Mrs M Gallen v The Partnership of Faraday Medical Practice and others: S/4109070/2018

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4109070/2018

Venue Glasgow

Hearing 8 January 2019

Between

Mrs M GallenClaimant

The Partnership of Faraday Medical Practice &Respondent

Before

Employment Judge I McFatridge

Mr McLaughlin (instructed by Solicitor) for claimant

The Partnership of Faraday Medical Practice & Respondents for claimant

Dr J Fife, Dr J Docherty, Dr K Devlin & Represented by: for claimant

Dr A Insausti Mr Philp for claimant

Consultant for claimant

Date 6 January 2020

JUDGMENT

The claimant’s application to amend the Paper Apart to the ET1 by substituting therefor the amended particulars of claim lodged at pages 67-78 of the bundle is accepted. E.T. Z4 (WR)

REASONS

Introduction

[1]The claimant resigned from her employment and claims she was constructively dismissed. The claim is resisted.

[2]The claimant gave evidence on her own behalf and evidence was led for the claimant from Nurse Anne Wilson, a nurse at the Faraday Medical Practice (“the Practice”) at the relevant time. Dr Fife, one of the Partners in the E.T. Z4 (WR) Practice, was called under witness order for the claimant but was treated as a hostile witness, with the permission of the Tribunal.

[3]For the respondents, evidence was led from Dr Ana Insausti, Dr John Doherty and Dr Karyn Devlin (all partners in the Practice) and from Ms Lynsey Officer, Business Manager for the Practice.

[4]A joint set of productions was lodged and various documents added throughout the hearing. Each representative provided written submissions which were of assistance to the Tribunal and these were supplemented orally. Findings in fact

[5]The Tribunal found the following facts to be established:

[6]The respondent partnership is a medical practice of 4 GPs (the partners in the practice) with 10 employees. It is based in a health centre in Coatbridge.

[7]The claimant had worked for the Practice as a Practice Nurse since December 1996. At the relevant time she worked 4 days a week with a Wednesday off.

[8]Until 2016, the partnership had been run in a traditional way with 3 full time male partners: Dr Fife, Dr Doherty and Dr M. The claimant was particularly friendly with Dr Fife who was the senior partner but had issues with one of the partners, Dr M, which led to her taking out a grievance against him.

[9]In 2016, Dr Fife decided to reduce his hours to work 2 days a week and Dr Devlin became a partner for 2 days a week in October 2016.

[10]Dr Devlin introduced some changes to the ways of working in the Practice to suit the new arrangements. For example, instead of each doctor having a “list” of their own patients to see each surgery, there would be booked appointments each day and patients phoning up or attending the practice on the day would be placed on a “triage” screen by the receptionist which the doctors could access and decide what action needed to be taken. The action could be a call to the patient from a doctor or the patient might be told to come in for an appointment. The consulting doctors would also decide from this screen which waiting patient needed to be seen first.

[11]The claimant had her own consulting room and ran her own surgeries. One of her duties was to see new patients wishing to register with the practice. She would take details and carry out some routine tests. She would complete the details on a new patient registration form. A doctor would have to approve the patient and then a record would be created for the patient by the reception staff using the details on the registration form completed by the claimant.

[12]One of the partners, Dr M, resigned with effect from 31 October 2017. Dr Insausti started part time with the Practice in April 2017 and became a fulltime partner in November 2017.

[13]Dr Insausti and Dr Devlin had worked together before. They were keen to have the Practice run in a more business-like way. With the agreement of Dr Fife and Dr Doherty, a Business Manager, Lynsey Officer, was appointed in November 2017. The practice had had HR support from Mentor since 2011 but Ms Officer was to take primary responsibility for HR matters.

[14]Ms Officer’s initial brief was to get to know the business and make sure all employees had contracts of employment. Ms Officer prepared written documents that she thought incorporated each employee’s existing terms and conditions. The claimant returned the one prepared for her as it included incorrect details about her hours, breaks and annual leave. Ms Officer amended the document and returned it to the claimant for signature on 13 December 2017. The claimant did not return it but made no further comment on it.

[15]The written terms issued included reference to an employee handbook. The claimant did not read the terms of that handbook.

[16]The claimant was unhappy about some of the changes made to the way the Practice was run. The claimant challenged changes where she considered they impacted unfavourably on the patients. There was a change in atmosphere which the claimant found difficult, particularly after Dr Insausti joined. The claimant was suspicious of the role of Ms Officer and was concerned that there was a plan to change her terms and conditions.

[17]Dr Devlin and Dr Insausti were surprised to find out how generous the claimant’s terms and conditions were. For example, the claimant was paid above the top rate for her grade and had an extra week’s holiday as well as paid breaks and received a bonus. However, they had not instructed Ms Officer to change her terms and conditions. NMP Course

[18]It was common for employees of the Practice to get time off to attend courses related to their work, such as courses relating to Diabetes and Asthma. These would typically be 1-2 days. Any costs would be borne by the Practice.

[19]In July 2017, the claimant had discussions with Dr Devlin about doing a NonMedical Prescribing (NMP) course. This would allow the claimant to prescribe routine medication and sign her own prescriptions.

[20]An employee, Nurse Traynor, had done the course some years previously in about 2011. She had worked 10 hours a week at the practice and had wished to do the course mainly because, when she was not working at the Practice, she ran her own business doing cosmetic procedures and the qualification would assist with that business.

[21]Dr Devlin was keen for the claimant to do the NMP course and discussed it with the partnership. They were willing to fund the course if a funded place was not available. The claimant agreed to do the course. Dr Devlin gave the claimant the email address of the person running the course with Lanarkshire Health Board. The claimant contacted the person but was told that there were no places left. She advised Dr Devlin of this. The claimant’s name was placed on a waiting list and, in October 2017, the claimant was offered a funded place to start on 5 February 2018.

[22]At this point there was a misunderstanding between the claimant and Dr Devlin. Dr Devlin understood that the claimant was keen to do the course. Dr Devlin gave this impression to the other partners. However, this was not a true reflection of the claimant’s position. Although she did agree to do the course, she had reservations about it and felt she was being pressured by Dr Devlin to do the course. The claimant had considered doing the course previously but she was now a few years from retirement and she was aware from Nurse Traynor that there was a significant amount of study involved.

[23]The claimant found out that the course would involve attendance at university for 25 days over 6 weeks and then a period of 12 days supervision by a GP.

[24]The claimant emailed Ms Officer on 21 December 2017 to confirm the dates when she would need to attend university. She said she had been asked by the GPs to do the course and she pointed out that these “study days” included 6 Wednesdays when she would not normally be working. She said that, although she had done courses on her days off before, she was aware that Ann Wilson had been reimbursed for doing a course on her day off and thought it would be fair for her to receive this as well. She also asked for £4.60 daily travelling expenses to attend the course in Glasgow. The claimant copied in 3 of the partners into this email and apologised for not copying in Dr Devlin – she said she could not find her email in the global list. She asked for an answer ASAP to allow her to confirm her place.

[25]The claimant’s request was discussed between Ms Officer, Dr Insuasti, Dr Devlin and Dr Doherty. The doctors were not willing to pay these costs. Dr Insuasti and Dr Devlin were annoyed that the claimant was asking for this when they considered she had a very favourable package already. They were also, as noted above, under the impression (wrongly) that it was the claimant who was keen to do the course.

[26]Dr Insausti emailed Dr Devlin on her private email saying that they had offered the claimant the opportunity to train and it was not a “request”. She also noted that the claimant would be getting 25 days of study as well as her 7 weeks annual leave. She noted that her salary was higher than Nurse Wilson, she had more holidays and a much bigger bonus. She said that if the claimant didn’t want to go on the course, they would offer it to someone else.

[27]Having discussed the matter with the partners, Ms Officer responded to the claimant’s email on 3 January 2018 (by email) saying that she understood that the claimant was going on this course at her own request. She said the partners had been willing to fund the cost (although in fact she now had been offered a place that was funded by the Health Board) and that the practice would allow the claimant time away from work to attend university without reducing her pay. They would also support the supervision required. However, the partners considered the only cost to the claimant was her travelling expenses. Ms Officer said that the claimant’s circumstances were not comparable to Nurse Wilson’s – her working pattern, salary, annual leave entitlement and bonus payments were not comparable.

[28]The claimant replied on 4 January 2018 saying that she had not approached the GPs about going on the course. She said it was Dr Devlin who had spoken to her about it. She said she thought she would be entitled to the same as Nurse Wilson but she accepted the GPs decision and would let them know her decision as soon as possible.

[29]She then sent a further email later that day saying that if she had approached the GPs about the course, she would not be asking for Wednesdays in lieu or her travel expenses. She queried why her salary, leave or bonuses had anything to do with it and felt her request had been taken out of context and that she was being looked upon as ungrateful.

[30]Ms Officer responded on 8 January 2018 saying she had discussed the matter with the partners. She said that Dr Fife remembered the claimant asking about the course a few years ago and Dr Devlin said the claimant had asked about the course at appraisal and Dr Devlin had offered encouragement. It was accepted by all the partners that the course would benefit the Practice as well as the claimant’s own development. She said that there was a discrepancy in events but however it had come about, the Practice would support the study leave and supervised training if the claimant wished to proceed.

[31]The claimant replied on 9 January 2018 thanking Ms Officer for her time and saying she had spoken to Dr Fife and he said he was not involved in discussions about it. She said she been a little upset by this as she had never had an issue with the Practice in all her years. She said she had decided to proceed with the course as it would benefit her in the future and she didn’t want the Practice to have to reimburse the cost of the course due to her dropping out at a late stage.

[32]Dr Insausti then emailed the claimant on 9 January 2018 and said that Dr Fife was involved in all decisions and Lynsey Officer had spoken to all the partners before responding. She said that none of them had been there when the decision was made for the claimant to go on the course but they all agree it would be beneficial for the claimant and the Practice. She offered a face to face meeting.

[33]Dr Devlin also emailed the claimant on 9 January 2018. She said that she would appreciate being included in all emails. She said that the partners had made their position clear. She said that going forward all discussions should take place between the claimant and Lynsey Officer and it would be appreciated if individual GPs were not approached in this way in future to avoid issues of who said what to whom. She said it was for the partners to discuss matters between themselves and these discussions are confidential. Decisions would then be disseminated by Lynsey Officer or Barbara Youngson. She concluded “of course there is no ill feeling”.

[34]The claimant was upset by this correspondence and felt she was being told off. She responded on 9 January 2018 “I’ve changed my mind about a meeting. I just want to put this episode behind me as I cannot believe it has gotten this far.”

[35]Dr Devlin replied “That is absolutely grand. I don’t know what you mean by “gotten this far””. She asked again for everyone to be copied in.

[36]The atmosphere in the practice was not good in January 2018. Following the exchange of emails about the course, the claimant was not happy with the partners and they were not happy with her. Relations were cool. There was no further discussion about the course apart from Ms Officer emailing the claimant and asking for more detail so she could discuss with the doctors and plan supervision. The claimant replied that the supervision was already arranged and she didn’t have any further details beyond those already given.

[37]On 8 January 2018, a new patient (A) attended for a registration appointment. She was a previous patient of Dr Insausti’s. The claimant took details from her and did some routine tests. She noted that the claimant had raised pulse and blood pressure. In answer to questions from the claimant, the patient said she had had some chest pain on 31 December and had had chest tightness since then. The claimant considered that the patient should see one of the doctors that morning. The appointment ended at 10.02 and the claimant directed the patient to the phlebotomy clinic in the health centre to have routine blood tests done. She gave Patient A’s registration form (which included some additional notes made by the claimant about the patient) to the receptionist, Ann Forde, and asked her to arrange for the patient to see the next available doctor. Ann Forde put details on the triage screen at 10.09 stating “New PT regn med- HAVING CENTRAL CHEST DISCOMFORT/TIGHTNESS ON AND OFF SINCE NEW YEAR”.

[38]Dr Insausti saw the details on the screen and considered the patient needed to be seen quickly. She saw the patient at 10.24 and decided she should go to hospital. The patient was taken to the hospital by her husband in his car and was admitted. She was discharged after 2 days and did not, in fact, have a cardiac condition.

[39]Ann Forde also used the details given by the claimant to create a record for Patient A and included some of the details (but not all) recorded by the claimant on the new registration form as follows: “At reg medical pulse 108- 110. Central chest tightness. +1 chest pain since 31.12.2017. BP raised, tachycardia, general malaise. O2 stats n/a as has gel nails on”

[40]Dr Insausti considered that the claimant should have ensured that the patient was seen immediately, even if that meant interrupting one of the doctors in their surgery and should not have sent her to have blood tests. Dr Insausti spoke to the claimant about it on the 11 January 2018. She first raised a concern that the patient did not appear to have a record on the system. The claimant explained this was because she was a new patient who had attended for a registration appointment and it could take a day or two for the record to be created. Dr Insausti said that a patient like this should be seen by a doctor straightaway. Dr Insausti said that she had thought they would need to complete an SEA (Significant Event Analysis) but that wasn’t required now. The incident was not mentioned again before the claimant went off sick.

