UNFAIR DISMISSAL

Perkin v St George’s Healthcare NHS Trust: [2005] EWCA Civ 1174

CA: Tuckey, Mance and Wall LJJ: 12 October 2005

The chairman of the defendant healthcare trust expressed her desire to see the claimant leave his post as the trust's director of finance. The claimant was asked by the chief executive to resign but he refused and presented a formal grievance. The trust then started disciplinary proceedings against the claimant, raising issues as to the claimant's management style and ability to represent the trust. At an investigatory meeting the claimant attacked the honesty and integrity of the chief executive. A disciplinary hearing was convened, chaired by the trust chairman, despite objection from the claimant, in the course of which the claimant pursued his attack on the chief executive and accused another witness of lying. The claimant was dismissed principally because of difficulties in his relationships with service centre chairman and external agencies but the trust also felt that his conduct at the disciplinary hearing would in any event have led to his dismissal. He brought proceedings in the employment tribunal claiming that his dismissal was unfair under, inter alia, section 98 of the Employment Rights Act 1996. The trust asserted that the claimant had been dismissed for a reason related to his conduct and/or some other substantial reason, namely that his behaviour had given rise to a break down in his relationships with senior staff and his manner and style of work were not appropriate for his post. The tribunal found that the disciplinary procedure had been unfair, but that the claimant had contributed 100% to his dismissal and would have had no chance of retaining his job had a fair procedure been adopted. The Employment Appeal Tribunal dismissed an appeal by the claimant.

The claimant appealed.

The Court of Appeal held:
Though an employee’s personality in itself could not be a reason for dismissal within section 98(1)(2) of the Employment Rights Act 1996, it could manifest itself in such a way that the actions of the employee constituted a reason within section 98(1)(2). A breakdown in confidence between an employer and one of its senior executives for which the latter was responsible and which actually or potentially damaged the employer’s operations or rendered it impossible for the senior executives to work as a team could be “some other substantial reason” for dismissal within subsection (1)(b) and could result in a fair dismissal, provided the terms of section 98(4) were satisfied. Accordingly, the tribunal was entitled to conclude that the trust had a potentially fair reason to dismiss the claimant. Despite the undisputed unfairness of the procedure adopted by the trust chairman, the manner of the claimant’s defence at the disciplinary hearing, in particular his manifestly ill-founded attacks on his colleagues’ honesty, financial probity and integrity, was such that the tribunal had been entitled to find both that an independent and fairly conducted hearing would also have resulted in his dismissal and that the claimant had contributed 100% to his dismissal.

The appeal was dismissed.

Appearances: Brian Langstaff QC and Lachlan Wilson (Lyons Davidson, New Malden) for the claimant; Christopher Jeans QC and Simon Devonshire (Bevan Brittan) for the trust.