Mr J Milner v Nottinghamshire Healthcare NHS Foundation Trust: 2600436/2024

EMPLOYMENT TRIBUNALS

Case No 2600436/2024

Between

Mr J MilnerClaimant

Nottinghamshire Healthcare NHS Foundation TrustRespondent

Before

Employment Judge Victoria Butler

In person for claimant

Mr Gibson (instructed by Solicitor) for respondent

Date 3 April 2026

JUDGMENT

[1]The claim of constructive unfair dismissal fails and is dismissed.

[2]The claim of harassment is out of time and the Tribunal does not have jurisdiction to hear it.

[3]The claim for ten days’ holiday pay fails and is dismissed. Background

[1]The Claimant presented his claim to the Tribunal on 6 March 2024 after a period of early conciliation between 16 January 2024 and 27 February 2024. He was employed by the Respondent at Rampton high security hospital as a Technical Instructor from 5 October 2020 until his resignation with effect from 29 January 2024.

[2]The Claimant’s role was primarily to deliver health and fitness sessions in the hospital gym. The complaints stem in the main from the Respondent’s decision to close the gym and redeploy him when operational needs required, comments made to him in a training session on 17 August 2022 and the handling of his sickness absence. The hearing

[3]The hearing was listed for five days. We used the first day to read in and concluded the evidence by the fourth day. The Claimant was a litigant in person and became visibility upset at times. To allow him time to think and digest the evidence we did not sit on the fifth day and, in agreement with the parties, ordered them to provide submissions. We met again on 30 March 2026 to deliberate and reach our conclusions.

[4]During the hearing, the Claimant withdrew his complaints of whistleblowing detriment, automatically unfair dismissal, direct sex discrimination and three allegations of harassment. Those complaints were dismissed on a withdrawal and the issues below amended accordingly. The issues

[5]The issues agreed between the parties for determination were as follows:

[1]Did the Respondent commit a repudiatory breach of the implied term of mutual trust and confidence in the Claimant’s contract of employment? The Claimant relies on the following treatment as breaches cumulatively of the term of mutual trust and confidence: (a)The Respondent failed to provide a substantive response addressing concerns raised by the Claimant about health and safety and the closure of the gym: (b)The Respondent failed to take concrete steps to open the gym more often despite the Claimant’s complaints: (c) The Respondent failed to provide a substantive response addressing concerns raised by the Claimant about the incident of harassment with Mel Fogg on the 17th August 2022: (d) The incident with Mel Fogg on 17th August 2022, including the sexual harassment: (e) Instead of addressing the Claimant’s grievance the Respondent proposed a relocation not Rotherham: (f) The Respondent failed to undertake a stress risk assessment either prior to the sickness absence or during the sickness absence with a view to facilitating a return to work: (g) The Respondent failed to provide the Claimant with support during his sickness absence: (h) The Respondent failed to treat the Claimant’s complaints as a formal grievance and in any event did not substantively address them at any stage.

[2]Did the Claimant resign in response to the accumulated breaches of trust and confidence?

[3]If so, was there a potentially fair reason for dismissal within section 98 of the Employment Rights Act 1996? The Respondent relies on the potentially fair reason of capability.

[4]Did the Respondent unreasonably failed to comply with the ACS code by failing to address the Claimant’s grievance?

[5]Are the facts such that the tribunal could conclude that in any of the following alleged respects the Respondent subjected the Claimant to unwanted treatment related to his sex which had the purpose or the effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? (a) The Claimant on comments made by Mel Fogg asking him if he shaved his legs and used his Mrs’ Immac.

[6]Insofar as any of the matters for which the Claimant seeks a remedy occurred more than three months prior to the presentation of the complaint against the Respondent, allowing for the effect of early conciliation:(a) Can the Claimant show that it formed part of conduct extending over a period ending within three months of presentation; or

(b) Can the Claimant show that it would be just and equitable to allow a longer period for presenting his claim?

[7]Did the Respondent failed to pay the Claimant holiday pay in respect of 10 days in lieu accrued by working bank holidays? The evidence 6. We heard evidence from the Claimant. For the Respondent we heard evidence from:• Ms Fogg, Clinical Security Liaison Nurse

• Mr Routen, Head of Health and Fitness and Vocational Services

• Ms Carley, Occupational Therapy Lead

• Ms Burton, Head of Business and Operations at the time

• Ms Andrews, Head of People and Culture 7. We found the Respondent’s witness evidence to be entirely credible and consistent with the contemporaneous documents where they existed. We found the Claimant’s evidence to be sincere albeit he was intransigent in his position which undoubtedly affected his perception of events at the time. This was a case where the facts were broadly in agreement but perspectives on events differed greatly.

[8]We made our findings of fact based on the material before us, taking into account the contemporaneous documents where they existed and the conduct of those concerned at the time. We resolved any conflicts of evidence on the balance of probabilities. The facts Background

[9]The Respondent is one of three high secure hospitals across England and Wales, providing care for patients detained under the Mental Health Act who present a grave risk to themselves or the public. The clinical services are supported by Therapies and Education, Forensic Security and Physical Healthcare Services.

