract a premium would also be payable at that enhanced rate to a suspended employee to ensure that they were not worse off as a result of suspension.[220]The tribunal does not consider that bank work was envisaged to be included in the term average enhancements. Regardless of the contractual status of bank work there is no contractual right to any particular minimum number of hours. Pay for bank work is not an enhanced rate. It is separate and distinct work. The 10.5 Reserved judgment with reasons – rule 61 54 March 2017 tribunal does not consider that the term can be extended to mean ‘the average pay received in the period immediately prior to suspension’.[221]However, the period over which full pay and average enhancements falls to be calculated should be period when the claimant was working normally and should include an amount to reflect the average level of overtime the claimant was working. In that way the claimant could properly be said to be no worse off than had she been working normally under her contract of employment rather than suspended. Breach of contract Issue: Did the respondent breach the claimant’s contract of employment by continuing to suspend her after August 2020? If so, did the breach of contract because the claimant to suffer loss during the period of suspension from August 2020 - November 2022?[222]The judgment of the tribunal is that the respondent was in breach of the Implied Term by continuing to suspend the claimant from 10 August 2021 at the latest.[223]The question of recoverable loss is a matter of remedy.
Background
[1]The Respondent is ordered to pay the Claimant compensation for unfair dismissal as follows: BASIC AWARD1.1£3,322.98 COMPENSATORY AWARD1.2£20,211 TOTAL OF BASIC AWARD AND COMPENSATORY AWARD1.3£23,533.98[2]The Respondent is ordered to pay the Claimant the gross amount of £584.25 in respect of her claim of unlawful deduction of wages.[3]There is no separate amount to be awarded in respect of the complaint of breach of contract. The total amount payable to the Claimant is £24,118.23[1]In a reserved judgment sent to the parties on 12 July 2024, Employment Judge Loy upheld the Claimant’s complaints of: 1.1. Constructive unfair dismissal 1.2. Unlawful deduction from wages 1.3. Breach of contract[2]Regrettably, due to the unavoidable absence of Judge Loy, he was unable to conduct the Remedies Hearing. Regional Employment Judge Robertson directed that the hearing proceed before a different judge. The Respondent was represented at the remedies hearing by Ms Martin. Mr McHugh appeared on behalf of the Claimant. Like me, he was not involved in the liability hearing. Witness
Evidence
[3]A standard notice of hearing had been sent to the parties which stated that the parties must make sure that any witness who will be giving evidence at the hearing attends. At the outset of the hearing and whether there had been any orders for exchange of witness statements. I was informed that no directions had been issued to the parties for preparation for the remedy hearing and neither side had prepared updated statements. Ms Martin submitted that I should direct there be no oral evidence from the Claimant or if against her on that, to adjourn if necessary should the Respondent seek to rebut any particular evidence – i.e. should the Claimant give evidence on anything to which the Respondent was unable to respond. I had not been provided with the original witness statements from the liability hearing. When I was eventually given a copy I could see that the Claimant had addressed her losses from paragraph 54 onwards of her statement. I was informed that there had been no cross-examination on remedy as such, the parties having focused on liability. Neither side had asked for any updated orders to serve additional or updated witness statements following Judge Loy’s liability judgment. Mr McHugh objected to Ms Martin’s application. He submitted that it was inevitable that the Claimant was going to give evidence and it would be unjust to prevent her from doing so, she having already set out her position on remedy in her statement at the time it was made. After an adjournment to consider the matter, I directed that the Claimant be permitted to give updated oral evidence on remedy, that after evidence in chief, Ms Martin would have time to take instructions and to prepare some crossexamination beyond that which she might already have been prepared to ask, given the original statement contained some evidence on remedy. I gave reasons for my decision at the time. The Claimant was sworn in just after midday. Ms Martin took instructions and confirmed she had sufficient time and was ready to proceed. Cross examination commenced at 2.10pm. No request was made to adjourn for further instructions or to seek any rebuttal evidence. Documentary evidence[4]The Claimant had prepared a remedies hearing bundle. Some additional pages (extracted from the main bundle used at the liability hearing) were added by the Respondent, namely: pages 1072-1075 (a Pay Advisory Notice) and pages 1086 – 1100 (a transcript of a YouTube video of the Claimant’s dated 13 January 2023). Any reference to page numbers in these reasons is a reference to the pages in the remedy hearing bundle, unless stated otherwise. Findings of fact for purposes of the remedy hearing[5]At the date of her dismissal on 11 November 2022, the Claimant’s pay equated to £11.95 an hour. She had been employed full-time, working 37.5 hours over five days a week. She also worked some unsocial hours and overtime for which she was paid at premium rates. The rates were set out in a ay Advisory Notice [pages 1272-1275 of the main liability bundle]. Had she remained in employment, her basic hourly pay would have increased as follows: 5.1. £12.45 per hour on 01 April 2023. 5.2. £13.13 per hour on 01 April 2024.[6]I accept the figures put forward by the Respondent as to the gross and net weekly pay rates as at the date of dismissal. These were based on an analysis of the payslips. As to the relevant figures I find that: 6.1. At the effective date of termination (‘EDT’) the Claimant’s gross weekly pay was £504.11. This consisted of £445.71 basic pay plus average weekly enhancements of £58.40). The Respondent also paid pension contributions of £103.85 (being 20.6% of £504.11).[7]Her net weekly pay at the EDT was £505.45. Total net pay the Claimant would have received from the Respondent had she not been constructively dismissed[8]I accept the figures put forward by the Respondent as to gross and net pay that the Claimant would have received from the EDT, had she remained in employment. As to the relevant figures I find that: 8.1. From 11 November 2022 to 31 March 2023 the Claimant would have been paid £10,160 net pay by the Respondent (rounded to the nearest pound). 8.2. From 01 April 2023 to 31 March 2024, the Claimant would have been paid £27,297 net pay (rounded to the nearest pound). In that period her net weekly pay would have been £524.94. 8.3. From 01 April 2024 to 07 April 2025, the Claimant would have been paid £29,054 net pay (rounded to the nearest pound). In that period her net weekly pay would have been, her net weekly pay would have been £547.15.