Trainee nursing associate dismissed while on sick leave: procedural unfairness but no compensation
A trainee nursing associate was unfairly dismissed after a disciplinary hearing went ahead while she was signed off sick following her mother's death. The tribunal found the process unfair but awarded no compensation, ruling she would have been dismissed anyway.
1 min read · Last updated 18 May 2026
Case details
- #protected-disclosure
- #misconduct
- #polkey-deduction
- #sick-note
- #disciplinary-hearing-in-absence
- #delay-in-investigation
Key facts
- The claimant was employed as a Trainee Nursing Associate from 10 October 2016 and dismissed on 9 July 2020.
- The claimant sent emails on 29 and 30 July 2019 raising concerns about patient safety, which were found to be a protected disclosure.
- The respondent upheld 10 allegations of misconduct, including unsafe practice and unprofessional behaviour.
- The disciplinary hearing proceeded in the claimant's absence while she was signed off sick following her mother's death.
- The tribunal found the dismissal procedurally unfair but applied a 100% Polkey deduction, resulting in no compensation.
Timeline
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Employment start
Claimant started employment as a Health Care Assistant with Hinchingbrooke Healthcare NHS Trust, later acquired by the respondent.
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Apprenticeship start
Claimant commenced a Diploma in Higher Education Nursing Associate apprenticeship.
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First Development Plan
Respondent placed claimant on a Development Plan with 5 objectives due to concerns about attendance, supervision, and behaviour.
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First investigation started
Claimant invited to investigation meeting regarding 6 allegations.
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Oxygen incident
Claimant assisted a patient with a respiratory issue; concerns raised about her practice.
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Protected disclosure email
Claimant emailed the University raising concerns about patient care on Apple-Tree Ward.
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Suspension
Claimant suspended on full pay pending investigation into new allegations.
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Disciplinary hearing in absence
Disciplinary hearing proceeded without claimant, who was signed off sick after her mother's death.
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Dismissal
Claimant dismissed for misconduct; 10 allegations upheld.
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Tribunal judgment
Tribunal found dismissal procedurally unfair but applied 100% Polkey deduction, no compensation awarded.
The legal issue
The tribunal had to decide whether the claimant was automatically unfairly dismissed for making a protected disclosure about patient safety, and if not, whether the dismissal for misconduct was fair. It also had to determine what compensation, if any, should be awarded.
The outcome
The tribunal found that the dismissal was procedurally unfair because the disciplinary hearing went ahead without the claimant while she was signed off sick following her mother's death. However, it rejected the claim that the dismissal was automatically unfair for making a protected disclosure.
The tribunal concluded that, even with a fair procedure, the claimant would still have been dismissed due to the serious misconduct found. A 100% Polkey deduction was applied, meaning no compensation was awarded.
Lessons & takeaways
- Proceeding with a disciplinary hearing while an employee is signed off sick can make a dismissal procedurally unfair.
- Making a protected disclosure does not automatically make a subsequent dismissal unfair if there is a separate, genuine reason for dismissal.
- Even if a dismissal is unfair, a tribunal can reduce compensation to zero if it finds the employee would have been dismissed anyway with a fair process.
- Employees should ensure they provide medical evidence when off sick and request postponements if needed for hearings.
A dismissal that was unfair but cost nothing
This case shows how a procedural mistake can make a dismissal unfair, but still leave the employee with no compensation. The claimant, a trainee nursing associate with two years' service, was dismissed for misconduct after a disciplinary hearing was held in her absence while she was signed off sick following her mother's death.
The tribunal found that the Trust acted unreasonably by not adjourning the hearing. However, it also found that the claimant had committed serious misconduct, including unsafe practice and unprofessional behaviour, and that she would have been dismissed even if the process had been fair. As a result, a 100% Polkey deduction was applied, wiping out any compensation.
What the Trust could have done differently
The Trust could have avoided the finding of unfairness by simply postponing the disciplinary hearing until the claimant was fit to attend. Her sick note was clear, and the bereavement was a significant factor. By pressing ahead, the Trust denied her the chance to present her side of the story, which is a basic requirement of a fair process.
Why this matters for similar claims
This case is a reminder that procedural fairness is not just a box-ticking exercise. Employers must take account of an employee's health and personal circumstances when scheduling hearings. However, it also shows that a successful unfair dismissal claim does not guarantee a payout. If the tribunal believes the outcome would have been the same with a fair process, compensation can be reduced to zero.
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