[10]The Claimant commenced employment on 5 October 2020 as a Technical Instructor within the Therapies and Education Service primarily delivering health and fitness sessions in the gym. His contract of employment provided: “The Trust reserves the right to require you to relocate to any of its places of operation, wards or departments on a temporary or permanent basis, and any locations of a successor employer as necessary” (page 101). Gym closures

[11]The Respondent faced significant staff shortages during 2022 and 2023 (which continue to date), particularly in nursing, which impacted the ability to maintain safe services. Therapy staff, including the Claimant, were sometimes redeployed to wards to maintain patient safety. This happened more so because they worked weekends and evening shifts where there were increased staff shortages. Redeployment decisions were triggered primarily by operational pressures such as patient seclusions, staff sickness and urgent out-of-ground escorts.

[12]Meetings were held daily to decide which activities could be safely run based on available staff and skills. The Respondent tried to maintain therapy programmes as best as it could and ensure cancellations did not disproportionately affect a particular activity. The gym was the least affected activity, although the Claimant considered it was cancelled more frequently than others. The Claimant was frustrated about the closures and his redeployment and made complaints about it, albeit not initially formally.

[13]On 6 July 2022, the Claimant met with his line manager Mr Routen, Head of Health & Fitness and Vocational Services Manager, to express his ongoing frustration. Mr Routen followed up the meeting with an e-mail setting out the following points:• Focus honestly and reflect on your core purpose of why your (sic) doing this job and how hard you have worked to get this position

• Pick your battle and control what you can and let the rest go - despite how hard this is

• Acknowledge that staffing challenges are not going away and are going to be here for some time to come, set yourself a time frame for how long you are willing to work with this and when its time look elsewhere (not that I want lose you)

• ……..

• Meet with Clare and be honest how your (sic) feeling as for a well-being plan to capture you (sic) frustrations and avoid crisis, when you can't face coming in

• Work with Clare to build an issues/cancellations log to request fair rotational closures (share this with me please)……… (page 335) The training session on 17 August 2022

[14]On 17 August 2022, the Claimant attended a training session on security procedures run by Ms Fogg, Clinical Security Liaison Nurse. Ms Fogg has been a nurse for over thirty years and has worked at the Respondent for twenty of those. Prior to this date, her record was exemplary with no disciplinary concerns. She was a specialist in her role, and the session was intended to be supportive and informal, so staff felt comfortable in raising any concerns about security policy.

[15]Ms Fogg often uses humour during her training which had always been well received until this session. We add at this stage that the use of profane language was not unusual at the Respondent.

[16]The Claimant attended the session in his gym kit and shorts rather than the expected uniform and his behaviour was described as negative, challenging, disruptive and rude during it.

[17]One topic of discussion was rub-down searches. The Claimant agreed to participate, and Ms Fogg commented “You’ve got better immac’ed legs than me”. The comment was said in a light-hearted way to break the ice and was not said to offend the Claimant in any way. She was using humour to de-escalate his negativity, and other attendees did the same.

[18]As the session progressed, the Claimant was highly critical and dismissive of the Respondent’s Breakfast Club and referred to it as the Cholesterol Club. Ms Fogg had witnessed the clinical benefits of the club to patients and responded to the Claimant jokingly asking “what do you eat? Fucking protein and steroids?”. She said this to lighten the mood and redirect the discussion to training objectives. She did not intend to target and humiliate him.

[19]The Claimant continued to focus on unrelated issues such as restricting fizzy drinks and unhealthy food, and Ms Fogg jokingly responded, “You can tell you used to be a fucking screw”. Again, she was attempting to lighten the mood caused by the Claimant’s negative behaviour. The Claimant continued to argue until another member of staff had to interject. In light of the Claimant’s stance in the meeting, Ms Fogg considered the Claimant did not have knowledge of the Mental Health Act and the challenges faced by the Respondent’s patients, some of whom are so mentally unwell and a danger to themselves and others that they are segregated for twenty-three hours a day. The Claimant seemed to think that the gym and a clean diet would resolve their issues, undermining the benefits of other therapies and individual care decisions.

[20]As the training progressed, the Claimant continued to be obstructive and at one point, Ms Fogg jokingly asked “have you got any mates?” in a further attempt to diffuse the situation with humour.

[21]The Claimant also complained about being prevented from taking a patient to the AstroTurf area whilst another patient was permitted to go following an assault. Ms Fogg had worked with this patient for twenty years and knew that he could be unexpectedly volatile. She had witnessed him go from laughing and joking to assaulting someone without warning. She said to the Claimant “You don’t know him, you might have got him out a few weeks ago but in a few weeks or month he will fucking batter you”. Her comment was simply to explain that the patient was mentally unwell, unpredictable and may punch him. After the session

[22]The following day, the Claimant spoke with Mr Bennett, Clinical Security Liaison Manger, to complain about Ms Fogg’s comments in the session. Mr Bennett asked him to commit his complaints to writing which he did that afternoon in an e-mail saying it was appalling and he was “disgusted by the whole afternoon” (page 376). The Claimant did not raise the comment about his legs within this e-mail.

[23]Mr Bennet spoke informally with Ms Fogg that afternoon and she explained that she had found the Claimant’s behaviour challenging and how he had been particularly difficult in understanding the environment and managing demanding patients. However, she agreed that she had made the comments, accepted that she had found the session difficult and that she had misjudged her approach (page 384). Ms Fogg went on annual leave on 19 August 2022 and returned on 30 August 2022.

[24]On 19 August 2022, the Claimant attending a scheduled supervision meeting with Mr Routen. They discussed day to day matters relating to the Claimant’s role and the Claimant also explained how the training session had made him feel, that he had raised the matter formally and was waiting for an update. Within the meeting, Mr Routen reassured the Claimant that he was doing the right thing raising his concerns saying that not everyone feels confident enough to raise their head above the parapet by blowing the whistle, or words to that effect. His intention was solely supportive (page 381).

