Breakdown of relationships justifies dismissal
If an employee is dismissed as a result of a breakdown of trust and confidence, should the dismissal be for misconduct or for 'some other substantial…
Ezsias v Glamorgan NHS Trust
If an employee is dismissed as a result of a breakdown of trust and confidence between that employee and his colleagues as a consequence of the employee’s conduct, should the dismissal be for misconduct or for "some other substantial reason?"
The EAT has found that if the employee is dismissed for the actual breakdown, rather than for the conduct causing it, then the dismissal is not for reasons of conduct but is in fact for "some other substantial reason." The distinction was relevant in the context of the facts in the case of Ezsias v Glamorgan NHS Trust when determining the correct application of the employer’s contractual disciplinary procedures.
The Claimant, Mr Ezsias, was employed by North Glamorgan NHS Trust ("the Trust") as a surgeon from 1998 until his dismissal in 2005. Shortly after his appointment, he expressed a number of concerns about clinical standards within his department and ultimately raised at least 75 separate complaints to the Trust, the Trust’s advisory body and the Police. As the Tribunal commented, the language used to express these complaints was "unlikely to meet with a positive reaction from his colleagues." Indeed his colleagues, in 2003, signed a petition to the Trust’s acting Chief Executive citing "…grave concerns [about] …a complete lack of confidence in, and a total breakdown of the relationship between, this consultant and the senior staff within the Department."
Upon receipt of that petition the Trust instigated an independent investigation into the breakdown of the relationships referred to in the petition. It also decided to suspend the Claimant. The outcome of the independent investigation was that the Trust had two options. It could:
- instigate disciplinary proceedings; or
- terminate the Claimant’s employment on the basis of there having been an irretrievable breakdown of relationships between him and his colleagues.
The Trust opted to terminate employment in February 2005. The Claimant instigated proceedings for unfair dismissal on the ground that he had been dismissed for whistle-blowing. The Tribunal dismissed this claim, primarily because it found that:
a) the complaints made by the Claimant did not amount to protected disclosures; and
b) even if they had amounted to protected disclosures, they had not been made in good faith and it was not therefore obliged to hear them.
The Tribunal found that the reason for the Claimant’s dismissal related to the breakdown in his relationships with his colleagues. Accordingly, it categorised that reason as amounting to a dismissal, not for misconduct or lack of capability, but for "some other substantial reason of a kind to justify dismissal." It found that the Claimant had been "the author of his own misfortune" and the decision therefore to dismiss him, had been fair.
The Claimant appealed this decision to the EAT. The main ground of appeal was that the dismissal had not been in accordance with the Trust’s disciplinary procedures which, the parties agreed, were incorporated into his contract. The crucial question was therefore whether or not those disciplinary procedures applied in this case. The Claimant submitted that the Trust had breached his contract by failing to adhere to the correct disciplinary procedures applying to members of staff where misconduct was being contemplated. He claimed that the Trust had failed to particularise whether he was being disciplined for "personal" or "professional" misconduct and that in either case, he had not been granted access to the full benefit of the contractual disciplinary procedure.
The EAT dismissed this claim. It asked whether the action taken against the Claimant arose because of his conduct. If it had not, the need to classify it as either professional or personal would not arise. Consequently, the issue before the EAT were whether:
a) the Claimant had been dismissed as a result of his misconduct, which caused the breakdown in relationship between him and his colleagues; or
b) he had been dismissed for the fact that the relationship had broken down.
The EAT found that the Claimant’s responsibility for the fact of the breakdown in relationship was incidental to the fact that it had actually broken down. It therefore found the conclusion inevitable. Regardless of how the reason for the action taken against the Claimant was characterised, it could not be for his conduct.
It will be of some comfort for employers to learn that they may not need to initiate the statutory and contractual disciplinary procedures where there has been a complete breakdown in the employment relationship. This position recognises that where there are irreconcilable differences, such procedures are often rendered meaningless by employees’ intransigent attitudes.
However, although this judgment may provide some helpful guidance, it should be regarded as guidance only. Employers ought to avoid the temptation to label all dismissals as being for "some other substantial reason" if the genuine reason for the dismissal is in fact conduct. There is a very fine line between dismissing an employee because an employment relationship has broken down and dismissing them for the behaviour which resulted in that breakdown.
The Claimant, in this case, did not query the application of the ACAS code on disciplinary and grievance procedures. If he had done so, it is unclear to what extent it would have affected the EAT’s reasoning. Of course, the employer will never know how or indeed if an ex-employee will plead unfair dismissal until it is too late. Therefore, where there is any doubt over the reason for a dismissal, the safest course of action will be to follow a fair termination procedure.
Annabel Price, Paralegal and Kim Abbott, Solicitor