Perry v Imperial College Healthcare NHS Trust

In an unfair dismissal case, an employment tribunal must consider whether dismissal fell within the range of reasonable responses available to a reasonable employer. This question remains essential even where the employer genuinely believed in misconduct, had reasonable grounds for that belief and conducted a reasonable investigation. Where an appeal process reaches materially different factual conclusions or relies on a different basis from the original dismissal, the tribunal must assess the reasonableness of dismissal in light of the position reached on appeal. A dismissal may be unfair where the sanction is not one which any reasonable employer could impose. A claimant’s good-faith but plainly mistaken understanding of contractual obligations may justify a reduction for contribution, without making the dismissal fair.

The claimant, a midwife, was dismissed for gross misconduct after continuing clinic-based work for another NHS employer while absent through sickness from her community midwifery role. The original dismissal was based principally on an alleged fraud involving sick pay. On appeal, the employer relied instead on an alleged failure to disclose the second employment and a supposed loss of a redeployment opportunity.

The Employment Tribunal dismissed the unfair dismissal claim, applying the BHS v Burchell questions but failing expressly to address whether dismissal fell within the reasonable range of responses. The claimant appealed to the Employment Appeal Tribunal. The central issue was whether the Tribunal had properly assessed the reasonableness of dismissal after the substantially different basis adopted on appeal.

1. Appeal allowed. The Employment Tribunal’s decision was fundamentally flawed because, although it considered the employer’s belief, grounds and investigation, it failed to determine whether dismissal was within the range of reasonable responses available to a reasonable employer. This was particularly significant because the appeal process relied on a materially different basis from the original dismissal.
2. The original dismissal was based on an alleged fraud and the supposed receipt of sick pay while working elsewhere. That reasoning was legally and factually misconceived. The claimant was permitted to hold the second employment, the two sets of hours did not overlap, and she could be incapable of performing one job while capable of performing the other.
3. The employer was entitled to conclude that the contractual sickness provision required permission before continuing the second employment, and that the claimant was plainly wrong in believing otherwise. However, the contractual and sickness-management documents gave no proper basis for treating non-disclosure as obstructing redeployment. The appellate conclusion that summary dismissal was an appropriate sanction was outside the range of reasonable responses.
4. The finding of unfair dismissal was substituted. The claimant’s good-faith but plainly wrong construction of the contractual term contributed to her dismissal. A contribution of 30% was therefore made under sections 122(2) and 123 of the Employment Rights Act 1996.
5. Remitted to a differently constituted Employment Tribunal for determination of remedy and calculation of the award.

• Employment Tribunal: Following a four-day hearing, the Tribunal dismissed claims for unfair dismissal, disability discrimination and unpaid holiday pay. The unfair dismissal decision was sent to the parties on 4 June 2010.
• Employment Appeal Tribunal: The unfair dismissal appeal was upheld. The finding that the dismissal was fair was substituted with a finding of unfair dismissal, a 30% contribution was determined, and remedy was remitted to a differently constituted Employment Tribunal.