EXCEPTION TO THE RULE

Bashir and anor v Sheffield Teaching Hospital NHS Foundation Trust

When conducting disciplinary proceedings, employers are required to apply certain “principles” of fairness to avoid a finding of unfair dismissal. In Bashir and anor v Sheffield Teaching Hospital NHS Foundation Trust, however, the Employment Appeal Tribunal (EAT) said that, in exceptional circumstances, a dismissal could still be fair even if those principles had not been applied.

Basic facts

Mr and Mrs Bashir had worked in the Trust’s finance department for some years. In December 2006, they raised multiple grievances against some of the Trust’s most senior employees, alleging race discrimination.

As a result of a series of procedural disputes and delays, a hearing date was set for 9 July 2007. It was agreed by all the parties that this was to be a final stage hearing (and could not therefore be appealed) because of all the previous delays.

On 9 July, however, Mr Bashir asked for another postponement. The panel decided the hearing should proceed and the grievances were heard without either Mr or Mrs Bashir in attendance. The panel dismissed all the grievances and decided that they had been made in bad faith.

Mr Bashir was then suspended from his job on 18 July and Mrs Bashir was informed that disciplinary proceedings would be taken against her in a letter dated 23 July. Both subsequently went off sick.

The disciplinary panel dismissed the Bashirs for acts of serious misconduct (taking a confidential document without permission), raising grievances in bad faith and an irreparable breakdown in their relationships with other staff. This decision was also taken in their absence.

The Bashirs lodged tribunal claims for race discrimination, victimisation and unfair dismissal.

Tribunal decision

But the tribunal did not agree. It found that a comparable white employee would have been treated the same way, and did not think that the disciplinary hearings constituted an act of victimisation as a result of their complaints of race discrimination.

It said that the dismissal was fair for two reasons - some other substantial reason (their colleagues could no longer work with them); and gross misconduct on the part of the Bashirs.

The tribunal also considered that their behaviour had been unreasonable in that they consistently refused to cooperate with the investigations into their grievances and had delayed the hearings on endless occasions.

It was “driven to the conclusion that the claimants sought to engineer a situation whereby the weakness of their grievance might be overlooked because of the position they sought to manipulate the respondent into – proceeding in their absence’. It found that the panel’s decision to proceed in their absence on two occasions was reasonable, given the excessive delays and the effect on the running of the finance department.

EAT decision

And the EAT agreed, albeit with some “unease”, given that the Bashirs had been found, in their absence, to have pursued grievances in bad faith, a decision which they could not appeal. Nor had they been able to challenge that finding at a disciplinary hearing, where they had been found guilty of gross misconduct and dismissed.

So at first sight and without reference to the “factual context”, the EAT noted that the tribunal’s decision that these dismissals were fair seemed “surprising”.

However, it went on to say: “we all agree that it is likely to be only in an exceptional case that a summary dismissal, in circumstances where principles [of natural justice] have not been applied, will be upheld as a fair dismissal”. This, it said, was just such a case.

The facts were crucial and the principles of fairness had to be applied within the factual matrix. They did not exist in a vacuum. The Bashirs had behaved unreasonably throughout, obstructing the investigation and raising endless grievances.

When considered as a whole, therefore, the tribunal’s decisions did not constitute an error of law nor were they perverse.