[41]On 11 January 2018, after her discussion with Dr Insausti, the claimant went into the record of Patient A to check her notes. In error, she changed the date of the consultation to 07/01/18. She expanded the record of her consultation with the patient so it now read: “At reg medical pulse 108-110 and BP 150/110, questioned re previous raised BPs, F/H etc as new to surgery and no previous notes available- nil of note. When questioned further pat described some central chest tightness, radiating to shoulder +1 chest pain episode at new year, some mild chest tightness on and off since then, nil acute today, no chest pain at present, no SOB, although BP is raised, tachycardic and general malaise. O2 sats n/a as has gel nails on. ? new onset angina , possibly needs refer to RACPA or see GP today. Sent for bloods while discussed with doctor on call.”

[42]Dr Insausti’s record of her consultation read: “central chest pain, radiating to Lt shoulder, on and off since last week. Apyrexial. O2 sat 98% and P 99. BP 166/122 chest. Admit ERU husband taking her now.”

[43]In error, the claimant also went into the record of Dr Insausti’s consultation and deleted the pulse reading of 99.

[44]There was no intention by the claimant to mislead or cover up anything. She included the details of her consultation as she had recorded them at the time. She was expanding the note of her consultation not amending it.The change of date in her own record was an error and she had not intended to change Dr Insausti’s record.

[45]It is good practice to make it clear when any notes have been amended retrospectively. The Training Costs Agreement

[46]Ms Officer was aware that there was a clause in the employee handbook that allowed the respondent to require an employee to agree to repay training costs. This was not a clause that the respondent had ever employed before. It was not a clause that the claimant was aware of. Ms Officer drew it to the attention of Dr Devlin and Dr Insuasti in January 2018 and they asked her to get an agreement drawn up. She contacted Mentor who drafted a Training Costs Agreement for her (“TCA”). The draft agreement stated that if the claimant’s employment terminated for any reason before she completed the course or within a month, she had to pay back 100% of the costs of the course. After that there was a sliding scale of repayment over 12 months. The training costs were stated to be £11000 said to be a “combination of supported salary and supervision time with a Doctor”.

[47]Ms Officer gave this TCA to the claimant on 23 January 2018 with a covering letter and asked her to sign and return it by 2 February 2018. She said in the covering letter that if there were any issues the claimant should speak to her.

[48]The claimant was shocked to receive this document. The next day was her day off and on 25 January 2018, she asked for a meeting with the partners. Dr Devlin and Ms Officer were not in the practice that day. Dr Insausti suggested to the other partners that the meeting might be about issues to do with the claimant’s son. Dr Insausti was aware that the claimant had serious concerns about her son who was in Spain as the claimant had sought her advice about the matter. Dr Doherty, Dr Fife and Dr Insausti agreed to meet the claimant at lunchtime.

[49]The meeting started with the claimant asking Dr Fife if he knew about the TCA and he said no. She was upset and asking how they planned to get the money from her – were they planning to sue her? The partners said that it was to make sure they didn’t train her and then she left. The claimant asked where the £11000 had come from? Were the doctors being paid for supervising her? She said she wouldn’t be going anywhere as she was heading for retirement. She said she wasn’t signing it. Dr Doherty then said if she didn’t want to do the course, then they would cancel it. She said something to the effect of “Well you can let them know.”

[50]The claimant left the room upset. She returned to get the paperwork she had left behind. Dr Insausti gave her part of it. She said Dr Doherty had the rest. When she went to Dr Doherty’s room to get it, he had ripped it up and put it in the bin.

[51]Ms Officer was advised what had happened and she contacted Mentor to let them know that the TCA had not gone down well.

[52]Dr Insausti contacted Dr Devlin to tell her what had happened. The partners met on the 30 January 2018. At that meeting, they discussed the meeting with the claimant on the 25 January 2018. Dr Insausti said that she had felt trapped when the meeting commenced and that the claimant was aggressive in her language, body language and questions asked. She said that she felt uneasy throughout the meeting. Dr Fife said he was unaware of the TCA, that the claimant was emotional about it and he could understand why she felt upset. Dr Doherty considered no further action should be taken. Once the reason for the meeting had become clear, he felt they should have stopped it. Dr Devlin asked if Mentor had been consulted and suggested opening an investigation into the claimant’s conduct. Dr Doherty was not in favour of that. Dr Devlin agreed not to have an investigation provided in future that any grievances raised by a partner could be dealt with formally without the need for agreement by other partners. Dr Fife was uncomfortable with this. It was agreed that 1 partner could decide to commence disciplinary proceedings, but a vote would be taken on the severity of punishment. It was agreed that Ms Officer would speak to the claimant about her conduct at the meeting on the 25 January 2018.

[53]Dr Insausti was dealing with a very ill patient on 29 January 2018 in her room. She came out seeking assistance from a nurse. Nurse Wilson was with a patient and so the claimant went to assist. The claimant worked to stabilise the patient while Dr Insausti called the hospital to arrange for admission. While Dr Insausti was on the phone, Nurse Wilson came in to see if she could assist so that the claimant could go back to her own clinic where patients were waiting. The claimant explained what she had done and handed over to Nurse Wilson.

[54]Dr Insausti did not see the claimant leave. She was angry that the claimant had left without speaking to her. At the partners meeting on 30 January 2018 she raised this matter. Dr Fife defended the claimant and said she would not put a patient at risk. The next day, Dr Insausti asked Ms Officer to arrange a meeting with the claimant and to attend with her to take notes.

[55]Ms Officer emailed the claimant and asked her to meet with Dr Insausti at 2.30 pm “to discuss the events of yesterday morning’s surgery and the unwell patient who was sent to hospital”. Ms Officer said she would attend to take a record of the discussion. The claimant asked what the meeting was about? Ms Officer repeated that it was about yesterday morning’s surgery and the unwell patient. There was further exchange of emails with the claimant asking for more information and expressing concern that she had patients booked in for 2.30. She also asked if she needed a representative? The claimant was very concerned about what was coming, especially in light of the issues raised by Dr Insausti about Patient A. She felt that Dr Insausti was trying to find fault with her clinical practice.

[56]The claimant did not attend for a meeting at 2.30 and Ms Officer came to her room to bring her to see Dr Insausti. At the meeting, Dr Insausti complained that the claimant had left the room and that the patient should have taken clinical priority. The claimant explained that she had stabilised the patient and that Nurse Wilson had then offered to take over and the claimant had accepted. Dr Insausti said that she had not heard the conversation and apologised for bringing it up if that was the case. She said she would check with Nurse Wilson and if she confirmed, she would apologise

[57]The claimant was very upset by her clinical performance being criticised again without cause. The next day, she was off work with work-related stress and did not return to work. The records issue

[58]On 13 February 2018, Dr Insausti discovered that the records of Patient A had been amended by the claimant, specifically she noticed that the date of her consultation with the claimant was wrong. She asked Ms Officer to investigate.

[59]On 14 February 2018, Dr Insausti contacted the NMC and asked for the Guidance on making a referral of a nurse to the NMC.

[60]Dr Insausti called the partnership’s medical defence union (the MDDUS) for advice on 15 February. She spoke to Dr Gilmartin. She described the claimant as “problematic” and said she “resisted authority, doesn’t like to be managed” and “is now off as work-related stress”. She said that they knew the claimant had problems at home but was saying she had work-related stress. She said that they believed she had been deleting appointments, but they “had no evidence”.

[61]Dr Insausti said that she had seen the screen which showed Patient A, a patient she knew, was sitting in the waiting area having complained of “central chest pain”. She said that the patient had been “really tachycardiac” and that she had admitted her to hospital and she was still undergoing cardiac investigations. She said the claimant was “in the huff” with her and wasn’t talking to her because she didn’t like being managed. However, Dr Insausti said that she spoke to the claimant and she had said the patient didn’t have chest pain when she spoke to her. Dr Insausti said to Dr Gilmartin that she had discovered that the record of the consultation had been altered when she was looking at the patient’s notes for something else. She said that the initial consultation had been removed and replaced with another consultation on a different date – a Sunday when the practice is not open. She asked how she should deal with it. She said she was going to speak to IT as she “had a feeling” that the notes had been changed after she had spoken to the claimant about the patient but she didn’t have evidence to back that up. She also said the claimant was off with work-related stress.

[62]Dr Gilmartin said to check with IT and that it would also be worth speaking to the BMA. Dr Gilmartin arranged to have an employment law advisor at the MDDUS call Dr Insausti back to give her advice about that.

[63]Dr Gilmartin said it did appear to be a “fairly significant matter in terms of the nurse’s professional role” and that it did at least require a review in the Practice under their disciplinary procedure.

[64]When Patient A was sent to hospital, she was sent with a print off from the Practice with details of her consultation. Lynsey Officer arranged to get this back from the hospital. This showed the original record of the claimant’s consultation and the consultation with Dr Insausti. Further enquires by the IT specialist showed that changes had been made by the claimant to her own record and also to Dr Insausti’s and the dates on which they had been changed.

[65]Dr Insausti became aware of these changes about the 15 February. She was furious that her notes had been changed.

[66]On 16 February 2018, Lynsey Officer sent details of the alterations to the records to Dr Gilmartin.

[67]Dr Nathan, from MDDUS, sent a letter to Ms Officer, by email on 20 February. Dr Nathan pointed to the guidance from the GMC and said that it was for the partners to decide whether the concerns were serious enough to raise with a regulator or whether they could consider it locally first. Dr Nathan also confirmed Dr Gilmartin’s advice to get employment law advice and to consider seeking advice from the NMC or the Health Board.

[68]Dr Insausti called Dr Nathan on 20 February when she received this email. She said perhaps it was unclear that the claimant had not only changed her own notes retrospectively but also Dr Insausti’s and that she thought that was a different level. Dr Nathan said that it would not be a good idea to make a decision about referring without speaking to the health board and the NMC. Dr Nathan said that if she couldn’t get advice from these people she might have to take it to the NMC because “we are all responsible for what we do as professionals”. Dr Insausti said that it helped that the claimant was off sick as it gave them more time to deal with matters without having to suspend her.

[69]Dr Insausti called Alistair McIntosh at Lanarkshire Health Board that day (20 February). She described her version of the incident on 8 January, saying that the patient had presented with central chest pain radiating to the left shoulder. She said the patient was sent for bloods and added to the doctor’s call list but nobody had spoken to her. She said she had spoken to the claimant about the patient and the claimant had said the patient did not have chest pain when she was with her and that she still thought she should see a GP. Dr Insausti said that was not the message that was passed to reception and was not the message that she got but she had decided to leave it at that.

[70]She said she had been discussing a few cases with Ms Officer who had asked her if she had heard any more about the patient. She said she looked at the records and she noticed that that another doctor had admitted her to hospital and that it “jumped at her” that the consultation with the claimant had been changed. She said it was not just what it said in the consultation but also the date had been changed to a Sunday. She said that when IT investigated, they found out that the claimant had also gone into Dr Insausti’s record and amended those.

[71]Dr Insausti said that the claimant had been there a long time and was someone that liked doing as she pleases, she wasn’t liking being managed, she was “stamping her feet” and had “decided” she was “going off as work related stress”. Mr McIntosh asked if she had contacted the NMC and said it was important for them to take a view. Mr McIntosh stressed the need to take care to support the claimant back to work and to follow the letter of the law and to be careful about mingling this with disciplinary matters. Dr Insausti expressed the view that the claimant was likely to lose her job and maybe her registration and that she was a “spiteful” person. Dr Devlin then joined the call. She commented that they could not facilitate a return to work and that any disciplinary procedure would need to happen relatively soon. Mr McIntosh said it was a fine line and they should follow HR advice to avoid the pitfall of someone claiming constructive dismissal. Dr Devlin said they were not sure whether to involve the Health Board but that MDDUS had insisted. She said they were not trying to pass the buck but they were in a difficult position. Dr Insausti said she would email all the evidence and the letter from MDDUS and they would take it from there.

[72]Dr Insausti then called the NMC on 20 February. They said they would get someone to call her back between 1-3 days. Dr Insausti insisted that she need to speak to someone that day and that she had been advised to speak to the NMC as a matter of urgency. That was not correct – no one had mentioned urgency. They said they would try and have someone call her back.

[73]Dr Insausti spoke to the partners on 20 February and told them that the NMC had told her to make the referral as a matter of urgency. The partners agreed, although Dr Fife would have preferred to speak to the claimant first.

