Labour & European Law Review Weekly Issue 527 05 July 2017
The law states that conduct is one of the fair reasons for dismissal. The Court of Appeal has held in Adeshina v St George’s University Hospitals NHS Foundation Trust and ors, that it was fair for the employer to dismiss the claimant on the ground of misconduct for deliberately adopting a policy of non-cooperation with regard to a change management policy for which she was responsible.
Ms Adeshina, who is British of Nigerian origin and black African ethnicity, was a senior member of the management team within the pharmacy department of HMP Wandsworth. She was dismissed for gross misconduct because of her unprofessional behaviour during a senior management meeting; as well as her deliberate failure to lead a major service change in the department.
Ms Adeshina made a number of claims including race discrimination, unfair dismissal as well as wrongful dismissal.
Tribunal and EAT decisions
The tribunal dismissed all her claims. Although there were a number of procedural deficiencies at the disciplinary hearing, these were cured at the appeal stage. As Ms Adeshina had committed a repudiatory breach of the contract (by failing to lead the service change), her wrongful dismissal claim also failed. As for the claim of race discrimination the tribunal held that it was not enough to show that she had suffered a detriment and was a member of a protected class. There had to be “something more”. As she had not produced that “something more” her claim could not succeed.
The EAT dismissed her appeal.
Grounds of appeal
Ms Adeshina appealed, arguing that the Trust had not said the same things in the letter inviting her to the disciplinary hearing as it had in the investigation report. In any event, her alleged misconduct could not justify dismissal, firstly because her behaviour at the meeting was no more than an allegation of rudeness; and secondly her alleged failure to cooperate with and lead the major service change within the pharmacy department could not be said to be deliberate, but could instead have been due to incapability. Finally, she argued that the tribunal should have found that there was sufficient evidence for the burden to shift to the Trust to show a non-discriminatory explanation for its decision to dismiss.
Decision of Court of Appeal
The Court of Appeal dismissed her appeal, holding that it was inappropriate in the context of an unfair dismissal claim to take a formalistic approach to the documents generated in the course of the disciplinary process as tribunals are concerned with substantive justice. In any event, the Court was satisfied that Ms Adeshina always understood the substance of the case against her and had every opportunity to respond to it.
As for the wrongful dismissal claim, it was open to the tribunal to make an overall assessment of her conduct without going over every piece of available evidence. It found that Ms Adeshina knew she was responsible for the change management project and had deliberately adopted a policy of non-cooperation. The suggestion that her behaviour amounted to incapability rather than misconduct was “wholly unsustainable”.
Finally, it rejected the assertion that the tribunal had failed to explain its reasoning with regard to the race discrimination claim. Instead, the Court held that the degree of reasoning required to justify the conclusion that a prima facie case of discrimination has not been shown depends on the particular case. In this case, the tribunal found that any procedural errors at the disciplinary hearing were not tainted by race discrimination and the Court should be very slow to take a different view.