Mr M Hemphill v Great Western Hospitals NHS Foundation Trust: 1402954/2022
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 2024 |
| Date | 08 February 2024 |
| Published date | 04 March 2024 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
| Citation | 1402954/2022 |
Case No: 1402954/2022
1
EMPLOYMENT TRIBUNALS
Claimant: Mr Mark Hemphill
Respondent: Great Western Hospitals NHS Foundation Trust
Heard at: Bristol On: 11, 12, 13, 14 and 15 December 2023
Before: Employment Judge Street
Appearances
For the Claimant: in person
For the Respondent: Mr D Isaacs
JUDGMENT having been having been given orally and sent to the parties on 9
January 2024 and written reasons having been requested in accordance with
Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following
reasons are provided:
REASONS
1. Background
1.1. This is a claim of unfair constructive dismissal. The claim follows the
resignation of the Claimant in July 2022 after a course of events extending
back to late 2017, when the Trust took on responsibility for the management
of the KERI door security system from Carillion. A series of allegations are
made of breach of contract and bullying. All claims are denied by the
Respondent.
1.2. The hearing had been listed for consideration of the merits only. Remedy is
adjourned to 15 May 2024.
Case No: 1402954/2022
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2. Evidence
2.1. The Claimant gave evidence on his own behalf from a written witness
statement.
2.2. The respondent called 4 witnesses, who gave evidence from written witness
statements. They were Rupert Turk, Director of Estates and Facilities, Kevin
McNamara, Director of Strategy and Community Services, Suzanne Allison-
Green, HR Business Partner and Johanna Bogle, Deputy Chief Financial
Officer and appeals officer.
2.3. The parties presented an agreed bundle of documents of some 700 pages of
which I read those pages to which I was directed. Numbers in brackets in these
reasons are references to the page numbers in the agreed bundle. References
to witness statements use the abbreviation “ws”.
3. Issues
3.1. The issues were discussed at a preliminary hearing on 9 May 2023 and are
agreed as follows, using the numbering in the case management order for
consistency of reference.
1. Constructive Unfair Dismissal
1.1. The Claimant claims that the Respondent acted in fundamental breach of
contract in respect of the express terms of his job description and/or the
implied term of the contract relating to mutual trust and confidence.
The breaches were as follows;
1.1.1 From November 2017, failing to increase the Claimant’s wages when
responsibility for “KERI ” became part of his remit. The Respondent denies that
there was any enforceable agreement to increase the Claimant’s wages and
avers that a job re-evaluation was proposed.
1.1.2 Failing to remove responsibility for KERI from the Claimant’s remit in July
2018.
1.1.3 Amending the Claimant’s 2015 job description without his agreement to
include responsibility for KERI . The Claimant refers to a meeting on 9 August
2018, following which the amendment to his job description was imposed. The
Claimant relies on this as a fundamental breach of contract of itself.
1.1.4 The loss of the Claimant’s appraisals and notes from his personal file,
which the Claimant found out about in or around December 2018. 1.1.4 The
loss of the Claimant’s appraisals and notes from his personal file, which the
Claimant found out about in or around December 2018.
Case No: 1402954/2022
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1.1.5 On 21 December 2018, calling the Claimant to a meeting to discuss
performance improvement (and other matters discussed at the meeting are also
relied on).
1.1.6 Failing to uphold the Claimant's grievance in April 2019. The Claimant
alleges the grievance process was biased and the evidence was not properly
reviewed.
1.1.7 Between April 2020 and April 2021, Kevin McNamara bullying the
Claimant by asking for a multitude of reports or investigations with, the Claimant
avers, impossible timescales and without consideration for his workload;
1.1.8 In June 2021, refusing the Claimant’s request to “retire and return”;
1.1.9 Not dealing with the Claimant’s 10 March 2022 retire and return request
in a timely manner. The Claimant alleges that this amounts to bullying.
1.1.10 Failing to provide confirmation of when the Claimant’s 10 March 2022
retire and return request would be dealt with. The Claimant alleges that this
amounts to bullying.
1.1.11 Engaging an Estates Consultancy firm (with no Health and Safety
experience) to review the team structure, which impacted on whether the
Claimant’s retire and return request would be approved and which was also a
way of bullying the Claimant;
1.1.12 On 24 May 2022 rejecting the Claimant’s 10 March 2022 retire and return
request, which was a way of bullying the Claimant;
1.1.13 In or around June 2022, rejecting the Claimant's Freedom of Information
request;
1.1.14 On 11 July 2022, rejecting the Claimant’s appeal against the decision to
refuse his 11 March 2022 retire and return request, which was also a way of
bullying the Claimant. The Claimant notes that in a three year period, 127
employees applied for retire and return and only one person (the Claimant) was
rejected.
1.1.15 Following the appeal outcome, in July 2022 and prior to the Claimant’s
resignation, failing to amend an affordability statement following the Claimant
highlighting what he considered to be wrong information within the statement.
(The last of those breaches was said to have been the ‘last straw in a series of
breaches, as the concept is recognised in law).
1.2. The Tribunal will need to decide:
1.2.1 Whether the Respondent fundamentally breached the Claimant’s
contract in or around August 2018 by amending his job description
without his agreement; and/or
1.2.2 Whether the Respondent:
1.2.2.1 behaved in a way that was calculated or likely to destroy
or seriously damage the trust and confidence between
the claimant and the respondent; and
1.2.2.2 had reasonable and proper cause for doing so.
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