Constructive Unfair Dismissal and Victimisation: Dr. McInerney v Nottinghamshire Healthcare NHS

By Rachel Ellis Partner & Regional ER Manager &

Jazmeer Jackson Employment Rights Lawyer

Dr. Bernadette McInerney was employed as a Consultant Forensic Psychiatrist at Rampton Hospital by Nottinghamshire Healthcare NHS Foundation Trust from 2003 until her retirement on 1 February 2019. Dr. McInerney brought two claims before the Employment Tribunal (ET): constructive unfair dismissal and victimisation. 

The unfair dismissal claim arose from several alleged breaches of trust by the Trust’s managers and clinicians, which she claimed forced her to retire. The victimisation claim focused on the Trust’s refusal to consider her for a part-time position at its Forensic Gender Clinic—a role she had previously carried out on a monthly basis during her employment. 

Tribunal Decision

 
The ET found in favour of Dr. McInerney on both claims. The tribunal ruled that the Trust fundamentally breached the implied term of trust and confidence, culminating in Dr. McInerney's resignation. Additionally, the ET concluded that the refusal to consider Dr. McInerney for the part-time role was an act of victimisation linked to her earlier tribunal claim. 

The remedy hearing awarded Dr. McInerney £95,112 for unfair constructive dismissal, £20,000 for injury to feelings, £10,000 for aggravated damages, and £23,344.30 for loss of earnings from the victimisation. However, her claim for more substantial losses to an alleged retirement age of 75, was largely unsuccessful due to insufficient evidence. The Claimant had also claimed she could not mitigate her loss due to a loss of confidence caused by the Respondent’s actions. 

EAT Appeal and Outcome 

Dr. McInerney appealed the ET's findings on loss of earnings related to her victimisation claim, arguing that: 

1. The ET failed to apply a "percentage chance" approach to the assessment of her losses. 
2. The ET erred in calculating her retirement age, failing to accept her evidence that she would have worked until 75. 
3. The ET failed to apply the "eggshell skull" principle regarding her claimed medico-legal losses. 
4. The ET incorrectly applied the burden of proof regarding a failure to mitigate losses, placing this on her rather than the Respondent. 

The Employment Appeal Tribunal (EAT), however, dismissed the appeal on all grounds: 

• Medico-Legal Loss: The EAT upheld the ET's decision that Dr. McInerney had not provided sufficient medical evidence to support her claim of a loss of confidence that allegedly prevented her from undertaking medico-legal work contributing to her loss of earnings The ET was entitled to find that her self-diagnosis, unsupported by independent medical evidence, was insufficient. 

• Retirement Age: The ET's decision to calculate Dr. McInerney's losses based on a retirement age of 67 was upheld. The EAT noted that this decision was based on comparable retirement data in relation to industry norms, and that Dr. McInerney’s claim to work until 75 was unsupported by evidence. 

• Eggshell Skull Principle: The EAT found no evidence that the ET had failed to take Dr. McInerney’s specific circumstances into account. The ET had simply found her evidence on the alleged loss of confidence unconvincing, and it was entitled to do so. 

• Mitigation: The ET did not err in relation to the burden of proof for failure to mitigate. The ET concluded that Dr. McInerney did not suffer the claimed loss of earnings from medico-legal work, and her limited efforts to seek such work suggested a lack of genuine intent to mitigate. 

Key Takeaways 

1. Medical Evidence is Crucial: This case underscores the importance of providing robust medical evidence when claiming losses based on mental health conditions. Self-diagnosis, particularly in high-value claims, is unlikely to be sufficient. 
2. Victimisation and Career Impact: Claimants must demonstrate clear causation between alleged victimisation and claimed career impacts, such as an inability to work or a loss of confidence. Unsupported assertions are not likely to meet the evidential threshold required by the tribunal. 
3. Retirement Age Calculations: When calculating losses, an ET will require independent evidence to support a claimant's assertions regarding their intended retirement age. If such evidence is not provided, the tribunal may rely on industry norms and comparable data. 
4. Burden of Proof in Mitigation: In considering whether a claimant has mitigated their losses, the burden is on the respondent to show that the claimant acted unreasonably. However, a claimant’s actions, or lack thereof, can influence the tribunal’s assessment of whether they genuinely intended to mitigate their losses. 

Implications for Trade Union Representatives 

This case highlights the need for claimants to be well-prepared when presenting claims for financial loss based on health impacts or career aspirations. It is vital for trade union representatives to advise members on the importance of gathering independent, expert evidence to support such claims. Additionally, potential claimants should be made aware that tribunals may not accept self-reported assessments of mental health or future career intentions without corroborating evidence.