Case No 8001555/2024Venue EdinburghHearing 21, 22, 30 and 31 January 2025
Between
Mr M ReayClaimantLothian Health BoardRespondent
Before
Employment Judge A JonesDate 10 February 2025
JUDGMENT
The claimant was constructively and unfairly dismissed, and the respondent is ordered to pay to the claimant a basic award of £17,500 and a compensatory award of £500 net.
REASONS
[1]The claimant lodged a claim on 26 September 2024 claiming that he had been constructively and unfairly dismissed from his role as Chaplain with the respondent based at the Royal Hospital for Children and Young People in Edinburgh (‘RHCYP’). The hospital is part of the larger campus of medical facilities at Little France in Edinburgh, where the Royal Infirmary of Edinburgh is also based. The respondent denied that the claimant’s contract of employment had been breached in such a way as to entitle him to resign and that insofar as it had done so, the claimant had delayed too long in resigning. It was the respondent’s position that if there had been a dismissal, it was for a potentially fair reason and had been fair in all the circumstances.[2]The Tribunal heard evidence from the claimant. The respondent led evidence from Ms Mackay who is the respondent’s Director of Communications, Engagement and Public Affairs, Ms Milburn who is the General Manager for Women and Children’s Services and was responsible for the respondent’s application for an LGBT youth charter mark, Ms McAuley who is the respondent’s Acute Nurse Director and was for a time the claimant’s line manager and Mr Graham who was seconded to the respondent from NHS Lanarkshire for a time to review the Spiritual Care Services and who latterly became the claimant’s line manager. A joint bundle of documents was produced and parties made submissions at the conclusion of the evidence Issues to be determined[3]The Tribunal was required to determine the following issues: i. Did the respondent fundamentally breach the claimant’s contract of employment? ii. If so, did the claimant resign in response to any such breach? iii. If so, had the claimant affirmed any breach by reason of the delay in his resignation? iv. If the claimant was constructively dismissed, was that dismissal unfair? v. If the claimant was constructively and unfairly dismissed, what if any compensation should be awarded to him? Findings in fact[4]Having listened to the evidence, considered the documentary evidence to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.[5]The claimant worked as a Chaplain based at the RHCYP, which was formerly known as the Sick Kids’ Hospital in Edinburgh. He worked in that role from April 2007 until his resignation which became effective in April 2024.[6]The claimant was based in the Spiritual care office in RHCYP. The office area also included a ‘Sanctuary’ which was a space for patients, family and staff to go for thought or contemplation.[7]The claimant was the only Chaplain for RHCYP but was required to take part in an out-of-hours rota system with Chaplains from other hospitals in the region. The service in the region had been short staffed for some years.[8]The claimant is a transgender man who transitioned over 30 years ago. While he has not kept that fact secret, he did not choose to tell all his colleagues of this and sought to retain a degree of control over how this was communicated to colleagues and others.[9]The claimant was employed on band 6 which gave him a large degree of autonomy over what duties he performed and how he prioritised his duties. He was paid a gross weekly wage of £886.54.[10]The claimant reported to Ms McAuley, the Head of the Acute Nursing Directorate from April 2023 until around December 2023 when his line manager became Mr Graham. Ms McAuley had little day to day involvement with the claimant and his duties. She was responsible for around 5000 nurses in the respondent’s hospitals.[11]On 1 April 2022, together with a number of other colleagues, the claimant took part in a campaign being conducted by the respondent to raise the visibility of Transgender Day. The claimant had expressed some concern to the respondent at the time about how participating in this campaign would be received and in particular about the potential for negative responses to his participation. He was assured by the respondent that any such matters would be dealt with appropriately by the respondent. The claimant participated by giving information about his experiences as a Transgender man and this was included in document shared on the respondent’s intranet.[12]RHCYP had been seeking to obtain a charter mark from a charity called LGBT Youth Scotland. The process had started prior to COVID but was then put on hold. In July 2022, Ms Milburn sought to recommence the process and she set up a Champions group to support the application. The first meeting of the group took place in October 2022. Ms Milburn was co-chair of the group, and she invited Mr Duncan-Rusk, who was chair of the respondent’s LBGT staff and allies’ network and a senior manager to be co-chair. The claimant was invited to participate in the group and agreed to do so. In order to obtain the charter mark RHCYP was required to meet various requirements including the setting up of a group with senior members of staff and which was multi-disciplinarian, train staff, review policies and promote signposting on social media around where young people could access information about LGBT issues. There was also a general requirement to demonstrate inclusivity in relation to LGBT issues.[13]The claimant is a member of a church which has international congregations. The claimant took part in a YouTube video on 28 April 2023 which was streamed to a congregation in Los Angeles in America and was available thereafter more widely on the relevant you tube channel. In the video he indicated that he was transgender.[14]The respondent has a group of staff responsible for arranging celebrations and events during Pride month, called Pride Group. A pride walk was organised in Little France in June 2023 by the group who had organised events during Pride month for a number of years. At one meeting to discuss the events, the claimant discussed how children and young people who could not take part in the pride walk could be included. He and colleagues discussed decorating the Sanctuary space in RCHYP with some soft furnishings to make it more of a young people friendly space. They also discussed putting up signs on the Sanctuary doors referring to it as a ‘chill out zone’. Mr Duncan Rust was involved in this group and was present when this discussion took place.[15]The Sanctuary had in the past been used to highlight various campaigns or celebrations such as religious celebrations and had been decorated in keeping with the themes of such events.[16]An article appeared in the Daily Telegraph written by a journalist called Daniel Sanderson on 1 June 2023. The headline of the article was “NHS row as staff plan Pride march through grounds of Scotland children’s hospital.’ The article included several anonymous quotes said to be from a doctor and two other staff members employed at the hospital which were critical of the attempt to gain charter status from LGBT Youth Scotland and of the Pride events which were planned. The article also included a quote from the respondent’s director for HR and organisational development that the “event was in line with NHS Lothian’s “organisational values” and “This is a celebratory event organised by our staff, including local LGBT+ staff and allies’ networks at the Royal Infirmary of Edinburgh, Royal Hospital for Children and Young People and University of Edinburgh to mark the start of Pride month. There is a mini wellbeing fair with information stalls, art, music, picnics and an organised health walk around our dedicated outdoor wellbeing path. It is important that HNS Lothian positively contributes to tackling prejudice and promoting understanding of the diverse group of people in our communities who work for and with us and who use our services.”