EASTBOURNE HOSPITALS & CONSTRUCTIVE DISMISSAL

 

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We are following an interesting case concerning staffing levels and what appears to be a deliberate attempt on the part of the management to get rid of existing staff, in line with the long term objective of slimming down their operation in co-operation with other local health Trusts to include Hastings and Hellingly. That is the allegation involving what amounts to Constructive Dismissal and these are the claims to date, but this matter could (in our opinion) just as easily be the basis for a Judicial Review, where a health authority should owe a special duty to employees in health terms, and stress is a mental health issue:-

 

IF YOU recognise any of the following and have personal experiences you might wish to share (in confidence) or might wish us to publish your complaint, please contact us as soon as possible.

 

 

DEFINITION

 

In employment law, constructive dismissal, also called constructive discharge, is where an employee resigns due to their employer's behaviour. The employee must prove that the behaviour was unfair — that the employer's actions amounted to a fundamental breach of contract or the law.

 

The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident.

 

The notion of constructive dismissal comes from the concept that (as it is phrased in United Kingdom law) "An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee." (Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT.)

 

Examples of actions potentially justifying resignation

  • Putting managers into excessively difficult work situations without supporting their decisions.

  • Harassment or humiliation, particularly in front of less senior staff.

  • Victimisation of the staff member or targeting particular members of staff.

  • Unilaterally changing the employee’s job content or terms of employment without consultation.

  • Making a significant change in the employee's job location at short notice.

  • Falsely accusing an employee of misconduct or of not being capable of carrying out their job.

  • Undue demotion or disciplinary procedures.

  • Sabotage of employee's work product either directly or indirectly with repeated interruption, confusing or inaccurate direction, or uncommunicated deadline changes.

  • Vandalizing the employee's workspace, home or other personal property. Such tactics could range from minor destruction of immaterial items to more severe acts of vandalism.

An employee can resign over one serious incident or due to the build up of a number of incidents. However, the employee must resign soon after the incident in order to be able to rely upon it. Generally the actions of the employer must be a serious breach of contract.

 

 

Constructive dismissal in law

 

UK law

 

In United Kingdom law, constructive dismissal is defined by the Employment Rights Act 1996, section 95(c):

The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.

 

The Department of Trade and Industry states [2]:

A tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed'. For a tribunal to rule in this way the employer's action has to be such that it can be regarded as a significant breach of the employment contract indicating that he or she intends no longer to be bound by one or more terms of the contract: an example of this might be where the employer arbitrarily demotes an employee to a lower rank or poorer paid position. The contract is what has been agreed between the parties, whether orally or in writing, or a combination of both, together with what must necessarily be implied to make the contract workable.

 

South African law

 

In South African law, constructive dismissal is covered in section 186 of the Labour Relations Act of 1995. Section 186(e) states:

A dismissal means that an employee terminated a contract of employment with or without notice because the employer has made continued employment intolerable for the employee.

 

 

More on Constructive dismissal

Constructive dismissal happens when an employee is forced to quit their job against their will because of their employer's conduct.

 

This is where the employee leaves their job due to the employer's behaviour. For example, the employer has made the employee's life very difficult and the employee feels that they cannot remain in their job. When this happens the employee's resignation is treated as an actual dismissal by the employer, so the employee can claim Unfair Dismissal. The employer's actions must have amounted to a fundamental breach of contract.

 

 

Constructive Dismissal & Unfair Dismissal


An employee being constructively dismissed only proves that they were dismissed, it does not automatically prove that the dismissal was unfair. The employee has to go on and prove that the dismissal was also unfair.

 

This can be a tricky area, an employee can resign and claim Constructive Dismissal due to the employer's behaviour, but the employer could turn around and say that he (the employer) breached the employment contract, but that it was done, for example, because of the re-organisation of the business. The chances are that the employer will be given the benefit of the doubt. The reason for this is that Employment Tribunals do not like to interfere with business management.

 

If on the other hand the employee resigned because he or she thought that they had been treated too harshly over a disciplinary matter, it would be easier for the Tribunal to look for and find unfairness.

 

If the Constructive dismissal is connected to one of the Unfair Dismissal Exceptions it will be simple to prove that it was unfair.

 

 

What is constructive dismissal?

 

If you're forced to quit your job because of the way you're treated, it's called constructive dismissal. Although there's no actual dismissal by the employer, the end result is the same as if you'd been sacked. It's often very hard to prove that your employer's behaviour was so bad as to make you leave, so you should get legal advice before leaving your job.

 

The reason for leaving your job must be serious - there must be a fundamental breach of your contract. Examples include:

  • a serious breach of your contract (eg not paying you or suddenly demoting you for no reason)

  • forcing you to accept unreasonable changes to your conditions of employment without your agreement (eg suddenly telling you to work in another town, or making you work night shifts when your contract is only for day work)

  • bullying, harassment or violence against you by work colleagues

  • making you work in dangerous conditions

 

The employer's breach of contract may be one serious incident or the last in a series of less important incidents that are serious when taken together.

 

 

Unfair and wrongful dismissal

 

A constructive dismissal may be both an 'unfair' and a 'wrongful dismissal. An unfair dismissal is where the employer sacks you (or forces you to leave) without good reason or fails to follow proper procedures. Wrongful dismissal is when your employer breaches your contract in dismissing you (or forcing you to leave).

 

You can make both an unfair constructive dismissal claim and a wrongful constructive dismissal claim as long as you qualify to do so. In most cases you need at least a year's service before you can make an unfair dismissal claim.

 

A wrongful dismissal claim is made in the same way as a breach of contract claim. A claim of unfair constructive dismissal is handled in the same way as any other unfair dismissal claim except that there is more likely to be a dispute about whether there was a dismissal (or behaviour that forced you to leave) or not.

 

Compensation for unfair dismissal is meant to put you financially where you would have been if you hadn't had to resign. Compensation for wrongful dismissal usually only covers your pay for the notice period. With either claim you won't get compensation for hurt feelings.

 

 

What to do if your employer's behaviour makes you want to quit 

 

Speak to your manager

 

Leaving your job should be the last resort. First, speak to your manager and see if you can resolve the problem that way. If the problem's with your manager, talk to:

  • their manager

  • your company's HR department

  • an employee representative (eg a trades union official), if you have one

 

Grievance procedures and mediation

 

Try to sort out the problem with your employer through your company's standard grievance procedure. In many cases you will be required to have raised the issue through a grievance procedure before taking legal action.

 

If this doesn't work, and your employer agrees to it, you could try mediation through Acas, where a specialist will try to help you and your employer sort out the problem.

 

 

Legal action

 

If talking to your employer or mediation doesn't work, and you feel you have to quit, you should first get legal advice to see if you'll have a case for constructive dismissal. Ideally, you should then leave immediately otherwise the employer may argue that, by staying, you've accepted the conduct or treatment. 

 

Also, avoid 'jumping the gun' (resigning before the actual breach of contract occurs), as the employer may then claim there's been no dismissal.

 

 

Claiming benefits if you're forced to quit your job

 

If you leave your job, your Jobcentre Plus can delay your Jobseeker's Allowance for up to 26 weeks. Make sure they understand what's happened and why you had to leave. If you're taking your case to a Tribunal, it's a good idea to give them copies of your completed Tribunal application forms.

 

If you can't claim Jobseeker's Allowance, you may be able to claim a hardship payment (a reduced amount of Jobseeker's Allowance).

 

 

Where to get help

 

The Advisory, Conciliation and Arbitration Service (Acas) offers free, confidential and impartial advice on all employment rights issues. You can call the Acas helpline on 08457 47 47 47 from 8.00 am to 6.00 pm Monday to Friday.

 

Your local Citizens Advice Bureau (CAB) can provide free and impartial advice. You can find your local CAB office in the phone book or online.

Seek legal advice from a Solicitor or Advice Agency

If you are a member of a trade union, you can get help, advice and support from them.

 

 

EASTBOURNE HOSPITALS TRUST

 

Occupational Health and Health and Safety Working Group

 

The Occupational Health and Health and Safety Working Group works with our Healthy Workplaces team to identify new work streams and issues which apply to the occupational health and health and safety remit in the NHS. The group meets formally twice per year and the majority of communications in between are via e-mail.

Members are:

  • Karen Broughton, Director of HR, Westminster PCT

  • Jill Ashley Jones, Director of Organisational Development & Strategic HRM at Solihull PCT

  • Elizabeth Richards, Business Manager, Occupational Health, Stockport NHS Trust

  • Kim Doherty, Director of Human Resources, Liverpool Women's Foundation Trust

  • Jane Mitchell, Senior Nurse/Occupational Health Manager, Bradford Hospitals NHS

  • Keith Marshall, Camden PCT, Islington PCT, and Camden & Islington MH & Social Care Trust

  • Pam Duke, Occupational Health Services for Camden PCT

  • Claire Brown, Occupational Health Manager, Peterborough & Stamford Hospitals NHS Foundation Trust

  • Jim Stirton, Assistant HR Director, East Sussex Hospitals NHS Trust

  • Frances Morris, Assistant Director, Business Operations Human Resources & Organisational Development Directorate, Dudley Group of Hospitals NHS Trust

  • Keith Higgs, Health & Safety Advisor and Risk Manager, Uni Hospital Coventry & Warwickshire NHS Trust

  • Fran Hook, Assistant HR Director, Hertfordshire Partnership NHS Trust

  • Sue Scott, Head of Human Resources, Greenwich PCT

  • Maggie Woods, HR Manager, Suffolk East PCT

  • Andrew Gilbey, Assistant Director (Occupational Health), York Hospitals NHS Trust

  • Carole Hunter, Head of Occupational Health Services, Hull & East Yorkshire Hospitals NHS Trust

  • Gillian Morris, HR Manager (Primary Care), Enfield PCT

  • Nicola Brackey, HR Officer (Primary Care), Enfield PCT

  • Perry Woodhouse, Technical Instructor 1 & Unison Health & Safety Officer, Notts Healthcare Trust

  • Adrian Warrren, Health & Safety Manager, Cheltenham and Tewksbury PCT

Source:  http://www.nhsemployers.org/practice/

 

 

 

Monica Green Eastbourne Hospitals Trust NHS Director of Human Resources

 

EDGH Director of Human Resources - Monica Green

 

Monica Green was appointed as Director of Human Resources in June 2002. Prior to this Monica worked, from 1997, as HR Director for Eastbourne Hospitals NHS Trust. Monica has worked within the NHS since 1987 in a wide variety of Human Resources roles, both within the acute hospital sector and at a Regional Health Authority level.

 

Monica has both an Honours degree in Sociology and a Master degree in Business Administration as well as professional qualifications. Prior to working for the Health Service Monica worked in the private sector.

 

 

 

Claimant:   ANYONE

 

In the High Court of Justice                                            Claim No.  (HQ______)

Queens Bench Division

Administrative Court

   

Claimant                                                          THE QUEEN    on the application of 

                                                                             ANYONE

 

                                                                                        and

   

Defendant                                                           EASTBOURNE DISTRICT 

                                                                              GENERAL HOSPITAL

 

 

 

DETAILED STATEMENT OF GROUNDS  ACCOMPANYING CLAIM FORM FOR JUDICIAL REVIEW

It is recognised by the general public, and has been reported regularly in the news, that the health service is, and has been unable to meet the demands for health care. There are still long waiting lists and some hospitals are seeking to close Accident and Emergency departments and cut staffing levels in an attempt to cut costs to reduce its outgoings.

 

As a result staffing levels have over the past few years been drastically cut, but the staff remaining have been asked to do more work to make up for the lost workers, while upper management levels remain unaffected. Yet these managers do not contribute to the day to day running of the hospitals concerned and appear more interested in keeping their highly paid salaries than resolving grass roots problems within the authority. 

 

The methods employed by the Eastbourne District General Hospital (EDGH or Trust) may not be in keeping with their Duty of Care to staff and to provide adequate and appropriately qualified staff to fulfill the functions of the authority, where this is the prime reasons for the existence of the hospital(s).

 

The Trust runs three Occupational Health departments, these are based in Eastbourne, Hastings and Hellingly.  The Trust is a large employer in the area and employs over five thousand people.

 

The EDGH offers a range of services to the public, including surgical and medical services and also a private patient’s unit, which is itself a questionable use of public resources, where such resources should more properly be used to reduce waiting lists for NHS patients.

 

The Trust has a duty to provide a Safe and Healthy working environment for all of its employees, as set out in their Staff Charter of June 2006.

 

....................................................................

In respect of the above, the Claimant seeks the assistance of the honourable Court.

 

The case continues ............................

 

 

LINKS and REFERENCES

 

 

 

 

LINKS and REFERENCES

  • NHS guide from the BBC - includes charts and statistics

NHS sites

UK and devolved government sites

Other sites

 

 

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