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13th May 2019

Tribunal Tale – Epsom & St Helier University Hospitals NHS Trust v Starling

Background

We would expect almost all employers to have a number of standard policies in their arsenal, one of the most important of which being a disciplinary policy.

Such a policy is a way for an employer to outline the standards of conduct it expects, examples of behaviour that will constitute gross misconduct and the procedure that it will generally follow in relation to taking disciplinary action.

However, some employers go further than they need to in their policy, and instead of simply outlining the rules for employees to follow, they set obligations on themselves to follow during a disciplinary process. That might be done with the best of intentions, but it’s easy to forget that if you say that you will do something, it doesn’t reflect well in front of a judge if you don’t do it in practice.

Running alongside this is the duty of trust and confidence that employers owe to their employees, which at a basic level means that the employer has to act reasonably in its dealings with employees, including during any disciplinary process. Part of that can be a requirement for employers to follow their own rules, and a failure to do so can be risky, as the employer discovered in this case.

The facts of the case

Ms Starling was a nurse with continuous service dating back to 1976 and a clean disciplinary record. In June 2015 she was asked to switch on a piece of medical equipment overnight to charge, to allow a time-sensitive medical procedure to take place the next day. However, on the same day that the instruction was given, Ms Starling became unwell and was taken to A&E with a suspected mini-stroke.

As a result, she did not switch on the equipment, which led to difficulties for the Trust the next day. The medical procedure was carried out at a different hospital, so there was no harm to the patient, but the change of venue led to the Trust incurring costs.

One of the hospital consultants, Dr Croucher, was of the opinion that an ‘improvement notice’ should be issued to Ms Starling, which was essentially an informal warning requesting that she improve and that formal action may follow if there were any further issues. Dr Croucher asked the matron, Ms Barron, to issue the notice, and it was issued in Ms Barron’s name.

Improvement notices formed part of the Trust’s disciplinary procedure, a document that was of primary importance in the judge’s decision. The procedure outlined the approach that the Trust should take in relation to disciplinary issues, and stated that:

  • The Trust encourages formal discussions between staff and their managers….These discussions should be followed up with an improvement notice. (Section 3)
  • It is the responsibility of the manager, with advice from HR, to consider the allegations and judge what investigation is appropriate. (Section 15)
  • The manager should seek HR advice and guidance when a potential disciplinary matter arises. If the manager considers that an improvement notice is appropriate in the circumstances they should follow the process as outlined in sections 3 and 15 of this policy. (Section 17)
  • Where a problem exists….The manager will have an informal meeting with the member of staff and this may be followed up with an informal improvement notice. (Section 18)

As well as the above, the Trust’s disciplinary procedure had an example improvement notice as an appendix, which began ‘I am writing further to our informal meeting’ and also contained ‘At this meeting I explained…’ with space for the relevant manager to insert the content of the discussion.

Ms Starling complained that she had been given an improvement notice without being able to explain what had happened, particularly that she had been taken to A&E. She also referred to the Trust’s disciplinary policy and that no investigation meeting had taken place before the notice was issued. Ms Barron fed this back to Dr Croucher, who informed Ms Barron that the notice should stand.

Ms Starling then resigned and claimed constructive unfair dismissal on the grounds that the Trust had breached her trust and confidence by issuing the improvement notice.

The ET and EAT’s decision

In the original hearing, the Employment Tribunal (ET) found that the Trust had in fact breached trust and confidence when it issued the improvement notice without having a discussion with Ms Starling beforehand. The ET specifically referred to Ms Starling having 40 years of unblemished service, stating that ‘she was entitled to receive better treatment than this.’

The Trust then appealed to the Employment Appeal Tribunal (EAT), on two main grounds (for the purposes of this article):

  1. That the duty of trust and confidence did not require the Trust to hold an investigation meeting before issuing an informal improvement notice.
  2. That the Trust acted with reasonable and proper cause.

In relation to the first ground, the EAT referred to the various sections of the Trust’s disciplinary policy outlined above, and stated that it was a requirement for a manager to meet with an employee and discuss the matter when the manager wished to deal with a conduct issue informally.

The EAT stated that it needn’t be a fully minuted investigation meeting, and could be a ‘light-touch’ conversation, but that some discussion was required. As that hadn’t happened in Ms Starling’s case, there was a breach of her trust and confidence.

In relation to the second ground, the EAT acknowledged the serious nature of the medical equipment not being charged and the consequences that flowed from that. However, it went on to conclude that there was no reasonable or proper cause for the Trust not to speak to Ms Starling before issuing the notice. In short, it was not the issuing of the notice that was the problem, but the way in which it was issued.

The EAT therefore dismissed the appeal and upheld the claim of constructive unfair dismissal.

What does this mean?

The EAT judge summed up the moral of this story well by stating that the issue might well have been avoided had Dr Croucher simply taken the time to explain what had happened with the patient, and that doing so would likely have had more impact on Ms Starling than issuing her with an improvement notice.

Indeed, that is a primary lesson for all employers, namely that issuing informal or formal warnings is not always the best approach to dealing with a situation.

Of course, there will always be occasions where issuing a warning, whether informal or formal, is the appropriate thing to do. However, as the Trust learned, if you do wish to take that course of action then you must do so not only within the bounds of employment legislation, but also in line with any procedure or policy that you have in place. Otherwise, you may have to explain to a judge why you decided to depart from what you promised in writing to do.

We therefore encourage all employers to consider their own policies and review whether they are needlessly detailed and/or prescriptive. Bear in mind that there is no obligation to outline every step that you will take when considering action against employees, and indeed we generally advise against doing so to avoid an issue such as the one faced by the Trust above.

In summary, don’t get tripped up by your own policies. The savvy employer’s policies outline the obligations on employees and state little more than the action which might follow if those obligations are not met. Your own policies should not be able to be used against you.

If you have any questions on any of the issues raised in the above article, or if you would like to discuss reviewing your own policies or handbook, please contact Seanpaul McCahill.

13th May 2019