It's not what you say - improvement notice was breach of contract

Was it a breach of the implied duty of trust and confidence to give an employee an informal improvement notice without giving her a chance to explain the situation? Yes, if the employer had not followed its own policy in doing so, according to the EAT in Epsom & St Helier University Hospitals NHS Trust v Starling.

The employee was a nurse. On one shift, she was responsible for switching on some equipment to charge before she left for the day. It was critical that the equipment was switched on and the consequences of not doing so were potentially serious for the patient and the hospital. However, the employee was taken ill in the course of her shift and was advised to go to A&E with a suspected mini-stroke. She did not return to work that day and the equipment was not switched on as required.

As a result the employee was issued with an informal "improvement notice". Although this was not a disciplinary warning, it was the first informal stage of the disciplinary process. The employee complained, because she had not been given an opportunity to explain the circumstances before the notice was issued. The employer's procedures clearly envisaged that it would hold a meeting to discuss any cause for concern before issuing an improvement notice and that an improvement notice was not the inevitable outcome of such a meeting. Eventually the employee resigned and claimed constructive dismissal.

The tribunal found that the employer's failure to hold an informal meeting was likely to seriously damage trust and confidence, particularly in light of the employee's almost 40 years of service. The EAT upheld that decision. The policy indicated that an informal meeting would be held to discuss issues of concern and that a decision to issue an improvement notice would only be taken after such a meeting was held. The tribunal had not found that the employer had to conduct a formal investigation into the incident, simply that on the facts of this case it was a breach of the duty of trust and confidence not to have held an informal discussion before deciding to issue an improvement notice to this long-serving employee.