Breaking Things Down
Labour & European Law Review Weekly Issue 218 19 May 2011
If an employer dismisses an employee for a reason to do with their conduct, they should follow the relevant disciplinary procedure before doing so. However, the Employment Appeal Tribunal (EAT) said in Ezsias v North Glamorgan NHS Trust that the Trust did not have to follow its conduct disciplinary procedures because the dismissal was due to a breakdown in working relationships, even though it was allegedly caused by the employee’s conduct.
Soon after he began working for the Trust in July 1998, Mr Ezsias started to raise concerns about clinical standards in the department of oral and maxillofacial surgery where he had been appointed consultant surgeon.
As a result, the Trust held an inquiry in 2001. It was critical of Mr Ezsias and the way in which he communicated with colleagues. He continued to make complaints, but a second report in 2002 came to a similar conclusion. In February 2003, nine senior colleagues signed a letter complaining of a complete breakdown in their relationship with him.
The Trust commissioned another report in April 2003 and at the same time suspended Mr Ezsias. The report concluded that the breakdown of relationships in the department was, to a significant extent, down to Mr Ezsias.
He was dismissed in February 2005 because of a fundamental and irretrievable breakdown of trust and confidence between him and his colleagues, without a full disciplinary investigation and disciplinary hearing. He claimed automatically unfair dismissal on the ground of having made protected disclosures.
The Tribunal disagreed, however, and said he had not made any protected disclosures but even if he had, that was not the reason for his dismissal.
Instead it concluded that he had been dismissed because of a breakdown in the working relationships with his colleagues in the department. Mr Ezsias, it said, was "the author of his own misfortune … His communications and general attitude explained why people became alienated from him and were deeply offended and hurt."
His dismissal was therefore fair, on the ground that it was for “some other substantial reason” (SOSR) under section 98 of the Employment Rights Act.
Mr Ezsias appealed, arguing that the Trust had failed to adhere to the rules set out under his contract of employment, whether under the Trust’s internal procedures or the nationally agreed Whitley Council terms for medical staff relating to professional conduct or competence misconduct.
However, the EAT disagreed, saying that the Whitley Council terms only applied to cases involving personal conduct, professional conduct or professional competence. It was up to the Trust to decide into which category his case fell.
Although alive to the risk that unscrupulous employers could try to bypass Whitley by saying the dismissal was not related to an employee’s conduct or competence, the EAT was confident that Tribunals would be on the look out for an employer using the catch all SOSR reason in order to conceal the real reason for a dismissal.
The fact remained that the Whitley Council terms did not apply to cases where, even though the employee's conduct caused the breakdown of their relationship, their role in the events which led to the breakdown was not the reason that action was taken against him.
Mr Ezsias had been dismissed for some other substantial reason, namely because of a breakdown in trust and confidence with his colleagues and not because of his conduct in contributing to that breakdown.
This case is another reminder that bad cases can make bad law. The EAT specifically commented that Mr Ezsias was “a man of considerable charm” but who struck them as being “inclined to take a blinkered view of what other people think of him and as someone who sees things starkly in black and white”.
One can see the justice in the EAT’s decision but there is a danger that employers could see it as a green light to avoid using a full and fair disciplinary process in irretrievable breakdown cases. To the Trust’s credit in this case, it had already commissioned a thorough, independent investigation into the breakdown of working relationships, which had taken 12 months to complete and which had concluded that there had been a breakdown of working relationships for which Mr Ezsias’s behaviour was to blame.
There were three meetings between Mr Ezsias and the Trust, with his BMA representative present, to discuss those findings, prior to the decision to dismiss. In these particular circumstances, one can see why the Trust did not want to instigate a full disciplinary investigation. Let us hope that this decision is therefore confined to its own particular facts.