[17]There was some crossover in membership of the Champions’ group, the Network and the Pride Groups and it was not always clear which groups was leading which activities. Both the claimant and Mr Duncan-Rust were members of all groups. The administrator of the Champions’ Group was also the administrator for the Pride group. The Champions’ Group reported into the clinical management team in relation to the application for the charter. The charter mark application did not form part of a wider strategy or plan in relation to LGBT issues and was a standalone project. Other areas of the respondent’s services had applied for and been awarded the charter mark in the past.[18]The respondent encouraged its staff through their participation the various groups, social media and its magazine called Connections to take part in the Pride Walk in 2023 and decorate the entrances of the various buildings and wards as part of the celebrations for Pride month.[19]The efforts of staff in promoting the Pride events including decorating entrances to buildings were used as supportive evidence by the respondent in its application for charter mark status from LGBT Youth Scotland for RHCYP. The charter mark was awarded to the RHCYP in July 2023. It was the largest part of the respondent’s operations to be awarded the charter mark.[20]An event took place to celebrate that the LGBT staff and allies’ group had been named the respondent’s team of the year on 28 June. The claimant was unable to attend that meeting as he was required to attend the meeting with Ms McAuley which is described below. Mr Short did however send the claimant a letter thanking him for his involvement in these achievements.[21]On 27 June 2023 the journalist Mr Sanderson sent an email to the respondent’s media team entitled “Sick kids ‘sanctuary’”. The email stated: I am looking into a story about NHS Lothian’s spiritual care sanctuary space at the Sick Kids being rebranded a ‘chill out zone’ and being plastered with around 40 LGBT and trans flags across almost all walls and windows. Some of these flags represent notions such as ‘polyamory’ (having more than one sexual relationship) and ‘agender’ which are obviously not something promoted by mainstream religions. I understand that some staff, patients and parents have been upset by this, and believe this is inappropriate in a hospital setting and particularly in a space that is designed for use by grieving families, particularly those who find comfort in religion, who are likely to be dealing with horrendous events or news. There are concerns that Maxwell Reay, who is the chaplain for the RHCYP, is using the role to inappropriately promote his personal views. While there is obviously no issue with a trans person holding this role and he is entitled to his personal beliefs, and to engage in activism out of the NHS, some people feel that using the role to push a contested agenda into such a space is not what an NHS chaplain should be doing and risks excluding those who do not subscribe to these beliefs. He has expressed views such as being that trans is a “gift from God”, which again is not a mainstream religious view. Guidelines from the UK Board of Healthcare Chaplaincy state that chaplains must “Differentiate personal beliefs, morals and values from healthcare ethics” and that they should “recognise that a variety of value systems, customs, beliefs and practices will co-exist within healthcare ethics.” Some feel these are being clearly breached. We have quotes from a relative of a terminally ill six-year-old who has been really upset by this. They said “sometimes prayer is the only thing we have” and are upset that the space designed to facilitate this has been given over to a “display of activism”. They added: “My family and I are leaning on our faith as we face the worst fear and trauma of our lives, but as it stands we can’t use what is meant to be the hospital prayer room. Using that space for activism is so deeply disrespectful to sick children and their families.” I have spoken to staff members who are also very unhappy at this, and feel it is part of the push to gain accreditation from LGBT Youth Scotland. Some images are below. The flags are also blocking views of the courtyard, which presumably was designed to offer a peaceful space for those in need of it. There are wider concerns that the chaplaincy service has been taken over by activists from fringe groups, when patients would assume they belong to mainstream religion. These include representatives from the OneSpirit Interfaith Church, which celebrates all gods and spirits, including neoPaganism and “wicca witchcraft”. As I understand it there are no muslim representatives and one Catholic chaplain [name removed]….who also holds beliefs far outside of mainstream Catholic teachings. Again, there would be no issue if they acted in a neutral way and put their personal beliefs aside, but clearly that doesn’t seem to be the case. Can I please get a response to the following: - Is NHS Lothian aware that is ‘spiritual care’ sanctuary has been redecorated and renamed in this way and do you support it? - Is this permanent or just for Pride month? - Why does NHS Lothian website still show it as a neutral sanctuary rather than a ‘chill out zone’ with all the adornments? - What is your message to patients and families who hold mainstream religious beliefs and feel they are no longer able to use the room or the chaplaincy service? - Are you taking any steps to recruit more diverse chaplains and does NHS Lothian, or Maxwell Reay, have responsibility for recruiting chaplains? Planning to run something in Thursday’s paper so if you could get back to me by early afternoon tomorrow that would be appreciated Regards, Dan.[22]The enquiry was dealt with by a member of the respondent’s media team who has since left employment of the respondent to move to Australia. She forwarded the email from the journalist to the claimant’s line manager, Gillian McAuley and Allister Short who is the Service Director of Women and Children’s Services for the respondent. He is employed at the same level of seniority as Ms McAuley and had overall responsibility for the RHCYP. The email went on to state “Gillian, I just wanted to loop you in from a line management perspective as I believe you line manage the spiritual Care team? Appreciate any advice on the recruitment of chaplains’ aspect of the query, if possible. As you’ll no doubt agree, the role of the sanctuary is to provide a place of peace for all, however staff and the family of a patient have expressed their discomfort to the report at what is perceived to be inappropriate activism (outlined in the email below). On looking at the photos, we appreciate the flags have likely been used to recognise and make everyone feel comfortable/welcome during Pride month. However we note that the flags cover the windows to the point where they do seem to obscure the view. Would you both be able to pick up with the service and have a discussion about the background to this and whether the flags can be removed from the windows? We would appreciate your guidance on this. In respect of responding to The Telegraph with a comment, would you be comfortable with something along the lines of the following, subject to your discussions with the Spiritual Care team? Eager to keep this succinct if we can: Allister Short. Service Director. Women’s and Children’s, NHS Lothian, said: “NHS Lothian endeavours to provide a welcoming space for all staff, patients and visitors. The flags were used as decoration in the sanctuary to mark Pride month, which is coming to an end shortly. The sanctuary is designed to be a place of peace and we have removed the flags from the windows so that patients and their families can clearly see the gardens.” Let me know if you have any questions.