In healthcare, patient safety and professional conduct are paramount, and trust in medical staff is crucial. However, when these principles are undermined by wrongful actions, it can lead to significant consequences for the professionals involved.
A recent case that has drawn attention is the wrongful suspension of Jessica Thorpe, who was suspended for two years after a patient falsely claimed she was “pregnant with his child” and they were having an “inappropriate relationship”. This case highlights the difficult balance between employment law and professional ethics when handling allegations against NHS staff.
Background: The Allegation
In April 2020, Ms Thorpe was suspended from her role as nurse assistant at Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust (the Trust), after a patient claimed that she was pregnant with his child. This accusation was based on nothing more than the patient’s assumption. Thorpe had no pregnancy and was not, at any point, in a condition that could justify the patient’s assertion.
The suspension was instigated following the complaint in early 2020. However, the investigation did not commence until July 2021. The patient’s claim was considered seriously, and Ms Thorpe was removed from her duties while an investigation was conducted. However, the lengthy nature of the investigation and the failure to clarify the truth quickly resulted in Ms Thorpe being left unable to work and facing the potential for permanent damage to her professional reputation.
Following the investigation, in July 2021 a panel ruled that there was no evidence to uphold the relationship allegation and the suspension was lifted. However, instead of being informed of this decision, Ms Thorpe received a letter stating that the panel was not in a position to reach a conclusion because of “other investigations”.
Breakdown of Jessica Thorpe’s Claims Against the NHS
Jessica Thorpe successfully sued the Trust for constructive unfair dismissal, unlawful deduction of wages and breach of contract.
1. Constructive Unfair Dismissal
Constructive unfair dismissal occurs when an employee resigns due to their employer’s actions, which have made it impossible for the employee to continue working in their job. In order to being a claim for constructive unfair dismissal, the employee must demonstrate:
- The employer’s behaviour was a fundamental breach of the employee’s employment contract by the employer.
- The employee resigns in response to their employer’s breach, and the resignation must be a direct consequence of the employer’s actions; and
- The resignation should be made immediately by the employee (without giving notice).
In Ms Thorpe’s case, the prolonged suspension and failure to handle the investigation in a timely and transparent manner effectively forced her to resign. Ms Thorpe was finally allowed to return to work in October 2022, 29 months from her initial suspension.
2. Unlawful Deduction of Wages
An unlawful deduction of wages occurs when an employer withholds pay or makes deductions from an employee’s salary without lawful justification. In the UK, employers can only make lawful deductions from employee’s wages in certain circumstances:
- With the employee’s prior consent; or
- As required by law – e.g. tax and national insurance contributions; or
- Under the terms of the employment contract
Ms Thorpe was losing around £1,000 a month while she was suspended.
3. Breach of Contract
A breach of contract claim arises where one party fails to fulfil the terms of the employment contract. For example:
- Failing to pay agreed wages, or benefits such as holiday pay;
- Failing to follow specific agreed terms, such as changing the employee’s role of location significantly by consent; or
- Failing to provide notice of termination of employment; or
- Mistreatment that breaches the implied duty of mutual respect and fairness in the workplace
Ms Thorpe argued that that the actions by the Trust of suspending her without proper justification and failing to investigate in a timely manner, were seen as a breach of the implied terms of mutual trust and confidence.
Lessons for Employers
This case serves as a critical reminder for employers on the importance of being cautious and transparent when handling allegations and suspensions. It highlights the importance of:
- Ensuring Thorough Investigations: Allegations, especially those that may seem trivial or unsubstantiated, must be thoroughly investigated before any suspension is considered.
- Following Due Process: Employers should adhere to clear, fair processes that respect both the employee’s rights and the integrity of the organisation.
- Protecting Employees’ Reputation: Employers must take steps to ensure that employees are not unjustly harmed by rumors or baseless claims, especially in high-profile settings like healthcare.
How Branch Austin McCormick LLP can help
If you believe that your employer has fundamentally breached your employment contract, which has left you with no choice by to resign, or if you consider that your employer is otherwise in breach of your employment agreement, then please contact our Employment Team, Elliot Hammer at eh@branchaustinmccormick.com and Emily Iveson at ei@branchaustinmccormick.com.
Elliot Hammer has acted for many successful claimants in the Employment Tribunal including:
1. Mr O Oni in his successful claim for loss of wages and wrongful dismissal. Here: https://assets.publishing.service.gov.uk/media/5d9460a2ed915d556d8e7b8e/Mr_O_Oni__-v-_Abbatt_Property_Services_London_Limited__-_Judgment__-_case_No.__3200513_2019.pdf
2. Mr A Fox in his successful claim for loss of earnings and unfair dismissal. Here: https://assets.publishing.service.gov.uk/media/616546888fa8f529777ffb95/A_Fox_v_Aurelius_Environmental_Limited_3312050-20_EJ.Ord_JUDGMENTf.pdf
