Soundbite: Poor management can prove costly for employers – Littlewood v Nuffield Health
Poor management can prove costly for employers – Littlewood v Nuffield Health
A recent Employment Tribunal decision involving Nuffield Health provides a useful reminder for employers of the risks arising from unclear pay arrangements, mishandled grievances, and management action taken after an employee raises concerns. The case has attracted press attention after the Claimant, Bethan Littlewood, was awarded around £149,000 following a successful claim against Nuffield Health. Please see the Background section below for a summary of the facts of this case.
Key Implications for Employers
- Whistleblowing protections are broad and robust
This case reinforces that employees who raise genuine concerns, including about health and safety, benefit from strong legal protection. Any subsequent adverse treatment may be viewed as unlawful detriment, even where the connection is indirect.
Employers should ensure that managers are trained on whistleblowing risks.
- Informal pay arrangements can become contractual
Repeatedly approving a payment may support an argument that the arrangement has become contractually binding. If payments are temporary, discretionary or subject to review, that should be recorded clearly in writing.
Employers should ensure that they audit variable pay and holiday pay calculations and document any non-standard pay arrangements.
- Variable pay and holiday pay must be transparent
Employers with commission, sessional, bonus or class-based pay structures should ensure that holiday pay is calculated by reference to the correct average pay. Payroll teams should be able to explain payslips and calculations clearly.
- Disciplinary action must be proportionate
The Tribunal was critical of the escalation of matters which it considered should have been dealt with as management or communication issues.
Employers should avoid using disciplinary procedures where coaching, clarification or informal management would be more appropriate. Employers should also ensure disciplinary allegations are evidence-based and proportionate.
- Grievances require genuine investigation
Grievances should be investigated independently and carefully. Employers should ensure that relevant evidence is considered, particularly where there is third-party corroboration.
Employers should maintain clear records of grievance investigations and avoid dismissing grievances prematurely or taking action against employees shortly after complaints are raised. A failure to properly investigate concerns can significantly increase legal risk.
- Manage sickness absence, annual leave and return-to-work processes as connected issues
Where an employee is off sick, employers should continue to deal properly with annual leave requests, occupational health advice and return-to-work planning. Holiday requests should not be refused simply because the employee is on sick leave, and occupational health recommendations should be actively considered rather than left unresolved. Any return-to-work meeting should be clearly arranged, purposeful and attended by the relevant manager. Poor handling of these issues can contribute to a breach of trust and confidence, particularly where the employee is already in dispute with the employer.
Background
Ms Littlewood was employed as a personal trainer at Nuffield Health’s Bridgend gym from 2015. Her pay included basic contracted hours, personal training sessions, classes and other variable payments. From at least 2021, the Claimant had raised concerns about incorrect pay.
In June 2022, Ms Littlewood raised a health and safety concern about Ministry of Defence fitness testing. She reported that a manager had allowed an individual to proceed to a fitness test despite blood pressure readings which should have prevented the test from continuing. The Tribunal found that this amounted to a protected disclosure.
Shortly afterwards, elements of her pay stopped being approved despite her having historically received them. She also raised grievances alleging bullying, withheld wages and unfair treatment following her protected disclosure.
Nuffield Health then commenced disciplinary proceedings against Ms Littlewood. The allegations included submitting hours worked under an incorrect pay level, inappropriate conduct towards other staff and poolside mobile phone use. The Claimant was issued with a final written warning. The Tribunal was critical of the disciplinary process, including the evidential basis for the allegations and the way in which matters appeared to have been escalated. It found that many incidents were caused by poor communication and were trivial management issues which should not have been treated as disciplinary matters.
Following the disciplinary process, the Claimant was signed off sick. Despite her repeated attempts to engage with her employer about returning to work, the Tribunal found limited or no meaningful engagement from management during this period.
One particularly significant incident occurred while Ms Littlewood was in Germany competing at the European Canoe Polo Championships. She had requested annual leave on 7 June and had been open about her sporting commitments. She followed up on 8 August to flag that the leave had not yet been approved, but received no response from her employer until 6 September declining her request for leave, while she was already in Germany for the Championships. She was told her leave had not been approved because she was on sick leave and that she had to attend an in-person meeting on 12 September 2023. Conscious that she was on a final written warning, she drove 800 miles back through the night to attend the meeting. When she arrived, the manager who had requested her attendance was not there. The Tribunal described this treatment as “contemptuous and wholly unreasonable”.
Ms Littlewood resigned shortly afterwards and brought claims.
Claims and Outcome
The Tribunal upheld claims including:
- whistleblowing detriment;
- constructive unfair dismissal;
- unauthorised deductions from wages; and
- holiday pay.
The Tribunal found that the Claimant’s health and safety concern was a protected disclosure, and that the stopping of pay approvals and pursuit of disciplinary allegations were detriments materially influenced by that disclosure.
It also found that Nuffield Health had engaged in a course of conduct which breached the implied term of mutual trust and confidence, entitling Ms Littlewood to treat the “800-mile meeting” incident as the last straw and to resign and claim constructive dismissal.
The Tribunal was also critical of how the claimant’s grievances were handled. In particular, it found that relevant evidence was not properly weighed, including an independent member complaint which supported Ms Littlewood’s account of bullying behaviour by a manager. The Tribunal was also concerned that parts of the grievance process appeared to lack genuine independent scrutiny. The grievance process was one of the employer’s key opportunities to identify and correct problems before the relationship broke down. Instead, the Tribunal found that the handling of the grievances contributed to the overall breach of the implied term of mutual trust and confidence.
The pay claims were also significant. The Tribunal ultimately upheld claims for unpaid holiday pay and unlawful deductions, reflecting both historic issues and more recent failures in payroll administration.
If you need advice or assistance with any of the issues raised by this case, please get in touch with a member of the team.