Claimant v NHS Lothian
Outcome
Individual claims
The tribunal found the respondent fundamentally breached the implied term of mutual trust and confidence by failing to properly handle media enquiries about the claimant, failing to consult him, investigate the background, or mitigate the impact of highly damaging press coverage that outed him as transgender. The claimant resigned in response to this breach after 9 months absence, having been traumatised by the articles and their consequences. The tribunal found he had not affirmed the breach given the exceptional circumstances including the profound impact on his mental health and safety concerns.
Having found the claimant was constructively dismissed, the tribunal concluded the dismissal was unfair. The respondent led no evidence of a potentially fair reason for dismissal, did not accept the relationship had broken down, and there was no fair procedure followed. The respondent could not establish the dismissal was for some other substantial reason or that it acted within the range of reasonable responses.
Facts
The claimant was a transgender Chaplain employed for 17 years at a children's hospital. In June 2023, following Pride Month activities including decorating the Sanctuary with LGBT flags as part of the hospital's charter mark application, a journalist submitted hostile enquiries suggesting the claimant was inappropriately promoting activism. The respondent provided a response to the journalist without investigating the background, consulting the claimant, or considering how to protect him. Articles appeared in national newspapers outing the claimant as transgender and accusing him of breaching professional rules. The claimant suffered severe distress, feared for his safety, and was absent from work for 9 months before resigning in March 2024.
Decision
The tribunal found the respondent fundamentally breached the implied term of mutual trust and confidence by failing to properly handle the media enquiry, investigate the background, involve the claimant, or take any steps to mitigate the foreseeable harm from damaging national press coverage. The claimant resigned in response to this breach and had not affirmed it despite the 9-month delay, given the exceptional circumstances including profound mental health impact and safety concerns. The dismissal was unfair as the respondent established no potentially fair reason and followed no procedure.
Practical note
Employers have obligations to employees when responding to hostile media enquiries about individuals, including investigating facts, involving the employee, and considering strategies to mitigate foreseeable harm, particularly where coverage may out protected characteristics and expose employees to abuse.
Award breakdown
Award equivalent: 20.3 weeks' gross pay
Legal authorities cited
Statutes
Case details
- Case number
- 8001555/2024
- Decision date
- 10 February 2025
- Hearing type
- full merits
- Hearing days
- 4
- Classification
- contested
Respondent
- Name
- NHS Lothian
- Sector
- —
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Chaplain
- Salary band
- £40,000–£50,000
- Service
- 17 years
Claimant representation
- Represented
- Yes
- Rep type
- solicitor