Claimant v Mersey Care NHS Foundation Trust
Outcome
Individual claims
The tribunal found that the respondent breached the implied term of trust and confidence by denying the claimant a right of appeal following a grievance investigation, taking a perverse view of her grievance as 'respect and civility' rather than 'resolution', and failing to provide the investigation report. The claimant resigned in response to this repudiatory breach which destroyed trust and confidence in the employment relationship.
Although the respondent treated the claimant unfavourably by downgrading her role and removing prescribing rights, and her sickness absence arose from her disability (depression), the tribunal found the unfavourable treatment was not because of her sickness absence but because of an audit of clinic practices and documents. The manager would have formed the same view even if the claimant had been in work.
The tribunal found that while the advertisement of the claimant's role during her disability-related sick leave was unwanted conduct related to her disability, it did not have the purpose or effect of violating her dignity or creating a hostile environment. The claimant was reassured it was temporary cover and there was budget for her return. Other acts of harassment (restrictions on attending clinic, downgrading role) were not related to her disability but to other operational reasons.
Facts
The claimant was a band 7 advanced practitioner nurse specialising in mental health and clozapine treatment who worked for the respondent NHS Trust from 1995 to 2022. She suffered from depression and anxiety from 2017 and had extended periods of sick leave. Her line manager Nicola Lamont restricted her access to the clinic during sick leave, questioned her advanced practitioner status, and proposed she return as a clinic nurse. After a 16-month grievance process, the claimant was denied sight of the investigation report and told she had no right of appeal because it was categorised as 'respect and civility' not 'resolution'. She resigned on 7 July 2022 citing loss of trust and confidence.
Decision
The tribunal found the claimant was constructively unfairly dismissed. The respondent breached the implied term of trust and confidence by perversely categorising her grievance to deny her a right of appeal and access to the investigation report after 16 months. However, her discrimination arising from disability claim failed because the downgrading of her role was due to an audit, not her absence. Her harassment claim failed because most acts were not related to her disability, and the advertisement of her role, though related to disability, was reasonably explained as temporary cover. Compensation was limited to basic award and notice pay only because the tribunal found she would have been dismissed for long-term absence within two months even with a fair appeal process.
Practical note
Employers must follow their own grievance procedures transparently and fairly; misclassifying a grievance about terms and conditions as 'respect and civility' to deny an appeal can amount to a repudiatory breach, but compensation may be minimal if the employee would have been fairly dismissed shortly after for capability reasons.
Award breakdown
Award equivalent: 25.1 weeks' gross pay
Adjustments
The tribunal found that even if the claimant had been allowed to appeal her grievance, she would not have been fit to return to work and would have been dismissed at a stage 4 absence management meeting by 19 September 2022. Compensation was therefore limited to notice pay only, reflecting that dismissal would have occurred within approximately 2 months.
Legal authorities cited
Statutes
Case details
- Case number
- 2400080/2023
- Decision date
- 2 July 2025
- Hearing type
- full merits
- Hearing days
- 7
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Registered advanced practitioner nurse
- Salary band
- £40,000–£50,000
- Service
- 28 years
Claimant representation
- Represented
- No