[74]On 21 February, Dr Insausti spoke to Mark Brooke at the NMC. They discussed how to make the referral. He did not say the referral had to be made urgently.

[75]Dr Insausti drafted the referral and the partners signed it. The referral was sent on the 21 February 2018.

[76]The referral referred to a “clinical” incident on 8 January 2018 and a “probity/fraudulent incident” on 11 January 2018. Dr Insausti said that the other 3 doctors were witnesses and also Lynsey Officer. In answer to a question about whether there had been concerns or complaints of a similar nature, Dr Insausti wrote, “There have been other issues with Nurse Gallen in the past but that was before my time as a partner and I do not think there is anything I can add at present apart from my own very significant concerns.”

[77]In the detailed statement for the NMC referral, Dr Insausti said that the patient on 8 January had been added to the normal triage but had concerning information “central chest pain, elevated BP, tachycardia, new patient, see by MG”. In fact, the notes had not said “chest pain”.

[78]She said that the patient was admitted for “several days” (in fact it was two)

[79]She said the patient was still undergoing cardiac investigations. She described as “inappropriate” that the patient had been sent for bloods and that a GP should have been approached directly where a patient was “unstable”. She said there were changes to the claimant’s consultation records and also her own.

[80]Dr Insausti called Alastair McIntosh again on 21 February. She told him the NMC had phoned her back the day before after about 15 minutes and asked her to do a referral. She said as they had asked her to do a referral she couldn’t say no and that it was done.

[81]The claimant’s access to the Practice’s computer system was blocked. The claimant was not informed of this by the Practice.

[82]There was correspondence with the NMC over the next few days. Genevieve Fletcher, the case officer, said they were considering whether an interim order was required and asked for further details about who was dealing with the disciplinary, what the timeline was for investigation and the details of the previous concerns. She asked if there would be restrictions on the claimant when she returned to work?

[83]Ms Officer responded and said that she would be doing the disciplinary and that she did not have information about the previous concerns. She said that they had restricted computer access if the claimant were to come into the office. Ms Fletcher asked for some detail about the previous concern. Lynsey Officer replied that it was in 2011 and the accusation related to dealing with a patient that were considered unprofessional and aggressive. She said she understood the incident “to be true” but it was dropped as it was raised in a staff member’s name rather than by a patient. Investigation by Ms Officer

[84]Ms Officer wrote to the claimant on 23 February 2018 to invite her to a welfare meeting on 5 March. The letter said that a serious matter had come to light that they had discussed with the NMC and that they wished to discuss with her in case she could assist. She did not say that the claimant had been the subject of a referral to the NMC nor that the matter related to the claimant’s conduct.

[85]The claimant was notified by the NMC of the referral by letter dated 27 February 2018. It stated that the potential concerns were that the claimant had “failed to seek advice or escalate a patient who presented with concerning cardiac symptoms and then retrospectively falsified their clinical records.”

[86]The claimant originally said, through her daughter, that she would not come to the meeting on the 5 March. She then said she would come and attended with her husband. Ms Officer was concerned that she could not discuss the patient matter with the claimant’s husband present. It was agreed that they would discuss welfare matters first and then the claimant’s husband would leave for the second part. The claimant said that she felt Dr Insausti was scrutinising her work. She referred to the NMP course, and the incidents on 8 and 29 January. She also said she had been bullied by Dr M. and she had been forced to take out a grievance as no action had been take. Ms Officer did not wish to discuss the patient matter that had been referred to the NMC with the claimant’s husband present. She offered to meet again on 7 March

[87]The claimant emailed Ms Officer the next day to thank her for her kindness. The claimant had now received the letter from the NMC. She said, as Ms Officer was aware, Dr Insausti had referred her to the NMC and any further investigation about a return to work would seem futile. She said that any meeting to discuss a return to work should wait until after the NMC decision. She said she was truly disappointed that she wasn’t given the opportunity to clarify things before Dr Insausti decided to refer her. She said she now had a meeting with a lawyer on Friday and had been advised not to attend a meeting until she had spoken to her lawyer.

[88]On 7 March, Ms Fletcher advised that the NMC had decided an interim order was not necessary. Dr Insausti contacted her to ask if they could provide further details as to why an interim order was not necessary. Was it because the claimant was on sick leave? Ms Fletcher responded that that was relevant but also it appeared to be an isolated incident.

[89]There was some further communication between the claimant and Ms Officer about when a further meeting would take place. Ms Officer said that as the claimant was having a representative, the Practice would also be represented. The claimant was invited to an investigation meeting on 26 March. Ms Officer said the meeting was to discuss an allegation of professional misconduct that related primarily to a patient that presented with a potential cardiac event and the medical records being subsequently changed. Ms Officer said she would be accompanied by John McGlone of Mentor and the claimant could be accompanied by a trade union representative.

[90]At the meeting on 26 March, the claimant was asked for her recollection of the events of the 8 January. She was given an opportunity to present her version of events. Ms Officer also interviewed Dr Insausti, Barbara Youngson and Ann Forde. However, the investigation did not conclude as the claimant resigned. Computer access

[91]The claimant found out from documents from the NMC that her computer access had been restricted. She requested access to her computer to get emails and documents for the meeting on the 26 March. Ms Officer arranged for Dr Devlin to come in from sick leave to supervise the visit. This was a difficult and humiliating experience for the claimant. She was required to use a computer in a room already occupied by Barbara Youngson. Dr Devlin had to discuss with Ms Youngson how to log the claimant onto the system. Dr Devlin prevented the claimant speaking to Ms Youngson. Resignation

[92]The claimant intimated her resignation on 9 April with notice expiring on 3 May 2018. She did not return to work. She said that her resignation was “entirely due to the way in which I have been treated by the practice partners the details of which will be outlined in a separate letter”.

[93]The claimant had applied for a job on 14 March 2018 as a practice nurse with another practice, Meadowpark Surgery. She was successful in her application and was offered a position on 26 March 2018. She accepted the job and commenced work on 7 May 2018.

[94]Ms Officer wrote to the claimant on 17 April 2018 expressing regret at the claimant’s decision to resign and saying that if she wished to reconsider her decision, Ms Officer would be more than happy to discuss it with her. She said that the claimant had said she would be providing further reformation about the way she felt she had been treated and she enclosed a copy of the grievance procedure.

[95]The claimant replied on 19 April 2018 saying she was considering the offer of a grievance. She was taking legal advice and would give a decision on Monday. Grievance

[96]A formal grievance was provided by the claimant’s lawyers on 15 May 2018.

[97]The claimant was invited to a grievance meeting on 24 May to be conducted by Ms Officer with Barbara Youngson taking notes. There was a concern raised by her lawyers about whether Ms Officer was the appropriate person to hear the grievance as they said she was implicated in the grievance. Ms Officer did not agree. She said there was no need to involve external parties and the claimant would have a right of appeal to Dr Doherty. However, if the claimant wished to engage a third party and to pay the costs they would be happy to discuss.

[98]There was some back and forth about dates and the meeting finally took place on 13 June. There was also discussion about whether the claimant would be accompanied or not. Ms Officer was accompanied by Mr McGlone. The meeting took several hours. After the meeting Ms Officer interviewed Dr Insausti, Dr Devlin, Barbara Youngson, Dr Fife and Dr Doherty.

[99]Ms Officer issued the outcome of the grievance on 20 August 2018. The grievance was not upheld except for the issue of supervised access to computer as Ms Officer agreed it had not been appropriate for the claimant to have to share a room while she did this. Incidents involving Nurse Wilson and Dr M

[100]In a previous incident, Nurse Wilson had omitted to properly record her findings in relation to a patient. The patient had been seen by a doctor and then sent home but was subsequently admitted to hospital with sepsis and died. The Ombudsman was involved by the patient’s family. The partners did not refer the nurse to the NMC but instead supported her through the Ombudsman process.

[101]In 2017, the other partners had discovered various issues with Dr M in connection with failure to action test results. The other partners allowed him time away from surgeries to clear the backlog. The partners did not refer him to the GMC for many months after they discovered the failings and not until after he had tendered his resignation. The GMC investigation was still ongoing at the time of the hearing. NMC investigation

[102]The NMC Guidance for “Making a referral as an employer” states that it is not always necessary to involve the NMC and that an employer may discipline a nurse through their own procedures. It states that the employer needs to decide whether to refer based on the individual circumstances of the case. It goes on “You must always report a case to us if you believe the conduct, competence, health or character of a nurse or midwife presents a risk to patient safety”. It also states that “Once you have evaluated a case you can make a referral at any time even if your own investigation is not complete”.

[103]In the NMC document “Advice and information for employers of nurses and midwives” it states “In very serious cases it will be appropriate to refer a nurse or midwife to us at a very early stage, even before you conduct your own internal investigation. This allows for the possibility of imposing an interim suspension or conditions which restrict the practice of the nurse or midwife until the case has been investigated. Although concerns about a nurse or midwife’s practice can often be addressed under the employer’s own processes, if you believe patients may be at immediate and serious risk from the nurse or midwife you should contact us straight away”.

[104]The GMC Guidance about Raising a Concern with a regulator provides the circumstances in which a referral should be made. This includes “If there is an immediate serious risk to patients and a regulator or other external body has responsibility to act or intervene.” (para 16.c of Part 1)

[105]The claimant was advised by the NMC by letter dated 27 February 2018 that the concerns raised in the referral were that she had “failed to seek advice or escalate a patient who presented with concerning cardiac symptoms and then retrospectively falsified their clinical records”.

[106]The Case Examiners for the NMC issued their decision on 13 September 2018. They concluded there was no case to answer but issued a warning.

[107]With reference to Patient A, they concluded that the claimant had commenced a process that would ensure that the patient was seen by a GP that morning. The issue appeared to be that Dr Insausti considered that Patient A should have been seen immediately. The Case Examiners concluded that while the claimant may not have complied with local procedures and expectations,” this matter could not reasonably be regarded as serious enough to warrant regulatory intervention.”

[108]With reference to the alteration of the notes of the claimant’s consultation with Patient A, the Case Examiners noted that there was no clear indication that this was a retrospective entry but concluded that “while this might be regarded as substandard record-keeping, there is no evidence to suggest that it is a falsified or deliberately misleading entry” and they did not consider it warranted further regulatory intervention.

[109]With reference to the alteration to the notes of Dr Insausti’s consultation (by deleting the pulse reading of 99) the Case Examiners concluded that there was a case to answer on the facts that the claimant amended the record and there was no clinical justification for doing so. However, they did not consider there was sufficient evidence to support a case to answer on the original regulatory concern that the claimant “falsified” the record. They commented that “a “falsification” of the record would involve the dishonest amendment of the record for the purposes of making Patient A’s clinical observations, taken by Dr Insausti, appear more favourable than they were. The evidence indicates that the amendment in this case appears to have had the opposite effect”.

[110]The Case Examiners considered that the nature of the remaining concern was serious. They took into account that there was no evidence of patient harm but that maintaining accurate records could be regarded as “One of the fundamental cornerstones of safe and effective patient care”. They noted that the claimant had engaged with the investigation and had admitted the remaining regulatory concern at an early stage. They concluded that the thresholds had been met to issue a warning and that this was a proportionate response to the concern in the case as well as sufficient to address the public interest. It noted that the claimant had shown insight into her conduct and addressed any risks to her practice.

[111]The warning remained on the claimant’s record for 12 months. Observations on the evidence The witnesses

[112]As a general point, it was inevitable that much of evidence given by the claimant and the principal witnesses for the respondent was well-rehearsed. This is not a criticism, in itself, but the inevitable consequence of a substantial part of the facts having been explored in an investigation and a grievance appeal as well as having been considered during an investigation by the NMC. The Tribunal makes the following observations on the evidence given by the principal witnesses. The claimant

[113]The Tribunal found the claimant generally to be a credible witness. Her account was consistent with contemporaneous documents. The Tribunal did consider her account of the harmonious relationships in the Practice before Dr Devlin and Dr Insausti joined to be somewhat exaggerated. She described an extremely happy atmosphere but there was evidence of a grievance being taken out by the claimant against Dr M and also a previous complaint against the claimant (albeit that was found to be without merit).

[114]However, this did not impact on the Tribunal’s conclusion that the claimant was correct to say that the atmosphere changed considerably when Dr Devlin and then Dr Insausti joined the practice. The Tribunal found the claimant’s own account of this to be credible and it also took account of its own observation of the evidence of Dr Devlin and Dr Insausti. It was clear that that relations between the claimant and these two doctors was not good. The Tribunal was particularly struck by the hostility towards the claimant that Dr Insausti demonstrated in her telephone calls to the MDDUS, Dr McIntosh and the NMC ( which went beyond the particular concern she was raising) and by the urgency with which she pursued the referral when there appeared to be no good reason for that. Dr Devlin in evidence made it clear that she considered the claimant had made a “bad clinical judgment” on the 8 January despite not appearing to have the full facts and despite the NMC conclusion on the matter. As for the alteration of the records, Dr Devlin insisted that she could conclude there was a probity issue without knowing the reason why the changes were made. The Tribunal found this passage of evidence striking in demonstrating she had a closed mind to the possibility of an innocent explanation.