[25]On 19 August 2022, the Claimant also spoke with Ms Burton, Head of Business and Operations (now Director of Operations). He told her about the training session, and she assured him that she would contact Mr Bennett to understand what steps had been taken. Ms Burton encouraged the Claimant to speak to his union representative, and he expressed a desire to have mediation.

[26]On 23 August 2022, a serious incident report (“SIR”) was lodged about the Claimant by a colleague. It concerned his negative attitude towards team members and his lack of understanding regarding the individual needs of patients relating to both their clinical diagnosis and risk. She raised his poor communications skills and inability to listen to advice and support and his defensive response to feedback or support. She also addressed his behaviour in the training session on 17 August 2022 explaining that he was critical of the work of others and had described a RIO entry as “utter bullshit”. She described his behaviour as negative and challenging and that he “had a very derailing impact on the training” (pages 378 – 379).

[27]On 24 August 2022, the Claimant e-mailed Mr Routen to express his disappointment about the comments that he had “stuck his head above the parapet” and might be known as a whistle blower (page 380). Mr Routen responded explaining that the Claimant may have misinterpreted his comments, clarifying his passionate belief in ‘inclusive leadership and support in an open culture, in which staff have the freedom to speak up” (page 380).

[28]On 31 August 2022, the Claimant met also with Mr Muldoon, Day Unit Manager Personality Disorder Care Stream, and explained his upset about the training session. Mr Muldoon asked the Claimant what he would like to happen and he said that he wanted to meet with Ms Fogg, tell her how she made him feel and an apology (page 382). Mr Muldoon assured the Claimant that he would contact his line manager. The investigation

[29]Mr Muldoon tasked Mr Bennett with undertaking an investigation. Within his report, Mr Bennett relayed his discussions with the Claimant and Ms Fogg and included the SIR lodged on 23 August 2022. He had also asked Ms Fogg to provide a written statement which was incorporated. Within the statement, Ms Fogg acknowledged again that she had misjudged the group and explained how she uses humour to de-escalate negativity. She also said “Should the opportunity have arose prior this I would have liked the opportunity to have apologised to JM and explain that I would by no means wish to cause distress or offence to anyone. I would have also liked to have had an open, honest, and transparent conversation where I would have explained my views on how he had conducted himself in a negative manner and the impact this had on a meeting and that I had also been wrong in responding to his behaviour”.

[30]Mr Bennett submitted his report on 2 September 2022 (pages 383 – 389).

[31]Given Ms Fogg’s admission and remorse, she undertook reflective work under the Respondent’s Just and Restorative Culture approach. She was also placed on restricted duties.

[32]Following the investigation, Mr Bennett spoke with the Director of Security, Mr Mooney, who concluded that a formal investigation was not required given Ms Fogg’s admission and remorse. The Respondent felt that a more informal approach was appropriate and in line with the Respondent’s grievance policy which provides: “Informal stage4.1 If an employee feels aggrieved, they should, in the first instance, work with their line manager to resolve any concerns informally.

4.2 The manager will arrange to meet with the individual to discuss the concern(s) raised and to understand the desired outcome/resolution. Referral to the Respect, Civility and Resolution policy may be made here to explore the options for early resolution where a colleague submits a grievance raising concerns about another colleague. This may include encouraging a discussion directly between all parties, a facilitated conversation, or mediation” (page 213).

[33]On 13 September 2022, Ms Carley, Occupational Therapy Lead, contacted Mr Muldoon and asked him to speak to the Claimant to ascertain if he would be willing to engage in mediation with Ms Fogg. The Claimant was initially hesitant but agreed. Mr Muldoon explained that the only participants would be himself, the Claimant, Ms Fogg and Mr Bennett. The Claimant said he wanted to have a face-to-face conversation with Ms Fogg and receive an apology (page 394). The mediation on 21 September 2022

[34]Ms Fogg was also willing to attend a mediation with the intention of apologising and it was arranged for 21 September 2022. However, on 20 September 2022, the Claimant e-mailed Mr Muldoon saying that he did not wish to go forward with the mediation at that time and because his union representative had advised him that “this isn’t mediation in its true form”. He requested a facilitated meeting at which his union representative would be present instead (page 404).

[35]On 20 September 2002, the Claimant also contacted Ms Burton again and asked to meet (page 405). A meeting was scheduled for 30 September 2022 (page 406) which was subsequently rearranged for 5 October 2022 (page 411) during which the Claimant again expressed his wish for mediation.

[36]In October 2025, Ms Hall, Employee Relations Adviser and qualified mediator was contacted about conducting a mediation. She advised it would not be appropriate if the Claimant wanted his union representative present but set out the process that would be followed. This involved the appointed mediator meeting both the Claimant and Ms Fogg separately to explain the process in detail and so they could discuss any issues/concerns (page 451 – 452).

[37]Ms Hall met with the Claimant and Ms Fogg individually and concluded that a mediation could not proceed because “one of the parties was highly distressed about the whole situation”. On 28 November 2022, she e-mailed Ms Carley and Mr Bennett explaining her decision and recommending support for Ms Fogg (page 450).

