“Overpromoted” practice manager constructively dismissed following bullying by “brusque and blunt” doctor

As I have pointed out over many years. pursuing a claim for constructive unfair dismissal can be a risky course of action because, for the former employee, it brings with it the added burden of having to demonstrate that the employer’s conduct was so unsatisfactory that it established a fundamental breach of a term of the contract of employment, sufficient for the employee to be entitled to treat the breach as operating to terminate the contract. If there is no fundamental breach then there has been no dismissal, hence, there can be no unfair dismissal.

In the case of Williams v Meddygfa Rhydbach Surgery and Doctors Morris, Haque and Smits, Mrs Williams was the practice manager of a rural surgery operated in partnership by the named doctors. She had commenced work in September 1986 as a receptionist and in 1996 was promoted to practice manager at the Botwnog Pwllheli Surgery. According to the judgment, from 2014 the practice found itself in “challenging circumstances”, both financially and in terms of “difficult interpersonal relationships” between admin and clerical staff on one side and the partners on the other. Numerous complaints were raised and ten members of staff identified Dr Smits’ manner as causing distress. He was described as being “direct, brusque and blunt in his manner”. he was also described as “aggressive” and “irascible”. Employment Judge Ryan found that his management style was “at least robust and was often overbearing and, to the Claimant at least, intimidating”. Accordingly, he found that Mrs Williams’ perception that Dr Smits bullied, harassed and intimidated her was “genuine and reasonable”.

The partners had a generally low opinion of Mrs Wiliams. They thought that she was perhaps promoted beyond her ability and that she was in effect working “at the level of a glorified receptionist”. She was not pro-active or enthusiastic as a manager and she had caused concern when she overpaid a caretaker £12,000.

In June 2014 she was called into a meeting during which her performance was criticised. She was surprised and upset and was told that she was to be subjected to performance management. However, she was not offered training or professional management guidance. She was not set targets or issued with any explicit warnings.

In late 2014 Mrs Williams asked whether she could be made redundant. Her request was refused because the partners were concerned that they might not be able to find a replacement.

A practice manager, Deborah Kalaji, was brought in to conduct a “root and branch review of the practice concentrating on managerial improvement”. By this stage Dr Smits acknowledged that Mrs Williams might claim constructive dismissal.

Do employees have to disclose their intention to compete?

In the case of MPT Group Ltd v Peel and others [2017] EWHC 1222 (Ch), the High Court was asked to decide whether employees were under a duty to disclose their intention to compete to their employer.

The facts of the case were that Mr Peel and Mr Birtwistle were employed by MPT Group Ltd (a company that produces and supplies machinery, parts and equipment to the mattress industry) in management positions.  The employees resigned from their positions on the same date, Mr Peel giving the reason for his resignation as wanting to work from home and spend more time with his family, and Mr Birtwistle advising he had been offered a position doing ‘panel wiring’.  They denied that they were leaving to form a partnership/start up their own business in competition with MPT.

Both Peel and Birtwistle were subject to extensive confidentiality clauses and restrictive covenants within their contracts of employment, to the extent that they were prohibited from soliciting or even dealing with customers with whom they had personal contact, for six months.

After the relevant period had expired however, Peel and Birtwistle incorporated MattressTek Ltd, a company that was in direct competition with MPT, and began selling complex mattress machines.  It further transpired that prior to leaving MPT, both men had copied a large amount of company data which included client and supplier databases, price and discount lists, sales quotations and orders, machinery drawings and manuals, and other documentation crucial to MPT’s business.

MPT sought an injunction against the men based on the misuse of confidential information, breach of restrictive covenants, and also upon a breach of the duty to answer questions truthfully.  In particular they sought an interim injunction prohibiting Peel, Birtwistle and MattressTek from soliciting, dealing or contracting with MPT’s customer and suppliers, and an unlimited injunction preventing them from disclosing or using MPT’s confidential information.

Is the denial of a choice of representative a breach of contract?

In 2004 Professor Martin Stevens was appointed to the Chair of Medicine (Diabetes and Metabolism) at Birmingham University.

His duties included leading and co-ordinating a programme of research into the aetiology and management of diabetic neuropathy, foot complications and heart disease complicating diabetes. In addition he led the multidisciplinary diabetic foot service and diabetic neuropathy service across the Heart of England NHS Foundation Trust (HEFT), the organisation from which the University received funds to pay his salary.

Professor Stevens carried out clinical trials for HEFT and the University, in accordance with Good Clinical Practice (GCP). In December 2013 he was himself concerned that there had been breaches of GCP and he reported this. An inspection was carried out and established multiple breaches with the result that Professor Stevens was suspended from any duties associated with research with effect from 20 December 2013. At about the same time the University’s Pro-Vice Chancellor commissioned a management review to determine whether or not any disciplinary action was warranted.

