Complainant

Respondent

Parties

Mary Ruth  Marcos

Marymount University Hospital & Hospice Company Limited by Guarantee

Representatives

Mr Liam O’Brien BL instructed by Katherina White, Katherina White Solicitors

Mr Des Ryan BL instructed by Leah Moriarty RDJ LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00070409-001

31/03/2025

The Complainant commenced employment with the Respondent on 29 April 2002 as a Staff Nurse and worked approximately 30.5 hours per week, earning net pay of approximately €1,200 per fortnight. She remained in employment until her resignation on 3 January 2025, which took effect on 1 February 2025.

The complaint arises from a disciplinary process initiated in July 2024 concerning allegations that the Complainant engaged in parallel employment involving a patient under the Respondent’s care. Following an investigation, a disciplinary hearing resulted in a decision to dismiss the Complainant. On appeal, this sanction was reduced to a final written warning, together with a requirement, amongst other things, that she work day shifts only for a period of six months.

The Complainant submits that the Respondent’s actions, including her suspension, the escalation of the disciplinary process, and the imposition of what she characterises as an unreasonable and disproportionate sanction, amounted to a course of conduct that left her with no reasonable alternative but to resign. She contends that she was therefore constructively dismissed within the meaning of the Unfair Dismissals Act 1977.

The Respondent denies that there was any dismissal, asserting that the Complainant voluntarily retired. It submits that its actions were reasonable and proportionate, and that the Complainant has failed to discharge the burden of proof required to establish constructive dismissal.

The Complainant gave evidence that she had been employed as a nurse with the Respondent since 2002–2005. She stated that she had a long and positive employment record with no prior disciplinary issues. She explained that in or around 2016 she sought to work predominantly night shifts. This request arose due to her own diagnosed anxiety, and the need to care for her son, who had a serious mental health condition.

She stated that this arrangement was facilitated in practice, although she accepted there was no formal contractual entitlement to exclusive night work.

The Complainant gave evidence that she had, at a separate time, worked for a home care company. Through that role she became acquainted with a particular service user, Ms A. After leaving that employment, the service user continued to contact her and requested assistance. The Complainant initially resisted but began attending the service user in what she described as an informal capacity.

She characterised this arrangement initially as “companionship” and later as more involved care as the individual’s condition deteriorated. She stated that she did not consider this to be formal employment and that any payments were irregular at first and only later became more consistent. She stated that she did not inform the Respondent of this arrangement because she believed there was no contractual obligation to do so and that it did not interfere with her duties.

The Complainant gave evidence that she was unaware of any concerns until she received correspondence initiating an investigation in July 2024. She stated this came as a surprise.

She was subsequently placed on what she understood to be a form of suspension (albeit with pay), which she considered unfair. She stated that she wished to continue working during the process.

Following the investigation, a disciplinary process was initiated. The Complainant stated that she believed the investigation had found in her favour and was therefore surprised that the matter proceeded to disciplinary stage.

She gave evidence that she was dismissed following the disciplinary process. She described this as “really… unfair” and stated that she had “done nothing wrong in the hospital.” She appealed that decision. On appeal, the dismissal was overturned and replaced with a final written warning, and a requirement that she work day shifts exclusively for a period of six months.

The Complainant gave evidence that this requirement caused her significant distress. She stated that working day shifts exacerbated her anxiety and conflicted with her caring responsibilities for her son. She said that she had previously attempted day shifts but became unwell and “uneasy.” She described feeling that she had been treated unjustly throughout the process and that her long service had not been recognised. She stated that she felt she had to choose between her health, her son’s needs, and her employment. She decided not to return to work and instead retired. She stated that this was not a voluntary choice in substance, but rather that she felt she had “no option.” When asked directly, she confirmed that had the sanction (in particular the day shift requirement) not been imposed, she would have wished to continue working.

Cross-Examination

Under cross-examination, the Complainant accepted that her contract of employment provided that rostering, including day and night shifts, was at the discretion of management. She accepted that there was no contractual guarantee of exclusive night work, although she maintained that such an arrangement had been the established practice for her.