[23]Ms McAuley emailed the claimant later that afternoon and asked him if the flags were still up in the Sanctuary. She did not inform the claimant what the information was to be used for or for any further background to the issue and the email itself was not produced to the Tribunal.[24]The claimant was not in the office that day and was working elsewhere. He responded to Ms McAuley’s request the following morning on 28 June and told her that the flags were put up on 1 June, the large ones had been taken down on 12 June as they were required at another event and that the bunting would remain in place until the end of Pride month. Ms McAuley was not aware and did not enquire as to the claimant’s whereabouts on 27 or 28 June.[25]Ms McAuley had forwarded on the email she had received from the media team to Mr Paul Graham who was conducting a review of the Spiritual Care services and was on secondment from Lanarkshire Health Board where he is the Head of Spiritual Care and Wellbeing. She then had a conversation with Mr Graham at around 5.30pm on 27 June and asked him to attend a meeting with her the following day with the claimant and another member of the Spiritual Care team who had been mentioned by the journalist.[26]On 27 June a further email was sent to Mr Short and Ms McAuley at 17.26 by the media team with an update to the proposed quote from Mr Short. The quote now stated “NHS Lothian endeavours to provide a welcoming space for all staff, patients and visitors. The flags were used as temporary decoration in the sanctuary to mark the Pride Day of celebration and were removed afterwards. The sanctuary is designed to be a place of peace and reflection and we welcome feedback from all patients and families as to how the space is best used.” The proposed response to the journalist also stated: “For guidance: the ‘chill-out zone’ sign, which was also temporary was left up due to an oversight and has since been removed.” This response was then provided to the journalist at 17.42 that evening.[27]On the morning of 28 June, the claimant was invited to a meeting by Ms McAuley’s PA at 1pm that day. The meeting was to take place by Teams and Mr Graham and the other individual who had been mentioned by the journalist were also invited. The invitation stated “Gillain has requested this urgent meeting to discuss a media enquiry. I would be grateful if you could prioritise this meeting in your diaries and confirm your attendance.”[28]At 11.54 that day, Ms McAuley forwarded to the claimant the email which had been sent by the journalist the previous day and the proposed response. Ms McAuley’s email stated “please find below details from the telegraph newspaper on an article they plan to run on tomorrow. I appreciate this is a difficult read and unfortunately, we have no control over what is printed. The Lothian coms team have drafted a response from Allister Short the Site Director at RHCYP as below. I really wanted you to have full site of this before printing and for us to discuss together, which we will do at 1pm today. I thought it would be helpful for you have time to read over before our meeting hence why I am emailing this to you. Kind regards, Gillian.[29]A remote meeting took place at 1pm. The claimant was very distressed at that meeting, having had a very short period in which to absorb the information contained in the email sent to him an hour earlier. He was not able to participate fully in the meeting.[30]No information had been gathered from the claimant or his colleagues prior to the response being provided to the journalist, other than the query about the flags which had been answered earlier that day. Ms McAuley did not inform the claimant that a response had already been provided to the journalist. There was no discussion about the extent to which the content of the article was accurate or how it could be countered. The focus of the meeting was on providing the claimant and his colleague with welfare support when the article appeared. There was no opportunity given for the claimant to speak to the media team and there was no consideration given to any media strategy which could be adopted to support the claimant. There was no consultation with HR or the respondent’s legal advisors regarding the matter and the communications team were not involved in the meeting.[31]An article was published online by the Telegraph later that day at 5.58pm and on the front page of its print edition the following day. It contained a picture of the claimant. It referred to him as a “trangender man and activist who belongs to a fringe Christian congregation in Edinburgh”. It stated that the claimant was facing claims that he had breached rules which state hospital chaplains should not seek to impose their own beliefs when offering spiritual care.[32]The claimant sent an email to Ms McAuley and Mr Graham at 7.30am the following morning on 29 June and attached the text of the article which had been published online. He informed them that the article had been followed up by tweets on twitter and comments on Facebook. He stated “Due to the derogatory and threatening nature of these comments I am not going to be able to come in to work. I do fear from my physical safety alongside the impact on my emotional/mental wellbeing and safety. I will be reporting this as a hate crime to the police. I thank you both for your support.”[33]An article in similar terms appeared in the Daily Mail on 29 June.[34]A further article appeared in the Telegraph on 30 June with a headline “chaplaincy service faces investigation after LGBT display mounted in children’s hospital prayer room.” The article was again accompanied by a picture of the claimant and stated, “The service is run by Maxwell Reay, a transgender man who uses the title Reverend and wears a dog collar but belongs to a fringe Chirstian congregation in Edinburgh”.[35]The claimant contacted the police who gave him advice regarding his safety and that of his husband. They were advised keep all their windows and doors locked and keep a fully charged mobile phone to hand at all times in case they needed to make an emergency call.[36]The claimant does not drive and therefore requires to travel by public transport. He was worried about his safety leaving his house. He continued to be very fearful about leaving his house or travelling on public transport for a number of months thereafter.[37]On 3 July the claimant sent an email to Ms McAuley and Mr Graham. He stated “I am finding all of this situation with work and the press very stressful. It has been a difficult weekend emotionally and my mental health feels very fragile.” It went on to state “The police were clear that I should not return to work until it was safe to do so.”