[115]It was suggested by the respondent that there were false statements in the ET1 and that this should impact on the credibility of the claimant. The Tribunal did not consider it of particular relevance that the claimant said other nurses left because of the atmosphere at the practice and that other reasons were given at the hearing. It may well be that the claimant believed they left because of the atmosphere. This did not impact on the critical matters to be determined. Dr Insausti

[116]Dr Insausti’s evidence was lengthy and she appeared defensive and unwilling to give a straight answer to questions in cross-examination. Her manner gave credence to the claimant’s account of her behaviour as aggressive and confrontational. The Tribunal considered her statement in evidence that if the claimant had wished to return to work she would have resigned to be particularly illustrative of her attitude towards the claimant. This demonstrated a closed mind to the possibility that there might be an innocent explanation for the alteration of the records. She also agreed in cross-examination that she couldn’t trust the claimant and that was her position from the 13 February. This was before she had found any alteration to her own record and at a point where on her own account, she was only aware that the date had been changed. She then changed her position in evidence to say that she couldn’t trust the claimant after she had evidence that the records had been changed but the Tribunal considered the totality of evidence, including the transcript of the calls to the MDDUS, showed that she did not trust the claimant from the earlier point. She was adamant that despite the finding of the NMC that there was a still an issue of probity. Lynsey Officer

[117]The Tribunal was conscious that Ms Officer had sat through most of the evidence in the case. She left the room for a short part of the claimant’s evidence and she also gave her evidence before Dr Devlin but apart from that she was present throughout. The Tribunal gave a warning at the outset that this might impact on the weight that the Tribunal gave to her evidence and that was in fact the effect. She gave her evidence during the second hearing diet after a significant period of time. She addressed matters in chief that were clearly directed to the matters that had arisen in earlier passages of evidence. She also requested to introduce documents at this stage as rebuttal documents. This application was refused. Dr Devlin

[118]Dr Devlin gave her evidence after Ms Officer. Her evidence was striking in the extent to which she volunteered evidence that directly addressed points raised by earlier witnesses. Although this was denied, the Tribunal’s concluded that it was clear she had been briefed on some matters that had arisen in other witnesses’ evidence despite clear warnings having been given by the Tribunal. This affected the Tribunal’s assessment of her credibility. For the avoidance of doubt, the Tribunal is not suggesting that the respondent’s legal representative was complicit in this, rather it was likely to be the other witnesses who had briefed Dr Devlin about issues that had arisen in their evidence.

[119]Dr Devlin was very defensive of Dr Insausti and very critical of the claimant. The Tribunal did not consider her to be objective in her evidence and she repeatedly referred to matters of which she had only second hand knowledge.

[120]As noted below, the Tribunal did accept that Dr Devlin was genuine in her belief that the claimant had been the instigator of the NMP course but, on the balance of probabilities, the Tribunal considered the claimant’s account was more plausible. Dr Fife

[121]Dr Fife’s evidence was confused. It was clear from the contemporaneous documents that he had not agreed with the way that the claimant had been treated in some respects but in evidence, he was clearly reluctant to say anything that was helpful to the claimant if it would be contrary to evidence of his fellow partners. His evidence was of little assistance to the Tribunal. On balance, their view was that he was not fully involved in discussions about the TCA and the referral to the NMC but had gone along with the decisions that were taken. The Tribunal considered it likely that he had not explained that to the claimant. Who suggested the claimant did the NMP course?

[122]The Tribunal considered this was a key point in the case and the misunderstanding here contributed to much of what followed. Dr Devlin gave evidence that it was the claimant who raised the issue of her going on the course and that Dr Devlin had simply supported her to make this happen. The claimant was equally adamant that her undertaking the course had been suggested by Dr Devlin, that she kept reminding the claimant about it and that the claimant had agreed to it with some hesitation feeling under pressure from Dr Devlin.

[123]The Tribunal accepted that both the claimant and Dr Devlin were genuine in the evidence that they gave about this matter and that both had their relative beliefs at the time of the TCA being issued. However, the Tribunal considered that the other evidence presented supported the claimant’s account. She produced a note from an appraisal that confirmed that it was Dr Devlin who suggested she undertake the course. The respondent’s witnesses (Dr Devlin and Ms Officer) suggested that this was not a document produced by the practice but this was not put to the claimant in cross-examination and the Tribunal accepted the document as genuine.

[124]A number of the respondent’s witnesses suggested that the NMP course would mainly be for the claimant’s benefit and would be of little benefit to the Practice. The Tribunal simply did not accept this account and it damaged the witnesses’ credibility in relation to this matter. The Tribunal considered it was clear that if the claimant took the NMP it would be of benefit to the Practice. The partners were prepared to fund and support study for the course. The Tribunal considered that they would only be willing to do so if there was significant benefit to them. It was also clear from the email from Dr Insausti to Dr Devlin that if the claimant did not accept the terms they would send someone else on the course. This also supported the claimant’s position that the Practice were keen for her to do the course and were not simply facilitating her request.

[125]The Tribunal also considered that the claimant’s evidence was simply more likely to be true. Even if she had been interested in doing the course at an earlier stage, the Tribunal considered it was unlikely she would have suggested it at this at this point in her career. She had 2-3 years until retirement and this course would involve significant study. She also had issues in her personal life at this time. Her emails around 21 December make it clear she considers the doctors had asked her to do it. The Tribunal accepted that the partners believed that it was the claimant who had requested to do the course but this was because Dr Devlin had conveyed this impression and because she had been interested in doing the course some years earlier. As noted above, the Tribunal accepts that there was a misunderstanding about the claimant’s desire to do the course and that this affected subsequent events.

[126]The claimant alleged that the partners (and specifically Drs Insausti and Devlin) were annoyed that she had asked for time off in lieu and travel expenses for the course. This was denied by the partners. The Tribunal considered the claimant was right about this. The flurry of emails that followed her request to Ms Officer was not proportionate to a reasonable request from an employee. The partners were quite within their rights to refuse this request but the emails from Dr Devlin and Dr Insausti reflected a level of irritation with the claimant that was consistent with the claimant’s contention that the partners felt she needed “put back in her box” and that she should not be asking for this because she was already well paid. This is also clear from Dr Insuasti’s private email to Dr Devlin. There is no other reason why the claimant’s salary level or annual leave would be relevant to a discussion about whether she should get time off in lieu for attending a course. Again this may, in part, be down to a misunderstanding as Dr Insuasti stresses in the email that the claimant had asked to go on the course but, of course, Dr Insausti was not involved in any of the discussions about that. It was also clear from the tone of Dr Insausti’s evidence to the Tribunal and her comments in her telephone conversations to the MDDUS and Dr McIntosh and the NMC that she had a problem with the claimant that went beyond a normal professional disagreement. The TCA

[127]The Tribunal did not accept the contention of the respondent that the TCA was introduced by the respondent because they were concerned the claimant might leave when she had completed the course and they needed to secure her loyalty. This appeared to be based on a comment by the claimant that the course might be of benefit to her “in the future”. The Tribunal did not accept that the partners had such a concern at the time. There was simply no prospect of the claimant leaving at this point. She had been employed for a long time, she was on very favourable terms and conditions and intended to retire in a few years’ time. It was not reasonable to think there was a risk that she would leave after doing the NMP course and the Tribunal did not accept this was a real concern. This was not a requirement that had been insisted on when an employee had done the same course previously even although she was parttime and was doing the course in part to support her own independent cosmetic business.

[128]The Tribunal considered that when they became aware of the clause in the handbook, Dr Devlin and Dr Insausti seized on this and wished to make a point to the claimant so that she appreciated the cost to the practice and that she should consider herself fortunate to be allowed to go on it. It was part of a general irritation they had towards the claimant’s attitude.

[129]The Tribunal accepted that there initially appeared to be some confusion in Dr Insausti’s mind about how the patient had presented. She had understood the patient had presented with chest pain. However, once the claimant had explained that it was chest tightness and the condition was not acute, the Tribunal considered that Dr Insausti accepted her explanation at the time. It has been suggested in evidence by Dr Insausti that she asked for an SEA to be completed. The Tribunal does not accept this evidence. It prefers the evidence of the claimant that Dr Insausti had said she had considered this might be necessary but having spoke to the claimant was reassured. The claimant gave a convincing account of that interaction. If Dr Insausti had asked for an SEA, the Tribunal consider it inconceivable that she would not have followed it up, especially as her relationship with the claimant was not good. The Tribunal considered that Dr Insausti was on the lookout for mistakes by the claimant. Had she asked the claimant to do an SEA and it had not been provided, the Tribunal had no doubt that she would have followed it up. The Tribunal considered that this incident was a misunderstanding that had been resolved and it was included in the NMC referral to bolster the case against the claimant and not because of any genuine concern by Dr Insausti about the claimant’s clinical competence.

[130]In evidence, Dr Insausti said that the issue was one of professional courtesy. The claimant had left the room without telling her. The Tribunal did not accept that Dr Insausti had any good reason to speak to the claimant about this nor that she was in some way apprehensive of doing this without a witness. There was no need to have a meeting anyway to address that concern and to convene the meeting with the Business manager as a notetaker was extremely heavy-handed. The Tribunal considered that Dr Insausti by this point had a serious issue with the claimant, she was overreacting to ordinary events and again was making a point about who was in charge. The alteration of the records

[131]It was unclear how the issue with the change of records relating to the 8 January consultations came to light. There were at least 3 different explanations from the witnesses and the documents. Either it had been a discussion about routine cases between Dr Insausti and Ms Officer, or they were discussing Dr Insausti’s appraisal and she thought an SEA should have been completed for the incident, or Patient A was someone that Dr Insausti knew and she wanted to check how she was getting on. The Tribunal has already discounted the evidence that the claimant was asked to complete an SEA. There was also evidence that Dr Insausti had been into Patient A’s records between the 8 January and the date on which she had the meeting with Ms Officer as test results had been returned and accessed by Dr Insausti. Dr Insausti was also aware that the patient had been discharged from hospital by the time she spoke to the claimant on 11 January so it seemed to the Tribunal unlikely that Dr Insausti was checking to see how the patient was getting on. The Tribunal concluded from inconsistent range of explanations that the true explanation, on the balance of probabilities, was that Dr Insausti was on the lookout for something that would look bad for the claimant. This is also supported by the tone of Dr Insausti’s telephone call with Dr Gilmartin of the MDDUS. She states that she had already spoken to IT about other suspicions relating to the claimant but “we haven’t so far been able to prove”. This suggested to the Tribunal that Dr Insausti noticed a change in the date of the consultation and from there she was successful in “finding dirt” on the claimant.

[132]The Tribunal considers there was nothing malicious in the claimant going into the records to supplement the details that had been posted about her own initial consultation. This was also the view of the NMC. She did not change any of the details of her own consultation but added additional details. These did not assist the claimant’s case in relation to any allegations about her clinical judgment in relation to Patient A. If anything, the changes made the condition appear more urgent and would lend support to Dr Insausti’s view of the seriousness of the patient rather than the claimant’s.

[133]As for the change to Dr Insausti’s record, there has simply been no explanation for this either at the hearing or at the NMC. Removing the pulse recorded again did not assist the claimant as it was lower than her own recorded reading. The claimant has stated throughout that she does not remember doing it and has no explanation. The Tribunal has concluded this was simply an error. This is indicative of a lack of care and, of course, there is a warning from the NMC but it is not indicative of fraud or lack of probity as Dr Insausti (and Dr Devlin) suggested at the time and, tellingly, continued to assert at the hearing before this Tribunal. The Tribunal considered that this again demonstrated a mindset from these two doctors that was hostile to the claimant and unwilling to consider the possibility of an innocent explanation. The NMC referral

[134]Dr Insausti claimed that she had had a telephone call (undocumented) from the NMC when they had told her she needed to make a referral immediately. Specifically, she said in evidence that she had 2 calls from the NMC on 21 February and in the second call, Mark Brooke had told her she needed to make the referral without delay. The Tribunal accepted there was a call with Mark Brooke on the morning of 21 February in which it was discussed how to make a referral. This is referred to in the email from Dr Insausti sending the referral to the NMC. However, the Tribunal did not accept that Mr Brooke told her to make the referral without delay. There was no transcript of this call . When Dr Insausti spoke to Alastair McIntosh, she said the NMC had phoned her back the day before (which would be the 20th and not the 21st) and told her to make the referral. Dr Insausti’s own evidence about the matter was inconsistent. At one point in her evidence she said that she never said that anyone “urged her” to make the referral. She also said in cross-examination that nobody told her to refer the claimant to the NMC. However in another passage of evidence she said that Mark Brooke phoned her on 21 February and “urged me to make a referral without delay”.

