Missed promotion while off sick: constructive dismissal claim fails
An occupational therapy assistant who missed a promotion opportunity while on sick leave because she did not check her work email has lost her constructive dismissal claim. The tribunal ruled the oversight was unintentional.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was off sick with anxiety when a Band 4 vacancy was advertised by email to the team.
- The claimant did not access her work email while off sick and missed the vacancy.
- The vacancy was filled by a less experienced colleague.
- The claimant resigned after an unsuccessful grievance process.
- The tribunal found the failure to notify the claimant was an unintentional oversight.
Timeline
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Discussion about Band 4 vacancy
Claimant discussed potential Band 4 vacancy with manager Mrs von der Becke.
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Staff meeting agrees to email vacancies
Team meeting decided to email staff about future vacancies.
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Claimant goes off sick
Claimant signed off work with anxiety for two weeks, later extended.
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Vacancy emailed to team
Mrs von der Becke emailed the team about the Band 4 vacancy, but claimant did not see it.
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Vacancy filled
Jessamyn Guiver appointed to Band 4 post; email sent to team.
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Claimant returns to work
Claimant returned on reduced hours; later discovered the vacancy had been filled.
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Informal grievance meeting
Meeting held to resolve the issue informally; claimant left upset.
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Formal grievance hearing
Grievance heard by Mrs Phillips; outcome letter on 11 February.
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Claimant resigns
Claimant resigned by email, citing fundamental breach of contract.
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Grievance appeal meeting
Appeal heard by Ms Benson; outcome letter on 19 March.
The legal issue
The tribunal had to decide whether the employer's failure to ensure the claimant knew about a promotion opportunity while she was off sick amounted to a fundamental breach of contract (constructive dismissal), and whether it was linked to her age, disability, or protected disclosures.
The outcome
The tribunal unanimously dismissed all claims brought by the occupational therapy assistant against University Hospitals Sussex NHS Foundation Trust.
The key reason was that the failure to notify the claimant of the Band 4 vacancy was an oversight, not a deliberate act. The tribunal found no fundamental breach of contract, so her resignation did not amount to constructive dismissal. All discrimination, victimisation, and protected disclosure claims also failed.
No compensation was awarded.
Lessons & takeaways
- If you are off sick, consider whether you can reasonably access work emails to avoid missing opportunities, but also ask your employer to keep you informed.
- An unintentional oversight by an employer is unlikely to amount to a fundamental breach of contract needed for a constructive dismissal claim.
- To succeed in a discrimination claim, you must show that the employer's action was because of a protected characteristic, not just that you missed out.
- A grievance process that is carried out properly can help an employer defend against claims of breach of contract or victimisation.
When a missed opportunity leads to a tribunal claim
This case shows how a simple oversight can escalate into a full-blown employment dispute. The claimant, an occupational therapy assistant with three years' service, was off work with anxiety when a promotion opportunity to Band 4 arose. Her manager emailed the team about the vacancy, but the claimant did not access her work email while on sick leave. By the time she returned, the post had been filled by a less experienced colleague.
The claimant felt deliberately excluded and resigned after an unsuccessful grievance process. She brought claims for constructive dismissal, age and disability discrimination, and victimisation. However, the tribunal found that the failure to notify her was an unintentional oversight, not a deliberate act. There was no evidence that her manager had any motive to exclude her.
What could have been done differently?
The employer could have taken extra steps to ensure the claimant was aware of the vacancy, such as contacting her directly or by post. However, the tribunal accepted that the usual practice was to email the team, and the claimant had not requested alternative communication while off sick. The employer's grievance process, though lengthy, was found to be reasonable and not a detriment.
Why this result matters
This case is a reminder that not every workplace mistake amounts to a breach of contract or discrimination. For a constructive dismissal claim to succeed, the employer's conduct must be a fundamental breach that goes to the root of the contract. An unintentional oversight, without more, will not meet that threshold. Similarly, discrimination claims require evidence that the treatment was because of a protected characteristic, not just that the employee suffered a disadvantage.
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