[38]There was some confusion about who would relay Ms Hall’s decision to the Claimant. Ms Carley assumed that Ms Hall had done it and was only aware this was not the case when the Claimant asked for an update on 12 December 2022 (page 448). Ms Carley forwarded the Claimant’s e-mail to Ms Hall who subsequently confirmed her decision to him. He e-mailed in response stating it was disappointing to hear and asked what options were available (page 445). Ms Hall forwarded the Claimant’s e-mail to Ms Carley and said that she would contact the Claimant again, advise him to have a discussion with his manager and another option would be a facilitated meeting or the more formal option of submitting a grievance (page 445 – 445).

[39]Ms Burton scheduled another meeting with the Claimant on 22 December 2022 to give him the opportunity to consider his options moving forward (page 457). The meeting was re-scheduled to 5 January 2023. During this meeting, the Claimant expressed his frustration about gym closures again and he said that he was ‘pissed off’ because he could not be in the gym which he felt was closed disproportionately to other activities. Ms Burton’s impression of the Claimant during this meeting was that he was disrespectful of others in the therapy team and had a lack of understanding about the importance of safe staffing levels.

[40]After the meeting, the Claimant e-mailed Ms Burton thanking her and saying that it “was a massive relief to be able to talk to you and express my feelings and passion for the job I do” (page 464).

[41]On 6 January 2023, the Claimant e-mailed Ms Burton as follows: “…. Sorry for the contact, but yet again I have come on duty and have been redeployed to Horticulture all afternoon rather than do my own job in making a difference to patients health and wellbeing, it is NOT fair how it is being organised as both the Woodwork and Horticulture depts were open and I am closed yet again and told that’s how it is with a shrug of shoulders?? Sorry Kerry but this response and attitude to me is both unprofessional and demeaning as I am very passionate and dedicated to doing my job. It appears the work I am capable of doing has again been undervalued and deemed not important as what Exercise brings is improvement of patient wellbeing with their mental health and tackling of Obesity which is massive in this hospital. Again I am left frustrated and disappointed” (page 465”). The Claimant’s sickness absence

[42]The Claimant was signed off sick the following day, 7 January 2023, with work related stress. Ms Fogg was also off sick in January 2023, so the Respondent had difficulty arranging a facilitated meeting.

[43]On 9 January 2023, Mr Muldoon contacted the Claimant to see how he was. The Claimant explained that the recent gym closure and his redeployment to Horticulture had caused him significant frustration and distress. To assess matters, Mr Muldoon asked Mr Fisher, Technical Instructor and Coordinator, to undertake an analysis of gym closures. This exercise demonstrated that the gym was not disproportionately closed, and on occasion it was open more than other therapies (pages 626 – 627, 839 – 851, 865 - 873). Mr Muldoon intended to share the analysis with the Claimant on his return but, in the end, did not have opportunity to do so.

[44]On 20 January 2023, Mr Muldoon attended an internal security meeting about the Claimant because SIRs had been lodged relating to security and “this individual’s lack of insight into clinical presentations of patients. Also issues around his lack of respect for professional clinicians including the RC, Specialist OT, Day Unit Manager and other members of the Day Unit Management Team”. It was agreed that Mr Muldoon and Mr Moseley would meet with the Claimant to offer further training and the actions were to be delivered in a supportive and developmental way. The next step would be ‘more formal conduct/disciplinary’ (pages 466 – 467). These issues were not addressed with the Claimant because he was off sick and subsequently resigned.

[45]Mr Muldoon attempted to contact the Claimant again on 3 February 2023 but was unsuccessful. He made further contact to check on the Claimant’s welfare on 9 and 23 February 2023.

[46]On 2 March 2023, Mr Muldoon held a welfare meeting with the Claimant. The Claimant expressed his frustrations about gym closures again and his concern that the matter with Ms Fogg was not resolved. He told Mr Muldoon that he wanted a facilitated meeting with Ms Fogg and to return to normal duties when he was well rather than a phased return. The Claimant agreed to a referral to Occupational Health and Mr Muldoon committed to seeking advice about a facilitated meeting. Mr Muldoon summarised their meeting in a letter dated 6 March 2023 (pages 468 – 477).

[47]After the meeting, Mr Muldoon sought advice and was told that a facilitated meeting could not be organised until Ms Fogg returned to work. He relayed this to the Claimant.

[48]On 14 April 2023, the Claimant e-mailed Mr Muldoon in response to his letter dated 6 March 2023. He said “You have referred to my frustration with the continued frequent closure of the gym but have not addressed this in action. I have been considering this myself and how the issue could be managed more effectively and fairly. I would be more than happy to discuss this as I am wanting to return back to work but feel this unresolved issue hinders my return”. The Claimant thanked Mr Muldoon for the update about the facilitated meeting but said he was still waiting for a further update and had not heard anything from Occupational Health (page 473).

[49]The referral to Occupational Health was subsequently made and the Claimant attended an appointment on 10 May 2023. The following report confirmed he remained unfit for work and would be reviewed in a further four weeks. During the appointment, the Claimant had raised his concerns about gym closures which had made him feel unsupported and undervalued as well as the unresolved issue with Ms Fogg. The physician recommended that a stress risk assessment and wellbeing plan be initiated to support his return to work (pages 480 – 493).

[50]On 6 May 2023, the Claimant learned that his sick pay would be reduced to half pay so he applied for Temporary Injury Allowance to top it up to 85% (page 494). This was ultimately granted.

[51]On 31 May 2023, Mr Muldoon phoned the Claimant to check on his welfare and arrange to meet for a Long-Term Welfare Review on 5 June 2023 (page 497).

