15 June 2017

Unfair dismissal – poor attitude to change

Can an employee's poor attitude to organisational change amount to gross misconduct and justify dismissal without notice, despite procedural irregularities?

Yes, says the Court of Appeal in Adeshina v St George's University Hospitals NHS Foundation Trust and others.

Facts:  Ms Adeshina was employed as principal pharmacist in the Prison Service as part of St George's University Hospitals NHS Foundation Trust. She was involved in leading a project to change the way prison pharmacy services were provided. One of the principal features of the change was a move from nurse-led pharmacy services to pharmacist-led services. Ms Adeshina strongly disapproved of this and showed this openly. The Governor and Deputy Governor of the Prison and two senior Trust staff raised concerns about her lack of leadership in the process. The Trust's Chief Pharmacist, Mr Kumar, carried out a disciplinary investigation. His investigation report concluded that each of the allegations against Ms Adeshina had been made out. Ms Adeshina was sent a copy of the investigation report, and a letter summarising the allegations and inviting her to attend a disciplinary meeting.

Following the disciplinary meeting, Ms Adeshina was dismissed for gross misconduct, having failed to co-operate with, support or lead the change, including at least one instance of unprofessional behaviour at a meeting. She was dismissed due to her poor attitude to and lack of engagement with this project.

Ms Adeshina brought claims in the Tribunal of unfair dismissal, wrongful dismissal, race discrimination, victimisation and whistleblowing detriment. The Tribunal dismissed all of the claims and Ms Adeshina appealed. The EAT dismissed the appeal. The EAT held that, although there were serious flaws in the first stage of the disciplinary process, these flaws had been remedied at the internal appeal.

Ms Adeshina appealed to the Court of Appeal on the basis that her alleged misconduct could not amount to gross misconduct and the nature of the allegations had not been properly spelt out. The Court of Appeal rejected her arguments, saying that her appeal on this depended on a formalistic approach to documents generated in the course of the disciplinary process and that this is inappropriate in an unfair dismissal context. The judge commented that "Employment Tribunals are concerned with substantive justice. I have no doubt that the Appellant always understood the substance of the case against her and had a full opportunity to meet it."

Ms Adeshina also argued that the appeal panel had made a more serious finding than the dismissing panel. The Court of Appeal dismissed this point. It did not agree that the appeal panel's findings were substantively more serious and, even if they had been, it held, this could be distinguished from previous case law where a disciplinary sanction was increased on appeal as here it was not.

Implications for employers:

- An employer will not be hampered by the exact wording of any allegations made against an employee, provided that the employee is in receipt of an investigation report or other document that amplifies and clarifies the case that the employee must answer.

- It may not be necessary for an employer to match each category of misconduct separately to each allegation because how the conduct is eventually categorised is a matter for the decision-maker.

- Comments made by the judge in this case suggest that a dismissal would not necessarily be unfair if an appeal panel makes more serious findings than the original decision-maker. However, employers should treat this with caution as that was not the finding on the facts of this case. Further, such a finding by an appeal panel could amount to breach of contract.