Unfair Dismissal: Employer's Failure To Follow Its Own Informal Disciplinary Procedure Resulted In Constructive Dismissal

An employee of an NHS Trust who resigned in response to the issuing of an informal "Improvement Notice" in a manner which was inconsistent with her employer's policy was constructively dismissed.

The facts

Mrs Starling worked for Epson & St Helier University Hospitals NHS Trust as a fertility nurse specialist in the Assisted Conception Unit (ACU). She was employed by the Trust for 40 years at the time of her constructive dismissal and had a clean disciplinary record.

Mrs Starling was aware that incubators needed to be put on to charge ready for a procedure the next day. However, one afternoon she developed a sudden headache and her vision become distorted. One of the Consultants in the ACU advised her to go immediately to A & E, believing that she might be having a stroke or have meningitis. She went to A & E, forgetting to switch on and charge the incubators. When she realised this the next morning, she called the lead Consultant, Dr Croucher, to tell her. However, this was too late for the incubators to be charged. The possible ramifications of this were serious, and could have put a patient's entire IVF cycle at risk.

Dr Croucher considered that an "Improvement Notice" should be issued to Mrs Starling. She drafted the document and told the matron, Matron Barron, to serve it on Mrs Starling. This notice stated that it was being issued "to ensure that in the future you take the appropriate steps regarding the charging of the incubators in order to prevent any further incidents. Should there be any further issues of this nature; formal action may be taken under the Trusts Disciplinary Policy [sic]. The purpose of raising this with you informally and issuing this informal notice is to ensure that you have been provided with the opportunity to improve, and therefore I hope that any future formal disciplinary action will not be necessary." When Matron Barron issued the letter she spoke briefly with Mrs Starling and handed the pre-prepared letter to her. No meeting was held with Mrs Starling before the Improvement Notice was issued, so Mrs Starling did not have the chance to give her version of events. Mrs Starling was later diagnosed with a brain tumour.

Soon afterwards, Mrs Starling gave notice of her resignation. She gave two reasons for this: the service of the improvement notice and possible alterations to her working hours.

Mrs Starling's notice period was extended, by agreement, because of her period of illness. When she had recovered...