[52]On 2 June 2023, the Claimant wrote to Mr Muldoon requesting that his absence be recorded as work related stress. He identified that the meeting with Ms Fogg had not been arranged as well as gym closures as reasons in support of the classification. He went on to say that “the final act that was the crucial tipping point was when I attended work and was told that the gym was closed and I was told to support patients in the garden, again this was due to reduced staffing levels this has had a huge impact on my own health and wellbeing feeling that the service I provide to the patients at Rampton is of no value and will always be the first service to be pulled due to staffing. I feel it is unfair”. The Claimant also complained that he had not been contacted regularly by his manager and the reduction in his sick pay had caused him additional anxiety (pages 449 – 500).

[53]The Welfare Meeting took place on 5 June 2023 chaired by Mr Muldoon and Ms Garnett from Employee Relations. The Claimant was accompanied by his union representative. His primary complaint was the closure of gym. He also remained frustrated that a meeting had not taken place with Ms Fogg, and it was explained that an outcome had been reached for her, but the details were confidential. Mr Muldoon reminded the Claimant of the attempts made to have a meeting to date, that a facilitated meeting could not take place whilst he and Ms Fogg were both signed off sick and he was entitled to raise a formal grievance. The Claimant also felt that contact with him was infrequent, and it was agreed going forward it would be way of a weekly phone call. It was also agreed that they would meet again after the Claimant’s next Occupational health appointment and a stress risk assessment could be completed in readiness for when he felt able to return. A summary of the meeting was set out in a letter dated 12 June 2023 (pages 501 – 503).

[54]Mr Muldoon contacted the Claimant weekly as agreed but on occasion had to leave a message when the Claimant did not answer (pages 856 – 860).

[55]On 9 June 2023, the Claimant attended his second Occupational Health appointment. The subsequent report confirmed he was still unfit for work due to worsening symptoms and recommended that a stress risk assessment and wellbeing plan be initiated (pages 513 – 515). Mr Muldoon did not initiate the risk assessment at this stage because it was not standard practice to conduct one until a return-to-work date is agreed as circumstances may change in the meantime. The facilitated meeting

[56]On 11 July 2023, Ms Andrews, Head of People and Culture, was contacted to support a facilitated meeting between the Claimant and Ms Fogg in accordance with the Respondent’s Respect, Civility and Resolution Policy (pages 170 – 186). To prepare, she arranged to meet with the Claimant and Ms Fogg separately. The purpose was to introduce herself, set the scene, explain the process and understand from each their desired outcomes.

[57]On 25 August 2023, Ms Andrews met with the Claimant via Teams. The Claimant told her he wanted to tell Ms Fogg how her behaviour had made him feel so others did not have the same experience. He appeared to Ms Andrews to be emotional, animated and angry and she was concerned that his desired outcome was retribution rather than resolution contrary to the Respondent’s values. As their discussion continued, the Claimant told Ms Andrews that he wanted to treat Ms Fogg in the same way she had treated him.

[58]Ms Andrews met with Ms Fogg on 1 September 2023. Ms Fogg was extremely distressed and tearful. She explained that she had already reflected on her behaviour, completed written work, expressed remorse and her manger had told her that the matter had been dealt with locally. She was anxious revisiting the issue and had no questions for the Claimant.

[59]Ms Andrews concluded that a facilitated meeting would not have a positive outcome. She considered that the Claimant was intent on confronting Ms Fogg when she had already acknowledged her conduct and apologised, albeit not directly to the Claimant through lack of opportunity. The imbalance in position would not lead to a constructive meeting and would risk further distress.

[60]Ms Andrews informed managers and the Claimant of her conclusion on 4 September 2023. In her internal letter she confirmed that a facilitated meeting would not have a positive impact. She went on to say “Had a conversation been held nearer to the time of the incident, this may have been the case, but we do not know this, and I anticipate the content and desired outcome of the meeting would have been different at the time. This situation is not a disagreement between individuals that needs a mediated outcome to work together in the future, but a situation with one aggrieved party and a respondent. The participants do not enter the meeting on an equal footing……..”. She recommended that the matter be closed (pages 522 – 524).

[61]Mr Muldoon arranged a further welfare meeting with the Claimant on 19 September 2023. The Claimant’s return to work was discussed and it was agreed that a further referral to Occupational Health would be made. The Claimant said he would discuss the facilitated meeting with his union representative. The Claimant then became upset and raised his voice, so the meeting was terminated. A summary of the meeting was confirmed in a letter dated 20 September 2023 (pages 532 – 539).

[62]On 26 September 2023, Mr Muldoon e-mailed Ms Carley to explain that he was seeking an updated opinion on the Claimant’s health from Occupational Health and intended to meet with him to initiate the stress risk assessment and discuss a phased return to work (page 548). However, on 6 October 2023 and before Mr Muldoon could implement these actions, the Claimant requested no further phone calls, letters or meetings for the time being and explained he would be seeing his GP again in four weeks (page 555).

[63]On 13 October 2023, Mr Muldoon checked with Ms Garnett in Employee Relations whether it would be appropriate to contact the Claimant now four weeks had passed. She confirmed it was okay and Mr Muldoon e-mailed him on 17 October 2023 checking if he was happy for contact. He also explained that there was an improvement at the Respondent in that the team was not fully deployed to wards any more (page 559). They arranged to speak on 1 December 2023.

