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

Under section 98 of the Employment Rights Act 1996, the employer must prove the reason, or principal reason, for dismissal before the tribunal considers whether dismissal was reasonable. Identifying only the employee’s act is insufficient. The tribunal must identify what about that act justified dismissal and ensure that this was the employer’s actual reason. An imprecise label, such as breach of confidentiality, may be understood by reference to the substance of the employer’s concern. A tribunal need not undertake a theoretical public-interest disclosure analysis where no disclosure was made and the issue was not relied on in deciding the case.

The appellant was dismissed by an NHS trust after writing to the father of a child treated by a nurse who was the subject of criminal and internal investigations and adverse media coverage. The employer treated the letter as gross misconduct and also relied on qualification and trust-and-confidence matters.

An Employment Tribunal found that the principal reason was the letter, constituting conduct within section 98(2) of the Employment Rights Act 1996, and that summary dismissal fell within the range of reasonable responses. The Employment Appeal Tribunal dismissed the appeal. The central issue in the Court of Appeal was whether the tribunal had substituted a different reason for dismissal from that relied on by the employer.

1. Appeal dismissed. Under section 98 of the Employment Rights Act 1996, the employer had to show the reason, or principal reason, for dismissal and establish that it fell within section 98(2) or constituted another substantial reason justifying dismissal. Only then did the tribunal reach the question under section 98(4) whether the employer acted reasonably in treating that reason as sufficient.
2. A tribunal must identify what about the employee’s act constituted the justification for dismissal and determine whether that reflected the employer’s thinking at the time. It cannot uphold dismissal by substituting a different reason which would itself have justified dismissal.
3. On the evidence, the tribunal had not substituted its own reason. The employer’s reference to breach of confidentiality was an unfortunate label for the concern that the appellant had made grave accusations about one or more colleagues to an outsider. The tribunal’s finding that the letter suggested serious wrongdoing accurately reflected the employer’s evidence and reasoning. The contractual term concerning patients’ diagnoses and treatment, and disclosure of the nurse’s already-public name, did not themselves establish the relevant misconduct.
4. The tribunal was correct not to conduct a theoretical analysis under the amendments made by the Public Interest Disclosure Act 1998. The appellant maintained that he had made no disclosure, did not reveal the evidence on which his allegations rested, and the tribunal did not rely on that issue in reaching its decision.
5. Lord Justice Waller and Lord Justice Jonathan Parker agreed with Lord Justice Peter Gibson. The appeal was dismissed with costs, subject to detailed assessment.

• Court of Appeal (Civil Division): Appeal dismissed with costs subject to detailed assessment.
• Employment Appeal Tribunal: The appeal from the Employment Tribunal was dismissed on 3 July 2002. The tribunal held that the Employment Tribunal had directed itself correctly and applied the legal principles correctly.
• Employment Tribunal: The appellant’s unfair-dismissal claim was dismissed. The tribunal found that the principal reason was conduct consisting of the letter and that summary dismissal was within the range of reasonable responses.