[9]In total, had the Claimant not been unfairly dismissed, she would have earned net pay of £66,511 (rounded to the nearest pound) from the EDT to the date of the remedy hearing. This accounts for moneys that would have been paid into her NHS Pension account. Springfield Healthcare[10]Following her dismissal. the Claimant did not apply for many jobs. As regards those that she did apply for she was unsuccessful. Until that is, she eventually obtained employment as a Community Care Assistant – Social Care – Female Driver, with Springfield Health Care (‘Springfield’) beginning on 07 August 2023. She worked three days a week but without fixed hours. The job involved driving from service user to service user and tending to their social needs. She was paid only for the time in attendance with each service user and not for her travel time between visits.[11]In total, she was paid £13,021.64 net by Springfield in the period 07 August 2023 to 16 October 2024. On that date, she voluntarily resigned her employment [see Springfield pay slips, pages 111 – 126] and has not actively sought any paid employment elsewhere. Mr McHugh confirmed that, from that point, the Claimant accepts that she has failed to mitigate her loss and that from then she should (in effect) be deemed to be earning an equivalent salary to that which she received from the Respondent. Social Media activities[12]From Judge Loy’s reserved judgment on liability, it can be seen that the Claimant was suspended on 30 April 2020. In or around September 2020, the Claimant started a social media profile called ‘Slice of Jess’. For the sake of brevity, I refer to paragraph 29 of Judge Loy’s findings of fact. This venture started initially as a hobby [see paragraph 116 of the liability judgment]. Judge Loy concluded – and obviously found as a fact – that the Claimant had invested a very considerable amount of time in her social media activities during her period of suspension and that part of her reason for resigning was a desire on her part to pursue a career as a social media influencer.[13]Prior to her dismissal on 11 November 2022, and whilst suspended by the Respondent, the Claimant earned money through this social media activity. The income she earned from social media activities was as follows: 13.1. From September 2020 to 05 April 2021: a turnover of £9,700. This is based on the Claimant’s tax return for the tax year 2020/2021. This resulted in a taxable profit of £4,211 (after expenses of £5,489). She paid tax of £872.20 (but no Class 2 national insurance contributions, resulting in a net income of £3,338.80 [pages 143-145]. 13.2. From 06 April 2021 to 05 April 2022: a turnover of £19,245. This is based on the Claimant’s tax return for the tax year 2021/2021. This resulted in a taxable profit of £8,389 (after expenses of £10,856). She paid tax of £1,836.95 and Class 2 national insurance contributions of £158.60, resulting in a net income of £6,393.45 [pages 160- 162] 13.3. From 06 April 2022 to 11 November 2022: Based on the Claimant’s tax return for the tax year 2022/2023, her turnover was £32,487. This resulted in a taxable profit of £19,222 (after expenses of £13,265). She paid tax of £4,091.90 and Class 2 national insurance contributions of £163.80 and Class 4 contributions of £711.65, resulting in a net income of £14,254.65 for the whole tax year [pages 177-179]. In the absence of evidence from the Claimant contradicting the proposition put to her by Ms Martin, I assume that her earnings were spread equally throughout the year, therefore, the net income in the period 06 April 2022 to 11 November 2022 (a period of about 7 months) was approximately £8,315.
Findings Of Fact
[14]Since her dismissal on 11 November 2022 and up to August 2023, her sole source of income was through these social-media activities on YouTube and Instagram. The Claimant described this work as a hobby. Whether that is a proper description or not, it was an activity through which she earned an income. That activity is properly described for these purposes as self-employment, whether the Claimant regards it as a ‘hobby’ or a ‘career’ or something else. I would make one observation, however. From the Claimant’s reference to the activity being a ‘hobby’ it seemed to me that she was seeking to underplay the activity for the purposes of these proceedings. The Claimant’s expenses in the period September 2020 to April 2023 amounted to £29,610. That is coming on for £30,000 over a period of about 30 months or £1,000 a month. That sort of expenditure does not sit comfortably with the Claimant’s insistence that this was always a ‘hobby’ and I did not find particularly helpful her comparison with people who play golf or ride horses as a hobby. Expensive hobbies, they may well be; however, unlike the Claimant, people who engage in those hobbies are not earning an income from them, nor partly leaving their employment to pursue the hobby as a career, nor claiming the cost of golf clubs or maintaining a horse as a deductible tax expense.[15]The income that the Claimant received from her social media activities (from Google) from 11 November 2022 to the date of the Remedy Hearing on 07 April 2025 was as follows: 15.1. From 11 November 2022 to 05 April 2023: £9,611 pre-tax profit. Based on the Claimant’s tax return for 2022/2023 (see paragraph 13.3 above) and applying the same assumption that her earnings were spread equally throughout the year, the Claimant received an approximate net income of £5,940 for the nearly 21 weeks period from 11 November 2022 to 05 April 2023. 15.2. From 06 April 2023 to 05 April 2024: a turnover of £32,747. This is based on the Claimant’s tax return for the tax year 2023/2024. This resulted in a taxable profit of £25,814 (after expenses of £6,933). She paid tax of £4,020.16 and Class 2 national insurance contributions of £179.40 and Class 4 contributions of £1,191.96, resulting in a net income of £20,422.48 [pages 194-196]. 15.3. From 06 April 2024 to 05 April 2025: an estimated turnover of £30,000. There is no tax return for this tax year. This figure is based on the Claimant’s oral evidence, which I largely accepted, although she said relatively little on the subject. She gave no evidence as to what expenses she incurred in that tax year. She said that the high expenses in previous years included replacement of equipment. Although that seemed surprisingly high to me, I accepted that this partly explained the higher expenses. I infer from this and so find that her expenses have in all probability declined and most likely to be less than they were in the 2022/2023 tax year. I find that they are unlikely to have exceeded £5,000. Therefore, I infer her pre-tax earnings for 2024/2025 to be approximately £25,000. That equates to approximately £20,000 net income. I emphasise that my findings in relation to 2024/2025 are based on the minimal oral evidence of the Claimant and the tax-returns for the previous years. I was not helped in the exercise by the failure of the Claimant to provide an up-to-date witness statement in advance of this hearing outlining her actual income and expenses (even though one had not been ordered).[16]Although counsel for the Respondent put forward different figures in submissions, having analysed the tax returns and made findings thereon and from the Claimant’s oral evidence, I find that in the period 11 November 2022 to 07 April 2025, the Claimant’s net income (after expenses and tax/NI) from her social media activities was £46,362 (rounded to the nearest pound).[17]Her total net income from employed work with Springfield in that period was £13,021.64.[18]That comes to a grand total of £59,384 (rounded to the nearest pound) in combined selfemployed and employed net income earned by the Claimant up to the date of the Remedy Hearing. How the Claimant made money from social media and the time taken on those activities[19]As referred to above, Judge Loy concluded that the Claimant had invested a very considerable amount of time in her social media activities and that part of her reason for resigning was a desire to pursue a career as a social media influencer. Although expressed in the conclusions section of the judgment, I agree with Ms Martin that this also constitutes a finding of fact. As she pithily put it, one cannot conclude that a considerable amount of time was invested without also finding it as a fact. What is unknown is what is meant by a ‘very considerable amount of time’. Judge Loy made no findings as to the amount or average amount of time expended by the Claimant on these activities.[20]I accept the Claimant’s evidence and so find that when she first started creating YouTube videos back in September 2020, it took her a lot longer than it does now to produce videos and edit them. Over time, she got better and quicker at producing YouTube and Instagram videos and posts. Judge Loy found that she had made some 580 videos in three years, which is approximately three videos per week [see paragraph 29 of the liability judgment]. He did not make any findings on how long it took to make and then edit these. In paragraph 202 of the liability judgment Judge Loy refers to the time ‘in order to it to generate the level of content that it did’, reading the judgment as a whole, I take this to be a reference to paragraph 29 regarding the ‘three videos per week’ and the uploading of images to Instagram. Therefore, I read the judgment as a finding that the Claimant must have invested a very considerable amount of time in producing on average three YouTube videos a week and posting images on Instagram.[21]The Claimant gave direct evidence before me as to the actual time involved in making and editing a YouTube video. As I have indicated, hers was the only evidence before me. The Respondent called no evidence. The videos she makes vary in length. An average video is about 15 minutes long. That is, of course, an estimate, as some are shorter and some are longer than this. Many of the videos are about a ‘day in the life’ of the Claimant – not an entire day, rather ‘clips’ from her day, or as the name suggests, a ‘slice’. She estimates that it takes her about 30 minutes to film a video and about 30 minutes to edit it. She says she spends about 3 hours a week on average doing this. She also posts images on recipes and clothing on Instagram. She gave no evidence on the time spent on Instagram. I accept, broadly speaking, that the time the Claimant now spends – certainly since November 2022 - on filming and editing videos equates to about 3 hours a week.[22]It seemed to me, however, that the Claimant was being somewhat economical with her evidence, in that I did not feel that I was getting the whole picture of the time she put into earning this income pre and post dismissal. Her evidence was specifically about the length of time in recording and editing each video, which was about 1 hour per video. She said nothing about the time doing anything else. I note – and am bound by - Judge Loy’s finding that part of the Claimant’s reasons for leaving was to pursue a ‘career’ as an influencer (even if it may started out as a ‘hobby’). If someone is going to pursue a career in social media influencing they are likely to dedicate more than simply the basic hours of videoing and editing films. Whilst I accept what the Claimant says about the time taken to video and to edit a YouTube video – and whilst other elements around those tasks were not put to her – it would be naïve to proceed on the basis that the only time she spends is the time spent on filming and editing and no more; just as it would be naïve of anyone to conclude that a reserved judgment by a judge involves nothing more than typing the judgment and then proof-reading it.[23]Having regard to the nature of the activity (social media influencing) there must be, and I infer there are, activities associated with influencing other than videoing and editing and which took up and continue to take up more of the Claimant’s time. It is a natural inference for me to draw that her social media activities is not as simple as filming, editing, posting and then forgetting about it all. It is a natural inference that considerable thought and research into what is popular and what is not, has to be put into the exercise. As Judge Loy set out in his findings, the Claimant had, by November 2023, acquired 50,000 followers on Instagram and 25,000 people had subscribed to her YouTube channel. She must have to keep track of her activities and I infer that she does. She must monitor the popularity of the videos and I infer that she does. She must have to think about and research what is popular and I infer that she does. She must have to do some work in keeping track of payments from google and ensuring that her google payments are in order and I infer that she does. She maintains a separate bank account to manage her google payments. She must have to monitor her expenses which have been significant in some years - and I infer that she does. There must be, and I infer that there is, thinking and planning time involved in advance of videoing – for example, even considering what the ‘slice’ of life is going to be about on any given day will require thinking time. In addition to YouTube videos there are Instagram posts. If posting about a recipe, there will be thinking time ahead of deciding on which recipe is she going to feature. If featuring clothing, there will be thinking time involved in deciding what to wear or what range of clothing to feature. These things will naturally require time in addition to filming and editing. How she looks and dresses on social media is inevitably going to be a concern for a social media influencer. That will, and by natural inference I find does, take further thinking time and planning time.[24]It is notable that the Claimant only started her social media activity in any significant or meaningful way during her period of suspension. Prior to suspension, she merely held an interest in posting things on social, in common with many others. However, it was not something she considered doing with any such degree of regularity that it might bring in some money. She had been fully invested in her work with the Respondent, in respect of which she had ambitions to become a qualified nurse. I note Judge Loy’s finding that suspension provided the Claimant with that opportunity. In addition to providing her with the opportunity, I find that she was able to do dedicate enough time, energy to the tasks because she was not working. She had time and equally important, she had the energy, inclination and motivation, something she did not have before when working full time five days a week plus overtime and bank work.[25]The Claimant continued with her social media activity after the termination of her employment. By this stage it had become easier for her – and she was clearly good at it. Her net income steadily increased, as can be seen from the above figures. Northumbria Healthcare NHS Foundation Trust[26]On 06 October 2023, the Claimant received a conditional offer of employment from Northumbria Healthcare NHS Foundation Trust (‘Northumbria’) to work part-time as a Home Care Assistant on £22,383 pro-rata (on a 25 hours per week contract). The job was conditional upon, among other things, a satisfactory reference. The Claimant referred to this job offer in paragraph 57 of her witness statement dated 08 November 2023. She was as at that date hoping to take up that employment. However, she did not in fact start the job. Northumbria had asked the Claimant to send them paperwork surrounding her decision to leave the Respondent. An email was sent by Northumbria to the Claimant on 13 November 2023 [see page 106-107].