Perkin v St Georges Healthcare NHS Trust

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's dismissal of his appeal. The Employment Tribunal had found the dismissal procedurally unfair because the chair of the disciplinary panel was not impartial, but concluded that there was a potentially fair reason for dismissal under ERA 1996 section 98 (manifested as conduct and/or some other substantial reason) and that, on the facts, there was a 100% chance the employee would have been dismissed even if a fair procedure had been followed (Polkey). The Tribunal also found contributory fault at 100%, resulting in no remedy. The Court of Appeal accepted those factual findings and that the employer had established a potentially fair reason (best characterised as SOSR), so the appeal was dismissed.

Background and procedural posture:

• The appellant, Mr Perkin, was Director of Finance at the Trust and was summarily dismissed on 4 December 2002 following disciplinary proceedings. He alleged automatic unfair dismissal for protected disclosures under Part IVA/section 103A ERA 1996 and ordinary unfair dismissal under section 98 ERA 1996. The Tribunal rejected the protected-disclosure claim and found procedural unfairness in the disciplinary process but held that dismissal would nevertheless have been inevitable and that the appellant had contributed 100% to his dismissal, granting no relief.
• The Employment Appeal Tribunal dismissed the appellant's appeal on 29 July 2004. Permission to appeal to the Court of Appeal was initially refused on paper but later granted; the Court of Appeal heard the appeal and reserved judgment.

Issues for decision:

• What was the reason or principal reason for dismissal and whether it was a potentially fair reason under ERA 1996 section 98 (conduct, capability or some other substantial reason).
• Whether dismissal was fair in all the circumstances (including whether the employer had reasonable belief, conducted a reasonable investigation, and followed a fair procedure).
• Whether, despite procedural unfairness, the employer would have fairly dismissed the employee if a proper procedure had been followed (Polkey reduction) and if so by what percentage.
• Whether the employee had contributed to his dismissal and, if so, to what extent.

Court's reasoning and disposition:

• The Court of Appeal accepted the factual findings of the Tribunal and the EAT that the Trust genuinely believed that there had been a serious breakdown in working relationships and that the appellant’s manner and behaviour had materially undermined his ability to act as part of the senior management team.
• The Court considered that the reasons advanced by the Trust were properly characterised as "some other substantial reason" for the purposes of section 98, although the Tribunal sometimes used the language of conduct; that characterisation was not fatal given the facts found.
• The Tribunal was entitled to consider the appellant's conduct at the disciplinary hearing (including unfounded allegations against senior colleagues) as corroborative of the pre-existing breakdown and to conclude that a fair and impartial panel would nevertheless have dismissed him. On that basis the Tribunal's finding of a 100% Polkey chance of dismissal and a 100% contributory reduction was held to be open on the facts.

Wider context:

• The court observed that findings of a 100% Polkey reduction and 100% contributory fault are unusual but legally possible and that these conclusions depend heavily on the specific factual findings of the tribunals below.

Appeal dismissed. The Court of Appeal upheld the Employment Tribunal's and EAT's factual findings that the Trust had a potentially fair reason for dismissal (best characterised as some other substantial reason/SOSR arising from a breakdown in working relationships) and that, notwithstanding procedural unfairness due to the chair's lack of impartiality, a fair tribunal would inevitably have dismissed the appellant (100% Polkey reduction) and the appellant substantially contributed to his dismissal (100% contribution).

Employment Tribunal (London South) decision promulgated 27 January 2004 finding procedural unfairness but concluding dismissal would have been inevitable; Employment Appeal Tribunal dismissed the appellant's appeal on 29 July 2004; permission to appeal to the Court of Appeal was granted on oral hearing and the present appeal was heard and dismissed by the Court of Appeal on 12 October 2005 ([2005] EWCA Civ 1174).