[38]Ms McAuley responded shortly after stated “I am so sorry to read your email and can understand why this is impacting on you. Gordon and I will meet this week and look at what other support we can give you organisationally.” Gordon Archibald was the claimant’s trade union representative.[39]An online meeting took place on 12 July between the claimant, Ms McAuley, Mr Graham and Mr Archibald to discuss what support might be available for the claimant. By this stage the claimant was already seeing his GP. Mr Archibald suggested that the claimant could be fast tracked for staff counselling services. The claimant had also been attending Hear for You psychology services which is a service available for all staff of the respondent.[40]The claimant sent an email to Ms McAuley and a number of others on 20 September, with a further sick line. He also indicated that he had made an appointment with his clinical supervisor which was a service available for all chaplains. He thanked the respondent for ‘oncall notes’ which related to the oncall service being restarted for all chaplains to cover all hospitals out of hours.[41]The claimant sent a further sick note on 11 October which was until the end of November.[42]A number of further teams meeting took place on 18 October,15 November and 20 December between the claimant, Ms McAuley and the claimant’s trade union representative. These were also attended by Lindsay Anderson who had been a colleague and friend of the claimant for many years and was appointed to a supervisory role within the chaplaincy service in December 2023. Ms Anderson also met with the claimant from time to time on an in-person basis in order to offer support to him.[43]No notes, minutes or action points were ever taken at the Teams meetings which took place with the claimant. There was no record of what was discussed and the meetings were not part of any formal process but ‘check-ins’ to see how the claimant was feeling.[44]At the meeting of 15 November, Mr Archibald informed Ms McAuley that the claimant believed that his absence from work had been caused by a workrelated injury. Staff are entitled to receive an ‘injury allowance’ where an injury is work related and not wholly or mainly due to or seriously aggravated by an employee’s own culpable negligence or misconduct. The allowance will result in an employee receiving 85% of their full pay for a period of a year after the expiry of their entitlement to full pay for 6 months, rather than half pay for 6 months and no pay thereafter. At the meeting on 15 November Ms McAuley mentioned that it might be an option for the claimant to return to work at St John’s Hospital rather than the RHCYP. The claimant commented at the time that this would not resolve the potential for him to be required to work at RHYCYP as part of an oncall service. There was no detailed discussion of this possibility which had been raised in passing by Ms McAuley rather than in a planned manner.[45]The claimant’s entitled to full sick pay was to run out from 12 December 2023, when he was due to go on to half pay.[46]Ms McAuley completed a referral to occupational health for the claimant at some point between 15 and 22 November 2023. In the outline background to the referral, Ms McAuley stated “Maxwell is a Healthcare Chaplain at RHCYP, he is a transgender man and has a keen interest in transgender and LBGTQ issues. While this is not the focus of his role he supports the wider organisation relation to this agenda. During Pride Month he decorated the Sanctuary within RHCYP with pride flags, across all windows and doors, Maxwell did this on his own with no plan from the site management team.” Ms McAuley had not previously discussed the background to the claimant having decorated the Sanctuary with him and not investigated whether any other senior staff were had approved or were aware of the decorations in question.[47]The claimant was seen by an occupational health doctor on 22 December. The doctor stated “We had the opportunity for a detailed discussion. We discussed the content of your detailed and helpful referral. I believe it’s fair to state that there was one aspect of the contents which Mr Reay had a different view about. Overall however the account of events and the impact that has had of him were adequately captured in it.” The report went on to state that there was no immediate prospect of a return to work for the claimant but that “When that time comes there would need to be detailed discussion about his work locations, the duties at work and potentially how there might be some level of control initially around areas where he is expected to cover when on call. As discussed above however such discussions are best undertaken when his return to work is imminent.”[48]Ms McAuley did not ask the claimant or the doctor the aspect of the background she had provided in respect of which the claimant had a different view.[49]The claimant completed an application for an injury allowance on 9 January 2024. The claimant had narrated the background to putting up the flags in his application. All of this background could have been given to Ms McAuley or the communications team at the time had a request for it been made. The application was not completed by Ms McAuley until 20 March. Ms McAuley had obtained advice from HR prior to submitting the application. In the application, she was required to complete a question “In your opinion was the injury or disease wholly or mainly due to, or seriously aggravated by the claimant’s own culpable negligence or misconduct?” Ms McAuley did not answer yes or no to that question and instead noted below: “I have not completed question one as while I don’t believe that the injury was wholly or mainly due to negligence or misconduct, I do believe that the claimant’s actions which were not directed by the Spiritual Care service led to the situation which the claimant describes. I was not present at any of the meetings where flags being put in the sanctuary were discussed and this never came through the Spiritual Care Service for approval. It is also my understanding that a family complained about the flags and that is why the journalist picked up the story.”[50]Mr Graham became the claimant’s line manager from around 20 December. Thereafter, Ms McAuley did not attend any catch-up meetings with the claimant. A catch-up meeting took place with Mr Graham and the claimant on 30 January, remotely on Teams and again on 8 March.[51]The claimant submitted a letter of resignation on 27 March. He stated “I have concluded that I am unable to return to my post and employment with NHS Lothian. It is clear to me that returning to NHS Lothian would continue to have a detrimental effect on my health and wellbeing.” The claimant did not submit a grievance in advance of resigning.[52]The claimant sent an email to a number of colleagues on 2 April, stating “I wanted to let you know that I have resigned from my post as chaplain with NHS Lothian based at RHCYP. This was a very tough decision to make having been in the Spiritual Care team for 17 years. However as a result of the very public transphobic hate incidents that I experienced last summer I do not feel that I can return.”[53]A meeting took place between the claimant, Mr Graham and Mr Archibald on 29 April to discuss the claimant’s resignation which had been rescheduled from 5 April. The claimant indicated at that meeting to Mr Graham that he was of the view that more should have been done by the respondent in relation to the media articles which appeared about him in June and July 2023.