Employee overheard manager say getting rid of her was a ‘work in progress’, tribunal told

12 Jun 2018 By PM Editorial

Constructive dismissal victory for pharmacy dispenser after judge finds comments ‘undermined’ employment relationship

A pharmacy dispenser who overhead her manager say getting rid of her was a “work in progress” was constructively dismissed, a tribunal has ruled.

Mel Warrington worked for Lloyd’s Pharmacy as a dispenser at Cambridge’s Addenbrookes Hospital from May 2004 until November 2016. The tribunal heard that in August and September 2016, her line manager spoke to her about her performance but, other than this, she had no formal disciplinary record at that point.

Around September 2016, a line management change occurred. The tribunal heard that Warrington’s new line manager spoke informally with her as “she could be disruptive and she upset colleagues on occasions”.

At one point, the line manager suggested that Warrington’s behaviour “might come across as a bit aggressive and abrupt”, to which the dispenser responded: “That’s just how I am.” The line manager then told her: “You need to reflect a little bit on your own behaviour.”

On 25 October 2016, Warrington underwent pre-planned surgery and was signed off sick until 22 November. The line manager held a sickness absence review meeting in a coffee shop, as Warrington did not want to meet at her home and this was a “neutral venue”. 

During the course of the meeting, the line manager asked how Warrington was coping with her children, a question Warrington felt was inappropriate. HR advised her to raise her concerns at her return to work meeting. However, no formal meeting took place, although the line manager recalled a conversation a few days after Warrington’s return. 

The line manager also took notes during the sickness absence review meeting but did not provide these to Warrington. There was also the suggestion that Warrington would receive only statutory sick pay for her time off, as company pay was discretionary. However, she did in fact receive company sick pay. 

Warrington resigned a week after returning, giving four weeks’ notice. On 8 December, she raised a formal grievance. As part of this, she alleged that she overheard her line manager whisper to a colleague that “getting rid of Mel is a work in progress”. Although the line manager said as part of her evidence that she did not remember making this comment, the tribunal found that, on balance, it was likely she did make such a comment.

Warrington also claimed that her line manager had not supported her in dealing with a colleague who had raised a grievance against her. Warrington had attended a disciplinary meeting about the grievance the day after she returned to work.

The dispenser also complained about comments – “What’s Mel doing here?” – an area manager made at an awards event. However, her line manager explained that the area manager may have been surprised to see her because the event was taking place on a day Warrington did not usually work and they may have thought she was still on sick leave. 

Finding that Warrington had been unfairly dismissed, employment judge G P Sigsworth said the overheard comments about getting rid of her contributed to her resignation. 

“Clearly it is a remark that is substantially undermining of the employment relationship, intended to be so,” the judgment read. 

The judgment also noted that the lack of a formal return to work meeting and support surrounding the grievance Warrington’s co-worker filed potentially backed up her constructive dismissal claim.

However, Sigsworth concluded there was roughly a 50 per cent chance Warrington would have been dismissed fairly by the end of January 2017. The tribunal also rejected claims that other actions, such as holding the sickness absence meeting in a coffee shop and the comments made at the awards event, contributed to constructive dismissal.

“This case is a timely reminder for employers to follow their own internal management processes,” Keith Williams, partner in the employment law team at Greenwoods GRM, told People Management. “If the employer in this case had done so, the manager’s unfortunate comment, in itself, may not have been enough to lead to a finding of unfair dismissal.”

Warrington could not be reached for comment. A Lloyd’s spokesperson confirmed that it had attended the tribunal and its outcome but did not comment further. 

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