[27]The Claimant responded to that email, saying that she had requested documents from the Respondent but it was yet to supply them and she would follow up [page 106]. The Claimant took steps to obtain the outcome letter into the investigation into her conduct (that is the letter referred to in paragraph 50 of Judge Loy’s reserved judgment). As was found by Judge Loy, the outcome letter was never provided to her other than in the course of these proceedings. The Respondent had provided Northumbria with the document at page 104. This stated the Claimant’s reason for leaving as being “voluntary resignation – incompatible Working Relationships”. That was clearly a misleading reason. It is no wonder Northumbria wanted the Claimant to provide ‘any paperwork surrounding her decision to leave’ [page 107]. The Claimant asked for but was not provided with the letter of outcome – something she ought to have been given back as far back as July or August 2021. Indeed, she had been asking for it from then. Although the Claimant had received a letter dated 28 October 2021 from Mrs Duguid (see paragraph 106 of Judge Loy’s reserved judgment) that was not what Northumbria was seeking. Northumbria wished to have clarification that the allegations against her had not been upheld. Having read that letter (contained in the original liability bundle at pages 951 to 955) it can be seen that allegations 1 and 3 were not upheld but allegation 2 was upheld. The letter went on to say that a decision had been made to issue the Claimant with a first written warning.[28]On Friday 08 December 2023, Northumbria emailed the Claimant again to say that the Respondent had provided a reference and they were not obliged to provide anything further to Northumbria. That may be so, but the misleading statement as to the reason for resigning prompted Northumbria to ask for more; and the Claimant had asked the Respondent for something she should have been given over two years earlier, so that she could forward it on to her prospective new employer. Northumbria set a deadline for the Claimant to provide it with paperwork from the Respondent. The deadline was Friday 15 December 2023.[29]This all happened on the cusp of the hearing before Judge Lo, which started on 11 December 2023 and continued to 13 December 2023. The Claimant saw the outcome letter when she attended the Tribunal hearing, as it was in the bundle [at pages 951-955] (see paragraph 50 of Judge Loy’s reserved judgment). In evidence before me, the Claimant said that she was advised by her then counsel that the documents disclosed in the bundle could not be used for any purpose other than in the litigation and could not be given to anyone outside the Tribunal process. I am in no position to say whether this is precisely what was said by counsel. However, I do find that is what the Claimant understood to be the case. Therefore, she did not take a copy of the outcome letter and provide it to Northumbria by the deadline of 15 December 2023. The job offer was withdrawn. Relevant Law Unfair dismissal: compensatory awards
Relevant Law
[30]Section 123(1) of the Employment Rights Act 1996 provides: “ … the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”[31]The overriding duty is to award what is just and equitable in the circumstances. In awarding what it considers to be 'just and equitable' the tribunal must have regard to whether any loss was sustained 'in consequence of the dismissal'.[32]For unfair dismissal claims, the period of immediate or past loss is the number of weeks between the EDT and the remedies hearing, or the date of a new equivalent job, or the date by which the Claimant should have found a new job, whichever is the soonest.[33]The first task is to calculate the loss which the complainant has sustained in consequence of the dismissal. Sums earned by way of mitigation should be deducted at this stage. So too should a deduction be made from the calculation of the loss to reflect any failure upon the part of the employee to mitigate their loss as sums which could have been earned ought to be taken into account as much as monies that were earned.[34]Section 123(4) provides that that in calculating the employee's loss, tribunals shall apply 'the same rule concerning the duty of a person to mitigate his loss as to damages recoverable under the common law'. Failure to mitigate[35]The burden of proving failure to mitigate is on the employer: Fyfe v Scientific Furnishing Ltd [1989] IRLR 331. It is for the employer to raise and make good an assertion that a claimant has unreasonably failed to mitigate. Further, it must be found that the claimant has unreasonably failed to take some particular step. Sums earned by the Claimant after dismissal[36]Ordinarily, the tribunal should take into account and give credit for sums the claimant has earned elsewhere following dismissal. Loss of statutory rights[37]Once dismissed, an employee will have to start afresh building up enough service to qualify for certain statutory rights. Tribunals should award the appropriate conventional sum: Dugdale v Cartlidge (UKEAT/0508/06) now thought to be between £400 and £500. Even claimants who have secured alternative employment and already accrued the requisite qualifying service by the date of hearing may be awarded a sum in respect of the loss of statutory rights: Wolff v Kingston Upon Hull City Council (UKEAT/0631/06. Unlawful deduction of wages[38]Section 24 ERA 1996 provides that where a complaint under section 23 of the Act is wellfounded, the Tribunal shall make a declaration to that effect and shall order the employer to pay to the worker the amount of any deduction made in contravention of section 13.[39]Section 13(3) provides that where the total amount of wages paid on any occasion by the employer is less than the total amount of the wages properly payable by him to the worker on that occasion, the amount of the deficiency shall be treated for the purposes of this Part as a deduction from the wages on that occasion. Thus the amount ordered under section 23 depends on what wages were properly payable. Submissions[40]Ms Martin confirmed that there is no ‘Polkey’ argument and there is a limited argument on failure to mitigate losses. As regards the unfair dismissal compensation, the main battleground was as follows: 40.1. The Respondent contends that the Claimant failed to mitigate her loss by failing to send the outcome letter to the Northumbria. This resulted in the withdrawal of the job offer. The Claimant disagrees. 40.2. The Respondent puts the Claimant’s net loss of income from the EDT to the remedy hearing as £66,511. It submits that the Claimant must give credit for all money earned since her dismissal, from Springfield and from Social Media Activities. Thus, it argues she must give credit for £59,364.60 of income. The Claimant says that she is obliged to give credit only for the Springfield income of £13,022.[41]As regards the claim of unlawful deduction of wages, the Clamant and the Respondent disagree about the reference period to be used for the purposes of calculating the Claimant’s full pay with average enhancements. The Claimant suggests a 6 month reference period whereas the Respondent suggests 12 weeks.[42]Both agree that there should be no separate award for breach of contract.[43]I refer to other submissions made by counsel in the course of my conclusions Discussion and conclusions Unlawful deduction of wages 12 weeks or 6 months?
