|What is the Issue?|
Under the Employment Rights Act 1996 (“ERA”), employers must have a “fair” reason to dismiss an employee. The 5 “fair” reasons are:
- some other substantial reason justifying dismissal.
The ERA also provides that, when determining whether a dismissal is fair or unfair, a Tribunal must examine whether the employer acted reasonably or unreasonably in treating that reason as sufficient for dismissing the employee taking into account all the circumstances.
In a recent case, Perkin v St Georges Healthcare NHS Trust, the Court of Appeal looked at whether an employer could fairly dismiss a senior employee for having a difficult personality on the grounds of some other substantial reason of a kind such as to justify the dismissal of that employee.
|What has the Court of Appeal decided?|
In this case, the employer had started disciplinary proceedings against Mr Perkins, who was a senior employee (the Finance Director), in respect of his management style and his inability to form effective working relationships. There were no complaints about any other aspect of Mr Perkins’ performance.
Mr Perkins responded to the accusations against him of being a difficult colleague with whom to work by attacking the honesty and integrity of his immediate superiors. In particular, he called the Chief Executive a liar and accused him of financial impropriety – and continued to do so even after it had become clear that his accusations were ill-founded. Mr Perkins was dismissed.
Although the primary reason for the dismissal was the events and difficulties in relationships before the disciplinary hearing, the employer felt that Mr Perkin’s behaviour during the disciplinary process had resulted in a break-down in the trust and confidence between Mr Perkins and the Company.
The Tribunal and Court of Appeal decided that the dismissal was actually unfair on procedural grounds (as the dismissing officer was biased against Mr Perkins from the outset). However, importantly, despite this, it also found that the manner of Mr Perkin’s defence and, in particular, his attacks on the honesty, financial probity and integrity of his colleagues meant that an unflawed process would have ended with exactly the same result, i.e. Mr Perkin’s dismissal.
|What does this mean for employers?|
This is a useful case for employers who are faced with employees who behave particularly badly and raise unfounded and/or unsubstantiated allegations during a disciplinary process. The Court of Appeal has decided that an employee’s (albeit a very senior employee) conduct during the disciplinary process itself may be sufficient grounds for dismissal (even if the original reasons for the disciplinary investigation are not). While of course an employee has the right to defend himself during a disciplinary hearing, any unreasonable behaviour in so doing can be taken into account by the employer when making the actual decision to dismiss – particularly when, as in this case, the relevant behaviour gives credence to the original cause for concern.