Nurse’s Constructive Dismissal Claim Upheld

In upholding arguments that an experienced nurse was constructively dismissed, the Employment Appeal Tribunal (EAT) has ruled that her employer’s decision to revoke her summary dismissal and to allow her back to work, subject to extensive retraining, amounted to a continuation of her employment rather than a fresh contract (Thomson v Barnet Primary Care Trust).



Pauline Thomson had worked for Barnet Primary Care Trust since 1988. In May 2008, she was dismissed by her employer on grounds of capability following criticisms of her performance. After Ms Thomson lodged an appeal against this decision, criticising both the process and the sanction, the decision was revoked. The Trust maintained that there was sufficient evidence of poor performance on Ms Thomson’s part, but a lack of evidence that the Trust had exercised good practice with regard to managing the situation meant that a move to immediate dismissal was not justified. The disciplinary sanction imposed on her was reduced to a final written warning, which would remain in place for three years, and she was offered the opportunity to return to work, subject to first completing a development programme to assess her fitness to do so. Substantial back pay was remitted to her bank account; however, she was unwilling to agree to the measures and did not return to work before tendering her resignation in December 2008.



Ms Thomson brought a claim for constructive unfair dismissal. The Employment Tribunal (ET) ruled that the offer to re-engage her amounted to an offer of a fresh contract of employment, the terms of which she had impliedly agreed to by acceptance of the back-pay. Whilst the ET was critical of the conduct of Barnet Primary Care Trust, accepting that there had been a series of failings in the lead up to Ms Thomson’s dismissal that involved fundamental breaches of her contract, it found that by accepting a new contract, she had waived her right to rely on any breaches on the part of the Trust that preceded the offer to allow her back to work.



In allowing Ms Thomson’s appeal, the EAT ruled that the Trust’s intention in making the offer was clearly to revive the existing employment contract, rather than to create a new one. The situation was that she had been reinstated to the status of employee but her reintroduction to a particular role in the workplace was subject to retraining. She was therefore entitled to rely on the entirety of the Trust’s conduct leading up to her resignation, including her initial summary dismissal. Furthermore, the ET had also erred in failing to deal with Ms Thomson’s plea that the imposition of the return to work programme was ‘the last straw’ that led to her resignation.



The EAT substituted a decision that Ms Thomson had been constructively dismissed but remitted issues as to whether that dismissal was wrongful or unfair to the ET for determination on the evidence.