Discussion and conclusions
[44]It was common ground that my task was to decide on the appropriate reference period for the purposes of ascertaining the amount of the deductions found to have been made by Judge Loy. They have agreed the figures in their ‘Agreed Figures Document’. The appropriate award would be that produced by the appropriate reference period. Judge Loy concluded that during the period of suspension the Claimant should have been paid ‘full pay with average enhancement’. That was what was properly payable on each pay date (paragraph 218 of the judgment on liability). Judge Loy concluded that the period over which full pay and average enhancements fell to be calculated was the period when the Claimant was working normally (paragraph 221 of the judgment).[45]It was also agreed that the appropriate reference period should be either 12 weeks (the Respondent’s case) or 6 months (the Claimant’s case). Both counsel submitted that I need not consider whether any other period was the appropriate reference period. Given the agreements reached I have, therefore, confined myself to that single task. It is agreed between the parties that: 45.1. A reference period of 12 weeks will result in an award of £584.25, and 45.2. A reference period of 6 months will result in an award of £3,241.[46]The respective arguments were not based on any evidence. Nothing was said about why the different reference periods should result in different amounts, other than the obvious point that the amount of overtime/enhanced premium working was greater if one looked at a six months period rather than the 12 weeks’ period. There was no evidence as to why that should be. Both parties agree that there is nothing in the contract that assists in answering the question.[47]Ms Martin submitted that the reference period of 12 weeks was in line with the approach to ascertaining a week’s pay under section 221 Employment Rights Act 1996. She submitted that this was the exercise being undertaken here and the appropriate reference period should be 12 weeks.[48]Mr McHugh submitted that this was a question of contractual entitlement and that the statutory provisions did not provide the answer. Having said that, he submitted that the approach is more analogous to the approach taken for calculating holiday pay as it was about working out normal pay. He submitted the longer the period you take, the better a picture you obtain. It is, he submitted, simply a matter of logic[49]However, simply saying that it is a matter of ‘logic’ does not lead me to an answer. Why is it logical, I asked myself, that a reference period of 6 months should produce a ‘normal’ average week’s pay as opposed to a reference period of 12 weeks? It is possible that there might have been an unusual or ‘abnormal’ surge in activity in the first 12 weeks that explains why the Claimant worked more overtime in that period. If so, then would it not be ‘logical’ to ignore that abnormal period? An analysis of a longer period (say 12 months or more) might reflect what the Claimant was earning in the 12 weeks reference period. It might reflect that she was earning more than she was in the 6 months reference period that the Claimant has landed on. Each party will, no doubt, have a different assessment of what is ‘logical’.[50]I considered Mr McHugh’s argument that the exercise was analogous to calculating normal pay for the purposes of holiday pay. Following the introduction of the Employment Rights (Employment) Particulars and Paid Annual Leave) (Amendment) Regulations 2018, from 06 April 2020, when determining ‘normal weekly pay’, employment tribunals now look at a reference period of 52 weeks for the purposes of assessing holiday pay. Before then, the reference period was 12 weeks (see regulation 16(3) Working Time Regulations 1998 as amended).However, regulation 16(2) provides that sections 221 to 224 of the ERA 1996 apply only for the purposes of regulation 16. Therefore, I am unable to read across from the Working Time Regulations into the ERA (or at least, I consider it inappropriate to do so in the fact of the limiting provision of regulation 16(2)).[51]In my view, the answer lies in section 220 of the ERA 1996, which provides: ‘the amount of a week’s pay of an employee shall be calculated for the purposes of this Act in accordance with this Chapter’. This issue arises in respect of a claim under section 13 ERA 1996. The question is what was properly payable to the Claimant for the purposes of section 13(3) of the Act. Judge Loy concluded that the amount properly payable was full pay with average enhancements when she was working normally under her contract of employment. I take that (and the words ‘wages properly payable’) to mean that she was entitled to her normal week’s pay. Where, as here, there is a dispute as to what is a normal week’s pay for the purposes of the unlawful deductions claim, section 220 provides that it shall be calculated in accordance with Chapter II. Chapter II takes a reference period of 12 weeks.[52]I agree with Ms Martin. The full pay with enhancements must be assessed over the 12 week reference period as, for the purposes of determining the normal weekly pay (that which was properly payable) Chapter II takes a 12 week reference period. That means that the amount of the unlawful deductions in this case is £584.25. Unfair Dismissal Basic Award[53]This is agreed. The amount is £3,322.98. Compensatory award[54]The first question was what are the Claimant’s past or immediate loss of earnings? That is, but for her dismissal, what net pay would she have received from the Respondent from the date of termination of employment up to the date of the remedy hearing? There was no claim for future loss of earnings.[55]As set out in my findings, the Claimant’s net loss of salary from the EDT up to the remedy hearing is £66,511 (rounded to the nearest pound). There is no suggestion that she might have left her employment in that period or that she would or might have been fairly dismissed. Ms Martin confirmed that no ‘Polkey’ argument was being advanced by the Respondent.][56]Against that net loss Ms Martin contends: 56.1. that the Claimant must give credit for all income earned from her social media activities from 11 November 2022 (this is disputed). 56.2. She must give credit for the income received from Springfield (not in dispute). 56.3. The Claimant must be taken to have fully mitigated her losses from December 2023 because she unreasonably failed to mitigate her losses by not providing Northumbria with the outcome letter, resulting in the job being withdrawn (a job which would have wiped out her losses). This is disputed. 56.4. The Claimant must be taken to have fully mitigated her losses from 16 October 2024, when she left the Springfield job and made no further attempt to look for alternative employment (not in dispute). 56.5. In addition, the Respondent contended that the Claimant should be awarded nothing in respect of loss of statutory rights. The Claimant sought the conventional award. Conclusions on the Northumbria issue[57]I address this first. The Respondent has failed to establish that the Claimant acted unreasonably and that her unreasonable conduct resulted in the withdrawal of the Northumbria job. I refer back to my findings of fact in paragraphs 26 to 29 above.