Ezsias v North Glamorgan NHS Trust

An employee dismissed because working relationships with colleagues have irretrievably broken down is not necessarily dismissed for a reason relating to conduct. The decisive question is what caused the employer to take action: the employee’s conduct, or the fact of the breakdown itself. Where the latter is the true reason, contractual disciplinary procedures applicable to misconduct do not apply. An employment tribunal need not examine every alleged protected disclosure separately if it finds that the disclosures were not made in good faith. It must nevertheless determine the statutory reason for dismissal and whether the employer’s stated reason is genuine.

Mr Andrew Ezsias, a consultant oral and maxillofacial surgeon, was dismissed by North Glamorgan NHS Trust after longstanding working relationships with colleagues had irretrievably broken down. He claimed that his dismissal was automatically unfair under Employment Rights Act 1996, section 103A, because he had made protected disclosures. Alternatively, he claimed ordinary unfair dismissal and breach of contractual disciplinary procedures.

The Employment Tribunal dismissed his claims after a lengthy hearing. The Employment Appeal Tribunal permitted limited grounds of appeal concerning the protected-disclosure findings, the classification of the reason for dismissal, the contractual disciplinary procedure, the investigation, and the absence of an appeal.

1. Appeal dismissed. The Tribunal was entitled to find that the dismissal was caused by the breakdown of working relationships, rather than by the making of protected disclosures. It was also entitled to find that the overwhelming majority of the alleged disclosures had not been made in good faith. In those circumstances, it was unnecessary to determine separately whether every alleged disclosure contained information falling within section 43B(1) of the Employment Rights Act 1996.
2. The relevant contractual question was whether the action taken against the claimant was action taken because of his conduct. If it was not, it was unnecessary to classify the case as involving personal or professional conduct. If it was conduct, the Tribunal would then have had to determine the correct contractual procedure and whether failure to follow it rendered the dismissal unfair.
3. The Tribunal’s findings, read fairly, established that the claimant’s conduct was historically responsible for much of the breakdown, but that the reason for dismissal was the fact that working relationships had irretrievably broken down. His responsibility was incidental to the reason for the decision. The action was therefore not taken because of his conduct, and neither the Whitley Council procedure nor the Trust’s disciplinary procedure applied.
4. The distinction was consistent with Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934. Skidmore v Dartford & Gravesham NHS Trust [2003] ICR 721, D’Sa v University Hospital Coventry and Warwickshire NHS Trust [2001] EWCA Civ 983 and Buxton v Swansea NHS Trust concerned different questions and did not require a different result.
5. There was nothing improper in the investigator identifying an alternative course of action based on breakdown of relationships. It would have been preferable for the claimant to have been invited to comment on the alteration for reasons of transparency, but the alteration caused no material unfairness. The suspension was not itself a disciplinary act requiring invocation of the contractual procedure. The Tribunal was also entitled to find that the claimant had not pursued the proposed internal appeal to conclusion.

• Employment Appeal Tribunal: A preliminary hearing limited the grounds proceeding to a full hearing. The substantive appeal against the Employment Tribunal’s dismissal of the unfair-dismissal claim was dismissed.
• Employment Tribunal: After a 38-day hearing, the Tribunal issued a 757-paragraph judgment on 10 November 2008 dismissing the claim.