[135]The Tribunal did not accept on the balance of probabilities that this advice was given by Mark Brooke. It is not consistent with the NMC Guidance which talks about immediate referral if there is an “immediate and serious” risk to patient safety. There was no immediate risk in this case. The claimant was absent from work. In any event, Dr Insausti also said in evidence that the decision to make the referral had been agreed by the partners on 20 February which would be before any alleged discussion with Mark Brooke on 21 February. This is also supported by her comments (and those of Dr Devlin) during the call with Alastair McIntosh on 20 February that the partners had had a meeting that day and were supporting Dr Insausti.

[136]It was clear to the Tribunal that Dr Insausti was the one driving the referral with the support of Dr Devlin. The other partners went along with it (Dr Fife reluctantly) but that was on the basis of an inaccurate version of the facts as told to them by Dr Insausti in relation to the aspects of the justification for the referral and that there was an urgency about it. The other partners accepted Dr Insausti’s account that she had been advised to make an urgent referral to the NMC. As noted above the Tribunal considered the evidence did not support that assertion and that Dr Insausti did not accurately reflect the advice being given. Dr Insausti was insistent on a referral being made quickly and without any reference to the claimant (who was off sick in any event). Dr Insausti (and Dr Devlin and Dr Doherty) all appeared determined that the referral should be made before the claimant returned to work.

[137]The Tribunal considered there was no good reason for such an approach. If there was a possibility of the claimant returning to work, it would have been possible to suspend her while an investigation was carried out. The Tribunal did not accept that anyone externally was suggesting the referral had to be made immediately. The Tribunal considered that the most likely explanation for the haste was that Dr Insausti had issues with the claimant’s attitude, had been trying unsuccessfully to prove misconduct or poor clinical performance and had seized on the discovery of the alteration of records as a way to get rid of her or put her in her place. This is also supported by the inclusion of the 8 January incident in the referral as a clinical concern when the Tribunal considers there was no remaining concern at the time of the referral.

Relevant law

[138]The claim is one of unfair constructive dismissal made under section 94 of the Employment Rights Act 1996. (“the ERA”).

[139]It is for the claimant to prove that she has been dismissed. Section 95 of the ERA provides for “constructive dismissal” where an employee resigns “in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”. This means that there has been a fundamental breach of contract by the employer. This could be a breach of an express or implied term.

[140]It is well-established that there is an implied term in every contract of employment of mutual trust and confidence between employer and employee. In Malik v Bank of Credit and Commerce International SA

[1997] IRLR 462

, the term was held to be, ''The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.'' In Baldwin v Brighton and Hove City Council

[2007] IRLR 232

it was held that that the relevant test is satisfied if either of the requirements is met – so the correct formulation is whether the conduct is calculated or likely to destroy or seriously damage the relationship.

[141]It is not necessary for the claimant to prove intention on the part of the employer. Whether has been a breach of the implied term of trust and confidence is an objective test for the Tribunal.

[142]If there is a breach of the implied term of trust and confidence this is a fundamental breach of contract entitling the employee to resign without notice.

[143]An employee may lose the right to rely on the fundamental breach if she delays in terminating the contract and is considered to have affirmed the contract after the breach. This will depend on the circumstances.

[144]A course of conduct can cumulatively amount to a fundamental breach of contract which would entitle an employee to reign and claim constructive dismissal following a “last straw” incident. The last straw must contribute to the breach but need not be of the same character as earlier acts nor need it be unreasonable or blameworthy conduct in itself. It may also revive earlier breaches in respect of which the claimant would otherwise be deemed to have affirmed the contract.

[145]The claimant must prove that she resigned in response to the breach of contract but the repudiatory breach or breaches need not be the sole cause provided they are an effective cause.

[146]A constructive dismissal need not necessarily be unfair. It is for the respondent to establish a potentially fair reason for the conduct that constitutes the fundamental breach within the terms of section 98 (2) of the ERA. This includes a reason related to the conduct of the employee.

[147]If the respondent establishes a potentially fair reason, the Tribunal must decide whether in the circumstances (including the size and administrative resources of the respondent) the respondent acted reasonably or unreasonably in treating that reason as sufficient reason for dismissal. That shall be determined in accordance with equity and the substantial merits of the case. (s98(4))

[148]It is well established that there may be more than one reasonable response to the particular circumstances. One employer acting reasonably might dismiss while another might not. The tribunal, in making the assessment under s98(4), must consider whether the decision to dismiss falls outside that “range of reasonable responses”. It must not substitute its own view of what it would have done in the circumstances and conclude that if it would not have dismissed, then the dismissal is unfair. Claimant’s submissions

[149]For the claimant, Mr Crammond’s submissions are summarised as follows:

[150]In the space of months, but shortly after the Respondent’s change in partners (in particular following Dr Insausti becoming a more involved partner and the appointment of Ms Officer) and a reasonable request made by her regarding the NMP course - the Claimant - a long serving and unblemished disciplinary record employee - had been forced out of the business. This is not a coincidence and is without any or any reasonable or sound excuse or reason.

[151]The respondents’ actions were actions which were designed and intended to force the Claimant out of the business and/or calculated to destroy or seriously damage the relationship of trust and confidence. In any event, it is without question that on the evidence the actions of the Respondents were plainly likely to destroy or seriously damage the relationship of trust and confidence. This was all without any reasonable or proper excuse.

[152]The Claimant resigned, after over 20 years of service at the Practice and in the latter stages of her career, as a result of the Respondents’ conduct. She was subjected to months and months of stressful regulatory intervention as a result of the Respondents’ conduct – this being the obvious and known result of the referral being made by the Respondents in the first place. Had the Respondent not acted in the way that it did, the Claimant would never have resigned from her long-term employment with the Respondent – an employment with generous remuneration, benefits and terms and conditions from which she could and would reasonably have expected to have benefited for the remainder of her career. Instead, despite all of the same, she was forced into the position of having to resign as a result of the Respondents’ conduct towards her;

[153]The law as to constructive dismissal is relatively trite In summary, in finding a constructive dismissal:a. There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach;

b. That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify the employee’s leaving;

c. The employee must leave in response to the breach and not for some other, unconnected reason;

d. Delay and waiver ought not to exist.

[154]The Claimant asserts that she was constructively dismissed. The Claimant asserts that all of the above-mentioned requirements of a finding of constructive dismissal are plainly met in her favour on the facts of this case and upon the evidence before the Tribunal.

[155]It is submitted that the conduct of the Respondents whether taken individually and/or cumulatively (and the last straw doctrine being applied) amount to a fundamental breach of the implied term of trust and confidence. The Respondents’ conduct caused an irretrievable breakdown in trust and confidence.

[156]For the avoidance of doubt, it is submitted that the Respondents’ conduct was calculated to cause a breakdown in and/or seriously damage the relationship of trust and confidence between employer and employee.

[157]Further or alternatively, the conduct of the Respondents was plainly likely to cause or contribute to such an irretrievable breakdown in and/or seriously damage the relationship of trust and confidence between the employer and employee.

[158]Further or alternatively, it is submitted that the Respondents do not (in relation to any of the acts) have reasonable or proper cause or excuse to act in the way that it did. Indeed, in view of the above and when considering the cause of / reason for the actions of the Respondents’ conduct, it is submitted that where there has been such serious breach or breaches (as above) it is very difficult (if not impossible) for the Respondent to rely upon the reasonable and proper excuse exception.

[159]The tribunal must weigh both elements of the definition of the term (Hilton v Shiner Ltd

[2001] IRLR 727

, EAT);

[160]In relation to the last straw doctrine, where necessary, in Omilaju v Waltham Forest London Borough Council

[2005] IRLR 35

, CA the Court of Appeal held that where the alleged breach of the implied term of trust and confidence constituted a series of acts the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach. The final act may not be blameworthy or unreasonable, though it had to contribute something to the breach even if relatively insignificant.

[161]Part of the pleaded position of the Respondent is that the Claimant resigned to avoid misconduct proceedings or dismissal. This is not a proposition which was put to the Claimant in evidence. It cannot be relied upon by the Respondent.

[162]Secondly, the only suggestion made to the Claimant in cross examination on this issue was that she was going to leave due to the changing nature of her employer’s business. This does not bear scrutiny. It is apparent that the Claimant’s resignation is only considered and only comes following the Respondents’ changed approach to her and the matters referred to above. In any event, the evidence of the Claimant is plain about this as to what caused her to resign.

[163]Thirdly, no other reason for resigning was put to the Claimant in her evidence.

[164]Fourthly, in any event, it is submitted that it is clear that the evidence proves that the reasons outlined for the Claimant’s resignation by the Claimant are correct and true. Where they are not challenged, they ought to be accepted as fact.

[165]If an employee leaves both in order to commence new employment and in response to a repudiatory breach, the existence of the concurrent reasons will not prevent a constructive dismissal arising: Jones v F Sirl & Son (Furnishers) Ltd

[1997] IRLR 493

; Nottinghamshire County Council v Meikle

[2004] IRLR 703

, CA, it was held that what was necessary was that the employee resigned in response, at least in part, to the fundamental breach by the employer;

[166]In any event, it is submitted that it is apparent that the Claimant resigned in response to the conduct of the Respondents, whether as a result of all of the conduct of the Respondent taken together or part thereof. It is submitted that she resigned as a result of any and all acts of the Respondents (as above) which amounted, whether individually and/or cumulatively (including with the application of the last straw doctrine), to a fundamental and repudiatory breach of her contract of employment.

[167]In short, the Claimant (aged 57 at the date of her resignation) was a long serving employee of the Respondent. She did not intend to leave the Respondent as her employer until the events narrated in this claim. The matters with her personal life existed simultaneously to her employment, but in no way impacted upon it and did not cause her to even take a day off with sickness absence as a result - she continued to treat patients to the same high standard throughout and there is no evidence to the contrary. Until such time as the Respondents’ behaviour seriously changed towards her, she continued to work for the Respondent even after the change in partners. Looking for jobs is a perfectly reasonable step by any employee in the circumstances facing the Claimant in terms of the conduct of her employer, given the seriousness of the Respondents’ actions and the obvious disregard which the Respondents had shown for the Claimant, her career / employment and her position (both as to the allegations and as to her sickness absence from work). The case law is clear on this issue.

[168]Further, it is clear that the Claimant’s resignation, both temporally and substantively, arose as a result of the Respondents’ conduct and which caused an irretrievable breakdown in trust and confidence between the parties. Further or alternatively, it is obvious that the Respondents’ conduct was a great deal more than even just an effective cause of the resignation – there is no scope on the evidence for the Respondents to assert that there was some other cause which was the sole cause of the Claimant’s resignation, Indeed, this was not put to the Claimant in cross examination in this way either. It is submitted that that the reason for the same is likely that it is obvious that the Respondents’ conduct towards the Claimant was the reason for the Claimant’s dismissal. Delay and waiver / affirmation (issue d above)

[169]The Respondent does not plead a defence on this basis. Therefore, no defence on this basis ought to be permitted to proceed and there is no proper and fair notice of the same.

[170]The Tribunal therefore cannot and should not entertain any such assertions by the Respondent.

[171]In any event, it is submitted that there is no merit in any such assertion as to delay and waiver / affirmation, in any event.

[172]As to the law:(i) There is no fixed time within which an employee must resign and so a delay per se will not amount to affirmation in law, albeit it will often be an important factor. A reasonable period is allowed;

(ii) It depends upon all the circumstances including the employee's length of service (G W Stephens & Son v Fish

[1989] ICR 324

, EAT, where three months was held not to be excessive), the nature of the breach, and whether the employee has protested at the change. Where the employee is faced with giving up his or her job and being unemployed or waiving the breach, Courts are sometimes reluctant to conclude that they have lost the right to treat themselves as discharged by the employer merely by working at the job for a further period. This was accepted expressly by the EAT in Chindove (above) and was said to be particularly so in the case of a longer-serving employee with serious financial commitments and more uncertain prospects of alternative employment.

(iii) Even if an employee has delayed too long in accepting the repudiation of a particular breach, this will not preclude the employee from accepting a subsequent breach and treating himself as dismissed (Wadham Stringer Commercials (London) Ltd and Wadham Stringer Vehicles Ltd v Brown

[1983] IRLR 46

);

(iv) Further, there is no rule of law that receipt of sick pay is or is not a neutral act - ultimately, each case will depend on its own particular facts.

[173]It is submitted that there is no or no undue delay in the resignation of the Claimant such that there has been any waiver of the Respondent’s breach of contract. Even on a straightforward timeline in the chronology, it is apparent that there has been no undue or any delay on the part of the Claimant.