[64]During the conversation on 1 December 2023, Mr Muldoon raised the possibility of redeployment to Rotherham as an option to support the Claimant’s return to work to which he seemed receptive. Mr Muldoon suggested a further meeting, and another Occupational Health referral was made. The subsequent report recommended again that a stress risk assessment be initiated. Mr Muldoon was prepared to undertake one despite it not being normal practice, but the Claimant resigned before he could meet with him to discuss it. The Claimant’s resignation and grievance

[65]On 1 January 2024, the Claimant submitted his letter of resignation. The reasons cited were the incident with Ms Fogg, gym closures and his belief that the Respondent had not followed policy in relation to his sickness absence (pages 566 – 569).

[66]On 17 January 2024, the Claimant submitted a grievance. He said that he had “been unfairly treated, been a victim of sexual harassment/bullying, called a whistle blower by a manger and being told to work in an unsafe environment. ……….I have attempted to resolve this matter through the appropriate channels …… I have not received any satisfactory response or resolution” (pages 580 – 581).

[67]The grievance investigation was conducted by Ms Ozuzu, and she was tasked with investigating the following: i) whether the Claimant was redeployed on more occasions than colleagues in his department, ii) whether the gym was closed more than other therapeutic departments ,iii) what support was in place for him and iv) whether mediation with Ms Fogg was ever facilitated. As part of the investigation, she interviewed Ms Carley, Mr Muldoon, Ms Andrews, Mr Fisher, Mr Benett, Ms Fogg and the Claimant.

[68]When Ms Ozuzu interviewed the Claimant, he recounted what had happened in the training session but said “Since then, I resigned due to other issues, I’d had enough” (page 702). He spoke in detail about the gym closures and said in relation to it “……… I want to have the gym open but I'm told no because the wood workshop is open, which is sticking 2 bits of wood together or The Art Room is open, where they don't do any art, they just sit and watch the TV. I was passionate about my job; I loved my job. I feel that because I was so passionate and cared, they saw me as a threat. I came in and making all these changes and staff and patients really liked me, I feel they resented me for doing a good job and wanted to keep me in a box. John Muldoon came to my gym once in two years. He just wasn't interested. The whole experience made me break down, I don’t drink but it made me go out and buy rum and drink it all night on my own. The Saturday morning, I called up and said that I’m not coming into work, they never asked why on the phone…...” (pages 707 – 708)

[69]Ms Ozuzu completed her report on 21 March 2025 (pages 655 – 861).

[70]On 31 March 2025, Mr McCoy, Care Group Nurse Director High Secure Forensic, write to the Claimant with the outcome of his grievance, namely that it was not upheld. The findings in summary were that the incident with Ms Fogg was dealt with locally and the decision not to proceed to a facilitated meeting was communicated on 4 September 2023. In relation to the gym closures, there were clear staffing issues and redeployment onto wards was the priority. Data showed that during the normal working week the gym was open significantly more than other therapeutic activities (pages 863 – 864).

[71]The Claimant was not given the right to appeal because he no longer worked for the Respondent (page 878). Holiday pay

[72]The Claimant accrued ten days’ holiday in lieu of working on public holidays during the 2021/2022 holiday year. He did not accrue any whilst off sick because the Respondent’s Annual Leave policy provides: “Employees will not be entitled to an additional day off, if sick on a general public holiday or where public holiday leave is booked on a ‘normal working day’ for shift workers” (page 132).

[73]The Respondent’s Sickness Absence and Health and Wellbeing Policy provides that “An employee will only be able to carry forward any outstanding statutory annual leave entitlement into a subsequent year” (page 156). The Annual Leave policy provides “Where an employee is unable to take all their statutory annual leave entitlement, (20 days pro rata for part time staff) due to authorised sickness absence, they are entitled to carry this leave forward into the next leave year where there is not sufficient numbers of working days remaining in the current leave year” (page 132) . Accordingly, only statutory annual leave can be carried forward. The law

[74]Section 95(1) of the Employment Rights Act 1996 provides: (1) For the purposes of this Part an employee is dismissed by his employer if (and, subject to subsection (2), only if) – … (c) 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.

[75]Section 26 of the Equality Act 2010 (“EQA”) provides that a person(a) (A) harasses another

(b) (B) if: (a) A engages in unwanted conduct related to a relevant protected characteristic: and (b) the conduct has the purpose or effect of: - (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

[76]Section 123 EQA provides: (1) Proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. …….

[77]Regulation 13A (7) provides: A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due.

[78]We were referred to the following cases: Western Excavating V Sharp

(1978) QB 761

: Woods v WM Car Services 91981) IRLR 347: Betsi Cadwaladr University Health Board v Hughes (2014) 2 WLUK 991: Commissioner of Police v Hendricks

[2003] ICR 530

; and South Western Ambulance Trust v King

[2020] IRLR 597

. Submissions

[79]Both parties provided written submissions in accordance with our order. We have had regard to both in arriving at our conclusions, even where there is no specific reference to them. Conclusions Constructive dismissal

[80]The Claimant relies on the matters set out in the list of issues above in support of his claim of constructive unfair dismissal. We have considered whether they amount to a breach of the implied term of trust and confidence, either singularly or cumulatively, entitling the Claimant to resign. Gym closures

[81]We deal with the Claimant’s complaints about the closure of the gym together, namely that the Respondent failed to provide a substantive response to his concerns about health and safety and the closure of the gym and the Respondent’s failure to take concrete steps to open it more often despite his complaints.

