Manager with reduced role under TUPE was 'unfairly dismissed'

An NHS manager who was told her role was being reduced by half during a TUPE transfer was unfairly dismissed.

That was the ruling of the Employment Tribunal in a case involving Karen Faulkner and the NHS Business Services Authority.

Mrs Faulkner was a senior clinical commissioning manager who worked two days a week from home. She was considered a highly valued employee.

In February 2015, she made a protected disclosure in relation to tender irregularities for a new contract for ambulance services. Because of her disclosures, the procurement process was cancelled and put out to tender again.

In November 2015, Mrs Faulkner’s employment was transferred under TUPE to Southern Derbyshire Clinical Commissioning Group. 

The transfer consultation proceeded smoothly until a meeting that took place in February 2016. Mrs Faulkner said that two hours before the meeting, she was told that she would no longer be able to work from home and that half of her responsibilities were going to be taken from her.

She felt the change was due to her making a protected disclosure and so she lodged a grievance under the whistleblowing policy. An internal investigation found “no relationship between the whistleblowing raised in the previous year and the events surrounding the change to Mrs Faulkner’s role”.

Mrs Faulkner was upset and went on sick leave. She later resigned and brought a claim of unfair dismissal.

The Employment Tribunal rejected her claim that there was a link between her treatment and the protected disclosure so her complaint of unfair dismissal because of whistleblowing was dismissed.

However, it found she was unfairly dismissed because the reduction in her role breached the terms of her employment contract.

Judge Ahmed said: “I am satisfied that there was a very substantial and significant reduction of the Claimant’s role, duties and responsibilities. The loss was not attributed to any TUPE factor.

“In those circumstances the removal of duties amounted to a breach of an express term or terms of

the contract. There is no doubt having regard to the extent of the reduction in duties that it was a fundamental breach which went to the root of the contract of employment.”

Compensation will be decided at a separate hearing.

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