Vanishing dismissal — Thomson v Barnet Primary Care Trust
Can reinstated employees be subsequently constructively unfairly dismissed on the grounds of unfavourable terms of return to work? In the recent case of Thomson v Barnet Primary Care Trust, the Employment Appeal Tribunal (EAT) decided that they can.
Ms Thomson, the claimant, had been a district nurse employed by Barnet Primary Care Trust, the respondent, since 1988. In early 2008, while Ms Thomson was absent from work for a prolonged period, criticisms were made of her performance. The respondent instigated its capability procedure and, following an internal hearing, the claimant was summarily dismissed in May 2008. Ms Thomson appealed against her dismissal, criticising the process and the sanction imposed. Following an appeal hearing, the respondent found that, although there was evidence of poor performance, there had been procedural flaws in the way the capability procedure had been applied. The respondent therefore wrote to Ms Thomson in October 2008, reducing her sanction to a final written warning (even though this was not a sanction permitted under the capability procedure) and imposing a number of conditions to be met before her return to work, including a full assessment of her competency and an action plan to ensure her performance levels were improved and maintained after the competency assessment.
The claimant was told that the appeal panel’s decision was to reinstate her contract with immediate effect and that she would be paid her full back-pay. The respondent required her to accept the conditions by 9 December 2008. On 6 December 2008 the claimant resigned, on notice, claiming that the respondent had effectively prevented her from returning to work. She lodged a grievance that was rejected and then issued Employment Tribunal proceedings for unfair dismissal…
If you are registered and logged in to the site, click on the link below to read the rest of the Winckworth Sherwood briefing. If not, please register or sign in with your details below.
Sign in or Register to continue reading this article
It's quick, easy and free!
It takes just 5 minutes to register. Answer a few simple questions and once completed you’ll have instant access.Register now
Why register to The Lawyer
In-depth, expert analysis into the stories behind the headlines from our leading team of journalists.
Identify the major players and business opportunities within a particular region through our series of free, special reports.
Receive your pick of The Lawyer's daily and weekly email newsletters, tailored by practice area, region and job function.
More relevant to you
To continue providing the best analysis, insight and news across the legal market we are collecting some information about who you are, what you do and where you work to improve The Lawyer and make it more relevant to you.
News from Winckworth Sherwood
News from The Lawyer
Briefings from Winckworth Sherwood
The EAT considered whether an employee who said she was too ill to resign for 18 months and who received 39 weeks’ sick pay during that period had affirmed her contract.
It is possible for employers to defend unfair dismissal claims arising from inappropriate use of social media even if the misconduct is not work-related.