[174]Further, the fundamental breach by the Respondents is serious: it goes to an irretrievable breakdown in trust and confidence. For any such breach to be waived by any employee would, it is submitted, require an act or acts by an employee which were unambiguous in their nature and unequivocal in their waiver of the breach. No such act or acts by the Claimant exist in this case.

[175]Indeed, the contrary position is true. Whilst the Claimant continued to receive pay whilst off sick (which is true of most employees who resign in response to conduct of their employer, whether receiving usual or sick pay), any alleged period between breach and resignation is very short. Even, for example, in relation to the NMC referral: the Claimant’s unchallenged evidence was that she did not learn of the NMC referral until towards the end of the first week in March 2018. The Claimant’s resignation comes at around the beginning April 2018, and this is when other incidents have occurred thereafter and within recent weeks – such as the computer access issue and the 26 March 2018 meeting. The Claimant gives a short period of notice, which the Respondent accepted.

[176]Accordingly, it is submitted that there is no period of delay and/or there is no unduly long period of delay. Any alleged delay (which is denied) is far from the period of delay which, in the circumstances, would be sufficient to cause a finding that there had been a delay and therefore waiver or affirmation of the Respondent’s breach of the implied term of trust and confidence, which is the ultimate question for the Tribunal at this stage of the test.

[177]Moreover, and in any event, the context and circumstances are important. The Claimant was off sick from work. Not only was she off sick, but she was off work with work related stress as a direct result of the Respondents’ conduct. The Respondents did little to nothing in trying to assist and ensure a successful return to work for the Claimant – this is not a case where the Claimant was failing to engage with her employer and suggestions to the contrary are simply incorrect. Importantly, the Claimant was a very long serving employee, in the latter stages of her career, in a well remunerated role with a good package and in a regulated profession. She was also – at the same time as all such matters – having to undergo a stressful and time consuming NMC process (including engaging with the same, taking legal advice as to the same to which she was entitled, providing responses to the NMC as to the same, etc), which she was required to do as a result of the Respondents’ actions and in order to protect her career and ability to work as a nurse. She was in fact off with work related stress. This is in addition to becoming embroiled in the Respondents’ own internal processes at the same time. For an employee to leave their employment in those circumstances, and added on top of this the fact that the Claimant’s regulator was (as a result of the employer’s actions) currently investigating their registration, is plainly a decision which requires proper and reasonable time to consider – it would be a significant step for any employee, still greater a step for someone in circumstances such as the Claimant.

[178]Put another way, there is nothing which was done or said by the Claimant in the relevant and material period which could possibly have caused the Respondents and/or anyone considering this objectively to say that the Claimant was waiving or affirming what was a fundamental and serious breach of the implied term of trust and confidence (i.e. the very root of the relationship between employer and employee).

[179]Accordingly, the period of time and the circumstances plainly indicate that the Claimant did not unduly delay her resignation, nor did she waive or affirm the Respondent’s breach(es) of her contract of employment.

[180]Accordingly, it is submitted that the Claimant has been constructively dismissed. Section 98 of the 1996 Act - potentially fair reason

[181]The Respondents have the burden of proving a potentially fair reason. It is averred that it cannot do so in the circumstances of the present case.

[182]In the circumstances of the present case, there can be no potentially fair reason. The pleadings of the Respondent do not actually (and certainly not properly) plead one. In any event, this was a constructive dismissal. The reason for the resignation was the Respondents’ own repudiatory conduct and the intention behind the same / the impact this had on the relationship of trust and confidence between the Claimant and her employer. It was not the conduct or otherwise of the Claimant herself.

[183]Moreover, the Respondents did not continue to undertake their disciplinary investigation once the resignation had been tendered and had not commenced disciplinary procedures against the Claimant in the period between the matters allegedly coming to light (in February 2018, whereas Dr Doherty evens says January 2018) and the Claimant’s resignation (April 2018) and the Respondents sought to ask the Claimant (whether on advice or otherwise) to reconsider her resignation.

[184]In any event, the Tribunal is invited – as above – to find that the actions and conduct of the Respondents were calculated to destroy or seriously damage the relationship of trust and confidence, whether by reason of putting her back in her box, forcing her out of employment, to protect personal not business interests and/or even as a result of an actual attempt to destroy the working relationship (e.g. the circumstances in which and the reasons behind Dr Insausti making the NMC referral and at the time and in the circumstances that she did). The reasons behind the actions of the Respondents were not conduct or any other potentially fair reason. Section 98(4) of the 1996 Act - fairness

[185]In the circumstances, the Claimant repeats the above.

[186]In the event of there being a potentially fair reason, which is denied, the dismissal was unfair – both substantively and procedurally.

[187]Firstly, the circumstances of this case do not call for there to be any room for there to be a fair dismissal. It is inconceivable that at this stage, and upon there being a finding that the Claimant was constructively dismissed, the Respondents could assert that any dismissal of the Claimant was fair and reasonable in all of the circumstances.

[188]In any event, for the avoidance of doubt, there was no or no proper investigation or process whatsoever. There was no substance to the alleged misconduct in any event. The Respondents’ own internal, draft report says as much and the NMC finds no case to answer in relation to the factual matters in the original referral. Dismissal was plainly an action which could never have been within the band of reasonable responses. All matters referred to by the Respondents did not lead to any disciplinary or other action against the Claimant at all.

[189]Accordingly, the Claimant’s dismissal was both substantively and procedurally unfair and the Tribunal is invited to uphold the Claimant’s claim. Respondent’s submissions

[190]For the respondent. Mr Robison-Young set out the relevant law and the objective nature of the test. He stressed that it is not simply enough to show unreasonable conduct there must be a fundamental breach of contract. (reference to Buckland v Bournemouth University Higher Education Corporation

[2010] EWCA Civ 121

and Brown v Merchant Ferries Ltd

[1998] IRLR 682

)

[191]The primary argument for the respondent is that there was no repudiatory breach of a fundamental term. Any actions followed by the respondent were within the bounds of its contractual relationship with the claimant as its employee.

[192]Furthermore, it is submitted that the claimant’s actions concerning patient records which resulted in a public warning by the NMC on 12 September 2018 amounted to a breach of her contract and an act of gross misconduct which would have resulted in her dismissal but for her resignation.

[193]It is submitted that although the claimant did not sign the amended contract of employment in December 2017, she worked under the contract for the remainder of her service. This referred to the employee handbook.

[194]The respondent’s submission is that there was no pressure on the claimant to do the NMP course. It was her idea and she would have been the main beneficiary. The claimant asked Dr Devlin about it and the handwritten note at p80 is a fiction created by the claimant to bolster her version of events. In any case there would be limited benefit to the practice.

[195]To complete the course would require substantial time away from the practice (19 days) at a cost of £3728.83. the cost of supervision was 12 days of GP time that would have to be covered by a locum at £600 a day. The cost to the business would be £11000. The TCA was prepared to protect the respondent and secure the claimant’s loyalty. Several of the witnesses have clearly stated that it would not have been enforced unless the claimant left to take up employment elsewhere. All the practice was asking was that she remain in post for 1 year after completion. This was not a lot to ask.

[196]Nurse Traynor had not been asked to sign a similar agreement but the circumstances were different. She only worked 10 hours a week ad most of the course was in her own time. In any event, this was prior to 2015 and it is not known what was required by way of GP supervision.

[197]The respondent was acting in a prudent and reasonable way and it was not a repudiatory breach.

[198]The consensus of the experienced medical practitioners was that the recorded results appeared to indicate an issue with the patient’s heart that should have been escalated immediately to a GP and the patient should not have been sent on foot to have bloods taken at the Phlebotomy department outside the Practice. The claimant had not done this and had dictated some information to the receptionist. Receptionist staff, however experienced, are not clinicians and could not be expected to judge the severity of the symptoms. The way the claimant handled this situation caused Dr Insausti and her partners to have concerns about the claimant’s judgment. It was decided that Dr Insaustit should speak to the claimant which she did. It is submitted that she asked the claimant to complete a SEA as a method of reflective learning. The claimant refused and never produced the SEA.

[199]When Dr Insausti and Ms Officer were discussing business matters and other matters relating to her practice, the issues around the 8th January incident arose. She observed that the notes written by the claimant seemed different and that the date had been changed. Further enquires showed that several changes had been made. Although the claimant has suggested that she would have no reason to delete a pulse record from Dr Insausti’s records, this could have serious implications for Dr Insausti if it was believed she had failed to note an important aspect of the patient’s symptoms at the time. Dr Insausti ‘s evidence was that the amendment reduced the urgency of the matter.

[200]It is submitted that Dr Insausti contacted the MDDUS, the Health Board and the NMC for advice on next steps and the Practice decided to refer the claimant to the NMC as a result of the advice received.

[201]The NMC Guidelines state that the employer must always report a case if they believed that the conduct, competence, health or character of a nurse or midwife presents a risk to patient safety. It also states that once they have evaluated a case, a referral can be made at any time even if their own investigation is not complete.

[202]It is submitted that having evaluated the case all the partners, including Dr Fife, concluded that the claimant’s conduct was a risk to patient safety. This was not a spurious referral on non-existent grounds. It was a legitimate step in response to a perceived risk. The claimant was not at work but she could have returned at any time. This was not a breach of contract.

[203]The Case Examiners for the NMC concluded that the matter would not proceed to a fitness to practice hearing. This was based on the fact that the claimant was currently practicing, and she had shown insight into what had happened. However, the Case Examiners concluded that there was sufficient evidence for a case to answer on the amendment of Dr Insausti’s record. The examiners concluded that the issuing of a warning was an appropriate sanction. 29 January incident

[204]Dr Insausti wished to speak to the claimant about the incident. At the meeting on the 25 January the partners felt the claimant had behaved rudely and aggressively and for this reason Dr Insausti wanted Lynsey Officer to attend and keep a note. At the meeting it appeared there was a genuine misunderstanding and for this, Dr Insausti apologised both at the meeting and after she had spoken to Nurse Wilson. There was no breach of contract. Supervised computer access

[205]Following the allegations raised about the claimant and her referral to the NMC the claimant’s computer access was removed. This was a logical and prudent action carried out following advice. The claimant had been accused of altering computer records and there were documents stored on the computer which were highly sensitive and private with serious data protection issues. Although the claimant was not at work, the practice could be accesses after hours via the Coatbridge medical Centre. This did not represent a breach of her contract. She did not need access while she was not at work. Ms Officer said that if the claimant had not been off sick she would have been suspended pending the enquiry.

[206]When the claimant came in for supervised access, the only room available was the practice manager’s room. Ms Officer asked the claimant to wait in the staff tearoom but she chose to sit in the public area. There was no need for her to do that. Dr Devlin sat as far away from her as possible and read a book on her mobile phone. It was not ideal but the best that could be achieved in the short time available. Again, there was no breach of contract.

[207]The claimant was interviewed for and offered another job on 26 March 2018. She resigned on 9 April. Her letter of resignation says that it was entirely due “to the way in which I have been treated by the practice partners”. It is submitted that her letter fails to make it clear that she feels she was constructively dismissed. The letter makes no mention of Lynsey Officer and it is submitted that this exonerates Ms Officer’s decision to hear the later grievance as the complaints at the point of resignation were clearly not about her. Grievance

[208]The respondent is a small business and it was reasonable for Ms Officer to hear the grievance. The suggestion by the claimant that a third party be employed by the respondent was an unreasonable cost to the business. The delay to hearing the grievance was entirely due to the intractable attitude taken by the claimant. The meeting was detailed and looked into every aspect of the claimant’s grievance. There was no breach of the ACAS Code

[209]The claimant has alleged that following a challenge relating to the NMP course and a highly charged meeting over recoupment of training fees, her clinical practice was subject to unfair scrutiny. She identifies breaches of contract in:• requiring her to sign the TCA,

• being asked to attend a meeting on 30 January with Dr Insausti,

• the investigation into the alteration of records

• the referral to the NMC

• The respondent providing the NMC with information regarding an earlier complaint

• Being treated differently to a GP and another practice nurse in relation to the complaint

• Blocking access to her computer and the subsequent supervised access

[210]The respondent submits that the case has been pleaded by adopting a “kitchen sink” style philosophy to include every imaginable or unimaginable claim under the sun. the pleadings are littered with demonstrably untrue statements such as stating that two other nurses resigned because they too might be reported to the NMC on spurious grounds.

[211]There were grounds to report the claimant to the NMC and Anne Wilson’s evidence was that she resigned because of being offered different hours at a practice nearer her home. She described Dr Insausti as polite, short but always caring, Dr Devlin as clever and keen on training, she spoke in a loud voice but was a caring person and Dr Doherty was a caring person.

[212]Nurse Wilson stated clearly her reasons for leaving which were related to childcare and had nothing to do with a fear of Dr Insausti.

