Diabetes Specialist Nurse Subject to Workplace Bullying For Years Awarded £41K in Unfair Constructive Dismissal Case

In Mrs Susan Hamilton v Epsom and St Helier University Hospitals NHS Trust, a diabetes specialist nurse won her unfair constructive dismissal claim. This came after the Employment Tribunal learned she was forced to resign due to fundamental breaches of contract. Below, we examine what happened, the Tribunal’s ruling, and how others can claim constructive dismissal compensation.

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The Facts in Mrs Susan Hamilton v Epsom and St Helier University Hospitals NHS Trust

Unfair Dismissal Claim Background

Mrs Susan Hamilton (“the Claimant”) has been a diabetes specialist nurse since 1986. On 8 October 2012, she joined Epsom and St Helier University Hospitals NHS Trust (“the Respondent”).

In September 2017, Mr Abdool Nayeck joined the Respondent as one of the Claimant’s colleagues. However, their professional relationship quickly deteriorated, with a significant incident occurring in September 2018 when the two treated the same patient.

The Claimant disagreed with Mr Nayeck’s proposed course of action, prompting him to suggest she was “questioning his competency.” Concerned by his response, she reported the matter to her line manager, Mrs Sarah Jupp. Following a review, Mrs Jupp supported her clinical assessment and assured her his behaviour would be addressed.

From that point onward, though, Mr Nayeck’s attitude towards the Claimant noticeably changed. He became dismissive, frequently failing to greet her in the mornings and turning his back during her meeting presentations—behaviour he didn’t exhibit towards other staff members.

Then, in April 2019, tensions escalated further when the Claimant discovered her misplaced book in Mr Nayeck’s cupboard. She noticed her name, which was originally inscribed on the book, had been erased and replaced with Mr Nayeck’s handwriting. This incident, later referred to during Tribunal proceedings as the “Book Incident,” further strained their already difficult working relationship.

Diabetes Specialist Nurse Becomes Distressed During Mediation

On 8 May, a patient emailed the Claimant seeking clarification about advice she’d received from Mr Nayeck. This triggered a series of contentious email exchanges between the two colleagues, prompting Mrs Jupp to convene a meeting on 17 May in an attempt to resolve the conflict.

The Tribunal later referred to this meeting as the “Informal Mediation.” During discussions, tensions escalated, and the Claimant became distressed, ultimately having to leave the room. She later recalled that Mr Nayeck had been “aggressive” and stated, “I do not like Sue [the Claimant].”

After the meeting, Mrs Jupp emailed the diabetes specialist nurse. In her message, she stated, “I am so sorry the meeting became so personal”. Additionally, she acknowledged that it’d provided her with “much more insight into Abdool’s thoughts and unfortunately his inability to conform to being respectful and team spirited.” She concluded by praising the Claimant’s professionalism, describing her as a “fantastic nurse” and expressing appreciation for her continued efforts.

Following discussions with HR, Mrs Jupp escalated the matter to formal mediation. However, the process was delayed, and in the interim, the Claimant continued to experience what she described as “antagonistic and aggressive behaviour” from Mr Nayeck. This primarily occurred through email correspondence regarding patient care, where their professional disagreements persisted.

Formal Grievance Raised by Diabetes Specialist Nurse

Formal mediation eventually took place on 17 December. During the session, the Claimant again found Mr Nayeck’s demeanour dismissive and recalled him reiterating that he didn’t like her. The mediator subsequently drafted a mutual agreement, which both parties signed, committing them to “communicate in a civil manner” and “be polite.”

Despite this agreement, the Claimant alleged that little changed. By July 2020, Mr Nayeck escalated matters by filing a bullying complaint against her, followed by a second complaint 12 days later.

An investigation was launched, but several months passed before a conclusion was reached. Ultimately, it was determined that the Claimant had “no case to answer.” However, she was informed that “aspects of her behaviour could have contributed to Mr Nayeck feeling bullied”—a finding that distressed her for two reasons:

  1. She was not informed which specific behaviours may have contributed to his perception.
  2. Her longstanding concerns about Mr Nayeck’s behaviour appeared to have been overlooked.

The Claimant was subsequently ruled unfit to work due to stress on 10 December, only returning on 14 January 2021. Then, in March, she met with the deputy head of nursing, Sarah Connor, to discuss her concerns, with Ms Connor expressing surprise that she hadn’t received specific examples of her alleged poor behaviour.

While a letter was eventually sent to the diabetes specialist nurse on 23 April, it lacked the clarity she sought. Because of this and her continued feeling of support shortfalls, she raised a formal grievance on 16 June. She raised four key complaints:

  1. Failure to investigate the theft of her book.
  2. Toleration of targeted and abusive behaviour from Mr Nayeck.
  3. Failure to report threats of violence against her.
  4. Failure to clarify what aspects of her behaviour were problematic or implement an appropriate behaviour contract.

Diabetes Specialist Nurse Initiates Employment Tribunal Proceedings

Following the Claimant’s formal complaint, a grievance hearing occurred on 28 July. Unfortunately, her grievance was only partially upheld. She went on stress-related leave from 18 August, never returning to work, and appealed the decision the following day.

This led to a further hearing on 5 October, but the Respondent remained firm in its decision. Little progress was made over the subsequent months to support the Claimant’s return to work, and on 5 January 2022, she resigned, stating she believed she’d been “constructively dismissed”.

The diabetes specialist nurse reasoned that the Respondent’s failure to act on the appeal recommendations, the ongoing targeted behaviour from Mr Nayeck, and the impact on her mental health meant she was forced to resign. On 14 June, she then made a claim for constructive dismissal to the Employment Tribunal.

The Employment Tribunal’s Judgment

Following proceedings, the Employment Tribunal made the following conclusions:

  1. Firstly, the Respondent failed to appropriately address Mr Nayeck’s behaviour toward the Claimant, which had occurred over several years and caused her significant stress. Despite frequently stating that his behaviour would be dealt with, the Respondent failed to act. This was found to be a management failure.
  2. Secondly, the Respondent failed to implement key recommendations intended to support her return to work. Said recommendations referred to a senior nurse being appointed to aid her return, which never materialised. The Tribunal held that this amounted to an implementation failure.

Individually and collectively, the Tribunal ruled that these failures breached the implied term of trust and confidence between the parties. It said, “This is clearly a case where the Claimant was justified in treating the employment contract as repudiated by the Respondent by its conduct.”

As such, the Tribunal then considered whether the diabetes specialist nurse resigned directly because of these breaches and if she had affirmed her contract. It quickly established a clear link between the breaches and her resignation, as referenced in her resignation letter. It also found she hadn’t affirmed her contract, as she continuously sought support for a return to work before resigning.

Consequently, since fundamental breaches of contract were found, the Claimant’s resignation was directly caused by them, and she didn’t affirm her contract, the Tribunal upheld her claim for constructive dismissal. The Claimant has since been awarded £41,000 in constructive dismissal compensation following the successful ruling.

What is Constructive Dismissal?

Constructive unfair dismissal arises when an employee is forced to resign due to a serious breach of contract by their employer. Although the individual technically makes the decision to resign, the law treats it as if the employer dismissed them.

Under UK employment law, for an unfair constructive dismissal claim to succeed, the employee must demonstrate that:

  1. A fundamental breach of contract by their employer has occurred—whether that be one serious incident or a collective amount that has built up.
  2. Their resignation arose directly because of this breach.
  3. They did not continue working for an extended period after the breach, as this could be seen as accepting the employer’s conduct, affirming their contract and weakening their claim.

In practice, a contract breach could arise in several circumstances. For example, the non-payment of wages, an unjustified demotion, or failure to address a formal grievance could all amount to a breach. In the case of the diabetes specialist nurse, the Respondent’s failure to address Mr Nayeck’s behaviour and the lack of support for her return to work constituted breaches.

Steps to Take if You Feel Forced to Resign

If an individual feels their employer’s actions have left them with no choice but to consider resignation, several steps can be taken. Before making any final decisions, it’s often advisable to attempt to resolve the issue informally.

Addressing the problem informally allows the employer an opportunity to rectify the situation, potentially avoiding the need for legal action while also strengthening the individual’s position should a claim become necessary. This can be done by discussing the matter with a line manager or HR representative, giving the employer a chance to make amends.

If informal discussions don’t lead to a resolution, though, the next step would be to raise a formal grievance. Submitting a grievance not only signals to the employer that the issue is serious but also imposes certain legal obligations on them to investigate and respond fairly.

Should the issue remain unresolved despite these efforts, seeking external assistance is usually necessary. It’s crucial not to delay resigning in constructive dismissal cases, as remaining in employment for too long after a breach may imply acceptance of the conduct, weakening the claim.

That said, obtaining legal advice before resigning is strongly recommended. Independent guidance from ACAS is a good starting point, as it offers free and impartial advice. Moreover, ACAS Early Conciliation is mandatory before lodging a claim with an Employment Tribunal.

For those seeking tailored, case-specific advice, though, consulting an employment law specialist may be beneficial. A legal expert can assist in negotiating a settlement agreement or may recommend proceeding with a constructive dismissal claim, depending on the circumstances. If one’s claim is successful, the individual could be entitled to compensation.

Get Help with Redmans

If you have any questions following the diabetes specialist nurse case or want expert advice, contact Redmans Solicitors now. As specialists in the sector, we can provide answers, discuss your options, and assess your eligibility to claim compensation.

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