Primary Care

Employment Law – Unfair Constructive Dismissal – Grievance Procedure – Independent Review


The case of Atkins v Wiltshire Primary Care Trust [2008] involved determination as to whether the employee in question had been unfairly constructively dismissed. The employee in this case began work as a nurse for the employer in November 1981. The terms of her contract stipulated that she was to carry out duties at night on a part-time basis.

An incident involving a patient under the employee’s care occurred in October 2004. During the incident, the patient suffered injury. The employee's ward manager was subsequently informed of the incident, and when the ward manager spoke to the patient involved, the employee was blamed.

As a result, the employee was suspended on full pay. Following the suspension, the deputy director of nursing began an investigation into the incident. She concluded that the employee had breached the relevant manual handling policy.

Then, in February 2005, a disciplinary hearing for the employee was held.

After the evidence was considered, the disciplinary panel did not find that the employee had deliberately hurt the patient, but it did find that the relevant policy and code of conduct for nurses had not been followed in this instance.

Accordingly, the panel issued a written warning to the employee, and made a recommendation for a return to work on day shift for a period of at least six weeks.

The employee appealed against that decision.

She argued that she had not been afforded the opportunity to cross-examine a number of the employer's witnesses at the hearing. Furthermore, she argued that there had been no in-depth exploration by the panel of the statements of those witnesses, even though the statements had been made readily available.

The employer’s witnesses were questioned at the appeal hearing. In relation to the statements, the appeal panel came to the conclusion that they were conflicting and could not be wholly relied upon.

Furthermore, the written warning was removed and the recommendation was maintained.

Then, when the employee was subsequently contacted by another nurse for the purposes of organising day-shift arrangements, the employee became upset and refused to co-operate. As a result, the employee's pay was withheld on a temporary period.

Once the employee had been paid the sums which were withheld, she informed the employer through her solicitors:

§   That the trust and confidence in the working relationship had been so damaged that it would be too difficult for her to return to work; and

§   That she was only contractually bound to work night duty, and consequently there was no basis upon which she could be required to work on the day-shift.

Then, in August the employee took sick leave due to work-related stress. Whilst she was on leave she registered two grievances with her employer. The first grievance concerned the manner in which the employer had handled the disciplinary case against her, and the second grievance related to whether there was a satisfactory system whereby staff could express their concerns about any management issues.

Eventually, the second grievance was withdrawn and the first grievance was duly rejected.

As a result, the employee decided to appeal to the Chief Executive of the employer. The Chief Executive of the employer came to the decision that it would be appropriate for an independent review of the situation to be carried out.

The independent review found that the disciplinary procedure had been properly followed, and that the employee had always known about the case against her.

Subsequently, in August 2006, the employee’s sick pay was exhausted, and the employee decided to resign. After her resignation, the employee brought proceedings before the employment tribunal alleging that she had been subjected to an unfair constructive dismissal.

The tribunal held that there had indeed been flaws in the disciplinary and grievance processes. However, the tribunal was of the opinion that overall, the employer had acted fairly and within the range of reasonable responses to which it had been open, in particular, on the matter of requiring that the employee only undertakes day work in the future.

The employee duly appealed against this decision.

She argued that the tribunal had failed to properly consider whether under the terms of her contract she could be required to undertake day work.

The appeal was dismissed.

It was held on appeal that in the circumstances surrounding this case, the tribunal had not been incorrect in reaching its decision.

It was true that the contract did not stipulate a requirement for the employee to undertake day work. However, the tribunal was of the opinion that there would be circumstances when the employer could require such work from the employee. Although it could be regarded as unlikely that there could never be a requirement for the employee to work days for a period of six weeks, the decision reached by the tribunal could not be challenged in the absence of contractual documentation stating otherwise.

Furthermore, it was held that even if there was a breach, it could not be said that the requirement to work days was fundamental, so as to allow the employee to terminate her contract. As a result, the tribunal’s decision was allowed to stand.

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© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.


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