Brighton & Sussex University Hospitals NHS Trust v Akinwunmi & Ors

In deciding whether a misconduct dismissal was fair, an Employment Tribunal may consider the full context known to the employer. It may find dismissal outside the range of reasonable responses where the employer confines its enquiry to unauthorised absence while failing to address serious and relevant obstacles to a safe return to work.

Where misconduct consists of refusing an instruction, the employee’s reasonableness in refusing may be material to the employer’s decision. The Tribunal must nevertheless assess the employer’s conduct under the statutory test and must not substitute its own view. A reasonable stance cannot amount to culpable or blameworthy conduct for contributory-fault purposes.

A consultant neurosurgeon was dismissed for gross misconduct after remaining absent without authority for about 20 months following an employment break. He maintained that he could not safely return without the Trust addressing serious departmental conflict, allegations made against him, and arrangements for his return.

The Employment Tribunal upheld his ordinary unfair-dismissal claim and found no contributory fault. It dismissed his claims based on whistleblowing, victimisation and automatic unfair dismissal. The Trust appealed, contending that the Tribunal had erred in considering the wider history, had substituted its own view, and had reached perverse conclusions on fairness and contribution.

The central issue was whether the Tribunal had been entitled to hold that dismissal for the unauthorised absence was outside the range of reasonable responses.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself under section 98(4) of the Employment Rights Act 1996. It recognised that it could not substitute its own view and had to decide whether dismissal fell within the range of reasonable responses.

2. The Tribunal was entitled to assess the fairness of dismissal against the full background known to the Trust. That background included longstanding dysfunctional working relationships, unresolved concerns affecting patient safety, the five consultants’ letter, the police allegation, and repeated recommendations for active management and a planned return to work.

3. The Tribunal’s decisive reasoning was directed to the Trust’s conduct. It was entitled to find that the Trust had moved to discipline on the narrow ground of unauthorised absence while avoiding complexities which it knew required management action. It had not meaningfully engaged with the claimant about a safe return or implemented proposed arrangements to address the obstacles to it.

4. UCATT v Brain supported the relevance, in an instruction-refusal case, of asking whether the employee was or could be acting reasonably in refusing. Its reasoning was highly persuasive, although the relevant statements were obiter. In any event, the Tribunal had not treated the claimant’s reasonableness as a substitute for the statutory assessment of the employer’s conduct.

5. The Tribunal’s treatment of the employment-break policy did not infect its unfair-dismissal analysis. It was required to address that policy in resolving the wider claims, but its fairness reasoning gave no indication that it substituted its view for the Trust’s discretion under the policy.

6. The finding of no contribution also stood. Contributory conduct requires culpable or blameworthy conduct. Since the Tribunal permissibly found the claimant’s stance reasonable, it could not be culpable or blameworthy. Neither conclusion was perverse.

• Employment Appeal Tribunal: Appeal dismissed; the Tribunal’s findings of unfair dismissal and no contributory fault were upheld.
• Employment Tribunal, London (South): Decision sent to the parties on 16 September 2016. The Tribunal unanimously upheld the claimant’s ordinary unfair-dismissal claim, found no contribution, and dismissed the claims for automatic unfair dismissal, victimisation and whistleblowing detriment.