A senior NHS manager who was told before a TUPE transfer that her role would be reduced by 50 per cent – leaving her with only admin work – was constructively unfairly dismissed, a tribunal has ruled.
Karen Faulkner was also told she would be unable to continue working from home, in what the tribunal found was an attempt to undermine her employment.
She successfully claimed that the NHS Business Services Authority had constructively unfairly dismissed her because of its acts and omissions amounting to alleged breaches of express and implied terms of her employment.
Faulkner was an ‘embedded’ employee within an NHS clinical commissioning group (CCG), which meant she worked within the CCGs but was not employed by them. Her role involved being commissioning manager for four Derbyshire CCGs, and representing her region at meetings of the East Midlands Ambulance Service (EMAS), among others.
Faulkner had a full-time, senior leadership role, of which two days a week were worked from home. She undertook her performance and duties well and was a highly valued employee, the tribunal found.
In November 2015, her employment was transferred under TUPE to the Southern Derbyshire CCG. She remained in an embedded role, with line management and day-to-day matters undertaken by the CCG rather than the Commissioning Support Unit.
In February 2015, she made a protected disclosure in relation to tender irregularities for the procurement of a new contract for the provision of ambulance services for the Derbyshire region.
The tribunal said she claimed she had been put under pressure to improve the tender prospects of a bidder by deleting scores and entering revised scores in the tender offer on two occasions. The first was reported to have been in October 2014.
On the second occasion, Faulkner alleged that pressure was applied on her at the final evaluation meeting “to achieve results in favour of a particular outcome by altering scores”. Faulkner declined to alter the scores and instead reported the matter to senior management. As a result of the disclosures, the procurement process was cancelled and re-tendered.
In May 2015, there were discussions of a TUPE transfer of Faulkner’s embedded role from Arden and Greater East Midlands Commissioning Support Unit (AGEM CSU) to Southern Derbyshire CCG, to which she did not object in principle.
In November, Mike Hammond, head of urgent care at Southern Derbyshire CCG, wrote to AGEM CSU to confirm that Faulkner’s role would be TUPE transferred.
On 17 December 2015, Hammond wrote to Mr Timson of AGEM CSU to say that the TUPE transfer involved measures that “do not constitute substantial changes in working conditions [of Faulkner]”.
Faulkner was invited to meetings in 2016 regarding the proposed transfer. Although the first was uncontroversial, as she understood that the change was a “like for like” swap of roles, the second consultation meeting on 4 February was “much more troubling”.
The judge accepted Faulkner’s evidence that two hours before that meeting, she was informed that she would no longer be permitted to work from home – which she had done for some time – and that the EMAS element of her role, which she viewed as 50 per cent of her job, would be unilaterally removed from her, without indicating to where, to who or why.
During transfer discussions, mostly conducted by email, there were two key messages, both from Kate Schroder, interim head of commissioning at Southern Derbyshire CCG. Both were sent to Faulkner in error.
In the first, Schroder questioned “how anyone can do a real role from home 100 per cent esp [sic] one with contract commissioning in leadership.
”The feedback from Jackie re EMAS is that Karen rarely ever showed to meetings and never contributed…”
In the second email, Schroder wrote: “Wondering the date of Gary’s talk to all staff explaining the realignment? And given Jackie’s reply re Karen’s rare attendance at EMAS meetings, what she has been doing during her day.”
At a later meeting, Faulkner was told there was no objection to her working from home and it was agreed that a new job description would need to be prepared, but this had not yet been done.
Faulkner noted the link between the emails and the disclosure she had made earlier, however, and the meeting was adjourned to allow her to decide what to do. The following day, Faulkner confirmed that she would lodge a grievance under the whistleblowing policy.
Timson appointed Karen Warren, another senior HR manager, to deal the grievance. Warren concluded that there was “no relationship between the whistleblowing raised in the previous year and the events surrounding the change to Mrs Faulkner’s role” in her 31 March 2016 report, a copy of which Faulkner received on 6 April.
