Tribunal recommends disciplinary action due to behaviour of a public body’s directors
20th May, 2024
In a recent judgment, a Tribunal has recommended disciplinary action against the Directors of a Respondent.
It was alleged that there was an authoritarian and dictatorial style of management and a culture of bullying and misuse of power.
Background
The Respondent was Norfolk and Waveney Integrated Care Board (“the ICB”). Mr Rennie and Miss Schofield both worked for the Respondent’s predecessor organisation, Norfolk and Waveney Clinical Commissioning Group (“the CCG”), Mr Rennie as Assistant Director Integrated Commissioning and Miss Schofield as Assistant Director of Commissioning.
As part of a restructuring exercise, the CCG decided that there was to be one role Head of Mental Health. Miss Schofield and Mr Rennie were identified as the only two staff eligible for that role, which was ring fenced. The Tribunal found that it was clear that there was a ‘settled intention’ from all parties from around September 2019 that Miss Schofield would be appointed to the new role, and Mr Rennie would accept voluntary redundancy.
However, the CCG later reneged on this agreement in 2020, inviting both Miss Schofield and Mr Rennie to interview for the role, although they appeared to have been conducted in very different manners. Mr Rennie was then offered the role, which he categorically declined, and submitted a formal grievance. Miss Schofield was invited to a redundancy consultation meeting, at the end of which, she was simply told she was being made redundant. In her termination letter it was noted that if the occupant of the role resigns, she would be slotted in.
After receiving the grievance report which concluded there was no clear evidence of an agreement, Mr Rennie resigned. He considered the whole process a sham and felt that this was the last straw in undermining him and the integrity of the Respondent. Despite this, Miss Schofield was not offered the role. The Tribunal held that the evidence was clear that the CCG didn’t want Miss Schofield to be offered the role, and the CCG had deliberately attempted to delay Mr Rennie’s grievance until after Miss Schofield had left, so that they did not have to offer it to her. The Tribunal concluded that ‘there had been a clear conspiracy all along going on behind the scenes’.
The Claims
Miss Schofield brought a claim for unfair dismissal, which was not contested by the Respondent. They did however defend the claims that Mr Rennie brought, of constructive dismissal and age discrimination.
Finding in Mr Rennie’s favour, the Tribunal ruled that the Respondent’s behaviour could only be categorised as a breach of the implied term of trust and confidence. That it had acted to destroy, or seriously damage, the relationship of trust and confidence between the parties without reasonable and proper cause.
His claim for constructive unfair dismissal was upheld. The age discrimination claims, however, were dismissed.
Takeaways
This is a highly unusual case in terms of the promises that were made to the employees, the way the restructure was handled following this and the ‘conspiracy’ against Mr Rennie and Miss Schofield.
The Tribunal also gave a useful reminder that it is a misconception is that if employees resign with notice, then they will have no claim for constructive dismissal as they have affirmed the contract (by acting in accordance with it, rather than resigning without notice). The fact than an employee gives notice does not mean that they can’t bring a claim based on an earlier breach of contract by the employer.
The Tribunal did not hold back in its criticism of the Respondent’s behaviour from the events in question to their conduct throughout the litigation, including failing to provide the password for documents, and breaching an Order to provide a hard copy of bundle. All parties have to recognise that they have an ongoing duty to disclose all documents in their possession that are relevant to the claim, and not just those documents which help their case. The Tribunal commented at various points about the lack of documentation, and expressed its cynicism that such documentation had supposedly never existed, emphasising the importance for public bodies to keep clear documentation of every step of the process.
The Tribunal also found the Respondent’s witnesses disingenuous and unconvincing, and were critical of the Respondent deliberately keeping a key witness away from the proceedings, whilst finding Mr Rennie and Miss Schofield to be consistent, reliable and honest.
The Tribunal also held that the behaviour of the Respondents, being a public body, should be further investigated and, whilst not specifying who, also stated that those responsible for the events in question should face disciplinary action. It is highly unusual for a Tribunal to take this step and it has no power to require a Respondent to comply with this. It is not clear what consequences the Respondent could face for failing to act on this but it is possible that the same employer could face difficulties in future if it has plainly ignored the advice of a Tribunal in an earlier claim.
If you have any questions relating to anything discussed in the article, or if you would like advice on any other matter please do get in touch with one of our expert specialist Healthcare Employment Lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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