Winckworth Sherwood

UK 200 2014 position: 81


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…

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