[54]The claimant had obtained alternative on a part time basis prior to submitting his resignation. He commenced that employment on 30 April 2024 and remains employed on a part time basis. He is working part time as he does not feel that his health allows him to work on a full-time basis.[55]The claimant was informed by letter dated 17 April that his application for injury allowance had been approved and that he would receive 85% of normal earnings from 15 December 2023 until 15 December 2024. Observations on the evidence[56]The Tribunal found the claimant to be an impressive witness. He was careful to answer questions as accurately as possible and made concessions when it was reasonable to do so. His evidence was balanced and considered, and the Tribunal accepted his evidence as both credible and reliable. Ms Mackay’s evidence was somewhat limited in its relevance. She had not been directly involved in the response to the enquiries from the journalist which were at issue, and while she gave evidence about what she viewed as appropriate in general terms, she could not assist with the specific events in consideration. The Tribunal did note however, that in general terms her team would seek advice from the respondent’s HR or legal teams in matters where it believed it relevant to do so.[57]Ms Milburn came across as a credible and reliable witness who again was careful to ensure that she gave accurate answers to the questions asked. While it would have been more helpful for some of the material she referred to in evidence, such as minutes of meetings and extracts from newsletters to be produced, the Tribunal accepted her evidence in relation to the content of these documents on the basis that she had sought to review any documentation she believed might be relevant when giving evidence shortly before doing so. Ms McAuley was generally credible and reliable, although appeared at times to be somewhat defensive in her evidence. Mr Graham was a straightforward witness who sought to give evidence directly and was both credible and reliable.[58]The main issue in dispute was around the extent to which the claimant’s line managers ought to have been informed or asked about the decoration of the Sanctuary at the RHCYP. Ms McAuley’s view was that the claimant was to some extent to blame for the media attention as he had acted without authorisation. That was a mischaracterisation of the position. The Tribunal accepted the claimant’s evidence that he had never been expected to obtain authorisation or indeed inform his line managers of any themes being promoted within the Sanctuary or when decorations were being put up. He had always had autonomy in this area. Ms McAuley was only his line manager for a short period of time. The Tribunal accepted the claimant’s evidence that the Sanctuary had been decorated during Pride Month with LGBT decorations in the past. The Tribunal also accepted his evidence that he had discussed what he had proposed to do in the Sanctuary at Pride Group meetings, which were chaired by a member of senior management. The respondent’s own newsletter, the content of which Ms McAuley was unaware, also encouraged such decoration. The respondent’s evidence in this respect was indicative of their view that the claimant was in some way to blame for the media coverage to which he was subjected. The Tribunal concluded that this factor influenced, whether directly or indirectly, the approach taken to responding to the media regarding the queries about him.[59]The Tribunal did not hear from anyone who was responsible for dealing with the press enquiries in the lead up to the articles in relation to the claimant or the article itself. The Tribunal understood that the senior communications officer concerned in relation to the articles published concerning the claimant had moved abroad and therefore this was understandable. However, the Tribunal also understood that it was Mr Short who made the final decision regarding the response which should be given to the journalist in advance of the first article appearing regarding the claimant and that he was still in the role he was in at the relevant period. It was therefore surprising that the Tribunal did not have the benefit of hearing his evidence on the matter or hearing further evidence as to why no steps appeared to have been taken to gain information about the background to the decoration of the Sanctuary prior to a reply being provided to the journalist.[60]The respondent’s position was that it had a policy of not responding to media enquiries regarding individuals. There was no written policy or guidelines in this respect and the respondent’s position was that this was standard practice of many employers although no evidence was produced to support how this policy had been applied in the past. The respondent did not appear to be of the view that it had any obligations to its employees in this regard. While the Tribunal understands that this policy may have the best of intentions, it is difficult to understand why it should be applied in all circumstances without consideration being given to particular circumstances of individual cases in order to assess whether it might result in the respondent being in breach of duties towards an individual employee. While the Tribunal accepts that the respondent could not dictate what the media reports and could not bring defamation proceedings in relation to itself, it does not accept that this means that the respondent has no influence at all over what is published about its employees or any obligations to its employees in that regard. Submissions[61]Mr Bathgate made oral submissions. It was argued that the respondent had breached the claimant’s contract by breaching the implied term of mutual trust and confidence in two respects; firstly, in the way in which it dealt with the media queries regarding the claimant and then by failing to provide him with sufficient support during his absence. It was said that a mere passage of time did not mean that the claimant had affirmed the breaches, and that the claimant had done nothing to suggest that he would return to work. It was acknowledged that the claimant had not raised a grievance prior to his resignation and that were the claimant’s claim successful, a reduction in compensation may be appropriate in those circumstances.[62]Mr Gibson helpfully provided detailed written submissions and supplemented these with oral submissions. I had referred parties to the recent case of Nelson v Renfrewshire Council 2024 EAT 132 and invited comment as to its relevance. Mr Gibson’s position was that while Nelson was potentially relevant, in that it was accepted that it was appropriate to focus on the actions of the employer in determining whether there had been a fundamental breach of contract but that the context in which an employee’s actions had taken place was not wholly irrelevant.[63]The respondent’s position was that there was no repudiatory breach of contract but that in any event the claimant had affirmed the breach. Reference was made to Buckland v Bournemouth University Higher Education Corporation [2010] ICR 908; W E Cox Toner (International) Ltd v Crook [1981] ICR 823 and Colomar Mari v Reuters Ltd UKEAT/0539/13. It was also said that the claimant resigned for reasons unconnected to any breach of contract. He had not raised a grievance or made a complaint, and it was suggested he left to take up another job or perhaps as he felt that coming back to work would be in some way triggering for him. In any event, it was said that if there was a dismissal, it had been fair for some other substantial reason and that the respondent had acted within the range of reasonable responses.
