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Dispensing bad news – Be careful who is listening in!
A tribunal has ruled that a pharmacy dispenser who overhead her manager say that getting rid of her was a, “work in progress” was constructively dismissed.

Mel Warrington worked for Lloyd’s Pharmacy as a dispenser at Cambridge’s Addenbrookes Hospital from May 2004 until November 2016. The tribunal heard that in August and September 2016, her line manager spoke to her about her performance but, other than this, she had no formal disciplinary record at that point.

Around September 2016, there was a change in her line management. The tribunal was told that Ms Warrington’s new line manager spoke informally with her because, “she could be disruptive, and she upset colleagues on occasions”.

During the conversation, the line manager told Ms Warrington that her behaviour “might come across as a bit aggressive and abrupt”, to which she responded: “That’s just how I am.” The line manager then told her, “You need to reflect a little bit on your own behaviour.”

On 25th October 2016, Ms Warrington underwent pre-planned surgery and was signed off sick until 22nd November. The line manager held a sickness absence review meeting in a coffee shop, as Ms Warrington did not want to meet at her home and this was a “neutral venue”.

During the meeting, the line manager asked how Ms Warrington was coping with her children, a question the employee felt was inappropriate. She spoke to HR who advised her to raise her concerns at her return to work meeting. However, no formal meeting took place, although the line manager recalled a conversation a few days after Warrington’s return.

The line manager also took notes during the sickness absence review meeting but did not provide these to Warrington.

Mel Warrington resigned a week after returning, giving four weeks’ notice. On 8 December, she raised a formal grievance. As part of this, she alleged that she overheard her line manager whisper to a colleague that, “getting rid of Mel is a work in progress”. Although the line manager said as part of her evidence that she did not remember making this comment, the tribunal found that, on balance, it was likely she did make such a comment.

Ms Warrington also claimed that her line manager had not supported her in dealing with a colleague who had raised a grievance against her. Warrington had attended a disciplinary meeting about the grievance the day after she returned to work.

The employment judge was critical of the employer, noting the lack of a formal return to work meeting and support surrounding the grievance that Ms Warrington’s co-worker filed potentially backed up her constructive dismissal claim.

Finding that Ms Warrington had been unfairly dismissed, the judge decided that the overheard comments about getting rid of her contributed to her resignation. He said, “Clearly it is a remark that is substantially undermining of the employment relationship, intended to be so.”

There can be times where managers can get frustrated with employees but following due process and not discussing a case within earshot of the employee will help prevent similar grievances.

Even though the tribunal rejected the claim that holding the sickness absence meeting in a coffee shop contributed to the constructive dismissal, it is always a bad idea to have a conversation about personal matters such as sickness absence in public places or open-plan offices where employees may find it awkward to discuss such issues. These should always be held confidentially particularly considering the new Data Protection Act and the GDPR treatment of Special Category Data (previously known as sensitive personal data.)
Posted on 25 Jun 2018

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