An HR manager at a merged NHS trust has won her claim for unfair dismissal despite failing to apply for a suitable alternative post, but two of her colleagues’ cases failed.
Cathrona Leeke of Mid Essex Hospital Services NHS Trust partially succeeded in the case, held at East London employment tribunal last week, after the judge examined details of the trust’s planned merger with neighbours Basildon and Thurrock University Hospitals NHS Foundation Trust and Southend University Hospital NHS Foundation Trust.
Any award to Ms Leeke made at a remedy hearing would be reduced by 50%, however, because, according to the tribunal, she had contributed to her situation because she had turned down a senior HR lead role and had not applied for an interim head of HR role.
Unfair dismissal
Ms Leeke and her two colleagues had submitted a joint grievance to group chief executive Clare Panniker in 2017 after discovering their equivalents at Southend and Basildon were paid more.
They also brought a grievance that the jobs they were later offered were not equivalent to the ones they held. Part of the complaint was that the new job title would not include the word “manager”.
The trust convened a panel with an external HR director in 2018 who advised that the jobs were equivalent.
Ms Panniker believed this meant the trio’s grounds for refusing alternative jobs were unreasonable, so they would not be entitled to redundancy payments. The tribunal heard, however, that she was keen to keep the three women employed within the trust and informed them of this.
The two heads of HR who lost their case – Sarah Stewart and Catriona Stevenson – had already secured other jobs, the tribunal heard.
Judge Benjimin Burgher said: “The claimants believed that the consultation process [around the new structure] was a sham and that their dismissals were predetermined.” But Leeke, Stewart and Stevenson had not shown sufficient flexibility with the merger process. “[They] did not approach the consultation process with a co-operative mindset. Matters may have turned out very differently had they done so.”
The judge concluded that “the offer of the senior HR lead role to the claimants was suitable alternative work. It was offered on the same grade, pay, location and hours as their previous roles. As far as status was concerned, the role was at a comparable level and although their previous specific duties were not necessary going forward, their skills and experience in a more expansive group role was.”
Each of the women unreasonably refused alternative work, the tribunal ruled, but Judge Burgher said he had no doubt that if Stevenson and Stewart had accepted the senior HR lead role, Leeke would have followed. He ruled: “Mrs Leeke was conflicted, she wished to remain working in the trust but did not wish to break ranks from her close working team. To have done so would have undermined their claims for substantial redundancy payments.” The judge thus dismissed their claims for contractual and statutory redundancy payments.
Steward and Stevenson’s claims for unfair dismissal failed because they had been offered the opportunity to apply for suitable alternative work but had already taken jobs elsewhere. Leeke, however, had sufficiently demonstrated her desire to stay at the trust, despite not applying for the senior HR role, and had not been made fully aware of some opportunities, namely at Broomfield Hospital, so, found the judge, her claim for unfair dismissal “on this procedural ground”, succeeded.
The remedy hearing concerning Leeke’s claim takes place today (2 August).
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The merger of the Mid Essex, Southend, and Basildon and Thurrock hospital trusts, which was to have been implemented in April, was put on hold earlier this year pending further review by the government.
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