Claimant v Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust
Outcome
Individual claims
The liability judgment by Employment Judge Loy on 12 July 2024 upheld the claimant's complaint of constructive unfair dismissal. The tribunal found that the respondent committed a repudiatory breach of contract which the claimant accepted by resigning on 11 November 2022.
Judge Loy concluded that during the period of suspension the claimant should have been paid full pay with average enhancements. The tribunal found unlawful deductions had been made from her wages during suspension, calculated using a 12-week reference period.
The breach of contract claim succeeded at the liability hearing before Judge Loy. However, at the remedy hearing, Judge Sweeney determined there was no separate amount to be awarded in respect of this complaint as the losses were already covered by the unfair dismissal and unlawful deductions awards.
Facts
The claimant was a nursing assistant employed by an NHS Trust who was suspended in April 2020. During suspension, she developed a social media presence as an influencer on YouTube and Instagram, earning increasing income from this activity. She was constructively dismissed on 11 November 2022 after accepting the respondent's repudiatory breach of contract. The claimant continued her social media activities after dismissal and also worked part-time for Springfield Healthcare from August 2023 to October 2024. The liability hearing found in her favour on constructive unfair dismissal, unlawful deduction of wages during suspension, and breach of contract.
Decision
The tribunal awarded total compensation of £24,118.23 comprising: basic award of £3,322.98, compensatory award of £20,211 (including £500 for loss of statutory rights), and £584.25 for unlawful deductions from wages. The tribunal found the claimant failed to mitigate from October 2024 when she left Springfield. Crucially, the tribunal credited only a proportion of the claimant's social media income against her losses, reasoning that she would have continued some reduced social media activity alongside her NHS employment had she not been dismissed, and that the dismissal enabled her to dedicate significantly more time and energy to this work.
Practical note
Where a claimant has secondary income from activities that substantially increased after dismissal due to having more time and energy available, tribunals should carefully analyse what income the claimant would realistically have continued to earn from those activities alongside their original employment, and credit only the additional income resulting from the dismissal.
Award breakdown
Legal authorities cited
Statutes
Case details
- Case number
- 2500300/2023
- Decision date
- 10 July 2024
- Hearing type
- remedy
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Nursing Assistant
Claimant representation
- Represented
- Yes
- Rep type
- barrister