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In Adeshina v St George's University Hospitals NHS Foundation Trust and others [2017] EWCA Civ 257, the Court of Appeal had to consider whether an employment tribunal was entitled to find that an employee's poor attitude to organisational change amounted to gross misconduct and justified her dismissal without notice. 

Facts

Ms Adeshina (Ms A), a British national of Nigerian origin and black African ethnicity, was employed by St George's University Hospitals NHS Foundation Trust (the Trust) as a principal pharmacist working at Wandsworth Prison. She was responsible for leading a project to establish a central pharmacy unit and change the services provided from 'nurse-led' to 'pharmacist-led'.  Ms A strongly disapproved of the change.

Disciplinary proceedings were initiated in relation to allegations of unprofessional conduct, inappropriate behaviour, and a failure on the part of Ms A to co-operate with, support or lead the service change.

Ms A was dismissed and her dismissal was upheld on appeal. She brought various claims in the employment tribunal (ET).

Employment tribunal decision

At the end of a hearing that lasted 14 days, the ET dismissed Ms A's claims of unfair dismissal, wrongful dismissal, whistleblowing, race discrimination and victimisation against the Trust, and her race discrimination claim against three of the Trust's employees. 

There were found to be flaws in the first stage of the disciplinary process, when the Trust's representative took into account various matters that Ms A was not given the opportunity to comment on as part of the disciplinary process. The ET found that, as a result of the flaws in the disciplinary process, the Trust's representative could not have held a reasonable belief in Ms A's misconduct. The ET however also found that the flaws were corrected by the appeal process and the dismissal was fair. Ms A appealed.

Employment Appeal Tribunal decision

The Employment Appeal Tribunal (EAT) found that the ET had correctly concluded that, although the flaws in the disciplinary process were serious, they had been remedied at the appeal stage.

Ms A had challenged two members of the appeal panel, one on the basis that he was junior to her and reported to her, and the other on the basis of her involvement in an operational policy document that formed part of the case against Ms A and the fact that she was the mentor to the victim of one of Ms A's alleged acts of misconduct. 

The EAT rejected Ms A's challenge to the members of the appeal panel, noting that it would be unworkable and undesirable for senior managers to avoid the connections they will have as a result of their management responsibilities. Prior dealings with an employee, without something more to suggest a risk of bias, will not render a dismissal unfair. As the panel had a number of members, the influence of the junior member of staff was not considered to be significant enough to make the dismissal unfair. Ms A appealed again.

Court of Appeal decision

Before the Court of Appeal Ms A ran two arguments:

  1. The misconduct found against her was incapable of justifying her dismissal and the allegations against her had not been properly spelt out: in particular, the disciplinary invite letter had not stated what category of gross misconduct was asserted.
  2. The appeal panel was accused of impermissibly making a more serious finding than the dismissing panel, in relation to its finding that Ms A was guilty of 'deliberate' insubordination.

Point 1 was rejected as unduly formalistic. It was clear that the Trust was asserting that Ms A was guilty of gross misconduct, which did not need to be categorised but would depend on the decision maker's assessment of the evidence. The ET had assessed the substantive justice of the Trust's handling of the matter and its decision to dismiss. It had taken into account the relevant findings of fact. Ms A had known the case against her and had been able to respond.

Point 2 was rejected on the basis that the appeal panel's findings were not substantively more serious and did not involve any increase in the disciplinary sanction.

At the Court of Appeal, Ms A's race discrimination claim focussed on the dismissing manager's actions, which had been criticised by the ET. The Court of Appeal agreed with the EAT that the flaws were nothing more than human error, were not exceptional and had been cured on appeal. In the circumstances they did not amount to a prima facie case of race discrimination. The Court of Appeal therefore dismissed the appeal.

Comment

The decision in this case is largely fact sensitive but the approach adopted is welcome, to the extent that it focussed on the overall fairness of the decision and related process.

Points of principle set out by the EAT were not challenged and continue to be helpful in addressing the practicalities of the handling of disciplinary processes. The EAT's acceptance that employers often encounter practical difficulties when identifying an appropriate appeal manager is encouraging. Small organisations may struggle to find someone of sufficient seniority who is also independent. Larger organisations may also find it a challenge to identify someone suitable to conduct a disciplinary or appeal hearing, if required to discount those who have had any prior involvement with the employee concerned or the processes under review. 

The decision should not however be regarded as giving a green light to the adoption of a more broad brush approach, particularly where an employee stands to be dismissed. The Acas code should be read alongside the employer's procedures as a starting point. Careful consideration should then be given to the impact that any proposal to depart from the relevant requirements may have on the likelihood of the ET finding the dismissal to be fair.

The decision also acts as a reminder that mistakes made at the initial stage of a disciplinary process can sometimes be cured at the appeal stage of the process. It is always important to assess whether the errors are capable of correction at the appeal stage and, if so, how the appeal should be managed so that the decision ultimately reached is likely to be found to be fair. This case acts as a reminder that, although an ET will assess the fairness of the disciplinary process as a whole, if there are errors at the first stage it is prudent to conduct the appeal as a re-hearing of the issue in its entirety, rather than simply reviewing the disciplinary decision. This minimises the risk of the ET finding that the appeal process was insufficiently detailed to be able to correct any earlier flaws.