The claimant commenced employment with the respondent, a care home, in May 2019 as an activities assistant.  In November 2020, the claimant’s son had his employment terminated with the respondent.   Following this, there were several reports relating to the claimant’s conduct such as telling staff and patients that it was the intention to close the home down and that certain individuals were being given preferential treatment for visitation (which had been curtailed due to the pandemic).  

On 30th November 2020 the claimant was suspended from her employment on full pay to allow for an investigation into the allegations that had been raised.   During the suspension it came to light that there were some discrepancies relating to the claimant clocking in and clocking out of work.   The claimant was invited to an investigation meeting in December 2020 and it was found that there was a case to answer. She was subsequently invited to a disciplinary hearing on 18th December.   The claimant stated she could not make the date due to a funeral so the 17th was offered.  This was regarded as being ‘too short notice’ to organise a union representative so the respondent offered the 21st December.   In reply, the claimant stated she was giving her notice on the basis that it was a ‘foregone conclusion’. 

The claimant subsequently brought unfair dismissal proceedings based upon it being a constructive dismissal.   In terms of its conclusion, the Tribunal stated that it would have been wrong not to have investigated the reports made against the claimant.   Indeed, it also found that the claimant had been told that the suspension was ‘neutral’ and sensible considering the effect that remarks relating to closing the home could have on patients and their family members.   

There were some issues with the process such as a failure to give more than 48 hours’ notice of the disciplinary meeting as required under the respondent’s policy.  The Tribunal also found that the respondent could have been more pro-active during the investigation stage and they could have been more ‘tactful’ regarding the disciplinary meeting considering that the claimant’s son’s father in law had died and she was going to attend his funeral.   He had, in fact, been a resident of the care home so the respondent should have been aware of this.   Notwithstanding these difficulties, none of them amount to a fundamental breach of contract required for a dismissal rather than a resignation.  As a result, the claim was dismissed.    

Practical Lessons

This case demonstrates some of the difficulties faced by claimants when it comes to constructive dismissal claims.  There must be a fundamental breach of contract rather than some minor issues as had arisen here.  The Tribunal did demonstrate that there had to a more worldly view taken when it came to organising investigation and disciplinary meetings considering what may be going on the claimant’s life.  Additionally, a good learning point was raised by the Tribunal when they stated that where it is a large organisation then it would be more sensible and fairer to have different individuals carrying out the investigatory hearing and the disciplinary hearing. 

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/