Thursday, March 24, 2011

We Can't Go On Together - Unfair Dismissal

The Employment Appeal Tribunal has held that an Employment Tribunal was right to reject a Consultant's claim for Unfair Dismissal after he was dismissed because of an alleged complete breakdown of the working relationship with his colleagues.

Dr Ezsias was something of a perfectionist (the EAT said he was charming but also hinted that he was rather dogmatic about what was right and what was wrong) and raised a whole litany of complaints about clinical practice in his Hospital.

The frequency and tone of these eventually alienated many of his colleagues to the extent that ultimately some of them signed a petition seeking his removal.

The employer was willing to carry out an inquiry into his allegations but in the end this did not happen as he would not co-operate unless certain pre-conditions were met. An HR consultant came in and did a report on the working relationships and concluded that there appeared to be a serious problem between the Doctor and some of his colleagues.

The employer dismissed Dr Ezsias following this report, on the basis that this was for "Some Other Substantial Reason", namely the breakdown in trust and confidence. This label was important because if Dr Ezsias was dismissed for his conduct then there were contractual disciplinary procedures that had to be followed.

Dr Ezsias claimed that his dismissal was because he had made "protected disclosures" (blown the whistle) and was therefore automatically unfair. The Tribunal (and the EAT) decided that he had not made protected disclosures, but that even if he had these were not the reason for his dismissal.

As a fall back he alleged that his dismissal was unfair in any event because the contractual dismissal procedure applicable to dismissal for misconduct had not been followed. The Tribunal found, and the EAT agreed, that this was not the case. He had not been dismissed for his conduct. He had been dismissed because of the irretrievable breakdown in the working relationships within the Hospital.

This was possibly a fine distinction in this case because it could be said that it was his conduct that had caused that breakdown and the EAT clearly had some concern that they would not want this to set a precedent to enable employers to avoid having to follow contractual disciplinary procedures in the future. However, it is in line with a previous Court of Appeal decision in which another NHS Trust were found to have fairly dismissed an employee whose method of conducting his defence at an internal disciplinary hearing had made his position untenable even though he could not be said to have done anything "wrong."

The lesson for employers is that in certain circumstances you can dismiss an employee where the working relationship has broken down even if their conduct would not on its own justify dismissal. However, this does not mean that it will always be fair. The extent to which the employee is to blame will be relevant and the Tribunal will also want to examine closely whether it was reasonable for the employer to conclude that the situation was irretrievable. In many cases mediation, letting time pass and tempers cool, and/or moving someone will resolve matters.

Follow this link to read the report of the case.

Tuesday, March 22, 2011

Optimistic Postman/Murderer in Unfair Dismissal Claim - the Update

In December I reported on the case of the postman convicted of murder who was claiming Unfair Dismissal against Royal Mail.

At the time it looked like a very optimistic Claim, and so it has transpired.

BBC News now reports that the Claim failed. The Employment Tribunal found that being charged with murdering your mistress and driving her body around in your boot was not within the standards that Royal Mail were entitled to expect from their employees - something that one would hope will not be considered to be a controversial ruling!