[213]Dr Fife was said to have tried to distance himself but in evidence he said the alteration of records suggested a serious risk to patients and in a handwritten note in evidence he states he never had any issues with her competence but was in agreement with the decision to refer her to the NMC.

[214]These inaccuracies case serious doubt over the accuracy and truthfulness of the rest of the pleaded case. Claimant’s submissions in reply

[215]There is a clear factual dispute and it is for the Tribunal to decide whether to accept or reject the explanation. It is submitted that the respondent’s answers don’t stack up.

[216]The respondent suggests there are falsehoods in the pleadings - there are none.

[217]The respondent suggests that the appraisal document was made up – this was not put to the claimant and there is no way that the evidence of the claimant is false or incredible. (Mr Robinson interjected to say it had been put). The Tribunal will assess.

[218]The 8 January incident was a question of clinical judgment. The patient did not have chest pain. Dr Doherty accepted there was no substitute for seeing the patient. There are question marks over the patient being sent to phlebotomy in the health centre but the patient was ultimately sent by Dr Insausti in a car to the hospital. The patient was not “acute”

[219]There was no evidence that the claimant had access to the health centre access codes. This was implausible.

[220]Ms Officer knows what the partners want and acts on their directions. Alternatively, she has been kept in the dark. Either way, she was not impartial.

[221]The claimant was not an “immediate and serious risk”. This is clear from the evidence of Dr Fife and the reference he gave. Otherwise Dr Fife’s evidence was confused and highly contradictory. He was evasive.

[222]Polkey – the respondent’s position that the claimant would have been dismissed in any event cannot be reconciled with Ms Officer pleading with the claimant to reconsider.

[223]If it was thought that the claimant was reacting differently for other reasons, why not speak to her and pause before referring?

Issues

[224]It was agreed during the hearing that the Tribunal would only determine liability at this point.

[225]The issues to be determined by the Tribunal were therefore as follows:• Was there conduct by the respondents which was calculated or likely to destroy the relationship of mutual trust and confidence between employer and employee?

• If so, was there reasonable and proper cause for that conduct?

• Did the claimant terminate the contract of employment by reason of the respondents’ conduct?

• If not, have the respondents established a potentially fair reason for the conduct that constitutes the breach?

• If so, was dismissal within the range of reasonable responses? Discussion and decision Was there a breach of the implied term of trust and confidence?

[226]The Tribunal first considered whether the respondent had conducted itself in a manner which was calculated or likely to destroy or seriously the relationship of mutual trust and confidence between employer and employee and, if so , whether there was reasonable and proper cause for the conduct. The NMP course

[227]The Tribunal considered that there was nothing improper in the partners’ desire for the Practice to be more business-like and for Ms Officer to be employed as a professional manager. It was clear that there had been difficulties in the management of the Practice in the past leading to serious clinical issues (such as the issues with Dr M) as well as staffing issues (such as the claimant’s grievance against Dr M.)

[228]It was perfectly reasonable for Ms Officer to ensure that she had accurate terms and conditions for existing staff and for the partners to make changes to the procedures in the way that they managed patients. It was, perhaps, inevitable that this would cause friction with long-serving staff like the claimant. It is possible that these changes could have been managed more tactfully by the respondent, with more consultation, and also that the claimant could have been more accepting of changes that were being made. However, the Tribunal considers there is nothing in this that amounts to a breach of contract on either side.

[229]As noted above, the Tribunal considers that the problems started with a misunderstanding about who was the driver for the claimant undertaking the NMP course. The claimant asked, quite reasonably, for time off in lieu for study days and for travel expenses to undertake a course that she understood the partners wanted her to take. The partners, again quite reasonably as they understood the claimant to be keen to undertake the course, were not prepared to agree to that and considered they were supporting the claimant adequately by allowing her time off and supervision.

[230]However, the response to the request and the tone of the emails from Dr Insausti and Dr Devlin was unfortunate and indicative of an irritation with the claimant and her beneficial terms and conditions. The Tribunal does not accept that the partners intended to change the claimant’s terms and conditions as she feared but it was clear that the generous nature of them was a source of annoyance to Dr Devlin and Dr Insausti who had not been in post when these terms were agreed to. However, the Tribunal does not consider there was any breach of contract at this point.

[231]The approach of Dr Insausti on 8 January, the Tribunal considered was not a breach of contract. She was entitled to raise a clinical concern with the claimant and the matter appeared to have been amicably resolved following discussion on 11 January. The TCA

[232]The Tribunal considers that in general, it would not be a breach of contract, in itself, for an employer to ask an employee to sign a TCA, especially where the right to do so is included in the contract of employment. However, the circumstances of this case need to be considered. Such an agreement had never been insisted on before for any member of staff (even one doing the same course), it was produced with no warning and no explanation of why it was being requested and it was produced a matter of days before the claimant was due to start the course. Dr Devlin and Ms Officer were at pains to suggest in their evidence that the clause would not be enforced in case of illness etc but that was not made clear at the time. The draft TCA applied if the employment terminated “for any reason”. Nor was the basis of the calculation of the £11000 figure made clear.

[233]The Tribunal concluded this was because the rationale for the TCA was really to make the claimant aware of the costs and to put her in her place and therefore was not only likely, but also calculated to seriously damage the relationship of trust and confidence. The claimant’s reaction was perhaps extreme but the Tribunal considers it was understandable and foreseeable, particularly for a long serving employee and one who was having serious personal issues at the time. This was a matter of which at least some of the partners were aware as the claimant had sought personal advice from Dr Insausti about her son’s situation and she had told Drs Doherty and Fife about it. If it was not calculated to damage the relationship of trust and confidence, the Tribunal considers it was likely to do so.

[234]The Tribunal therefore considered whether there was any reasonable and proper cause for providing the claimant with the TCA in the manner and circumstances in which they did but concluded there was not. There was no reasonable concern that the claimant might leave within a year of doing the course. She was a very long serving employee, on very favourable terms and conditions and a few years away from retirement. The statement that the course would benefit her in the future would not reasonably lead the partners to think the claimant was likely to leave. Further, there was simply no good reason for the contract at all. The claimant was going on a course that would primarily benefit the respondent.

[235]The Tribunal considered that this conduct was a breach of the implied term of

[236]This appeared to be an entirely normal clinical event which provoked a quite extraordinary reaction from Dr Insausti. She appeared to assume that the claimant had simply walked out of the surgery when there was an extremely ill patient there. The Tribunal considered there to be no justification for such an assumption. The claimant was a well-regarded and long-established professional colleague. Nurse Wilson was in the room and it would have been a simple matter to ask her if the claimant had handed over the patient to her (as in fact was the case). Instead, her issues with the claimant appeared to cloud Dr Insausti’s judgment, leading her to make an assumption that the claimant had simply left the room in an unprofessional way. She then insisted on a formal meeting (with a notetaker) to be held immediately, at a time that was not convenient to the claimant and without any advance explanation of what the problem was.

[237]The Tribunal considered this action by Dr Insausti was calculated to seriously damage the relationship of trust and confidence. The Tribunal considered it was motivated by a desire to keep the claimant in her place. However even if it was not calculated to seriously damage the relationship of trust and confidence, it was clearly likely to do so.

[238]There was no reasonable and proper cause for assumption to have been made in the first place and no reasonable and proper cause to demand to have an urgent formal meeting about the incident, with a colleague as a notetaker, without telling the claimant what it was about. The Tribunal did not accept that Dr Insausti was afraid of the claimant or how she might behave.

[239]The Tribunal considered that this conduct was a breach of the implied term of Referral to the NMC

[240]The Tribunal considered that the most serious incident was the referral to the NMC. The Tribunal wishes to stress that it understands the importance of regulatory bodies and that referrals of employees may be reasonable although clearly upsetting for that employee. While a referral to a regulatory body may well destroy or seriously damage the relationship of trust, there will often be reasonable and proper cause for doing it. It is important that employers feel able to make referrals where there is a genuine and reasonable concern. The Tribunal does not dispute that the respondent may have properly made a referral to the NMC about the alteration of records by the claimant at some point.

[241]However, in this case the Tribunal considered that Dr Insausti could have no doubt that the content of the referral and the haste with which it was done was going to destroy the relationship of trust and confidence between employer and employee. She exaggerated the urgency of the matter and the nature of the advice she had been given to ensure that the claimant did not return to work. The claimant was given no opportunity to respond to the allegations and provide an explanation before the referral was made which could have extremely serious consequences for her. Dr Insausti in her telephone call to Alastair McIntosh on 20 February states that the claimant is likely to lose her job and her registration. The claimant was given no warning at all that a referral was being made and received that news directly from the NMC at a time when she was off work with stress.

[242]The Tribunal also considered it was significant that the referral related to matters that had either not been raised with the claimant at all (the amendment of records) or had been raised and appeared to have been resolved ( the 8 January incident). The inclusion of the 8 January incident was particularly serious as the Tribunal considered that the only reason it was included by Dr Insausti was to discredit the claimant.

[243]The detail of the 8 January was also not accurate as it stated that the claimant had noted that Patient A had “chest pain” when that was not what her notes had said. She said that the patient had been in the cardiology ward for several days rather than two days. She said she was concerned that the patient had been sent for bloods when they were “unstable”. However she does not mention that the phlebotomy was in the same health centre and she knew from her subsequent discussion with the claimant that the patient was not unstable. The Tribunal considered that Dr Insausti had set out to make the incident look as bad as possible for the claimant and did not reflect the fact that patient A was seen by Dr Insausti about 20 minutes after the end of her consultation with the claimant.

[244]The claimant was understandably upset about the reference in the referral to a previous complaint that had not been upheld. The Tribunal accepted that Dr Insausti only included this as there was a specific question in the referral questionnaire about it. However, she could have obtained more details to ensure that the referral was accurate. Ms Officer’s statement that she understood the allegation to be “true” further damaged the relationship.

[245]The Tribunal considers there was no reasonable and proper cause for making the referral at the time it was made without speaking to the claimant. There was simply no serious and immediate danger to patient safety. The claimant was off sick and any concern about safety could have been dealt with by a short suspension while the matter was investigated.

[246]The Tribunal considers there was no reasonable and proper cause for Dr Insausti including the 8 January incident as a clinical matter at all. The Tribunal notes that the NMC concluded that the matter “could not reasonably be regarded as serious enough to warrant regulatory intervention”. The Tribunal agrees with that assessment.

[247]The Tribunal considers that this conduct was a breach of the implied term of Computer access

[248]The Tribunal does not consider there was a breach in restricting the claimant’s computer access during the investigation. There was reasonable and proper cause to do this. However, there was no need for the supervised access to take place in a room with another member of staff and in the humiliating manner that it was. This was calculated to damage the relationship and if not, it was clearly likely to do so. The respondent suggests there was no other room and no other computer. The Tribunal considers that a suitable arrangement could have been made for this to take place in a less humiliating way.

[249]The Tribunal considers there was a further breach of the implied term by the manner in which the claimant’s access to her computer was supervised Investigation meeting

[250]The Tribunal did not consider there was any breach in relation to the arrangements made for the investigation meeting. It was proper for Ms Officer to decline to discuss a patient matter with the claimant’s husband present and the investigation thereafter appeared to be carried out in accordance with a fair procedure. The claimant was given fair notice of the allegations and was given a full opportunity to state her position. Was the claimant constructively dismissed?

[251]The Tribunal therefore considers there were 4 individual breaches of the implied term of trust and confidence. The conduct around the TCA, Dr Insausti’s reaction to the incident on 29 January, the referral to the NMC and the manner of supervising the computer access. If the Tribunal is wrong about that, then it considers there was a course of conduct that in total amounted to a breach of the term. The final straw, if one were required, is that the claimant found out about the referral to the NMC from them and not from her employer. It is made worse by the fact that the claimant was off work with work related stress at the time.

[252]The Tribunal considers it worth mentioning that while the respondent was a small employer, it had access to a considerable amount of advice through MDDUS, the Health Board, NMC as well as from Mentor and Ms Officer. However, the main problem was that Dr Insausti did not provide objective and balanced accounts of the facts to those sources of advice and did not accurately reflect back to her partners the advice that was given.

[253]It does not appear to be suggested by the respondents that the claimant delayed too long in resigning. For completeness, if that were to be argued, the Tribunal does not consider that the claimant delayed too long before resigning in respect of any or all of the breaches. She was absent from work with mental health issues from 31 January. She did not positively affirm the contract.

[254]It does not appear to be argued by the respondent that the claimant’s resignation was not caused in any way by the identified breaches of the implied term of trust and confidence. Again, for completeness, the Tribunal considers it is clear that, although she had obtained another job, her reason for resigning was her treatment by the partners that constituted the breach of the implied term.

