Bashir & Anor v. Sheffield Teaching Hospital NHS Foundation Trust

Established fairness principles must be applied within the factual context. Although summary dismissal without the employee’s participation will ordinarily be exceptional, it may be fair where the employee has notice of the allegations and has been given a genuine opportunity to respond, but deliberately declines to engage.

A finding of bad faith in pursuing grievances, made at the final grievance stage without an appeal, does not necessarily invalidate a later dismissal. A disciplinary panel may rely on that finding where the employee can make representations about its effects and the underlying facts. A breakdown in working relationships may independently constitute some other substantial reason justifying dismissal. A breach of the statutory grievance procedure does not itself make a subsequent dismissal automatically unfair.

Mr and Mrs Bashir appealed against a Sheffield Employment Tribunal judgment promulgated on 23 July 2009, which dismissed their claims for race discrimination, victimisation, disability discrimination, unfair dismissal, wrongful dismissal and unlawful deductions from wages.

The appeal concerned their dismissal after a Trust grievance panel rejected multiple grievances and found that they had been pursued in bad faith. The Claimants argued that they had been denied an appeal against that finding, could not challenge it during the disciplinary process, and were dismissed in circumstances involving procedural unfairness and victimisation. The central issues were whether the dismissals were fair, whether they were automatically unfair or wrongful, and whether the Tribunal’s conclusions were perverse.

Appeal dismissed. The Employment Appeal Tribunal held that the Tribunal had made no error of law and had not reached a perverse conclusion.

1. Fairness principles, including the opportunity to know the case and answer it, must be applied within the factual matrix. Summary dismissal where those principles have not been fully applied will ordinarily be exceptional, but may be upheld where the circumstances justify it.

2. The Tribunal was entitled to find that the grievance panel had sufficient evidence to conclude that the Claimants had pursued grievances in bad faith. Their failure to participate in the grievance hearing, after repeated postponements and procedural objections, could properly form part of that assessment.

3. The absence of an internal appeal did not vitiate the dismissal. The breach of the statutory grievance procedure under Employment Act 2002 did not create an independent right to bring proceedings or automatically invalidate the dismissal. The Claimants had notice of the allegations and were repeatedly invited to attend, arrange representation, or make written submissions about the bad-faith finding and its underlying facts. The disciplinary panel also examined the supporting evidence in detail.

4. The Tribunal was entitled to find that the irretrievable breakdown in working relationships was a free-standing reason amounting to some other substantial reason justifying dismissal. The finding was independent of, although related to, the bad-faith finding. The alternative conclusion that the conduct findings could justify dismissal for gross misconduct was also open to a reasonable employer under section 98(4) of the Employment Rights Act 1996 and the principles in BHS v Burchell.

5. The claim of automatic unfair dismissal failed. The Tribunal correctly relied on Selvarajan v Wilmot in concluding that the statutory procedural breach did not itself determine the claim. The victimisation claim failed because the Tribunal found that the disciplinary action and dismissal were not caused by a protected act. The wrongful dismissal claims failed because the Tribunal was entitled to find that gross misconduct had occurred.

• Employment Appeal Tribunal: dismissed the appeal against the Sheffield Employment Tribunal’s judgment promulgated on 23 July 2009. The Tribunal’s findings that the dismissals were fair, not wrongful, and not acts of victimisation were upheld.