She was taken to the investigation report and accepted that it recorded that the allegation against her had been “partially upheld.” She also accepted that she had not formally challenged the findings of that report at the time. In relation to the suspension, it was put to her that this was a protective measure and that she had remained on full pay. She accepted that she had been paid but maintained that she considered the measure unfair and that she wished to continue working.

It was put to her that the appeal process had been thorough and that the sanction imposed was a reduced and more proportionate outcome compared to dismissal. She accepted that the dismissal had been overturned but did not accept that the resulting sanction was reasonable, particularly the requirement to work day shifts.

The Complainant was questioned about a requirement arising from the appeal outcome that she discloses details of any parallel employment. She accepted that she did not complete the requested form. She stated that she did not believe it was appropriate to disclose such information, describing it as her “personal affair outside my job.”

In relation to medical evidence, it was put to her that occupational health had indicated there was no absolute medical contraindication to working day shifts. She disputed the weight of that opinion, stating that her own doctor was more familiar with her condition and that day shifts exacerbated her anxiety.

Regarding the question of resignation vis a vis retirement, the Complainant accepted that she had retired rather than formally resigning. She confirmed that she had sought and received information regarding her pension entitlements and had submitted a written retirement notice. The Complainant accepted that her retirement letter referred positively to her experience with the Respondent. However, she maintained that her decision was not voluntary in substance, stating that she felt compelled to retire due to the circumstances created by the Respondent.

She was also questioned regarding mitigation of loss. The Complainant accepted that she had engaged in some form of self-employment following her departure and gave an estimate of modest monthly earnings. However, she confirmed that she had not provided documentary evidence of these earnings and that she had not actively pursued alternative nursing employment, citing her personal circumstances and inability to work day shifts. When it was put to her that she had chosen to retire and pursue other income rather than continue employment, she responded that she did so because she had “no nursing job already” that she could continue under the imposed conditions.

Complainant’s Argument.

Counsel for the Complainant submitted that, when the totality of the evidence was considered, the only reasonable conclusion open to the Adjudication Officer was that the Complainant had been constructively dismissed within the meaning of the Unfair Dismissals Act 1977.

It was submitted that the Respondent had engaged in a sustained and unjustified course of conduct which culminated in the Complainant having no reasonable alternative but to resign her position. Counsel described the Respondent’s actions as a “campaign” pursued through the disciplinary process, the true purpose of which was to alter the Complainant’s working arrangements and to drive her from her employment.

Counsel submitted that the disciplinary process was fundamentally flawed from its inception. It was argued that the allegations made against the Complainant did not constitute serious misconduct within the meaning of the Respondent’s own procedures and that, notwithstanding this, the Respondent invoked procedures reserved for the most serious cases, including suspension. It was submitted that the decision to suspend the Complainant was neither justified nor proportionate and was contrary to the Respondent’s own policies, which reserved such measures for “the most exceptional of circumstances.”

It was further submitted that the outcome of the investigation did not support the escalation of the matter to disciplinary stage. Counsel emphasised that the only finding made was that the Complainant had engaged in parallel work, and that there was no finding that she had provided nursing care in conflict with her duties to the Respondent. It was argued that, in those circumstances, the decision to proceed to disciplinary hearing was “fundamentally flawed, unfair, and unreasonable.”

Counsel then addressed the decision to dismiss the Complainant at disciplinary stage. It was submitted that this decision was disproportionate and based on speculative and unsupported grounds, particularly in circumstances where the patient concerned had only been under the Respondent’s care for a very limited period. It was argued that there was “not a single ground justifying dismissal” on the evidence available.

While acknowledging that the dismissal was overturned on appeal, counsel submitted that this did not cure the fundamental defects in the Respondent’s conduct. Instead, it was argued that the appeal outcome revealed the Respondent’s true motivation. Particular emphasis was placed on the sanction imposed by the witness, Dr. McCloskey, requiring the Complainant to work day shifts only for a period of six months and stipulating that a pattern of “night duty only” would not be permitted. It was submitted that this was an “unusual” and “conspicuous” sanction which bore no reasonable or proportionate relationship to the allegations made against the Complainant.

