The cost of delays in disciplinary actions – Thorpe v Cumbria Northumberland Tyne and Wear NHS Foundation Trust
The widely reported case of Miss Jessica Thorpe v Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust provides important lessons for employers in regard to disciplinary investigations and suspensions.
Facts of the case
The claimant was working for the respondent as a Band 3 Nursing Assistant and was assigned to a secure ward for male patients with mental disorders and who had contact with the criminal justice system.
On 27 April 2020, a patient (Patient X) alleged he was having an inappropriate relationship with the claimant. The claimant claimed Patient X had previously made false allegations about their relationship, including stating she was pregnant with his child.
The claimant was suspended on 30 April 2020, and on 14 May 2020, she was informed of a disciplinary investigation into three allegations:
- Engaging in a relationship with a patient breaching professional boundaries
- Unauthorised access and updating of service user data
- Disclosing confidential information about patients and the respondent
The suspension was extended monthly from June to December 2020. No review or extension letter was provided between December 2020 and the disciplinary hearing in July 2021. No outcome letter was provided after the hearing and so the outcome was never clear.
The claimant lodged a grievance on 21 October 2021 (which the respondent took the conscious decision not to progress until other processes had been completed) and the claimant’s suspension continued without proper review or any communication with her. The claimant was still on suspension when she resigned on 11 November 2022. The total suspension period lasted from 30 April 2020 to 11 November 2022, a duration of over 2.5 years. However, as part of the Trust’s submissions they said the death of Patient X during this time caused additional complexity and was a factor to the delays.
The case, which she pursued in the Employment Tribunal, centred around the claimant’s prolonged suspension, which continued beyond what was deemed necessary for a competent investigation.
Key points from this judgment
- The Tribunal unanimously ruled that the claimant’s claim for constructive unfair dismissal was well-founded and found favour with the other two claims of breach of contract and unlawful deduction of wages
- The Tribunal noted that the respondent breached the claimant’s contract of employment by continuing her suspension after August 2020
- The judgment highlighted issues with the respondent’s handling of disciplinary procedures and the lack of clear policies for suspension in cases involving multidisciplinary processes.
- The Tribunal was critical of the respondent’s decision-making process, particularly regarding the extension of the claimant’s suspension even after a disciplinary hearing had concluded
Key Takeaways
- Timely investigations: Employers should conduct investigations and disciplinary proceedings promptly. Excessive delays create risks of claims of breach of trust and confidence
- Regular suspension reviews: The respondent’s policy required formal reviews of suspensions lasting beyond three months. Failing to conduct these reviews can be a breach of procedure
- Proper communication: The respondent failed to provide a disciplinary outcome letter after the hearing on 21 July 2021, which contributed to her breach of trust claim
- Addressing grievances: Not progressing the claimant’s grievance lodged on 21 October 2021 was determined to be another breach by the respondent
- Correct pay during suspension: The claimant was initially paid only basic pay during suspension, rather than including “average enhancements” as per the respondent’s policy. This led to claims of unlawful deduction of wages. There was a lack of clarity around what “average enhancements” meant.
- Documentation: Proper record-keeping is important for all employee relations cases. The respondent was unable to produce supervision records that the claimant claimed should have existed
Although this case does not provide any new significant new insights, it’s a good reminder of the importance of key aspects of managing disciplinary cases.
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Henrietta Donnelly is a solicitor in our employment law team. If you have any questions or concerns related to the points raised in this article, or have an employment law query we can help with, please get in touch.