Relevant law
[64]Section 95(1)(c) Employment Rights Act 1996 (‘ERA’) provides that an employee is dismissed if the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.[65]For a dismissal to amount to a constructive dismissal, the employer’s conduct must amount to a repudiatory breach of contract. The employee must also establish that he resigned in response to that breach and did not delay too long before resigning.[66]Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 remains the leading authority on what will amount to a constructive dismissal.[67]In determining whether there has been a fundamental breach of contract, the Tribunal’s focus should be on the actions of the employer (Tolson v Governing Board of Mixenden Community School 2003 IRLR 842 and Nelson v Renfrewshire Council 2024 EAT 132)[68]It has long been recognised that it is a fundamental breach of contract for an employer without reasonable and proper cause to conduct itself in a manner “calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties.” (Courtaulds Northern Textiles Ltd, v Andrew 1979 IRLR 84). What amounts to a breach of this implied term will depend on the particular circumstances of each case (Sawar v SKF UK Ltd EAT 0355/09). The burden of proof in establishing that a party has breached this implied term will lie on the party seeking to establish the breach.[69]Following the judgment of the House of Lords in Malik v Bank of Credit and Commerce International SA (in compulsory liquidation)1997 ICR 606, it will not only be necessary for a party to demonstrate that the other party has acted in such a way as to likely damage or destroy the relationship of mutual trust and confidence. It will also be necessary to demonstrate that the party did not have reasonable and proper cause for the action complained of.[70]Unreasonable conduct of itself is not sufficient to amount to a breach of the implied term. The conduct must be calculated or likely to at least seriously damage the relationship of mutual trust and confidence, which is a high hurdle. (Frenkel Topping Ltd v King EAT 0106/15).[71]Whether an employee resigned in response to a fundamental breach of contract will be a question of fact for a Tribunal to determine in the particular circumstances of the case. While the terms of an employee’s letter of resignation will no doubt be relevant evidence to be considered in the overall facts of the case, it is only one piece of the jigsaw (Weathersfield Ltd v Sargent 1999 ICR 425). As made clear by the Court of Appeal in Meikle v Nottinghamshire Council 2005 ICR 1, it will be enough that the fundamental breach of contract was ‘a’ if not the only reason for the employee’s dismissal. The repudiatory breach may be only one of the factors relied upon in an employee’s resignation (Abbycars (West Hornden) Ltd v Ford EAT 0472/07).[72]The third aspect of what amounts to a constructive dismissal relates to whether or not it could be said that even if an employer has fundamentally breached the employee’s contract of employment, the employee has affirmed that breach by waiting too long after the breach before resigning. While the longer the employee waits after the breach of contract the more difficult it may be for a Tribunal to be satisfied that an employee has not affirmed the breach, as was highlighted by the Court of Appeal in Bournemouth University Higher Education Corporation v Buckland 2010 ICR 908, resigning from a job is a serious matter and the more serious the consequences the longer an employee may take to make a decision. In addition, as the then President of the EAT, Mr Justice Langstaff highlighted in Chindove v William Morrison Supermarkets plc EAT 0201/13, a Tribunal should not only consider the passage of time, but whether the employee has demonstrated an intention to remain in employment rather than resign. The relevant issue is one of conduct and not simply of time. It will therefore be necessary to consider the entire circumstances of each individual case. Discussion and decision Did the respondent fundamentally breach the claimant’s contract of employment?[73]The Tribunal first considered whether the respondent had fundamentally breached the claimant’s contract of employment. Dealings with the media[74]The first breach relied upon was the way in the respondent handled the media enquiry regarding the claimant and by failing to consult him on the response. It was said that this amounted to a breach of mutual trust and confidence. As outlined above this is a two-stage process. Was there conduct on the part of the employer which amounted to a breach of the implied term of mutual trust and confidence and had there been reasonable and proper cause for the conduct?[75]The Tribunal noted that there did not require to be an intention on the part of an employer to act in a manner likely to seriously damage or destroy mutual trust and confidence. In the Tribunal’s view this recognises that there may be several parts to the jigsaw of the relevant conduct, which of themselves may not amount to a fundamental breach but when taken together, the picture created is one of fundamental breach. In the present case, there was involvement from the media team, the claimant’s line manager and Mr Short in relation to the handling of the media enquiry. The respondent was aware that there had been previous media interest in the efforts of the RHCYP to obtain the LGBT Youth Charter mark and that there had been negative reporting on the matter including quotes said to be from its own staff. No advice was sought from either the respondent’s HR or legal teams as to the correct course of action in dealing with the queries concerning the claimant. It ought to have been readily apparent that the publication of material about the claimant regarding the fact that he was transgender together with allegations of inappropriate activism by him in performing his duties would result in negative consequences for the claimant. It would have been obvious that he was about to be outed in the national press as transgender and that there would likely be follow up social media reaction, including comments under the articles themselves, and foreseeable resultant consequences on the claimant’s mental health and potential safety.[76]There does not appear to have been any discussion whatsoever regarding the likely impact on the proposed article on the claimant or how to mitigate it. In evidence the respondent’s position appeared to be that the claimant made no secret of the fact that he was transgender. Although not stated in terms, the respondent’s evidence seemed to suggest that if the claimant was open to some people in some circumstances about being transgender, that meant that he would not complaint about the matter becoming public more widely. It appeared that the respondent was suggesting that as the claimant had taken part in an internal campaign, had told some colleagues and had appeared in a YouTube video discussing being transgender, that fact became public property and that being outed in the national press could not contribute to the any breach of mutual trust and confidence between the claimant and the respondent. That was a wholly unreasonable position to adopt.[77]There was no discussion regarding how the impact of media coverage concerning the claimant could be mitigated. Mr McAuley offered the view that it was not possible to impact what was printed by the media and it appears therefore that no effort was made to do so. There was no discussion with the media team about strategies which might be available to limit the impact on the claimant by responding in a supportive or positive manner or attempting to persuade the journalist to approach the matter in a less sensationalist manner by ensuring that he was given an accurate background to the situation.[78]There was no effort by either Mr Short or Ms McAuley to find out the background the situation of the decoration of the Sanctuary, or what exactly the claimant had done in relation to the decoration of the Sanctuary or why. There was no investigation into whether this had been done with the knowledge or consent of any managers, or whether it was part of the efforts to obtain the LGBT charter mark as was suggested by the journalist in his email. There was no information given to counter the suggestion that the claimant was using his role to advance his own agenda, that he was in potential breach of rules of his profession or that the Chaplaincy service had been hijacked to this end.[79]These failures were in the context of the email from the media officer asking for guidance, and for a discussion with the service about the background to take place. The draft quote offered by the communications team as an option was “subject to your discussions with the Spiritual Care Team.’ No such discussion took place. There was no effort for instance to position any quote within the context of seeking the charter mark. The quote which was offered was very different in tone, length and content to that which had been offered by the HR director in relation to the original article written by the journalist in question which positioned the events in question as being in line with the respondent’s “organisational values” and highlighting that it was important that the respondent “positively contributes to tackling prejudice and promoting understanding of the diverse group of people in our communities who work for and with us and who use our services.” The tone of the quote provided by Mr Short was very different, where it talked about decorations being taken down and the additional note referred to the signs for chill out zone as having been put up in error. There was no recognition that the claimant was acting in line with the respondent’s organisational values or in the course of his duties. As suggested by Mr Bathgate, the quote provided resulted in the claimant being “hung out to dry”.[80]It is only possible to speculate as to whether a proper investigation into the background of the situation and allowing the claimant an opportunity to participate in the response to the media would have altered the nature of the articles or the comments made below the articles or in social media. However, the respondent failed to take any steps whatsoever to attempt to influence these matters.[81]The approach to the media enquiry was entirely disjointed. There was no analysis or appreciation of the likely impact on the claimant, given that the journalist had provided quotes said to be from both colleagues and service users. There did not appear to be any discussion of the likely social media response to the article and the impact on the claimant. What will amount to a breach of mutual trust and confidence will change with time and as society changes. It should have been obvious to the respondent that given the detail about the claimant which the Telegraph proposed to print that there would be significant comment on social media. Indeed, the claimant had raised the issue of negative reactions with the respondent in advance of having participated in its campaign to raise awareness of Transgender Day. However there appears to have been no recognition or awareness of this likelihood and simply an acceptance by Ms McAuley that nothing could be done to influence what was printed.[82]While Ms Mackay gave evidence that generally speaking the respondent will say as little as possible to the media, that did not seem in keeping with the response to the earlier article.[83]The respondent could have taken the time to ensure it had all the information regarding the background to the situation. While the Tribunal accepted that Ms McAuley was busy on the day she received the email from the media team, it was not clear to the Tribunal why she did not prioritise the issue of the media enquiry and take steps to clarify the background as a matter of urgency. Instead, she made a very limited enquiry of the claimant and did not tell him why. The claimant was given no opportunity to put his side of the story or engage with the communications team to see whether any steps could be taken to influence the article or counter it in any way. The media team were left with very little information and there appeared to be no effort on the part of anyone from the respondent to discuss internally a more joined up approach to addressing the issue.[84]The Tribunal did not accept that Ms McAuley’s view that the claimant had contributed to the media coverage as a reasonable view. She appeared to view his conduct as having been blameworthy. That view was not sustainable on the basis of the claimant’s evidence which was preferred to that of Ms McAuley. In any event, the respondent had failed to investigate these matters prior to issuing a statement to the media or indeed at any time subsequently. Therefore, the extent to which it could be said that the claimant’s conduct was relevant as context to the background of the situation, there was nothing unreasonable or culpable in the claimant’s conduct.[85]The Tribunal was drawn to the conclusion that the respondent did not accept any responsibility in relation to the media insofar as it wished to print information, accurate or otherwise about a member of its staff in relation to duties performed by him in the course of his duties. It focussed on responding on behalf of the organisation and gave no consideration to the impact on the individual employee. There was no intention on the part any individual person to breach the duty of mutual trust and confidence between the claimant and the respondent, but that was the effect of its actions and inactions in dealing with this media enquiry and then failing to follow up in any respect despite two further articles appearing regarding the claimant in the following week. Ms Mackay indicated that she was of the view that it was a good result that this was the limit of the media coverage, which the Tribunal found to be a very surprising view indeed. It may have been a good result so far as the respondent was concerned but was certainly not so for the claimant.[86]The failure to consider the impact on the claimant of the media reporting, involve him in obtaining information regarding the background to the position, consider whether a more supportive quote could be provided, whether any other strategies could be adopted to counter negative media reporting of the claimant or have any discussion whatsoever about whether the impact on the claimant could in any way be mitigated amounted to a breach of the implied term of mutual trust and confidence.[87]The Tribunal did consider whether there was reasonable and proper cause for the conduct. While it was appreciated that the respondent had limited ability to influence what was reported about the claimant, it was not true to say that it had no ability to do so. It was reasonable to respond to the media and indeed was the proper action to take. However, doing so without first obtaining the relevant information to the background of the situation or considering the impact on the claimant of its actions and in failing to give the claimant an opportunity to comment on the article until it was in all practical sense too late, meant that the respondent had fundamentally breached the claimant’s contract of employment. While the claimant was criticised by the respondent for not challenging the position at the time of the meeting on 28 June, the Tribunal accepted his evidence that having been given an hour to consider the terms of the article, which he immediately recognised was going to have significant consequences for him, he was in a state of shock and unable to participate in that meeting in any meaningful way. In any event, the response had already been given to the journalist the night before. Support provided to claimant[88]The Tribunal then went on to consider whether the respondent had breached the duty of mutual trust and confidence in relation to the support provided to the claimant while he was absent from work.[89]The Tribunal accepted that much of the support accessed by the claimant was available to him as an employee of the respondent. It also accepted that the fast tracking of support in terms of the staff counselling service was initiated by the claimant’s trade union representative rather than his line manager.[90]However, it was not at all clear what support the claimant was complaining could have been provided to him and wasn’t.[91]It was surprising that no effort was made to meet the claimant in person, other than by Ms Anderson (who was also a friend) and that meetings were conducted on Teams, but the claimant did not suggest that he would have preferred any meetings to have taken place in person.[92]It was also surprising that no referral was made by the respondent to Occupational Health until the claimant had been absent for over five months.[93]While the support provided by the respondent to the claimant may be open to criticism, and much of the support may have been accessed directly by the claimant it is difficult to determine the basis on which any deficiencies would amount to a breach of contract on the part of the respondent never mind a repudiatory breach of contract.[94]The claimant did not suggest that the respondent should have taken any particular course of action towards him in relation to the provision of support. There was no suggestion that the respondent did not want the claimant back to work eventually. While the claimant may have felt isolated, this falls well short of a repudiatory breach of contract. Did the claimant resign in response to the fundamental breach of contract?[95]The next issue to consider is whether the claimant resigned in response to the way in which the respondent had dealt with the media in relation to his position. The respondent’s position was that the claimant had resigned because of the consequences of the media coverage and that this could not be the responsibility of the respondent. In essence, the respondent’s position appeared to be that the claimant could not or did not want to return because he had concerns over how he might be treated, following the media coverage or that he had obtained another job. However, whatever the reasons for the claimant’s resignation, it was said that they were not because of the respondent’s action or inaction.