Conduct or some other substantial reason?

Can Employers use “Some Other Substantial Reason for Dismissal” to extinguish Employees’ contractual rights in conduct cases?

In Ezsias v North Glamorgan NHS Trust [2011] UKEAT 0399 09 1803, the Employment Appeal Tribunal held that where the primary reason given for dismissal is the irretrievable break down in trust and confidence of colleagues, the dismissal will not be for conduct but “some other substantial reason” pursuant to section 98 (1) (b) of the Employment Rights Act 1996. Regardless that the employee’s conduct caused the breakdown in working relationships, the employer need not invoke the contractual dismissal procedures for conduct.

The Facts

Mr Ezsias was a Consultant Oral and Maxillofacial surgeon, employed by the North Glamorgan NHS Trust since 1 July 1998 until his dismissal in February 2005.

He raised at least 75 different concerns with the Trust, its advisory body and the police, in a way that was, according to the Employment Tribunal, “unlikely to meet with a positive reaction from his colleagues.”[1] His relationships with departmental colleagues deteriorated. The Trust established, in March 2001, an inquiry into the breakdown in relationships, with a view to resolution.

The inquiry found that the interpersonal difficulties made it impossible to run a harmonious and competent department and attributed the breakdown to Mr Ezsias’ excessive and unrelenting complaints.

In April 2002 an independent Consultant Psychologist concluded the difficulties mainly revolved around Mr Ezsias’ behaviour. Retrieval of good working relationships was extremely unlikely.

Subsequently the Trust instructed an independent Human Resources practitioner to investigate the breakdown in relationships and, in April 2003, suspended Mr Eszias.

The HR report, completed in March 2004, concluded that working relationships were irreparable, in large measure because of Mr Ezsias’ behaviour and recommended two options:instigate disciplinary proceedings; or dismiss Mr Ezsias.

The Trust dismissed Mr Ezsias in February 2005 citing the “fundamental and irretrievable breakdown of trust and confidence” between him and his colleagues.

The Employment Tribunal

Mr Ezsias claimed automatic unfair dismissal, asserting he was a whistleblower, this was not accepted.

The ET accepted Mr Ezsias had been dismissed because of the fact of the irretrievable breakdown in relationships. That his conduct was primarily responsible was merely incidental. The Tribunal classified this as a dismissal for ‘some other substantial reason’ justifying dismissal (S 98 (1)(b) ERA 1996), rather than conduct and considered the dismissal was fair essentially because Mr Ezsias had only himself to blame.

The Employment Appeal Tribunal

The principal ground of appeal was the Trust’s failure to follow the relevant contractual disciplinary procedure.

In allowing the appeal to proceed to a full hearing, Judge Serota QC considered it was arguable that the behaviour alleged against Mr Ezsias as leading to the irretrievable breakdown should have been classified as professional misconduct. Arguably, the contractual disciplinary procedure in cases of professional conduct, (which incorporated the Whitley Council terms providing for an external investigation and panel before any sanction and a right of appeal to secretary of state) applied and the Trust’s failure to implement it rendered the dismissal unfair.

Judge Serota QC was concerned that employers “should not be able to avoid implementation of the disciplinary and investigatory procedures by relying on some other substantial reason as a grounds for dismissal when the employee’s conduct is blamed for the breakdown.”[2]

The EAT observed that Mr Ezsias might have intended to argue at first instance that, if not for the protected disclosures, the real reason for his dismissal was his conduct which had led to the irretrievable breakdown: “The Trust had opportunistically used the breakdown of working relationships on its own i.e. without identifying whether Mr Ezsias had been responsible for the breakdown, together with the rubric of “some other substantial reason”, as a pretext for getting rid of him without a lengthy disciplinary investigation to cover up what had really been behind his dismissal.” [3]

However, the Employment Tribunal did not doubt the good faith of the Trust in this regard. The challenge permitted to proceed to appeal was how the Tribunal classified the given reason for dismissal. Having accepted that Mr Ezsias was dismissed for the fact of the irretrievable breakdown of relationships and that his responsibility was merely incidental, the EAT said it was inevitable that the reason for dismissal would be classified as something other than conduct.

Maintaining that the Whitley Council terms simply do not apply in ‘some other substantial reason’ cases, the EAT dismissed concerns that the Judgment might seem to endorse the avoidance of the Whitley Council safeguards.

The Future

It is uncertain whether Ezsias will in fact encourage a disregard for the contractual procedures aimed at safeguarding a doctor’s vocational career. It is a rare case on its facts and one can see why the Tribunals might have been reluctant to find for Mr Ezsias, who was in their view “the author of his own misfortune.”

At least one of my colleagues believes the Judgment is plainly wrong. It clearly highlights the need to consider breach of contract claims in the civil courts as well as unfair dismissal claims in the Employment Tribunal. The uncertainty it has created will necessitate early advice and careful letters on behalf of employees. It is apparent that Trusts will look to exploit it by not even starting a conduct investigation, which might leave them vulnerable to the allegation that they have later changed course.

There is a conflict in the judicial authorities which remains to be resolved and NHS Trusts, however weary of departmental disharmony and eager for swift dismissals, would be well advised to resist the temptation to rely on the ‘some other substantial reason’ catchall where in reality conduct or capability issues prevail.


Footnotes

[1] Mr Justice Keith Ezsias –vNorth Glamorgan NHS Trust [2011] UKEAT 0399 09 1803 para 7
[2] ibid at para 57
[3] ibid at para 49


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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