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

In an unfair dismissal case, disciplinary allegations are read realistically and as a whole. They need not be finally assigned to a particular disciplinary label if the employee understands the substance of the case and has a fair opportunity to answer it. A fair appeal rehearing may cure defects in the initial decision, and fairness is assessed by the disciplinary process overall. For wrongful dismissal, the tribunal must decide for itself whether the misconduct occurred and whether it justified summary dismissal. It may assess the employee’s overall deliberate conduct without separately categorising every incident. Racial discrimination is not established merely by unfair treatment and protected status. Ordinary managerial errors do not, without more, require an inference of racial motivation.

The appellant, a principal pharmacist employed by an NHS foundation trust, was summarily dismissed after disciplinary findings concerning her conduct at a management meeting and her resistance to a pharmacy reorganisation. The Employment Tribunal dismissed claims for unfair dismissal, whistleblower detriment, wrongful dismissal and race discrimination. It found defects in the original dismissal process but held that a fair appeal rehearing cured them, and that the conduct amounted to a repudiatory breach. The Employment Appeal Tribunal dismissed the appeal. The Court of Appeal considered whether the charges sufficiently identified the misconduct, whether the appeal cured procedural defects, whether the conduct justified summary dismissal at common law, and whether mistakes in the disciplinary decision-making supported an inference of race discrimination.

The appeal was unanimously dismissed. Underhill LJ gave the judgment, with Beatson and Longmore LJJ agreeing.

1. Unfair dismissal. The disciplinary documents had to be read realistically and together. The Management Statement of Case amplified the disciplinary letter and made the substance of the allegations clear. No final categorisation of the conduct as misconduct or gross misconduct was required at the charging stage, provided the employee understood the case and had a full opportunity to respond.
2. The appeal panel conducted a fair rehearing, considered the relevant evidence and reached reasonable conclusions about the appellant’s conduct and the appropriate sanction. The defects in the initial decision were therefore cured by the appeal. The statutory assessment was of the disciplinary process as a whole. It required reasonableness, not perfect management or communication. The decision in McMillan v Airedale NHS Trust [2014] EWCA Civ 1031 concerned increasing a contractual sanction on appeal and did not govern an appeal which confirmed the original dismissal.
3. Wrongful dismissal. The Tribunal had correctly understood that it must decide for itself whether the misconduct occurred and whether it was sufficiently serious to justify summary dismissal. It was entitled to assess the appellant’s overall conduct and attitude. It did not need to determine whether every individual incident, viewed in isolation, was a repudiatory breach. The findings of deliberate disengagement, resistance and non-co-operation, together with the appellant’s knowledge that she was to lead the project, justified the conclusion that she had repudiated the employment contract.
4. Race discrimination. The procedural errors found in the initial decision were ordinary genuine mistakes. The Tribunal was entitled to conclude that they were unrelated to race and that there was no evidential basis for an inference of discrimination. The appellate courts should be slow to interfere with that assessment.

All grounds of appeal were rejected.

• Court of Appeal (Civil Division): appeal from the Employment Appeal Tribunal dismissed: [2017] EWCA Civ 257.
• Employment Appeal Tribunal: appeal against the Employment Tribunal’s judgment dismissed; judgment promulgated on 19 June 2015.
• Employment Tribunal: all claims dismissed by judgment sent to the parties on 10 April 2014.