[58]I was particularly unimpressed by the argument that the Claimant had acted unreasonably in the context where: 58.1. She should have been sent the outcome letter back in July or August 2021; 58.2. She had asked for a copy of it a number of times but had never been provided with it, other than through the process of disclosure in these proceedings. 58.3. She saw it for the first time when she attended the liability hearing. 58.4. The Respondent had given Northumbria a misleading reason for her leaving.[59]As of 08 November 2023, when the Claimant signed her witness statement, she was hopeful of starting the Northumbria job and went as far as to say that from then her pay will largely have been mitigated. The Claimant acted reasonably in applying for that job. She acted reasonably in contacting the Respondent again and trying to obtain a copy of the outcome letter. The Respondent, on the other hand, acted unreasonably in not providing her directly with it upon request (and in not providing it much earlier). I am not at all satisfied that the failure to extract the letter from the hearing bundle and provide it to Northumbria was unreasonable conduct by the Claimant. Further, given the misleading statement by the Respondent as to the reason for leaving and the upholding of one of the allegations in the disciplinary outcome letter, it was somewhat of a leap to suggest that it was the Claimant’s failures that lead to the withdrawal of the job offer by Northumbria. Who is to say that Northumbria would not have withdrawn it even if provided with the letter? The simple fact of the matter was that the Claimant acted reasonably in getting the offer. Whether to withdraw it was down to Northumbria. Had it not been for the misleading statement, it is a reasonable conclusion to draw that it would never have sought any letter in the first place. If anything was the cause of the withdrawal it was the combined effect of the misleading statement and Northumbria’s nervousness. I am quite satisfied that the Claimant did not act unreasonably when she had other things on her mind when she turned up at the liability hearing.[60]Therefore, I reject the submission that she acted unreasonably in not providing the letter and thereby causing the withdrawal of the job offer so as to fail to mitigate her losses. Whether to withdraw the offer or not was entirely a matter for Northumbria and no blame can reasonably be attached to the Claimant, in my judgement. Conclusions on the social media income post dismissal[61]This is an exercise in assessing what award of compensation is just and equitable, having regard to the loss sustained by the Claimant as a consequence of the dismissal. In seeking to arrive at a just and equitable award I have taken account of the following: 61.1. The Respondent – being a wrongdoer - should not obtain credit for income the Claimant earned after dismissal insofar as that income was derived from work or activities she would have been entitled and would have been able to undertake if she had remained in employment with the Respondent. 61.2. Suspension from work afforded the Claimant the opportunity to start her social media activity in any significant or meaningful way and the ability to dedicate enough time, energy and motivation to the tasks required to earn an income from social media.[62]The essential question is whether this income should be taken into account as reducing the Claimant’s post-dismissal losses – i.e. must she give credit for the income? This depends on whether it is right to treat all of it (or some of it) as a direct result of her dismissal. There is little evidence that the Claimant’s activity increased following dismissal. The extent of the activity and the time spent on it remained largely unchanged post-dismissal.[63]As regards paragraph 61.1 above, this raised the following questions: 63.1. Was the Claimant contractually entitled to earn a secondary income from social media or was she otherwise obliged to obtain permission from the Respondent to undertake such work? 63.2. Irrespective of contractual entitlement, would she have continued to undertake social media activities upon return to her full-time role with the Respondent (had she not accepted the repudiatory conduct and resigned) and if so, would she have done so to the same extent as she had prior to dismissal?[64]I take these questions in turn. Was the Claimant contractually entitled to earn a secondary income from social media or was she otherwise obliged to obtain permission from the Respondent to undertake such work?[65]Pre-dismissal, the Claimant had a secondary income stream from her social media activities. Although Judge Loy made no finding in this respect, the evidence of Gemma Rutherford at the liability hearing (see paragraph 27 of her witness statement) was that the Respondent was unaware of the Claimant engaging in the activity and earning money from it. However, she does not go on to suggest that the Claimant was contractually obliged to disclose that activity and that the Claimant was in breach of paragraph 17 of the contract of employment (see main liability bundle page 327).[66]Ms Rutherford’s evidence (on which I emphasise there was no finding) was that the Claimant would have been required to declare the work as secondary employment as per the Trust’s policy of Declaring Interests. I have not been taken to that policy but, in any event, there was no evidence (in witness statements at least) that had the Claimant declared her social media activity to the Respondent prior to resignation that the Respondent would have precluded her from engaging in that activity prior to suspension. The Respondent has called no evidence to that effect. There was no suggestion that the activities were or appeared to be in conflict with her NHS duties. There was no evidence before me that the Respondent would have objected to her earning money through the activities had she returned to her duties after suspension (i.e. had she not been dismissed). Mr McHugh submitted that there was no contractual barrier to the Claimant earning a secondary income through this particular activity. There was, he submitted, nothing in principle preventing her from earning it. There would, he said, have to be something at the practical level, rather than the contractual, that would have prevented her from doing so. I agree with Mr McHugh. I proceeded on the basis that there was no contractual barrier to the Claimant earning money from social media activities of the sort she was engaged in. Irrespective of contractual entitlement, would she have continued to undertake social media activities upon return to her full-time role with the Respondent (had she not accepted the repudiatory conduct and resigned) and if so, would she have done so to the same extent as she had prior to dismissal?