Perkin v St Georges Healthcare NHS Trust

Personality alone is not a potentially fair reason for dismissal under the Employment Rights Act 1996, section 98. It must manifest itself in conduct or in circumstances amounting to some other substantial reason. A serious breakdown in confidence between an employer and a senior executive may constitute such a reason where the executive is responsible and the breakdown damages operations or makes teamwork impossible, subject to section 98(4). The fairness principles associated with British Home Stores Ltd v Burchell [1978] IRLR 379 are not confined to conduct cases. A misclassification between conduct and some other substantial reason is not fatal if it causes no material error. A 100% Polkey reduction and 100% contribution finding may stand where the facts make dismissal inevitable and the tribunal’s reasons, read as a whole, support those conclusions.

Mr Perkin, the Trust’s Director of Finance, was summarily dismissed after a disciplinary process concerning his management style, relationships with colleagues and dealings with external advisers. The Employment Tribunal found the dismissal procedurally unfair because the disciplinary chair was not impartial and there was no appeal. It nevertheless held that the Trust had a potentially fair reason, that a fair procedure would inevitably have resulted in dismissal, and that Mr Perkin had contributed to his dismissal by 100%, so no relief was awarded.

The Employment Appeal Tribunal dismissed his appeal. Before the Court of Appeal, Mr Perkin challenged the statutory characterisation of the reason for dismissal, the fairness analysis, the 100% Polkey deduction and the finding of contributory fault.

1. Appeal dismissed. The Court of Appeal unanimously upheld the decisions below. Lord Justice Wall gave the judgment, with Lord Justices Mance and Tuckey agreeing.
2. Personality, without more, cannot constitute a potentially fair reason for dismissal under section 98 of the Employment Rights Act 1996. The employee’s personality must manifest itself in conduct or in circumstances falling within some other substantial reason. The employer must establish the facts justifying the reason or principal reason for dismissal.
3. A serious breakdown in confidence between an employer and a senior executive may constitute some other substantial reason where the executive is responsible for the breakdown and it damages the employer’s operations or makes effective teamwork impossible. Capability could also have been an appropriate statutory category, but it was not the only possible one. The Employment Tribunal’s failure to analyse the case primarily as one of some other substantial reason was not fatal.
4. The fairness principles associated with British Home Stores Ltd v Burchell [1978] IRLR 379 are not confined to conduct dismissals under section 98(2)(b). They may inform the fairness assessment under section 98(4) in a some-other-substantial-reason case. The Tribunal therefore did not apply the wrong legal test.
5. The 100% Polkey reduction was a fact-sensitive assessment. The Tribunal was entitled to conclude that an independent and fair disciplinary process would inevitably have led to dismissal. Mr Perkin’s sustained and unfounded attacks on the honesty and integrity of senior colleagues corroborated the earlier relationship difficulties and made continued teamwork impossible.
6. The Tribunal’s terse finding of 100% contributory fault could be read with its preceding reasoning. In accordance with Meek v Birmingham City Council [1987] IRLR 250, its reasons were adequate when read as a whole. The appellate court should not second-guess specialist tribunals on factual and evaluative conclusions open to them.

1. Court of Appeal (Civil Division): [2005] EWCA Civ 1174 dismissed the appeal from the Employment Appeal Tribunal.
2. Employment Appeal Tribunal: on 29 July 2004 dismissed Mr Perkin’s appeal against the Employment Tribunal’s decision and refused permission to appeal.
3. Employment Tribunal, London South: its decision, promulgated on 27 January 2004, found the dismissal unfair but awarded no relief because a fair procedure would have resulted in dismissal and Mr Perkin had contributed to his dismissal by 100%.