Counsel submitted that this requirement was the crucial factor leading to the Complainant’s resignation. It was argued that the Complainant had, for legitimate personal and medical reasons, been working night shifts for a number of years and that the imposition of day work placed her in an untenable position. It was further submitted that the Respondent’s insistence on this requirement, notwithstanding the Complainant’s circumstances, demonstrated that the process was directed towards forcing her departure.

In addressing the legal test, counsel relied on the definition of constructive dismissal contained in section 1 of the Unfair Dismissals Act 1977 and submitted that the Complainant satisfied the reasonableness test. In that regard, reliance was placed on Office and Industrial Cleaners Ltd v Connolly [1978] IRLR 332, wherein it was recognised that constructive dismissal may arise where an employer conducts its affairs so unreasonably that the employee cannot fairly be expected to remain.

Counsel also referred to Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 (CA) in relation to the contractual test but submitted that the present case was properly to be determined by reference to the reasonableness test.

It was acknowledged that there is a high burden of proof on a complainant in such cases, as noted in McCormack v Dunnes Stores UD1421/2008. However, Counsel submitted that this burden had been discharged. It was argued that the Complainant had been subjected to a process which was disproportionate and procedurally. It was directed towards changing her terms of employment in a manner she could not reasonably accept.

Counsel further submitted that the Complainant’s resignation must be viewed in the context of the Respondent’s conduct as a whole. It was argued that, in circumstances where she had been suspended, subjected to an unjustified disciplinary process, dismissed, and then required to work under conditions incompatible with her circumstances, she had “no option” but to resign.

In response to the Respondent’s reliance on the Complainant’s retirement letter, counsel submitted that the tone of that letter could not be determinative of the issue. It was argued that the absence of complaint in the letter did not negate the reality that the resignation was compelled by the Respondent’s conduct.

Finally, counsel submitted that the Respondent’s actions met the threshold of unreasonableness required to establish constructive dismissal and that the Complainant was justified in terminating her employment. It was submitted that the claim was well-founded and that appropriate redress should be awarded in accordance with section 7 of the Unfair Dismissals Act 1977, having regard to the principles set out in Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891 and Nano Nagle School v Daly [2019] IESC 63 as to effective, proportionate and dissuasive compensation.

In conclusion, the Complainant submitted that the Respondent’s conduct rendered the continuation of her employment untenable and that she had been constructively dismissed.

Mr. Shane O’Gorman, Head of Human Resources with the Respondent, gave evidence on behalf of the Respondent. He outlined his involvement in the initiation of the investigation process concerning the Complainant and the steps taken from an HR perspective.

The witness stated that he issued formal correspondence to the Complainant notifying her of a fact-finding investigation into alleged misconduct of a serious nature. He confirmed that the allegation related to the Complainant engaging in parallel nursing work for a patient who was also under the care of the Respondent. The witness described this as giving rise to concerns regarding conflict of interest and patient safety.

He explained that, at the time of issuing the initial investigation letter, no decision had been taken to suspend the Complainant, although the option of suspension remained under consideration. Following a subsequent meeting with the Complainant and her Union representative, the witness stated that he considered that suspension with pay appropriate based on those representations, where the Complainant preferred this option rather than having to work day shifts during the currency of the investigation.    

The witness further described the Respondent’s processes, indicating that the investigation stage was distinct from any disciplinary process and that the Complainant was afforded notice of the allegations and an opportunity to respond. He stated that concerns about undeclared external work were grounded not only in internal policy considerations but also in broader professional obligations, particularly where patient care overlapped.

In addition, the witness gave evidence regarding his interactions with the Complainant following the appeal outcome. He stated that, at that stage, the Respondent’s position was that the Complainant would return to work, subject to certain conditions arising from the appeal. He indicated that he had been in communication with the Complainant in relation to arrangements for her return to work. In that context, he said that he received no indication from the Complainant that she intended to retire and that her eventual decision to do so came as a surprise to the Respondent.