[82]The Claimant signed a contract of employment which provided that the Respondent could relocate him as and where needed.

[83]We accept without question that the Respondent was understaffed and faced significant challenges, especially during night shifts and weekends when the Claimant frequently worked. Patient safety was the priority hence redeployment onto wards, although the Respondent tried to be equitable when it came to therapeutic closures being mindful of the impact on patients and staff alike.

[84]The Claimant considered that the gym was closed more frequently than other activities and argued that Mr Fisher’s log did not include evening and weekend closures. However, he provided no credible evidence to rebut the data which demonstrated that the gym was not closed disproportionately and was open more frequently than other activities at times.

[85]We do not doubt the Claimant’s passion for his work and belief in the benefits of the gym to patients and that he raised his concerns on many occasions, albeit not specifically on health and safety grounds. His frustration with the situation was palpable.

[86]When the Claimant raised the matter with Mr Routen in July 2022, he was told in no uncertain terms that staffing challenges were not going to go away and would be there for some time to come. Mr Routen’s pastoral advice was for the Claimant to set himself a timeframe for how long he was willing to work for the Respondent with this in mind. Mr Routen also asked the Claimant to keep a cancellations log, but we have not seen anything to suggest he did.

[87]Ultimately, the Respondent’s overriding objective was to safeguard patient safety in challenging circumstances. It had a contractual right to redeploy the Claimant, and other therapeutic staff were redeployed too – the Claimant was not singled out. As such, we are satisfied that the Respondent’s actions in closing the gym and redeploying the Claimant in accordance with his contract of employment did not amount to a breach of the implied term of trust and confidence, or a breach at all.

[88]The Claimant also complains that the Respondent failed to address his health and safety concerns. However, we have seen no evidence that he raised health and safety concerns so this allegation must fail on the facts. The training session on 17 August 2022

[89]The Claimant relies on Ms Fogg’s comments in the training session as a breach of the implied term of trust and confidence and alleges that the Respondent failed to provide a substantive response to the concerns he raised about it.

[90]We accept Ms Fogg’s evidence about the Claimant’s behaviour in the session, which was negative, challenging, disruptive and rude. This is corroborated in the SIR dated 23 August 2022. The initial comment about the Claimant’s legs was obviously a jovial attempt to break the ice given the Claimant attended in shorts. There was simply no malice in it. Notably, he did not raise this comment the following day in his e-mail to Mr Bennett.

[91]The other comments appear quite offensive out of context and in the cold light of day. However, we have considered them in the context within which they were made and accept that Ms Fogg was simply trying to be humorous to diffuse the difficult atmosphere created by the Claimant which was impacting the training session overall. The Claimant demonstrated little regard to the benefit of other activities provided for residents, was dismissive of them and argumentative. He also lacked understanding of the Mental Health Act and the challenges faced by the Respondent’s patients. He was resolute that the gym and a clean diet would resolve their issues and nothing else was of value. Ms Fogg had an impeccable record, and we are satisfied that her intention was simply to bring some humour to the situation and direct focus back to the objectives of the session. Furthermore, the use of profane language was commonplace and not shocking in the environment within which they worked.

[92]The Claimant raised the matter the following day with his line manager and as soon as the Claimant’s upset was brought to Ms Fogg’s attention, she did not seek to deny the comments and wanted to apologise. She acknowledged without question that she had misjudged her audience and undertook reflective work in consequence.

[93]In the round, we are satisfied that her actions did not amount to a breach of the implied term of trust and confidence against the backdrop of the Claimant’s behaviour. Even if they did, we are satisfied that the Claimant affirmed his contract by not resigning sooner. The incident occurred on 17 August 2022, and he remained working for over four months until he was signed off sick on 7 January 2023. He did not raise a grievance whilst employed despite having union advice and did not resign until 1 January 2024, circa sixteen months later.

[94]Furthermore, we are satisfied that the Claimant did not resign in response to Ms Fogg’s behaviour in any event. We have arrived at this conclusion having regard to the fact that the Claimant’s sickness absence was triggered by the redeployment situation (page 456), his return to work was hindered by the same issue (page 478) and in his grievance interview he told Ms Ozuzu that he had resigned ‘due to other issues’ (page 702). The Respondent failed to provide a substantive response to his concerns and failed to treat his complaints as a formal grievance

[95]When the Claimant complained about Ms Fogg on 18 August 2022, the Respondent acted promptly and Mr Bennett submitted his initial investigation report on 2 September 2022. Given Ms Fogg’s immediate acceptance of her actions and expression of remorse, the Respondent decided that a formal investigation was not warranted which we consider reasonable. The Claimant had not raised a formal grievance and there was nothing to investigate as such given Ms Fogg’s position.

[96]A mediation was arranged on 21 September 2022 which was consistent with the Respondent’s grievance procedure on dealing with matters informally. However, the Claimant withdrew from the mediation because it was not mediation “in its truest form”. We find his withdrawal to be unreasonable in all the circumstances given he wanted to meet with Ms Fogg and receive an apology. This was the opportunity to resolve matters and would no doubt have drawn the matter to a conclusion.

