Employee Wins Unfair Dismissal Claim As Employer Fails to Follow Fair Termination Process

In the case of Mr S Johnson v James Paget University Hospitals NHS Foundation Trust an employee was successful in his claim for unfair dismissal as his employer failed to follow a fair procedure. ET found that while the Claimant was also at fault, the lack of proper procedure from the Respondent’s side tipped the scales in the Claimant’s favour.

The Facts in Mr S Johnson v James Paget University Hospitals NHS Foundation Trust

Mr S Johnson (the “Claimant”) commenced work as a plaster technician/orthopaedic practitioner for James Paget University Hospitals NHS Foundation Trust (the “Respondent”) in September 2009. The Claimant argued during the course of his employment that:

• the employer had failed to investigate his complaints fairly; and
• the decision to terminate his employment was unfair

In around November 2018, the Claimant had a fairly short relationship with another member of staff called Claire McNamara.

On 13 March 2019, Miss Claire McNamara made a complaint to the trust against the Claimant of sexual harassment. She also reported it to the police.  During the time her complaint was investigated, the Claimant had certain restrictions at work. This included a restriction on his access to the A&E department where Miss McNamara mainly worked.  In around April/May 2019, the initial restrictions were lifted.

In July 2019, due to concerns about the Claimant going to A&E when it was not necessary, restrictions were reimposed. He was instructed only to go to the A&E department when there was a specific patient issue, and his assistance was needed.

On or around 7 August 2019, the police informed the Respondent that no further action would be taken against the Claimant.  The Claimant was told verbally by the Respondent that no further action would be taken against him. But, this was not put in writing.

On 23 August 2019, the Claimant attended a meeting with trust managers. Miss McNamara, had made a further complaint of harassment concerning the Claimant.

From 27 August 2019, the Claimant was signed off sick from work, reasons stated, vulnerability and stress.  No attempts were made to seek a satisfactory solution to the further complaint, or the Claimant’s grievance. This was required as per the Respondent’s procedures. On 14 October 2019, the Claimant returned to work and was subjected to more restrictions.

On 1 November 2019, the Claimant was told that he was subject to a disciplinary investigation and suspension from duty.  He faced more allegations from another member of staff, Miss Jessica Dua. The allegations involved various concerns over the Claimant’s behaviours with staff and colleagues that could bring the Trust into disrepute. These included discriminatory comments and not demonstrating/meeting the expected standards pertinent to the needs of certain patient groups such as dementia patients and minors.

On 3 September 2020, the Claimant attended a disciplinary hearing where he faced the allegations of which there were 14 in all.

On 14 September 2020, the Claimant was informed of the outcome. This included two aspects. He was given a final written warning that would remain on his record for 3 years, and in addition, he should be redeployed to another post within the Trust.

On 29 October 2020, the Claimant attended an appeal hearing to discuss his appeal against the allegations. Allegations 1,2,3,4, 9 and 13 were upheld. Some of these allegations were the usage of offensive language, derogatory nicknames like “Mr Blobby” and inappropriate jokes with a dementia patient.

On 25 December 2020, the Claimant’s employment was terminated. On 12 April 2021, the Claimant brought a claim for unfair dismissal to the employment tribunal.

The Decision of the Employment Tribunal

The tribunal found that the Claimant was subject to unfair dismissal. However, they reduced his compensation award by 20% to reflect his own contributory conduct.

In their findings, the tribunal discussed the inconsistency of applying two different sanctions, a final written warning and redeployment. The dismissal was not considered to fall within the band of reasonable responses, as the misconduct was not serious enough to warrant such a severe sanction.

Our Lawyer’s View on This Case

Steve Norton, a lawyer from Redmans, says – “This is one of those cases where the tribunal has had to allocate a level of blame on both parties. The employer failed to apply their disciplinary (or grievance) procedures correctly.

However, the employee had issues in his pattern of behaviour towards colleagues and patients, which could adversely affect the employer’s reputation. Thus, the tribunal had to take this into account when awarding compensation”.

The decision of the Employment Tribunal can be found here