The witness also referred to communications concerning the Complainant’s pension position. He stated that the Complainant had made enquiries in relation to her pension entitlements and options, including early retirement. He accepted that such enquiries had been made but maintained that, from his perspective, they did not clearly signal an intention to retire at that point, particularly in circumstances where discussions regarding her return to work were ongoing.

Under cross-examination, it was put to the witness that there was no clear documentary basis for the assertion that the Complainant was under an obligation to disclose the external work in question. The witness maintained that such an obligation arose from policy expectations and professional standards but accepted that the documentation relied upon did not expressly set out a clear and unequivocal requirement in the terms suggested.

It was further put to the witness that the Respondent’s case rested on the existence of a conflict of interest and an alleged failure to disclose external work, and that if those elements were not established, the remaining concerns would fall away. The witness did not accept that characterisation in full but agreed that these were central issues.

The witness was also questioned regarding the extent of his involvement in the overall process. It was put to him that his role was confined primarily to the investigation stage and that he was not involved in the ultimate disciplinary decision-making. The witness accepted that his involvement was focused on the earlier stages of the process rather than the final determination and that he was the person who commissioned Ms Cara Jane Walsh BL to carry out the investigation.

Dr. Sarah McCloskey gave evidence on behalf of the Respondent. She stated that she held a senior role within the organisation, CEO, and was appointed to act as the appeal decision-maker in respect of the disciplinary outcome imposed on the Complainant.

The witness explained that she had no prior involvement in the investigation or disciplinary process and that this was intentional in order to ensure independence at appeal stage. She stated that she became involved only after the disciplinary sanction had issued and that her knowledge of the matter was derived solely from the documentation furnished to her.

The witness outlined the appeal process and stated that, although appeals were generally conducted by way of a desk-based review, she determined that an oral hearing was required in this instance. She explained that this was due to the seriousness of the sanction of dismissal and because aspects of the case were unclear on the papers, including the nature of the Complainant’s relationship with the service user. She stated that she wished to ensure that the Complainant was afforded a full opportunity to present her position and to clarify those matters directly.

The witness gave evidence that she conducted a comprehensive review of the investigation report and the disciplinary outcome. She also considered the grounds of appeal advanced on behalf of the Complainant. She stated that she assessed whether the original decision was reasonable and proportionate in light of all the circumstances. She stated that she concluded that the sanction of dismissal was disproportionate and should be set aside. In its place, she imposed a final written warning together with conditions. These conditions included a requirement that the Complainant return to work and, for a defined period, work day shifts rather than night duty.

The witness explained that the requirement to work day shifts formed part of the sanction and was imposed as a protective and supervisory measure. She stated that, in her view, day work would allow for greater oversight and a reduction of any risks arising from the issues identified in the investigation, including those relating to professional boundaries and patient care. She further stated that she had considered the available medical evidence, including occupational health input, and that there was no absolute medical contraindication to the Complainant working day shifts. On that basis, she considered the requirement to be reasonable and proportionate.

In the course of her evidence, the witness addressed the professional framework applicable to the Complainant. She drew a distinction between the obligations of a registered nurse and those of a care assistant, stating that a nurse is subject to a higher level of professional regulation, including obligations relating to patient safety, clinical judgment and ethical standards. She stated that this distinction informed her assessment of the seriousness of the matters under consideration and the need for an appropriate sanction.

The witness confirmed that, following the appeal decision, the internal process was concluded, and no further avenues of appeal were available. She stated that the Complainant was advised accordingly and that the Respondent’s expectation at that point was that she would return to work in accordance with the conditions imposed.

Cross-Examination:

Under cross-examination, it was put to the witness that the original decision to dismiss may not have been supported by sufficient evidence and that the appeal process ought to have engaged more directly with the reasoning underpinning that decision. The witness maintained that she had conducted a full and independent review and that her decision to overturn the dismissal demonstrated that the appeal process functioned effectively.

The witness was also questioned regarding the requirement that the Complainant return to day work. It was put to her that this requirement failed to adequately take account of the Complainant’s personal and medical circumstances and that it effectively placed her in a position where she could not reasonably continue in employment. It was suggested that the requirement was punitive in effect. The witness did not accept that characterisation. She reiterated that she had considered the medical evidence available and that there was no clinical basis for concluding that the Complainant could not undertake day work. She stated that the requirement was temporary and was intended as a proportionate measure to address the concerns identified, rather than as a punishment.

It was further put to the witness that there was no clear documentary basis requiring the Complainant to disclose parallel work. The witness accepted that the documentation did not set out such a requirement in explicit terms. However, she maintained that, given the Complainant’s status as a nurse and the potential for conflict of interest, there was a clear professional expectation that such matters would be disclosed.

Respondent Argument.

At the outset, it was submitted that the Complainant bore the burden of proof in establishing that there had been a dismissal within the meaning of the Unfair Dismissals Act 1977. It was contended that this threshold requirement had not been met. The Respondent relied on the Complainant’s own evidence, including her written correspondence, to submit that she had made a voluntary and considered decision to retire from her employment. In that regard, reliance was placed on the Complainant’s letter of 3 January 2025, which, it was submitted, contained no complaint or criticism of the Respondent but instead expressed gratitude for “the support and opportunities” afforded to her over 22 years of service.

Counsel further submitted that the evidence demonstrated that the Complainant had been contemplating retirement prior to the conclusion of the disciplinary process. Reference was made to her engagement with the Respondent’s payroll and pensions function, including requests for pension estimates in April 2024 and again in December 2024, shortly before her retirement. It was argued that this was inconsistent with any assertion that she had been forced to resign and instead supported the Respondent’s position that this was a voluntary retirement. It was submitted that, in those circumstances, the claim failed at the first hurdle, as the Complainant had not established the “fact of dismissal”.

Without prejudice to that primary submission, the Respondent addressed the substantive test for constructive dismissal. Counsel referred to the statutory definition contained in section 1 of the Unfair Dismissals Act 1977 and submitted that the Complainant had failed to satisfy either the contractual test or the reasonableness test.

In relation to the contractual test, reliance was placed on the authority of Western Excavating , wherein Lord Denning M.R. held that a constructive dismissal arises only where there is a fundamental breach going to the root of the contract of employment. It was submitted that no such breach had been identified or established by the Complainant.

Turning to the reasonableness test, counsel submitted that the Respondent had not conducted its affairs in a manner such that the Complainant could not reasonably be expected to remain in employment. On the contrary, it was submitted that the Respondent had acted reasonably at all stages, including the investigation, disciplinary and appeal processes. In particular, the Respondent addressed the Complainant’s apparent contention that the requirement to work day shifts for a period of six months rendered her position untenable. Counsel submitted that this sanction was both reasonable and proportionate. It was emphasised that the original sanction of dismissal had been overturned on appeal and replaced with a significantly lesser sanction, namely a final written warning and a temporary requirement to work day shifts.

It was further submitted that the requirement to work day shifts was directly related to the issues identified in the investigation, including concerns regarding parallel employment and the Complainant’s availability for such work while rostered on night duty. Counsel argued that the measure was a legitimate management response aimed at addressing those concerns and did not amount to unreasonable conduct.

The Respondent also relied on medical evidence, in particular the occupational health assessment, which concluded that there was no absolute contraindication to the Complainant working day shifts. It was submitted that, in those circumstances, the Complainant’s objection to day work was not supported by medical evidence and could not render the Respondent’s actions unreasonable.

Counsel further submitted that the Complainant herself had acted unreasonably. In that regard, reliance was placed on the decision in Conway v Ulster Bank UD474/1981, in which it was held that an employee is generally required to exhaust internal grievance procedures before resigning. It was submitted that the Complainant had failed to engage meaningfully with the Respondent following the appeal outcome, including failing to complete the required disclosure in respect of parallel employment, and had instead elected to retire.

The Respondent also drew a distinction between the present case and circumstances where a resignation might be regarded as involuntary. In that regard, reliance was placed on An Employee v An Employer ADJ-00003442, where a resignation tendered in distress was found not to be voluntary. Counsel submitted that, by contrast, the Complainant’s resignation in the present case was formal, measured and considered, and bore none of the hallmarks of a resignation made under duress.

Counsel emphasised that the Respondent had acted with procedural fairness throughout. The Complainant had been afforded an investigation, a disciplinary hearing, and a full appeal, at which the most serious sanction was set aside. It was submitted that, far from acting unreasonably, the Respondent had demonstrated fairness and proportionality.

In conclusion, the Respondent submitted that the Complainant had failed to establish that she had been dismissed and had  failed to meet the legal tests for constructive dismissal. The Respondent contended the Complainant  had in fact voluntarily retired from her employment. Accordingly, it was submitted that the complaint should be dismissed.

The Complainant is claiming constructive dismissal in this case. Section 1(1)(b) of the Act defines constructive dismissal as:- “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The seminal case referred to by authorities both in Ireland and the UK is Western Excavating (ECC) Ltd v Sharp[1978] IRLR 332 when Lord Denning MR described the tests as followed:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

And the reasonableness test asks whether the employer:

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving.”

Counsel for the Complainant is relying on the reasonableness test in this case.

 The burden of proof in constructive dismissal cases is firmly on the Complainant. In   Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014),  it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

I accept that the applicable legal framework is that set out in section 1 of the Act and in the authorities relied upon, including Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 (CA) and Office and Industrial Cleaners Ltd v Connolly [1978] IRLR 332. I also bear in mind the well-established principle, reflected in McCormack v Dunnes Stores UD1421/2008, that the burden on a complainant in a constructive dismissal case is a high one. The Complainant must establish either a repudiatory breach of contract or that the employer acted so unreasonably that she had no real option but to resign. The Complainant in this case relied primarily on the reasonableness test.

A central feature of this case is the issue of retirement. On the evidence before me, I find that the Complainant had retirement in contemplation prior to the disciplinary process reaching its conclusion, and indeed prior to the incident which ultimately gave rise to the investigation. The Respondent’s written submission records that the Complainant engaged in pension enquiries in April 2024 and again in December 2024, including seeking estimates for immediate retirement. I accept that these enquiries demonstrates that retirement was under active consideration prior to her resignation.

This is supported by the oral evidence. Mr. Shane O’Gorman gave evidence that he was aware, from an earlier point, that the Complainant had engaged with pension planning. While I accept that such enquiries do not of themselves amount to a firm decision to retire, I am satisfied that they are indicative of a pre-existing intention or contemplation of retirement. That is a relevant factor in assessing whether the resignation was caused by the Respondent’s conduct.

This finding is reinforced by the Complainant’s letter dated 3 January 2025. That letter expressly states that she had made a “decision to retire” and adopts a cordial and appreciative tone throughout, referring to her employment as “meaningful” and expressing gratitude for the support and opportunities afforded to her. There is no reference in that letter to any grievance or objection to the Respondent’s conduct. While I accept that not every constructive dismissal will be accompanied by a confrontational resignation letter, the tone and content of this letter are inconsistent with a contemporaneous assertion that she was being forced to leave.

Turning to the disciplinary process, the Complainant was subjected to an investigation, and the matter proceeded to disciplinary stage notwithstanding that the investigation only partially upheld the allegation. However, the process culminated in an appeal at which the dismissal was overturned and replaced with a lesser sanction, namely a final written warning and a requirement to work day shifts for a defined period. The existence of an appeal which reduced the sanction is, in my view, a significant factor in assessing the overall reasonableness of the Respondent’s conduct.

The Complainant further contends that the imposition of a paid suspension during the disciplinary process was an unreasonable action, however the uncontested evidence of the Respondent was that the Complainant, through her union, preferred this option rather than a requirement to work days only.

The Complainant’s case centred on the contention that the requirement to work day shifts only for six months rendered her position untenable. I accept that she had genuine personal and medical concerns regarding day work. However, the evidence does not establish that the Respondent acted without basis in imposing that requirement. The Respondent relied on occupational health advice indicating that there was no absolute medical contraindication to day work, and Dr. McCloskey gave evidence that the measure was intended as a temporary and supervisory arrangement following the disciplinary findings.