Warren accepted that the emails were sent in error and that Schroder was prepared to offer a face-to-face meeting to apologise and explain the rationale behind the emails.
A conference call was planned on 7 April to discuss the grievance outcome, but by this stage Faulkner was “too distressed to take part, having broken down in tears at a meeting the previous week”. The following day she went on sick leave, continuing through April and May.
She was referred to occupational health in June, and on 22 July submitted her resignation letter. In August, she notified Acas of early conciliation and on 20 September lodged her tribunal claim.
The tribunal judge found there was a “significant unilateral removal of [her] duties and responsibilities. A very large proportion of [her] role was removed without just cause.
“I am satisfied that there was a very substantial and significant reduction of [her] role, duties and responsibilities.”
The “clearly significant and substantial” loss was not attributed to any TUPE factor.
As well as being excluded from the second procurement of the EMAS role – the first having ended because of inappropriate pressure – Faulkner was not copied in on any communications in relation to the new contract, the judge noted.
Kevin Parkinson, brought in by Schroder to take over the contract negotiations, was told not to copy Faulkner in on any communications in relation to the second contract, he added.
The EMAS role, a significant part of Faulkner’s job, “was taken away and given to a more junior and less experienced employee”.
“There can be no doubt that large sections of [her] responsibilities set out in her job description… were taken away without explanation,” the tribunal found. The judge accepted her evidence that she was left with “very little to do other than some admin work”.
The judge also criticised the respondent for trying to rely on “a variation clause in [Faulkner’s] contract as justification for the unilateral removal of those duties”. Any such clause is subject to the principle that it can only apply to ‘reasonable’ changes, on which there is no direct evidence.
“In any event the contractual provision that the job description ‘may be reviewed’ is not satisfied because there was in fact no review concluded by the time of the resignation and no amended job description had been produced,” he found.
In those circumstances, the removal of duties amounted to a breach of an express term or terms of the contract, of which there is “no doubt that the reduction in duties was a fundamental breach” at the root of the contract of employment, he found.
The judge was satisfied that the removal of the duties and responsibilities was a key reason for Faulkner’s resignation. She had objected to it after she became aware of the changes and protested continuously through the process. The removal of responsibilities was cited as a reason for leaving in her resignation letter.
The judge also criticised the respondent for a “poorly handled grievance”, which failed to follow its own policy.
Further, Faulkner’s whistleblowing complaint should have been the focus, but Warren identified it as ‘bullying and harassment’. Warren “completely omitted the first two paragraphs of the grievance, which clearly explain that the grievance was one of whistleblowing”, said the judge.
There were also no face-to-face meetings with any interviewees. The conversation between Warren and Faulkner was brief and on a poor mobile telephone connection, when it was impossible to have a detailed conversation.
Warren “appeared to take at face value what she was told by Jones as to her belief that Mrs Faulkner contributed very little at meetings ‘based on minutes of the meeting’. Mrs Warren did not actually look at the minutes themselves.”
Warren’s recommendation of a face-to-face meeting with an apology “failed to address the complaint”. Either Faulkner had suffered a detriment because of whistleblowing or she had not, but “a face-to-face meeting to offer an apology was neither here nor there”.
Although Faulkner’s resignation letter did not mention failings in the grievance process, the judge found that this was because she was extremely upset the day after she received the grievance outcome report and was unable to proceed with a conference call as planned.
“I am satisfied that the handling of the grievance and the delivery of the grievance outcome amounted to a ‘last straw’,” the judge found. Neither were innocuous acts and “certainly contributed something to the breach or series of breaches. Accordingly, the allegation as to a breach of the implied term succeeds,” he ruled.
As to the protected disclosure, the judge was unable to draw an inference that the reasons were connected to or caused by it.
The issue of remedy will heard at a separate two-day hearing.