In February 2014 the matter was referred to the General Medical Council, ostensibly on behalf of both HEFT and the University but in fact only on behalf of the University since HEFT was not involved in the disciplinary process.

Following the completion of the management review Professor Stevens was suspended from all duties in July 2014. There were 28 alleged breaches of the University’s Code of Practice for Research, although no allegations that patients were put at risk or inappropriately treated.

Arrangements were made for an “investigation meeting” and Professor Stevens was told that he could be accompanied by a trade union representative or an employee of the University. Professor Stevens was not in a union but was a member of the Medical Protection Society, a medical defence organisation. Professor Stevens wished to be accompanied by Dr Roger Palmer, an MPS representative who had been supporting him since the initial allegations were made in December 2013. The University refused on the basis that Dr Palmer was neither a member of staff nor a union representative. He maintained that he had no friends who were employees and would be suitable to accompany him other than members of staff involved in the trials who might therefore be called as witnesses.

The University contended that it was concerned that by allowing Dr Palmer to accompany Professor Stevens there would be a departure from the terms of the contract of employment and, in particular, the disciplinary procedures agreed between the University and its approved Union in 2008. It did not wish to create a precedent.

Accordingly the matter which had to be determined by Mrs Justice Andrews, sitting in the High Court, was whether Professor Stevens did or did not have a contractual entitlement to be accompanied by Dr Palmer.

a very expensive assumption

The outcome of Vision Events (UK) Ltd v Paterson was, to say the least, harsh on the claimant, Mr Paterson. He worked as a multimedia producer on a flexi time basis. He enjoyed his job. He had joined the Company in 2004 and after a promotion in 2008 his salary increased from £21,000 per annum to £28,000 per annum but without overtime (as had previously been paid). However, in place of the overtime he was entitled to flexitime whereby if he worked beyond his contracted 45 hours per week he was entitled to take time off at a time to suit the employer. He did not take all the time off he could have. When he asked to take a block of flexi time off in one go to make a trip to New Zealand, his employer refused to let him. He built up over 1000 hours owing to him, at which point, in May 2012, he was (fairly) selected for redundancy. Unsurprisingly, he looked for payment for those hours, but his employer maintained that there was no obligation to pay him at all – there was nothing in his contract saying they had to. The employer did offer a part payment in respect of the extra hours. This offer was refused and it was withdrawn. He successfully made a claim for unlawful deductions from wages in the Employment Tribunal. He was awarded £12,514 for 1042.84 hours. the employer appealed.
It is worth noting that the employer had not entirely ignored the flexi-time procedure in its documentation. There was a policy in the handbook:
Although the system is intended to be flexible and beneficial to both companies and employee, the company always retains the final say in determining the hours to be worked by all employees.

Due to the nature of the company’s business, flexi-time system, without appropriate rules would result in chaos, therefore the system is based on the principles of organised flexibility and prior notification of all variations in working hours.

The basic rules of the flexi-time system are explained below with the timesheet example in the next section giving an idea of how it is administered in practice.

1. Unless otherwise stated in the employee’s statement of particulars of employment, or otherwise agreed with their direct manager no later than 17:30 the previous working day, all employees are expected to start work no later than 08:30 each day. Any employee not at work by that time without prior agreement to the contrary will be considered late for work.

2. Employees are not allowed to let the number of flexi-hours they are carrying drop below zero at any time, without specific prior agreement from the company. Where this is agreed, the employee will be required to make up the time as soon as possible, subject to the requirements of the company.

3. If an employee is carrying a number of flexi-hours greater than zero, then they may or may not be entitled to be paid overtime as defined employee’s statement of particulars of employment [sic] if overtime is payable then the employee will normally be paid 50% of their outstanding flexi-hours as overtime each month. Normally this is calculated at the end of each month but the accrued position can be calculated at any interim date if necessary. If an employee is not carrying any flexi-hours at the end of the month, then they are not entitled to be paid overtime.

4. In exceptional circumstances employees may request to be paid more than the normal 50% of outstanding flexi-time. The company will not be obliged to agree or give reasons for declining the request.

5. Overtime is calculated on a monthly basis and is not determined by the length of any work period on any particular day.

6. Flexi-time will be paid as the number of hours multiplied by the employee’s hourly salary rate.

7. Any flexi-hours not paid are carried forward to the next month.

8. The company reserves the right to instruct that all or part of an employee’s outstanding flexi-time is taken as time off, rather than being held for payment.

9. All requests to take time off using the company flexi-time system must be approved in advance by the administration manager.

However, critically in this context, no mention was made of arrangements to apply on the termination of employment