[67]Perhaps in recognition of the absence of any contractual or ‘conflict of interest’ barrier to the Claimant earning a secondary income from the particular activities in this case, Ms Martin focused on the practical realities. This was the real battleground on the compensatory award. Ms Martin argued that, had the Claimant returned to her full-time role instead of accepting the Respondent’s repudiatory conduct and resigning, she would not have had sufficient time to dedicate to the activity (to the extent required to earn a significant income from it). Although she had not put to the Claimant that she was lying, Ms Martin was sceptical about the amount of time the Claimant says was required to generate such an income. She relied on Judge Loy’s finding as regards a considerable amount of time being required to generate the level of content and pointed to the time, prior to suspension, when she was working full time, when the Claimant’s media activity was minimal. This was explained, she argued, by the practicalities of having to work full-time which required not only time, but energy. Mr McHugh pointed to the Claimant working at Springfield yet still being able to maintain her social media activity, relying on the Claimant’s oral evidence that the payslips (which set out the hours of paid work) did not reflect the actual amount of time the Claimant spent travelling to that paid work.[68]I refer to my findings in paragraphs 19 to 24 above. The period of suspension creates the illusion that the Claimant was always going to benefit from full-time employment AND social media activity. However, had it not been for the suspension – and certainly the unlawful suspension (in breach of contract) from August 2021, almost certainly the Claimant would not have earned an income from social media, and not the amount she in fact earned. Had the Claimant not been dismissed and she had returned to her role upon the lifting of the suspension, she would not have continued with her social media activities to the same extent that she had during the period of suspension. That is because, in my judgement, the energy, commitment and time required to work in a full-time job within the NHS whilst hoping to pursue a career as a nurse would have come into conflict with the energy, commitment and motivation required to pursue her YouTube and Instagram, activities. That is not a conflict of ‘interest’ as such, nor is it due to any contractual issues. It is a conflict of two realities: the reality of what is involved in her role with the Respondent and the reality of pursuing significant social media influencing activities at the same time. To the extent that the Claimant said that she was able to continue the social media work whilst holding down a job with Springfield was good evidence that she was able to do both I do not accept this. First of all, the Springfield job was not obtained until August 2023. Secondly, it was not fulltime. Thirdly, the hours for which she was paid do not reflect that she was working full-time – even taking into account that she was not paid for travelling between visits. The Claimant’s evidence on that last point was vague. Working full time, five days a week plus overtime and additional bank-work as a nursing assistant for the NHS is tiring work. I agree with Ms Martin and conclude that the Claimant did not engage in any meaningful way in social media activity before suspension because she did not have the time, energy and motivation necessary.[69]However, she did build up a following during the period of suspension. She was receiving an income. Even if, after dismissal, she reduced her activity because of the demands of fulltime work with the Respondent, It is highly unlikely that she would have given up her social media activity altogether. Most people are unlikely to want to give up an alternative income stream if they can avoid it. I conclude that she would have continued to film and to post but not to the same extent. She would still continue to receive an income because the income is dependent on the popularity of the videos and posts but the income would have declined or at best remained as it was. I explain my reasoning in more detail below.[70]The Respondent has established the amount of income the Claimant has received from her social media activities before and after dismissal. That income has increased since her dismissal. What the Respondent has not established definitively is the amount of time expended by the Claimant in earning that money through her social media activities. Mr McHugh relied on this in submitting that there was nothing to gainsay the Claimant’s evidence as to what was involved in earning the money (i.e. 3 hours a week). He submitted that there was little evidence to suggest that the time involved changed. However, Ms Martin did not submit that the time involved in the activity had changed. Her point was the time involved in pursuing the activity to the extent that the Claimant did conflicted with her duties. The amount of time and energy required may not have changed after dismissal. Her point was that full-time work with the Respondent would not have afforded her the time and energy.[71]It is, of course, unsurprising that the Respondent was unable to establish how much time was taken by the Claimant either during her suspension or post dismissal in pursuing her social media activities beyond that admitted by the Claimant. Such information is peculiarly within the knowledge of the Claimant. I reminded myself that I considered the Claimant to be economical with her evidence and referred back to the natural inferences I drew from the nature of the activities. I was able to conclude from my findings (and those of Judge Loy) that just as suspension gave the Claimant the opportunity, the time and the energy to commit to that work in a way she would not have been able to had she not been suspended, her dismissal gave her the opportunity, time and energy to continue to pursue the activities in a way she would not have been able to had she not been dismissed but instead returned to her full-time duties. To that extent, I conclude that her decision to continue with the activities at the same level of commitment was causally related to her dismissal and much of the income she earned thereafter was a direct result of her dismissal.[72]Having arrived at that conclusion in principle, the next consideration was how much of the income earned after 11 November 2022 was the result of the dismissal and which should be be credited against her losses? Should it be all of the social media income or should it be some of it? If some, how much?