Adeshina v St. George's University Hospitals NHS Foundation Trust & Ors

The Court of Appeal dismissed the appellant's challenge to the tribunals' findings on unfair dismissal, wrongful dismissal and race discrimination. The appeal panel's full re-hearing cured procedural defects in the original decision and the Employment Tribunal was entitled to conclude that the appellant's conduct (deliberate non-cooperation and apparent insubordination in relation to the Central Pharmacy Unit project and unprofessional conduct at a meeting on 20 July 2011) could properly be treated as gross misconduct. The tribunal also properly found that the conduct amounted to a repudiatory breach for the purposes of a wrongful dismissal claim. As to race discrimination, the tribunal correctly applied the burden of proof and was entitled to conclude that the procedural errors identified in the initial decision were genuine mistakes unrelated to race and that the appellant had not established the necessary prima facie case requiring an explanation from the employer.

This is an appeal from the Employment Appeal Tribunal against dismissal of claims brought by a senior pharmacist employed by St. George's University Hospitals NHS Foundation Trust. The appellant was summarily dismissed following a disciplinary process arising from problems with implementation of a Central Pharmacy Unit at HMP Wandsworth and alleged unprofessional conduct at a meeting on 20 July 2011. The disciplinary investigation produced a Management Statement of Case identifying a number of findings and concluding that the conduct amounted to gross misconduct. The appellant was dismissed by the Divisional Director and the dismissal was upheld after a prolonged internal appeal which conducted a full re-hearing.

Nature of the claim/application:

• The appellant claimed ordinary unfair dismissal under section 98 Employment Rights Act 1996, automatic unfair dismissal under section 103A and Part IVA (whistleblowing), whistleblower detriment, wrongful dismissal and race discrimination arising from the dismissal and associated events.

Procedural posture: The Employment Tribunal heard the claims over fourteen days and dismissed them in a detailed judgment (judgment sent 10 April 2014). The appellant appealed to the Employment Appeal Tribunal (hearing 30 April–1 May 2015; judgment 19 June 2015), which dismissed the appeal. The present appeal to the Court of Appeal challenges that decision.

Issues framed by the court:

• Whether the dismissal was procedurally and substantively fair under the unfair dismissal test (including whether the appeal panel cured defects in the original decision);
• Whether the appellant's conduct amounted to a repudiatory breach justifying summary (wrongful) dismissal;
• Whether the procedural defects in the employer's decision-making gave rise to a prima facie case of race discrimination, shifting the burden of proof to the employer.

Court’s reasoning:

• The Court accepted the Employment Tribunal's analysis that some aspects of the original decision-maker's reasons were unfair (reliance on matters not formally charged and material not fairly disclosed), but that those defects were cured by the appeal panel's full re-hearing which properly and reasonably considered the evidence. The tribunal was entitled to conclude that the employer had a reasonable belief in the appellant's misconduct and that dismissal fell within the band or range of reasonable responses.
• On wrongful dismissal, the tribunal was entitled to make an overall assessment that the appellant's conduct demonstrated deliberate resistance and therefore a repudiatory breach; there was no requirement for the tribunal to set out minute factual findings on every inconsistency when an overall picture of serious misconduct was established.
• On race discrimination, the tribunal identified the procedural errors but found them to be genuine mistakes unrelated to race. The appellant had not shown the "something more" needed to establish a prima facie case of discrimination and therefore the burden did not shift to the respondent. The tribunal’s conclusions were open to it and required no further elaboration.

The Court therefore dismissed the appeal, upholding the conclusions of the ET and EAT that dismissal was fair, the wrongful dismissal claim failed and there was no established discrimination.

The appeal is dismissed. The Court concluded that, although the original decision-maker had some procedural failings, the employer's internal appeal conducted a full and fair re-hearing which cured those defects; the Employment Tribunal was entitled to find that the employer had a reasonable belief in the appellant's misconduct and that dismissal fell within the range of reasonable responses. The tribunal was also entitled to find a repudiatory breach for wrongful dismissal, and to conclude that the procedural mistakes did not give rise to a prima facie inference of race discrimination.

Employment Tribunal judgment dismissing all claims (judgment sent to parties 10 April 2014); appeal to the Employment Appeal Tribunal (HH Judge Eady QC) dismissed (judgment promulgated 19 June 2015); appeal to the Court of Appeal dismissed [2017] EWCA Civ 257.