UK: Unfair Dismissal: Employer's Failure To Follow Its Own Informal Disciplinary Procedure Resulted In Constructive Dismissal

Last Updated: 20 June 2019
Article by Nick Chronias, Ceri Fuller and Hilary Larter

An employee of an NHS Trust who resigned in response to the issuing of an informal "Improvement Notice" in a manner which was inconsistent with her employer's policy was constructively dismissed.

The facts

Mrs Starling worked for Epson & St Helier University Hospitals NHS Trust as a fertility nurse specialist in the Assisted Conception Unit (ACU). She was employed by the Trust for 40 years at the time of her constructive dismissal and had a clean disciplinary record.

Mrs Starling was aware that incubators needed to be put on to charge ready for a procedure the next day. However, one afternoon she developed a sudden headache and her vision become distorted. One of the Consultants in the ACU advised her to go immediately to A & E, believing that she might be having a stroke or have meningitis. She went to A & E, forgetting to switch on and charge the incubators. When she realised this the next morning, she called the lead Consultant, Dr Croucher, to tell her. However, this was too late for the incubators to be charged. The possible ramifications of this were serious, and could have put a patient's entire IVF cycle at risk.

Dr Croucher considered that an "Improvement Notice" should be issued to Mrs Starling. She drafted the document and told the matron, Matron Barron, to serve it on Mrs Starling. This notice stated that it was being issued "to ensure that in the future you take the appropriate steps regarding the charging of the incubators in order to prevent any further incidents. Should there be any further issues of this nature; formal action may be taken under the Trusts Disciplinary Policy [sic]. The purpose of raising this with you informally and issuing this informal notice is to ensure that you have been provided with the opportunity to improve, and therefore I hope that any future formal disciplinary action will not be necessary." When Matron Barron issued the letter she spoke briefly with Mrs Starling and handed the pre-prepared letter to her. No meeting was held with Mrs Starling before the Improvement Notice was issued, so Mrs Starling did not have the chance to give her version of events. Mrs Starling was later diagnosed with a brain tumour.

Soon afterwards, Mrs Starling gave notice of her resignation. She gave two reasons for this: the service of the improvement notice and possible alterations to her working hours.

Mrs Starling's notice period was extended, by agreement, because of her period of illness. When she had recovered, she asked for her resignation to be retracted. The Trust did not agree to this and her contract came to an end.

Mrs Starling claimed that the issuing of the Improvement Notice and the alteration in her working hours were both breaches of the implied term of trust and confidence and that she had been constructively dismissed.

The employment tribunal found that the alteration in her working hours was not a breach of trust and confidence. However, scrutinising the Trust's disciplinary policy, the tribunal considered that the policy clearly anticipated that there would be an informal meeting with an employee before deciding to issue an Improvement Notice. There had been no such meeting. There was a clear link in the policy between an Improvement Notice and more formal disciplinary action. The employment tribunal concluded that the issuing of the Improvement Notice without a meeting first had been a breach of trust and confidence and that Mrs Starling had resigned in response to this breach. It did not consider that the fact that she later sought to return to work in the unit affected this. It held that Mrs Starling had been constructively dismissed.

The Trust appealed to the EAT. It argued that the employment tribunal had erred in its interpretation of the effect of the disciplinary procedure and that it had treated the Improvement Notice as a disciplinary sanction, when it was an informal step and part of an informal process. According to the Trust, it was an error of law to find that the implied term of trust and confidence operated so as to require the same procedural steps to be taken in respect of an informal non-disciplinary measure as would be required for a formal sanction.

The Trust also argued that the tribunal had erred in law by failing to find that Mrs Starling had affirmed the contract by her conduct after the resignation.

The EAT dismissed all grounds of the appeal.

What does this mean for employers?

This is a clear reminder to employers that to prevent creating unnecessary constructive unfair dismissal risks, they must follow their policies, including the procedural steps set out in respect of informal measures. This is the case, even where employers are not considering dismissal, as an employer's actions are also moderated by the mutual implied duty of trust and confidence which might be breached where policies are not followed.

Epsom & St Helier University Hospitals NHS Trust v Starling

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions