NHS night worker's constructive dismissal claim fails over flexible retirement terms
An NHS employee who resigned after being told she might have to work day shifts lost her constructive unfair dismissal claim. The tribunal found no fundamental breach of contract.
1 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #flexible-retirement
- #night-working
- #litigant-in-person
- #costs-application-refused
Key facts
- The claimant resigned on 20 December 2019.
- The claimant had been re-engaged after flexible retirement in 2016.
- The claimant believed she had an assurance she would only work nights.
- The respondent did not provide a written contract after re-engagement.
- The claimant was not asked to work day shifts in 2017 or 2018.
- The tribunal found the claim had reasonable prospects at the start.
Timeline
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Flexible retirement letter
The respondent sent a letter accepting the claimant's flexible retirement request but using the term 'internal rotation'.
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Re-engagement
The claimant was re-engaged after retirement, with an alleged assurance she would only work nights.
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No day shifts
The claimant was not asked to work any day shifts in 2017.
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No day shifts
The claimant was not asked to work any day shifts in 2018.
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Resignation
The claimant resigned, claiming constructive dismissal.
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Claim presented
The claimant brought a claim of unfair constructive dismissal.
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Costs application hearing
The respondent's application for costs was heard and refused.
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Costs warning letter
The respondent sent a costs warning letter to the claimant.
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Final hearing day 1
The substantive hearing began.
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Judgment
The tribunal dismissed the claimant's claim and gave oral reasons.
The legal issue
The tribunal had to decide whether the employer's conduct amounted to a fundamental breach of contract that entitled the employee to resign and claim constructive dismissal. Specifically, it examined whether an alleged assurance that she would only work night shifts was a binding contractual term.
The outcome
The tribunal dismissed the claim of constructive unfair dismissal.
- The employee resigned after being told she might be required to work day shifts, claiming this breached an assurance given when she returned from flexible retirement in 2016.
- The tribunal found that the employer's 2016 letter used the term 'internal rotation' and there was no clear, unequivocal promise of exclusive night work. The fact she had not been asked to work days in 2017 or 2018 did not create a binding contractual term.
- No compensation was awarded as the claim failed.
Lessons & takeaways
- If you rely on an oral or informal assurance as a contractual term, get it in writing and ensure it is clear and specific.
- A pattern of conduct (e.g., not being asked to work certain shifts) does not automatically create a binding contractual right.
- Constructive dismissal requires a fundamental breach of contract – a disagreement over working arrangements may not be enough.
- Litigants in person should seek legal advice early; a costs warning letter can increase financial risk if the claim is weak.
When an informal understanding is not a contract term
This case shows the importance of getting any agreed working pattern in writing, especially after a flexible retirement. The claimant, an NHS night worker, believed she had an assurance that she would only work nights when she returned to work after retirement. However, the employer's letter used the term 'internal rotation', and no written contract was provided. The tribunal found that the alleged assurance was not a binding contractual term.
What the employer could have done differently
The employer could have avoided the dispute by issuing a clear written contract after re-engagement, specifying the claimant's working pattern. The use of 'internal rotation' in the 2016 letter left room for misunderstanding. While the claimant had not been asked to work days for two years, that did not amount to a contractual promise.
Why this matters for similar claims
Employees who believe they have a special arrangement with their employer should ensure it is documented in a contract or at least a clear written agreement. Constructive dismissal claims require a fundamental breach of contract – a subjective belief or informal understanding is unlikely to succeed. The tribunal also noted that the claim had reasonable prospects at the start, but the evidence did not support it at trial.
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