Nursing assistant's constructive dismissal claim over suspension and pay error rejected
A nursing assistant who resigned after an eight-month suspension and a pay error lost her constructive dismissal claim. The tribunal found no breach of trust and confidence.
1 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #disability-discrimination
- #race-discrimination
- #suspension-pay-error
- #investigation-delay
- #last-straw
Key facts
- The claimant was a nursing assistant employed from 7 April 2014 until she resigned on 22 July 2019.
- She was suspended on 29 October 2018 following an allegation of racial abuse against a bank nurse.
- The investigation took nearly eight months and concluded there was no case to answer, recommending an informal improvement notice.
- During suspension, the claimant was underpaid unsocial hours allowances due to an administrative error, later rectified.
- The claimant resigned citing the letter of 2 July 2019 inviting her to a meeting as the final straw.
- The tribunal found no breach of the implied term of trust and confidence and dismissed all claims.
Timeline
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Employment started
Claimant commenced employment as a Band 3 Nursing Assistant.
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Incident with bank nurse
Altercation in staff room; bank nurse reported racial abuse.
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Suspension
Claimant suspended pending investigation into alleged racial abuse.
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Investigation letter with error
Letter from investigator mistakenly referred to 'fraud'; corrected on 2 January 2019.
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Investigatory meeting
Meeting held with claimant and her union representative.
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Investigation report completed
Report concluded no case to answer, recommended informal improvement notice.
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Letter inviting to outcome meeting
Claimant invited to discuss investigation outcome; she viewed this as a disciplinary meeting.
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Resignation
Claimant resigned with immediate effect, citing constructive dismissal.
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Outcome confirmed
Respondent confirmed no disciplinary action; offered meeting to discuss resignation.
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Underpayment rectified
Claimant received £3,141.61 for unpaid unsocial hours during suspension.
The legal issue
The tribunal had to decide whether the employer's conduct during the suspension and the pay error amounted to a fundamental breach of contract that entitled the nursing assistant to resign and claim constructive dismissal.
The outcome
The tribunal dismissed all claims, including constructive unfair dismissal, disability discrimination, race discrimination, and detriment for raising health and safety concerns.
The key reasons were:
- The investigation, though lengthy, was not unreasonable given the seriousness of the allegation.
- The pay error was an administrative mistake that was rectified.
- The letter inviting the claimant to a meeting was not a disciplinary action but a routine outcome discussion.
- No evidence of discrimination or detriment was found.
No compensation was awarded as the respondent won the case.
Lessons & takeaways
- A lengthy suspension alone is unlikely to be a breach of contract if the employer has a reasonable basis for the investigation.
- Administrative pay errors that are corrected promptly are not usually enough to justify a constructive dismissal claim.
- Resigning before the employer has had a chance to explain the outcome of an investigation can undermine a constructive dismissal case.
- Tribunals will consider the overall context, including the seriousness of the allegations, when assessing whether an employer's conduct was reasonable.
This case shows the difficulty of winning a constructive dismissal claim when the employer's conduct, though frustrating, falls short of a fundamental breach of contract. The nursing assistant was suspended for nearly eight months after an allegation of racial abuse, and during that time she was underpaid unsocial hours allowances due to an administrative error. She resigned after receiving a letter inviting her to a meeting to discuss the investigation outcome, which she believed was a disciplinary hearing.
What the tribunal decided
The tribunal found that the employer's actions were not a breach of the implied term of trust and confidence. The investigation, while long, was justified given the nature of the allegation. The pay error was a mistake that was rectified, and the letter was not a disciplinary action but a routine invitation to discuss the outcome. The claimant resigned prematurely, before the employer could explain that no disciplinary action would be taken.
What the employer did right
The employer conducted a thorough investigation, kept the claimant informed, and ultimately concluded there was no case to answer. The pay error was corrected once identified. The tribunal noted that the employer's actions were within the range of reasonable responses, even if the process was not perfect.
Why this matters
This case highlights that constructive dismissal claims require a serious breach of contract. Delays and administrative errors, while frustrating, are not automatically enough to justify resignation. Employees should consider waiting for the outcome of an investigation before resigning, as doing so early can weaken a claim.
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