Crucially, the Complainant did not pursue a formal grievance in respect of this requirement. While correspondence was sent seeking reconsideration, she did not invoke or exhaust the Respondent’s internal procedures prior to resigning. In line with the principle in Conway v Ulster Bank UD474/1981, this is a matter of considerable weight. An employee is generally expected to attempt to resolve matters internally before resigning, unless the circumstances are such that this would be futile. I am not satisfied that such futility has been established here.

A further and important factor in my assessment concerns the Complainant’s engagement with the issue of her parallel employment. The evidence demonstrates that the Respondent sought disclosure of the Complainant’s external work arrangements following the appeal outcome, including requesting completion of a disclosure form. It is not in dispute that the Complainant did not complete or return that form.

In addition, I note that the Complainant provided very limited detail, both prior to her resignation and during the hearing, regarding the nature and extent of her parallel employment and any income derived from it. This arose both in the context of the Respondent’s request for disclosure and in the context of her obligation to establish mitigation of loss. The Complainant accepted in evidence that she had some earnings, including from a small business, but no documentary evidence was produced and the detail provided was minimal. I attach significance to this. First, the Respondent’s concerns regarding parallel employment formed part of the context in which the disciplinary process arose. The Complainant’s failure to engage fully with reasonable requests for disclosure undermines her position that the Respondent acted unreasonably in addressing those concerns. Secondly, in the context of a claim under the Unfair Dismissals Act 1977, a complainant is required not only to establish dismissal but also to demonstrate loss and efforts to mitigate same. The absence of clear and reliable evidence in this regard weakens the overall credibility and coherence of the Complainant’s case.

While the issue of mitigation is more directly relevant to the question of redress, I consider that the lack of transparency and engagement on the issue of parallel employment is also relevant to the broader assessment of the employment relationship at the time of resignation. It indicates that the Complainant did not fully engage with the Respondent’s processes at a point where issues could potentially have been resolved.

Counsel for the Complainant argued that the very fact of commencing an investigation into parallel employment was itself unreasonable behaviour. On the evidence, the Respondent became aware of information suggesting that the Complainant may have been engaged in parallel work involving a patient who was, at least for a period, under the care of the Respondent. That information raised legitimate concerns in relation to professional boundaries, and patient safety. In those circumstances, I am satisfied that it was both appropriate and necessary for the Respondent to make further enquiries. 

The Respondent did not proceed directly to disciplinary sanction but instead initiated a fact-finding investigation and appointed an external investigator to examine the allegations. The Complainant was notified of the investigation, the nature of the concerns, and was afforded an opportunity to respond through trade union representation. This is consistent with fair procedures and with the Respondent’s own policies.

It is also of significance that the investigation did not fully uphold the most serious allegation, namely that the Complainant had provided nursing care in conflict with her duties. However, the investigator did find, on the balance of probabilities, that the Complainant had engaged in parallel work as a private carer. That finding, albeit qualified, provided a factual basis upon which the Respondent was entitled to consider whether further action was warranted.

In those circumstances, I am satisfied that the threshold for initiating an investigation was met. An employer is not required to establish misconduct to a definitive standard before commencing an investigation; rather, it is sufficient that there are reasonable grounds for concern requiring examination. To hold otherwise would undermine an employer’s ability to discharge its obligations in relation to governance and patient safety, particularly in a healthcare setting. Accordingly, I find that the decision to initiate a disciplinary investigation in this case could not be characterised as unreasonable.

Taking all of these matters together, I am not satisfied that the Complainant has established that the Respondent’s conduct was so unreasonable as to justify her resignation. The evidence indicates that she had an available pathway to return to work, and she did not exhaust internal remedies. I am satisfied she had retirement under consideration prior to the events in question, and she subsequently communicated her departure in clear and voluntary terms.

Accordingly, I find that the Complainant has failed to establish that she was constructively dismissed within the meaning of the Unfair Dismissals Act 1977.

For the reasons outlined above, I find the Complainant was not unfairly dismissed by way of constructive dismissal.

Unfair Dismissals Act 1977. Constructive Dismissal.