[255]The Tribunal concludes that the claimant was dismissed in terms of section 95(1)(c) of the ERA. Was the dismissal unfair?

[256]There were no submissions on this point but, again, for the avoidance of doubt, the Tribunal does not consider that a potentially fair reason for the respondent’s conduct has been established. If there was a potentially fair reason relating to conduct, it was not reasonable to dismiss for that reason.

[257]In conclusion, the Tribunal finds that the claimant was unfairly dismissed.

Remedy

[258]It was agreed that this hearing would only consider liability and this therefore concludes the judgment of the Tribunal. However, the Tribunal considered it might be helpful if they gave an indication on their likely approach to issues of potential adjustments to the basic and compensatory awards in the event that the claim was successful. The parties agreed and made submissions on these points. Claimant’s submissions on remedy Conduct

[259]For the claimant it is submitted that in order for there to be any deduction whatsoever made for contributory conduct, there would require to be culpable or blameworthy conduct of the Claimant and that that conduct caused or contributed to the reason for the dismissal of the Claimant. In Firth Accountants Ltd v Law

[2014] IRLR 510

the EAT noted that such a finding (of contributory fault in a constructive dismissal case) will be unusual, particularly in a case concerning a breach of the implied term of trust and confidence as there must have been no reasonable or proper cause for the employer's conduct for there to be a breach of the implied term. The Tribunal is also referred to the EAT case of Upton-Hansen Architects Limited v Ms X Gyftaki

UKEAT/0278/18/RN

for further guidance.

[260]Accordingly, in the context of a constructive dismissal case, especially in the circumstances of the present case, there is simply no room for there to be a finding that any alleged behavior of the Claimant caused or contributed to the resignation of the Claimant (i.e. her dismissal). The resignation of the Claimant – ergo her dismissal – is firmly and solely caused by the conduct of the Respondents.

[261]Further, the conduct of the Respondents is so firmly removed from any alleged conduct of the Claimant that there is simply no connection between her resignation and her own conduct and , in any event, as above, it is averred that the conduct of the Respondent was calculated to break the trust and confidence and to end the employment relationship. There was not and there cannot be any connection to the Claimant or any alleged conduct of the Claimant there at all.

[262]In any event, there is no culpable or blameworthy behavior of the Claimant and/or there is no such culpable or blameworthy behavior which warranted or could in any way reasonably have led to the Respondents treating and conducting themselves in such a way to the Claimant as they did. For example, there can simply be no explanation for reacting and behaving as it did towards the Claimant upon knowledge of the medical records being changed. Put another way, even with the records being changed, this does not explain the failure to speak to the Claimant about it before referring her, jumping to conclusions before any attempt at a fair process, treating the Claimant as it did by undergoing obviously sham processes, subjecting her to humiliating and degrading treatment when she needed access to her computer records, etc;

[263]Further, it falls ill in the mouth of the Respondents to allege that there was likely to be culpable and blameworthy conduct causing the dismissal when: the Respondent itself did not complete even the investigation stages of the process despite time to do so; even on its own draft found nothing malicious; the NMC find there to be no case to answer on the factual allegations which were presented (and provided only a warning without undertaking the full formal regulatory process); and all in circumstances where there is a clear request to allow the Claimant to indicate a retraction of her resignation which the Respondents would consider.

[264]Accordingly, it is submitted that there is no culpable or blameworthy, none that is relevant and material and/or there is none which was the cause or contributory factor to the resignation (dismissal) of the Claimant from her employment.

[265]In any event, the overarching test is one of just and equitable. It is submitted that it would not be just and equitable to make any deductions to the Claimant’s award in this case. Polkey / just and equitable

[266]The claimant submits that Polkey deductions are applicable only to the compensatory award and only on the basis of a procedurally unfair dismissal. The circumstances of the present case amount to a great deal more than simply a procedurally unfair dismissal. Polkey does not assist the Respondent here.

[267]Further, the processes involved (or indeed lack thereof) are so serious in their failings that it would be entirely speculative to the point of a Polkey deduction simply not being possible. The Tribunal would be being invited into a sea of speculation, which it could not do in any or any meaningful way.

[268]In any event, it is quite apparent that the Respondent simply cannot say with any force that that the Claimant, had she not resigned, would have been fairly dismissed had she continued to be employed. This requires three things:(i) a finding that the Respondents would have dismissed the Claimant;

(ii) that the dismissal would have been for a potentially fair reason; and

(iii) that the dismissal would have been fair.

[269]None of these are likely on the evidence. In this regard, the Respondents did not complete their own internal investigation, still less move to disciplinary procedures (which is interesting given that they did undertake a grievance process) within a period of nearly two months between the alleged misconduct coming to light and the Claimant’s resignation. The Respondents had (allegedly) lined up Dr Doherty to undertake any proposed disciplinary – on any view of his evidence he could not possibly have undertaken a disciplinary process fairly. Further, the Respondents invited a reconsideration of the resignation – the Respondents cannot have it all ways and this is inconsistent with the suggestion that the Respondents considered there to be gross misconduct or that she should be dismissed for such conduct. In any event, the findings of their own draft report and indeed NMC outcome simply do not support gross misconduct; and, it is submitted, had there been any fair process then the evidence of the Claimant would have satisfied any fair minded and objective decision maker that there was not gross misconduct. In any event, there could never and – perhaps more importantly – would never have been a dismissal as a fair outcome for any alleged conduct (putting aside for present purposes that the Respondents had closed their mind to the Claimant’s innocence or any fair process at all) given her length of service, unblemished career, there being no gross misconduct at all and there being an array of actions (at its highest) short of dismissal which would have been, at best, the lesser sanction – training, mediation, warnings, etc;

[270]Accordingly, it is neither just nor equitable for the Tribunal to make any deductions to the Claimant’s compensatory award as a result of Polkey and/or any other just and equitable basis. ACAS Code of Practice Uplift

[271]The Claimant submits that the Respondents (who were taking employment law advice throughout) unreasonably breached the same as to Grievances as below. Accordingly, an uplift of 25% ought to be applied to any award of the Claimant. The Respondents breached the Code of Practice as follows:a. Paragraph 4 of the Code – not holding a fair grievance process or investigation. This is a serious breach by the Respondents. The decision to have Ms Officer as the grievance investigator is plainly a decision which from the outset and throughout the entirety of the process could not have ensured fairness. She could not be impartial or independent. She was subject of the grievance. She was investigating her seniors and the partners who employed her. She was involved in many of the matters about which the grievance related – e.g. the referral to the NMC and the process following thereafter, the events arounds the 29 January 2018 incident and the calling of a meeting, etc. Moreover, the Respondent only belatedly provided investigation documents from the investigation which the Claimant was at no time given the opportunity to consider or respond to as part of the grievance process before unfair outcomes were given. This is all in the context of the Respondents having someone who was apparently there at the meeting and assisting throughout who could have undertaken the same – Mentor – or when it was plainly reasonable in all of the circumstances to outsource the grievance investigation or have someone else undertake it. The undertaking of the grievance was another tick box exercise by the Respondents and was not meaningful;

b. Paragraphs 4 and 33 – not arranging / holding a meeting to discuss the grievance without unreasonable delay upon receipt of the grievance;

c. Paragraphs 4 and 40 – not delivering the decision / outcome to the grievance without unreasonable delay following the meeting held in relation to the grievance. Respondent’s submissions on remedy Contributory fault.

[272]A finding of constructive dismissal is not entirely inconsistent with a finding that the claimant has contributed to that dismissal. Reference to Garner v Grange Furnishing Ltd

[1977] IRLR 206

where the EAT substituted a finding of one- third contribution. The claimant’s conduct is to be looked at over the whole period not just at “the last straw”.

[273]In the present case the claimant contributed significantly to the situation which resulted in her resignation. This was backed up by the findings of the NMC who found there was a case to answer in relation to the amendment of Dr Insausti’s record. Polkey

[274]The relationship of trust and confidence had been utterly destroyed when the claimant altered records retrospectively and this was particularly so where she altered Dr Insausti’s notes. Dr Insausti said in evidence that if the claimant returned to work, she would have felt obliged to resign.

[275]It is submitted that the claimant would have been fairly dismissed and that a fair procedure would have been completed in 2 months and that any compensatory award should be limited to 2 months’ pay. Tribunal’s indication on aspects of remedy Contributory conduct

[276]The Tribunal considered this at some length and in particular, whether the claimant’s conduct in altering the records contributed to her dismissal as submitted by the respondent. The specific issue for consideration is whether the claimant’s conduct contributed to the fundamental breach of contract by the respondent. The Tribunal considered that her conduct potentially contributed to the referral to the NMC. Without the claimant’s alteration of the records, the respondent would not have referred the claimant to the NMC.

[277]However, the Tribunal took into account that the referral to the NMC was only one of the breaches of the implied term of mutual trust and confidence. Although it was the most serious, the claimant was already off work with stress. Further, it was not simply the fact of the referral that the Tribunal considered constituted a breach but the circumstances surrounding it. The breach identified was in making the referral with undue haste while the claimant was off sick and without discussing it with her and including additional matters and inaccurate details to discredit the claimant. The claimant’s conduct did not contribute to these aspects of the respondent’s conduct. The Tribunal also considered it relevant that they have found that Dr Insausti’s motivation in making the referral was to get rid of the claimant – it was not a measured response to the claimant’s conduct.

[278]The Tribunal considers for these reasons it would not be just and equitable to make any reduction to the basic award.

[279]The Tribunal consider for the same reasons that it would not be just and equitable to make any reduction for conduct to the compensatory award. Polkey

[280]As for Polkey, the question for the Tribunal is whether there is a chance that a fair dismissal would have occurred, not simply whether a dismissal would have occurred. Dr Insausti suggested that she would have resigned if the claimant came back to work. Dr Devlin considered the claimant’s conduct was “unforgiveable”. This suggests that the claimant may well have been dismissed but not, necessarily, that such a dismissal would have been fair in terms of the ERA.

[281]Had the respondents carried out an investigation before contacting the NMC they may still have decided that a referral was necessary and a warning would still have been issued to the claimant by the NMC. However, the Tribunal considered that if that had happened, it would not have been within the band of reasonable responses to dismiss the claimant, a longstanding and wellregarded employee, for that reason. It is clear that the warning on her record has not been a bar to her finding similar employment as a practice nurse. There was no finding of fraudulent conduct by the NMC but a warning about proper record-keeping. There was evidence that another employee who had made errors in record-keeping resulting in very serious consequences had not been dismissed..

[282]The Tribunal does not consider this constructive dismissal was simply unfair because of procedural matters but, even if it was, it does not consider there is a chance that a fair dismissal would have resulted as result of the NMC investigation and the imposition of a warning. Acas code

[283]Finally, the Tribunal considered the Acas code, specifically the Acas Code of Practice on Disciplinary and Grievance Procedures (2015). Mr Crammond has identified what he says are a number of failures to comply in respect of the grievance procedure and investigation. The identified failures relate to Ms Officer’s involvement in the grievance procedure and the delays in holding a meeting and issuing the outcome.

[284]The Tribunal firstly notes that the Code applies to “employees” and that “grievances” are “concerns, problems or complaints that employees raise with their employers”. Although the Tribunal is not aware of any case law on the matter, it does not consider that the provisions of the Code apply to a grievance raised after employment has come to an end (although, of course, the exemployer may choose to address the complaint as if it were made under the Code).

[285]If the Tribunal is wrong about that, it does not consider that there were failures to comply with the Code. The Code provides that if it is not possible to resolve a grievance informally, employees should raise the matter formally and without unreasonable delay with a manger who is not the subject of the grievance. The claimant raised the grievance with Ms Officer. It was not apparent from the grievance that the claimant was complaining about Ms Officer. The Tribunal does not consider it was a breach of the Code for Ms Officer to deal with the grievance that had been raised with her. The Code does not state that a grievance must be dealt with by someone who has no involvement at all with the matter. It does state that any appeal should be dealt with impartially and, wherever possible by a manager who has not previously been involved in the case.

[286]The claimant also contends that there were delays in the grievance procedure that were unreasonable. The Tribunal does not accept that the delays were unreasonable. They were explained in evidence. The delays were in large part because the claimant wanted an external investigator and the respondent refused to pay for this. The Tribunal does not consider it was unreasonable for the respondent to take this stance, particularly when the claimant had already resigned.

[287]The Tribunal therefore indicates to the parties that, although not yet formally determined, at any remedy hearing:(i) It would not anticipate making any reduction to the basic award under sections 122 of the ERA;

(ii) It would not anticipate making any reduction to the compensatory award under sections 123(1) or 123(6) of the ERA; and

(iii) It would not anticipate making any increase to the compensatory award under section 124A of the ERA.

[288]The case will now be listed for a remedy hearing if that is still required after parties have had an opportunity to consider this judgment.