[96]The claimant’s evidence however was that over time and through a process of undergoing the counselling and psychological support, he came to realise that his position was simply untenable. The Tribunal accepted that evidence and found that it was not possible to separate out the breach of mutual trust and confidence by the respondent and the consequences of that breach in the manner suggested by the respondent. The claimant was so focussed on his mental health and getting by, that it was reasonable for him not to have turned his mind as to the impact of his ability to return to work until he had gone through the process of counselling.[97]The respondent argued that the lack of specification around the claimant’s reasons for resigning in his letter of resignation, was indicative of him subsequently seeking to argue that the reason had been the respondent’s conduct when he did not believe that at the time. The Tribunal rejected that argument. The terms of a letter of resignation are likely to be relevant in a Tribunal’s determination, but not determinative. It is notable that the claimant went into more detail in his email to colleagues. The claimant also told Mr Graham that he felt the respondent ought to have done more at the time of the articles being published. The claimant did not take legal advice on the terms of his letter of resignation and the Tribunal accepted that he was following guidance to be succinct and not be emotional.[98]While the Tribunal accepted that the claimant had obtained alternative work around the time of his resignation, it concluded that the claimant had not wanted to resign from his employment but had come to the realisation that he had no option, as he couldn’t return to work in the role of Chaplain whether at RHCYP or one of the other hospitals because of the way in which the respondent had dealt with the media regarding his employment with them. As set out above the repudiatory breach need only be one of the reasons for a claimant’s resignation. While it may be that the timing of the claimant’s resignation was linked to him obtaining alternative work, the Tribunal was satisfied that even if the repudiatory breach was not the only reason for the claimant’s resignation, it was the principal reason for his resignation. The claimant had been employed in his role for 17 years and the Tribunal accepted that this was a role which he very much enjoyed and that he found it ‘heartbreaking’ to use his word, to leave. The Tribunal accepted therefore that he would not have resigned but for the conduct of the respondent in relation to the media outlined above. Did the claimant affirm the breach of contract?[99]The claimant remained in employment for around nine months after the media coverage. During that time, he was paid sick pay and accessed support services which were provided as a consequence of his employment with the respondent. He also applied for an injury allowance.[100]There was no serious discussion about the claimant returning to work. While a comment was made in passing that the claimant might be able to return to work at another hospital in due course, there was no detailed discussion about his return to work and the Occupational health report in December 2023 made clear that the claimant would have to “experience significant and sustained improvement in the currently reported symptoms he was describing for him to be able to sustain a return to his role” and that discussions about a return to work should wait until he such improvement was evidenced. Indeed, in the referral to Occupational Health, Ms McAuley herself recognised that the situation “has had a profound impact on Maxwell’s mental health”.[101]The Tribunal was mindful taking into account the authorities referred to above, that a period of nine months is a long time to wait to resign in response to a repudiatory breach of contract and that it is only likely to be in exceptional cases that a delay of this magnitude will not result in a claimant being found to have affirmed a repudiatory breach. However, when considering all the facts and circumstances of this case, the Tribunal was satisfied that the claimant could not be said to have affirmed the breach. He had not returned to work at any stage. There had been no discussion about arrangements for his return to work. He had been traumatised following the publishing of the articles and the response to them and in addition to the impact on his mental health, had fears for his physical safety. The Tribunal also accepted his evidence that it was only through the process of counselling and support that he realised there was no prospect of him returning to work. The claimant’s evidence was that every time he thought about the possibility of returning to work, he wouldn’t be able to sleep and started replaying what was being said and printed about him in his head and that it was only shortly before he resigned that he felt able to go out on his own without being fearful.[102]Therefore in the circumstances, and in particular where the claimant was reasonably focussing on his mental health over the period of his absence, there was no serious discussion about his return to work or the basis on which he could have returned to work, that he had been employed for seventeen years and that the decision to resign was one of great magnitude for him, the Tribunal came to the view that the claimant had not affirmed the respondent’s repudiatory breach of contract.[103]In all of these circumstances, the claimant was dismissed. Was the claimant’s dismissal fair?[104]The Tribunal recognised that a constructive dismissal is not necessarily an unfair dismissal. The respondent’s position was that if the claimant had been dismissed, he was dismissed for some other substantial reason and that his dismissal was fair. The Tribunal could not accept that any evidence had been led to support either of those propositions.[105]The respondent did not lead any evidence to suggest that there was a potentially fair reason for the claimant’s dismissal. It did not accept that it was impossible for the claimant to return to work and indeed it was suggested to the claimant in cross examination that he should have applied for a vacancy in the role of Chaplain at St John’s Hospital in Livingston. There was no suggestion from the respondent’s point of view that the relationship had broken down or that the claimant’s conduct prior to the media interest in him would have entitled the respondent to have dismissed the claimant. In addition, there was no evidence about any procedure. There was an exit interview of sorts between the claimant and Mr Graham, but Mr Graham’s evidence was that he could see that the claimant had made up his mind and that while he had referred to the possibility of a role at St John’s he had done this in jest rather than as a serious option. Rather Mr Graham was genuinely sorry that the claimant was resigning.[106]In these circumstances, the Tribunal concluded that the claimant’s dismissal was unfair.
Remedy
[107]The claimant is entitled to a basic award of £17,500 (based on him being 57 years old with 17 years’ service and a gross weekly salary of £886.54 at the date of termination of his employment) that is £700 x 25 = £17,500.[108]The claimant is only seeking a loss of earnings from termination to 31 December 2024. He does not seek any pension loss. The claimant’s losses arise on the basis that he can only work part time. He says that this is because of the impact of the respondent’s conduct on him.[109]The respondent referred to GAB Robins (UK) Ltd v Triggs [2008] ICR 529 as authority for the proposition that losses flowing from a reduced earning capacity as a consequence of an employer’s repudiatory conduct are not losses caused by dismissal in terms of section 123(1) ERA 1996. The Tribunal accepted that submission as well made.[110]The claimant’s salary is now higher on a pro rata basis than when he was employed by the respondent. His full time equivalent annual salary is now £46,100 as opposed to his salary at termination with the respondent of £45,960 per annum. Therefore, it would not be just and equitable to make an award in respect of loss of earnings. An award in respect of the loss of statutory rights, is however appropriate, and a sum of £500 is awarded in that respect.[111]Finally, the Tribunal considered whether it would be appropriate to make any adjustment to the award to the claimant on the basis that he had not raised a grievance prior to his resignation and thus had failed to follow the ACAS Code of Practice. As it is only in respect of loss of statutory rights in which a compensatory award is being made, the Tribunal is of the view that it would not be just and equitable to make any adjustment on that basis, even were it to find that the claimant’s failure to raise a grievance was unreasonable.[112]The respondent is therefore ordered to pay to the claimant a basic award of £17,500 and a compensatory award of £500.