Guernina v Thames Valley University

A full-time employee is bound by a contractual requirement to notify and obtain approval for external work where that work is not within an express exception. Continuing an unapproved, conflicting engagement may amount to misconduct and a fundamental breach justifying summary dismissal. Under the Employment Rights Act 1996, s98(4), fairness is assessed by asking whether dismissal fell within the range of reasonable responses open to a reasonable employer, rather than what the tribunal would itself have done. Procedural defects do not necessarily invalidate dismissal where the breach is established, the employee has opportunities to remedy it, and the tribunal finds that the defects did not influence the decision.

Dr Zoubida Guernina, a full-time senior lecturer, appealed against the Employment Appeal Tribunal’s dismissal of her appeal from an Employment Tribunal decision. The Tribunal had dismissed claims of unfair dismissal, breach of contract, and discrimination on grounds of sex and disability. The EAT upheld that decision in UKEAT/0479/06/CEA. The appeal concerned whether the appellant was entitled to continue paid clinical psychology work for an NHS employer for one day a week, and whether her summary dismissal for refusing to give up that work was wrongful or unfair. Procedural complaints included the handling and disclosure of an adverse internal memorandum.

The appeal was dismissed unanimously. Lord Justice Pill, giving the principal judgment, agreed with the Employment Appeal Tribunal that no error of law had been established and that the Employment Tribunal was entitled to make its factual findings and construe the contract as it did. Lord Justice Sedley agreed in the result and considered the contractual breach plain. Lord Justice Lawrence Collins agreed with both judgments.

1. The appellant’s full-time contract required external work to be notified and approved by the subject head unless it fell within specified exceptions. Her paid, ongoing NHS employment was not within those exceptions. Mentioning the work without fully disclosing the contractual commitment did not amount to the required consent.
2. Continuing the unapproved concurrent employment, despite being told that she must resign from it and being offered assistance to find alternative practitioner work, constituted misconduct and a fundamental breach of contract. It justified termination without notice and provided a potentially fair reason for dismissal under s98(2) of the Employment Rights Act 1996.
3. Applying s98(4), the relevant question was whether dismissal fell within the range of responses open to a reasonable employer. The Tribunal was not entitled to substitute its own view of the appropriate sanction. On the facts, summary dismissal fell within that range.
4. The procedural criticisms, including the failure formally to suspend the appellant, delay, inclusion of performance matters, and late disclosure of the adverse memorandum, did not invalidate the dismissal. The Tribunal found that the performance matters and memorandum had not influenced the decision, and that the appellant had repeated opportunities during the disciplinary process to remedy the contractual breach. The dismissal was therefore neither wrongful nor unfair.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 34, the appeal was dismissed. The court upheld the findings that the dismissal was neither wrongful nor unfair.
• Employment Appeal Tribunal: In UKEAT/0479/06/CEA, the EAT dismissed the appeal from the Employment Tribunal.
• Employment Tribunal: The Tribunal dismissed claims of unfair dismissal, breach of contract, and discrimination on grounds of sex and disability.