Guernina v Thames Valley University

The Court of Appeal upheld the Employment Tribunal and Employment Appeal Tribunal findings that the claimant breached her full-time contract by undertaking a one-day-per-week paid post with the NHS without obtaining the required prior approval under clause 10 of her contract. The breach amounted to misconduct and constituted a potentially fair reason for summary dismissal under section 98(2) of the Employment Rights Act 1996. The tribunals concluded the dismissal fell within the range of responses open to a reasonable employer and that procedural defects did not render the dismissal unfair under section 98(4), because the claimant persistently refused to resolve the conflict by resigning from the NHS post.

Background and parties:

• The appellant, Dr Zoubida Guernina, was appointed as a full-time senior lecturer in psychology by Thames Valley University in November 1998. Prior to and during part of her university employment she also worked for the Hull and East Riding Community NHS Trust.
• The University employed a written contract which described the post as full time and contained clause 10 requiring prior notification to and approval by the subject head for external paid work, except for specified exceptions.

Procedural posture and claims:

• At first instance an Employment Tribunal (Watford) dismissed claims of unfair dismissal, breach of contract and discrimination. The appellant appealed to the Employment Appeal Tribunal; the EAT permitted appeal only on wrongful and unfair dismissal grounds and dismissed that appeal. Permission was given to the Court of Appeal, which also dismissed the appeal.

Key facts and issues:

• The central issue was whether the appellant was entitled to continue a one-day-per-week NHS appointment while employed full time by the University without prior written approval.
• The Tribunal found that the appellant had not fully disclosed the nature of her NHS commitment at appointment, that the NHS work did not fall within the clause 10 exceptions, and that she therefore acted in breach of her contract.
• The University repeatedly required her to resign from the Trust; she did not do so and was dismissed for gross misconduct on 22 February 2005 after disciplinary and appeal stages.

Court reasoning and disposition:

• The tribunals construed clause 10 as requiring notification and approval for the Trust work. Because the appellant had not obtained approval and had a continuing contractual commitment to the Trust for one day per week, she was in fundamental breach of contract.
• The tribunals held that the breach was a potentially fair reason for dismissal under s98(2) ERA 1996. Applying s98(4), they concluded the dismissal was within the range of reasonable responses of an employer. Although some procedural shortcomings were identified, those defects did not make the dismissal unfair given the appellant's refusal to cure the breach and the opportunities she had been given to do so.
• On appeal to the Court of Appeal the tribunal and EAT findings were upheld. Lord Justice Sedley observed concern about an undisclosed internal memorandum that could be prejudicial but agreed it had not been shown to have influenced the dismissal outcome.

Appeal dismissed. The Court of Appeal agreed with the Employment Tribunal and Employment Appeal Tribunal that the claimant breached her full-time contract by undertaking one day per week paid NHS employment without the required prior approval under clause 10; that breach constituted misconduct and a potentially fair reason under s98(2) Employment Rights Act 1996; and that, applying s98(4), the dismissal was within the range of reasonable responses. Procedural shortcomings did not render the dismissal unfair in the circumstances, and the appellate courts found no error of law.

Employment Tribunal (Watford) decision sent 18 January 2006 dismissing the claimant's claims; appeal to the Employment Appeal Tribunal (UKEAT/0479/06/CEA) dismissed by decision dated 21 December 2006; permission granted to the Court of Appeal which dismissed the appeal ([2008] EWCA Civ 34, 5 February 2008).