Claimant v Surrey & Borders NHS Foundation Trust

The tribunal found the claimant was dismissed, not constructively dismissed. The claim was brought under s.95(1)(c) ERA 1996 but the tribunal found the respondent showed the reason for dismissal was conduct (gross misconduct relating to falsifying expense claims). The dismissal was found to be fair under the Burchell test — the employer had genuine belief on reasonable grounds after reasonable investigation, followed fair procedure, and dismissal was within the band of reasonable responses.

The tribunal found the claimant was disabled by reason of anxiety and depression. However, the alleged PCPs (provisions in the Disciplinary Policy) either did not put the claimant at a substantial disadvantage (paragraphs 2.5 and 14.3.1), or where they did (paragraph 13.5 regarding pre-disciplinary counselling), it would not have been reasonable to adjust them given the seriousness of the allegations. The tribunal also found that not suspending the claimant during the investigation was a reasonable decision based on HR and occupational health advice.

The claimant alleged breaches of various policies and procedures. The tribunal found that none of the policies relied upon were incorporated into the claimant's contract of employment. The Disciplinary Policy expressly stated it was non-contractual, and other policies were silent but not incorporated by the contract. Therefore, even where policies were not followed (e.g. interview panel composition, expenses authorisation checks), these did not amount to breaches of contract.