Unfair Dismissal in the Court of Appeal

In a recent case which has been decided by the Court of Appeal the question of an employer’s decision to dismiss an employee for what was essentially a poor and negative attitude and negative behaviours has been considered.

The Law

When an employee makes a claim for unfair dismissal it is for the employer to establish that there is a potentially fair reason for dismissing the employee, such as conduct or capability. Once a reason for the dismissal has been established the Employment Tribunal will then turn to the question of fairness of the decision.

The Employment Tribunal will need to be satisfied that dismissal was fair in all the circumstances of the case.

When dismissing an employee for a conduct reason the employer must follow a fair procedure in doing so, which includes providing the employee with full details of the allegation(s) against them in advance of the disciplinary meeting.

The Facts

Ms Temitope Adeshina is a pharmacist who had worked for HM Prison Service since 2002. Her position was as Principal Pharmacist in the Pharmacy Department at Wandsworth Prison, her employer was St George’s University Hospitals NHS Foundation Trust (the ‘Employer’).

Ms Adeshina was involved in a project her Employer had instigated which involved the re-organisation of pharmacy services at Wandsworth prison. Part of the re-organisation was a move from pharmacy services being nurse led to being pharmacists led, which Ms Adeshina objected to.

As a result of Ms Adeshina’s behaviour and objections there was difficulty in effecting the change and senior figures in the prison and Employer’s organisation raised concerns about Ms Adeshina’s leadership or lack of it, and she was suspended pending a formal investigation.

The outcome of the investigation report stated:

“These incidents constitute gross misconduct and misconduct in line with the Trust’s Disciplinary Procedure in that:

Gross Misconduct

Disrepute – by her actions and behaviour TA has brought the Trust into disrepute.

Serious Insubordination – TA’s serious failure to lead the Central Pharmacy Room service development and has failed to carry out reasonable instructions to ensure this development as well as her deliberate failure to discharge responsibility and maintain the accepted standards in accordance with statutory requirement, professional standards of conduct and Trust policies and procedures.

Negligence – wilful insubordination and failure to lead the Central Pharmacy Room service development which meant that prisoners’ healthcare and safety was compromised and also negligence with regard to standards of work and working practice.

Misconduct

Verbal Abuse – disrespectful and confrontational behaviour towards a work colleague and a member staff which may cause personal offence.”

Following the investigation, a disciplinary process took place and on the 15th June 2012 Ms Adeshina was dismissed for gross misconduct without notice.

Ms Adeshina made a claim for unfair dismissal, racial discrimination, automatic unfair dismissal on the grounds of whistleblowing, detrimental treatment due to whistleblowing and wrongful dismissal.

At the Employment Tribunal Ms Adeshina’s claims were dismissed and she appealed to the Employment Appeal Tribunal with regards to her claims for unfair dismissal, wrongful dismissal and racial discrimination. Her appeal was unsuccessful and Ms Adeshina appealed to the Court of Appeal.

The Decision

The key challenges Ms Adeshina made to the fairness of the decision to dismiss her for gross misconduct were:

1) In the investigation report, the Employer had included gross misconduct categories taken from its disciplinary policy however these categories were not repeated in the letter inviting her to the disciplinary hearing.

2) When reaching a decision to terminate her employment the person taking the decision to dismiss her did not describe Ms Adeshina’s failures in managing and delivery of the project as deliberate, however the appeal panel did.

3) There had been a breach of the Acas code in the disciplinary and dismissal process.

Both the Employment Tribunal and Employment Appeal Tribunal were satisfied that there had been a fair process and that any defects in the process or decision making at the dismissal stage had been cured by the appeal process, and therefore it did not make the decision to dismiss unfair.

The Court of Appeal dismissed the appeal agreeing with the earlier decision of the Employment Tribunal and Appeal Tribunal.

Ms Adeshina’s arguments had been that the misconduct she was dismissed for could not amount to gross misconduct and she had not been clearly explained or notified of the allegations against her.

The Court of Appeal decided that Ms Adeshina did have sufficient knowledge of the allegations and the Employment Tribunal’s consideration of the allegations and fairness of the dismissal had been sufficient and reasonable.

Points to note

Ms Adeshina’s behaviour was described as showing a ‘lack of commitment’ and ‘deliberate insubordination’. Many employers just tend to ‘put up’ with this sort of behaviour and take no action, or wait until things become so bad that they have no choice to act.

This case is reassuring for employers who are faced with employees who are behaving in this manner, particularly where they are manager’s or senior people in the business. Of course, every case will depend on its facts and the particular circumstances but employers should not be afraid to appropriately address such behaviour.

I always advocate addressing employee issues when they happen and in an appropriate manner, a failure to do so will ultimately be more costly in the long run from a business perspective and potentially from a legal perspective.

Action to take

1) When dealing with disciplinary investigations and dismissals if you are unsure of the correct procedure seek advice as soon as possible;

2) If an employee appeals it can be an opportunity to rectify any earlier issues with the procedure followed at the disciplinary stage;

3) Deal with issues as and when they arrive, do not delay.

Court of Appeal – Temitope Adeshina v St George’s University Hospitals NHS Foundation Trust & ORS

You can read the full judgement here

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