Meizoso-Gonzalez v South East Essex Mental Health & Community Care NHS Trust

The Court of Appeal dismissed the appellant's challenge to the Employment Tribunal's finding that the principal reason for summary dismissal was the appellant's conduct in sending a letter to a member of the public which imputed serious wrongdoing by colleagues. The court applied section 98 of the Employment Rights Act 1996 and confirmed that the employer had identified a reason falling within s.98(2) (relating to conduct) and had carried out such investigation as was reasonable in the circumstances. The Tribunal rejected that the letter breached the narrow contractual confidentiality term concerning patients' diagnoses and treatment but found the content nevertheless suggested serious allegations against employees and thereby constituted serious misconduct. The court also held that the Public Interest Disclosure Act 1998 point was not properly arguable because the appellant had not disclosed or adduced the underlying evidence to the Tribunal.

Background and parties: The appellant, Dr Miguel Angel Meizoso-Gonzalez, was employed by the respondent NHS Trust and dismissed summarily on 13 November 2000 following disciplinary proceedings. The appellant brought claims before an Employment Tribunal for unfair dismissal (and initially breach of contract, which was not pursued). The Employment Tribunal at Stratford found the principal reason for dismissal was the appellant's sending of a letter to a member of the public which, in the Tribunal's view, suggested serious wrongdoing by Trust employees. The Employment Appeal Tribunal dismissed the appellant's appeal on 3 July 2002. The appellant obtained permission to appeal to the Court of Appeal.

Nature of the claim and relief sought: The appellant sought to challenge the finding of unfair dismissal. He argued among other points that the Tribunal had substituted its own reason for dismissal, that the employer had relied improperly on an alleged breach of the contractual confidentiality term concerning patients' diagnoses and treatment, and that disclosure might have been protected by the Public Interest Disclosure Act 1998.

Issues framed by the court:

• What was the employer's reason (or principal reason) for dismissal and did the Tribunal correctly identify that reason?
• Did the reason relied upon fall within section 98(2) of the Employment Rights Act 1996 and was the employer's conduct in dismissing the appellant reasonable (the Burchell principles)?
• Was any argument based on the Public Interest Disclosure Act 1998 relevant given the evidence before the Tribunal?

Court's reasoning and disposition: The Court of Appeal analysed the documentary record and the oral evidence of the decision-maker, finding that although some references by the employer to contractual confidentiality were unfortunate and not strictly apt (for example confidentiality about patients' diagnoses and treatment), the employer and the Tribunal consistently viewed the letter as containing grave accusations about colleagues communicated to an outside person. That conduct was a reason relating to conduct under s.98(2). The Tribunal had examined whether the employer carried out a reasonable investigation (guided by British Home Stores v Burchell) and, given the appellant's failure to provide explanation or attend the disciplinary hearing, concluded the employer's steps were reasonable. The court also held the Tribunal was right to treat any Public Interest Disclosure Act argument as theoretical because the appellant had not disclosed his evidence to the Tribunal and so the Tribunal could not assess whether any disclosure would have been qualifying. For these reasons the Court of Appeal dismissed the appeal and ordered costs against the appellant.

Appeal dismissed. The Court of Appeal held that the Employment Tribunal had correctly identified the principal reason for dismissal as the appellant's conduct in sending the letter and that this reason fell within section 98(2) of the Employment Rights Act 1996; the Tribunal properly applied the Burchell approach and was entitled to conclude the employer acted reasonably in dismissing the appellant. The Tribunal was also correct to treat the Public Interest Disclosure Act 1998 point as not directly applicable given the absence of disclosed evidence.

First instance: Employment Tribunal sitting at Stratford (decision finding dismissal fair). Appeal to Employment Appeal Tribunal; appeal dismissed by order dated 3 July 2002. Permission to appeal to the Court of Appeal was granted by Sedley LJ. Final appeal disposed of by the Court of Appeal ([2003] EWCA Civ 521) which dismissed the appeal.