[97]Nevertheless, the Respondent took steps to arrange a formal mediation but by this stage Ms Fogg was considered too distressed. On 6 January 2923, the Claimant was redeployed to Horticulture, and it was this that triggered his sickness absence. He complained to Ms Burton that it appeared that his work in the gym was undervalued and deemed not important. He subsequently confirmed to Ms Ozuzu that the redeployment was the trigger. He believed that the Respondent saw his passion for the gym as a threat and they wanted to keep him ‘in a box’. His reference to the wood workshop and art room in this meeting was demonstrative of his disregard for other patient therapies.

[98]Whist the Claimant was off sick, his request for a facilitated meeting was explored but did not proceed because it was felt he would not conduct himself in a manner consistent with the Respondent’s values and the participants would not be on equal footing – Ms Fogg wanted to apologise whereas the Claimant wanted to confront her. On 4 September 2023, Ms Hall’s advice was that the matter should be closed, and the Claimant was informed of the same.

[99]We are satisfied that the Respondent took appropriate steps to deal with the Claimant’s complaint. It undertook an initial investigation and arranged a mediation promptly. Ms Fogg was immediately remorseful, and she undertook reflective work in consequence which was reasonable given her previous immaculate record. She was willing to meet with the Claimant to apologise to him personally. It was the Claimant’s withdrawal that hindered a positive outcome at that stage and his stance subsequently when there was the possibility of both a formal mediation and a facilitated meeting.

[100]As such, we are satisfied that the Respondent did not breach the implied term of trust and confidence in responding to the Claimant’s initial complaint.

[101]The Claimant also complains that the Respondent did not treat his complaints as a formal grievance. However, he did not raise a formal grievance until after his resignation. This was despite having union advice and being told directly by the Respondent that it was open to him to do so.

[102]Once he did raise one, it was investigated and an outcome given. Until such time that he raised a formal grievance, the Respondent was not under an obligation to treat his complaint as a formal grievance, and we are satisfied that it did not breach the implied term of trust and confidence in not doing so. Instead of addressing the Claimant’s grievance the Respondent proposed to relocate the Claimant to Rotherham

[103]The Respondent did not propose to relocate the Claimant to Rotherham. It was suggested to him that redeployment to another site could be considered to assist him in a return to work. It was no more than giving the Claimant all the options to consider. As such, this allegation fails on the facts. The Respondent failed to provide the Claimant with support during his sickness absence and failed to undertake a stress risk assessment

[104]The Respondent maintained appropriate contact and gave support to the Claimant during his sickness absence. Mr Muldoon kept in regular touch with him and held formal welfare meetings. When the Claimant asked for no contact, his decision was honoured. When the Claimant asked for a facilitated meeting, the Respondent took steps to explore it. However, Ms Andrews took the view that one could not proceed because of the Claimant’s stance.

[105]The Claimant was referred to Occupational Health who recommended a stress risk assessment. This was a recommendation only. We accept the Respondent’s evidence that it is not normal practice to undertake one until an employee signifies that they are fit to work and a return-to-work date identified. However, as the Claimant’s absence became more prolonged, Mr Muldoon was committed to taking steps to arrange one, but the Claimant resigned before he had opportunity to do so.

[106]We are satisfied on the facts that the Respondent provided the Claimant with support during his absence. We are also satisfied that the Respondent’s decision not to undertake a stress risk assessment was not a breach of the implied term of trust and confidence in view of its normal practice which we consider to be a reasonable one. Overall conclusion – constructive dismissal

[107]We are satisfied that the Respondent did not breach the implied term of trust and confidence and therefore the Claimant’s claim of constructive unfair dismissal fails and is dismissed.

[108]Alternatively, if Ms Fogg’s actions on 17 August 2020 amounted to such a breach, we are satisfied that the Claimant affirmed the contract by not resigning earlier. The decision that the matter should be closed was communicated to the Claimant on 4 September 2023, but he did not resign until 1 January 2024 or raise a grievance until 17 January 2024. Whilst we accept that he was off sick for almost a year, he was still engaging with the Respondent and had the benefit of union support. Furthermore, we are satisfied that the Claimant did not resign in response to this breach for the reasons we explain above nor has the Claimant identified a last straw capable of reviving it Holiday pay

[109]The Claimant accrued ten days’ holiday in lieu of working public holidays during the 2021/2022 holiday year. However, the Respondent has a clear policy that accrual for public holidays cannot be carried forward into a subsequent holiday year which is compatible with the Working Time Regulations 1998. The Claimant also conceded whilst cross examining that “If that’s the policy, that’s fine”.

[110]After his resignation, the Claimant was paid his accrued statutory holiday entitlement of one hundred and sixty-nine hours. He did not accrue any public holidays whilst on sick leave in accordance with policy.

[111]We are satisfied that there was no relevant agreement in place entitling the Claimant to carry over the public holidays and therefore the claim fails. Harassment

[112]The Claimant says that Ms Fogg’s comment about his legs was harassment related to sex. It is a standalone allegation of discrimination and does not form part of a course of continuing conduct.

[113]We are satisfied that we do not have jurisdiction to hear the complaint because it was presented out of time. The comment was made on 17 August 2022, the Claimant was advised that the matter was closed on 4 September 2023, but he did not contact ACAS until 16 January 2024, some seventeen months later.

[114]The Claimant did not give any evidence for the delay but says in his written submissions it was due to him was using proper channels for resolution and the Respondent’s inaction and incompetence. However, this submission is undermined by the fact that the Claimant was aware that the matter was closed on 4 September 2023 and had the benefit of union advice at the time. Accordingly, we are satisfied that it is not just and equitable to extend time to permit him to rely on it as an allegation of discrimination. Approved by: