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Issuing improvement notice without a meeting breached policy and amounted to constructive dismissal

Makbool Javaid

The EAT’s decision in Epsom & St. Helier University Hospitals NHS Trust v Starling serves as an example of why disciplinary procedures must be followed in full, but if there is a departure, then there must be reasonable and proper cause. S is a nurse. She was asked to switch on incubators in readiness for a procedure the next day. However, she became unwell, had to go to A&E, but was discharged. Upon realising her mistake, she informed a doctor. The error was significant as it could have caused disruption to a patient’s procedure, but treatment was arranged elsewhere. The doctor decided an improvement notice should be issued. The Trust’s policy clearly requires that there must be an informal meeting with the employee before a decision is made to issue a notice. But no meeting took place before the notice was prepared and issued. The EAT agreed with the ET that If there had been such a meeting the doctor would have been fully informed of what had occurred and would have been able to make a decision in full knowledge of the facts. S had resigned in response to the Trust’s conduct and this amounted to constructive dismissal as there had been a breach of the implied term of trust and confidence.

The updates are kindly provided by Simons Muirhead & Burton Law firm

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and help judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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