[73]I concluded that it would not be just and equitable to credit all of the income against her losses. This is because I am satisfied that the Claimant would have continued to engage in some social media activities had she remained in employment with the Respondent, albeit to a significantly reduced extent. By 11 November 2022, she had already secured some recognition on social media and was receiving a good secondary income. It is highly unlikely, therefore, that she would have ceased all such activity. However, the clash of fulltime work and social media influencing would naturally limit the time she had available to her to dedicate to influencing. It is difficult to put a figure on the time over and above the three hours a week filming and editing. There was little in the way of evidence from either party. However, I disagree with Mr McHugh’s submission that there was nothing to gainsay the Claimant’s evidence that the activity took only 3 hours a week. As I have found, the Claimant was being economical in that she limited the estimation of ‘time’ to videoing and editing. She said nothing about anything else. Given the nature of the activities involved, Judge Loy’s finding that the Claimant invested a considerable amount of time pre-dismissal and my findings set out above, I consider it legitimate to draw an inference that the Claimant has expended significant amounts of drive and energy in ‘influencing’ and that she was only able to do so because she was not carrying out the full time activities for the Respondent (when on suspension and then after dismissal). I cannot put a figure on the amount of time necessary to expend such drive and energy but it is a legitimate conclusion to draw from my findings that it was substantial and so substantial that the Claimant would not be in a position to do what she was doing and certainly not to the extent that she was doing it (despite the increased speed at which she is now able to produce videos) had she not been suspended and ultimately unfairly dismissed. Although payment is dependent on popularity (views and subscription) one cannot divorce the success of videos/posts from the time put in to making them a success. That time, as I have found, is not simply videoing and editing. Had she returned to full-time duties with the Respondent (as opposed to accepting its repudiatory conduct and resigning) the time was not available to her, nor would a full-time role of the sort she was performing leave her with sufficient energy and commitment to continue to ensure the popularity of the videos and posts and thus increase her income.[74]I conclude that she would have reverted to much reduced activity, enough to prevent the income stream that she had established whilst on suspension from significantly reducing.[75]Therefore, had she not been dismissed, the Claimant would probably have continued to earn an amount, on average, similar to that before her employment terminated. I now turn to calculate that amount.[76]Referring back to my findings, in the approximately seven-month period from September 2020 to 05 April 2021, the Claimant’s net income was £3,339 (rounded to nearest pound) [paragraph 13.1 above]. In the twelve months from 06 April 2021 to 05 April 2022, it was £6,393 (rounded to nearest pound) [paragraph 13.2]. From 06 April 2022 to 11 November 2022 (approximately seven months) it was £8,315 [paragraph 13.3 above]. That is a total net income of £18,047 equating, over a period of twenty-six months, to approximately £695 a month. That is the net income she would have sought to prevent from diminishing had she returned to full time work with the Respondent.[77]Post dismissal, in the approximately five months from 11 November 2022 to 05 April 2023 the Claimant’s net income was £5,940 [paragraph 15.1 above]. Her net income was, therefore, increasing in circumstances where she was putting in the same amount of time as she was when on suspension. From this, I infer that it is necessary to dedicate the same amount of time in order to increase her income. Had she gone back to her full time role, she would not have been able to do this and her time and energy would have reduced. Whilst reducing her time and energy might not have reduced the previously established income of £695 a month, it is highly unlikely to have increased it. Therefore, of the £5,940 from 11 November 2022 to 05 April 2023, she would have continued to earn £3,475 independent of the dismissal (£695 x 5). Therefore, £2,465 was a direct result of the dismissal for which credit must be given in mitigation of her losses. I apply the same reasoning to the subsequent periods below.[78]In the period of twelve months from 06 April 2023 to 05 April 2024 her net income was £20,422 (rounded to nearest pound) [paragraph 15.2]. Of that, she would have continued to earn £8,340. Therefore, £12,082 was a direct result of the dismissal for which credit must be given in mitigation of her losses.[79]In the period of twelve months from 06 April 2024 to 05 April 2025, it was £20,000 [paragraph 15.3 above]. However, the Claimant left her job at Springfield on 16 October 2024 at which point, different considerations apply. In the approximate six month period from 06 April 2024 to 16 October 2024, her net income was approximately £10,000. Of that, she would have continued to earn £4,170 independent of the dismissal. Therefore, £5,830 was a direct result of the dismissal for which credit must be given in mitigation of her losses.[80]Mr McHugh confirmed the Claimant sought no compensation beyond 16 October 2024 because from then she must be treated as having failed to mitigate her losses. However, that does not mean that the analysis simply stops as at that date. I agree with Ms Martin that the proper approach is to assess the past losses up to the date of the remedy hearing. That is what I have done, and they come to £66,511. Having done so, the correct analysis is then to set off those sums in mitigation and any sums the Claimant would have earned but for her failure to mitigate her losses. As it is accepted that there was a complete failure to mitigate from 16 October 2024, the correct approach is to treat the Claimant as if she had earned £547 net a week from then to the remedy hearing. Therefore, from 16 October 2024, she must be taken to have earned a net income of £547 (rounded to the nearest pound) a week [see page 260 of the bundle. That is a period of approximately 24.5 weeks for which, she must give credit of £13,401 (£547 x 24.5).[81]That leaves a total loss of net income of £66,511, against which must be credited a total net income of £46,800 made up as follows: 81.1. 11/11/2022 – 05/04/2023: £2,465 81.2. 06/04/2023 – 05/04/2024: £12,082 81.3. 06/04/2024 – 16/10/2024: £5,830 81.4. 17/10/2024 – 07/04/2025: £13,401 81.5. 07/08/2023 – 16/10/2023: £13,022 (income from Springfield)[82]That leaves total losses of £19,711. Conclusion on loss of statutory rights[83]I disagree with Ms Martin that the Claimant should be awarded nothing in respect of loss of statutory rights. The case law does not preclude an award even in the case of those who have in the meantime acquired fresh statutory rights in new employment. It is discretionary, within the overall framework of awarding compensation on a just and equitable basis. This case was initially listed as a liability and a remedy hearing. Had it concluded there would be no argument as to whether the Claimant should be awarded compensation under this head. Equally, the delay in listing the hearing for a remedy hearing was out of the control of the Claimant and to deprive her of an award solely on the basis of the passage of time would not be just. I award the conventional sum of £500. This is to be added to the amount of £19,711 in respect of financial losses. Total amount payable to the Claimant(1) Unlawful deduction of wages 83.1. The amount to be paid to the Claimant is: £584.25.(2) Unfair dismissal 83.2. Basic award: £3,322.98 83.3. Compensatory award: £20,211.[84]There is no adjustment required to the compensatory award as it is beneath the statutory cap in the Claimant’s case. Further, as the Claimant received no state benefits following her dismissal, the recoupment provisions do not apply.