University Hospitals Birmingham NHS Foundation Trust v Reuser

In an unfair-dismissal claim, the tribunal must determine whether the employer genuinely believed that misconduct justified dismissal, whether it had reasonable grounds for that belief, and whether its investigation and procedure fell within the range of reasonable responses. It may make findings about the decision-maker's state of mind and process, without impermissibly substituting its own view of the underlying misconduct.

Post-dismissal conduct cannot itself be the reason for dismissal, but may illuminate the decision-maker's motivation and independence. A tribunal may make a Polkey assessment by reference to its earlier findings. A finding on automatic unfair dismissal is inadequate where it fails to address a material submission that misconduct supplied only an opportunity to dismiss and protected disclosure was the principal reason.

The claimant, a consultant ophthalmic surgeon, was summarily dismissed after allowing an untrained member of staff to assist during urgent surgery and leaving a trainee during an off-site meeting. He had also made an acknowledged protected disclosure concerning nursing support.

The Employment Tribunal held that the dismissal was ordinarily unfair under section 94 of the Employment Rights Act 1996 and wrongful. It reduced the basic and compensatory awards by 50% for contributory conduct. It dismissed the claim of automatic unfair dismissal under section 103A.

The employer appealed the findings of unfair and wrongful dismissal. The claimant cross-appealed the rejection of the automatic-unfair-dismissal claim. The central issue on the cross-appeal was whether the protected disclosure may have been the principal reason for dismissal although the conduct provided its opportunity.

1. The employer's appeal was dismissed. The tribunal had correctly directed itself to the requirements of section 98(4) of the Employment Rights Act 1996, including the band of reasonable responses. Its findings, read as a whole, addressed the employer's belief, the grounds for it, the adequacy of the investigation and the fairness of dismissal.

2. The tribunal was entitled to make findings about the genuineness of the employer's asserted view of the claimant's conduct and the state of mind, knowledge and independence of the disciplinary chair. That fact-finding exercise preceded, and did not displace, the assessment of whether a reasonable employer could have dismissed.

3. There was no procedural unfairness in the tribunal's adverse findings about the employer's process. The employer had adequate notice that the integrity of its position, including the claimant's exclusion, was in issue. It could have sought an adjournment, recalled a witness or called further evidence before the tribunal decided the case.

4. The tribunal permissibly used the post-dismissal GMC referral only insofar as it shed light on the disciplinary chair's earlier actions, motivation and independence. It did not treat that later event as a reason which could itself have caused the dismissal.

5. The tribunal's conclusion that no Polkey deduction was appropriate was open to it. Its earlier findings supported the conclusion that a fair process would not have resulted in dismissal. Its 50% reduction for contributory conduct was also adequately reasoned and was not an impermissible balancing of employer and employee fault.

6. The wrongful-dismissal conclusion was sustainable. The tribunal had found that the claimant's serious failings did not amount to deliberate wrongdoing or gross negligence sufficiently grave to repudiate the contract.

7. The cross-appeal was allowed. In rejecting automatic unfair dismissal, the tribunal failed to engage with the material submission that the misconduct was an opportunity for dismissal whereas the protected disclosure was its principal reason. The issue was remitted to the same tribunal, which would determine whether further evidence or submissions were needed.

• Employment Appeal Tribunal: The employer's appeal against findings of unfair and wrongful dismissal was dismissed. The claimant's cross-appeal concerning section 103A of the Employment Rights Act 1996 was allowed and remitted to the same Employment Tribunal.
• Employment Tribunal: Birmingham Employment Tribunal (Employment Judge Broughton) held that the claimant had been unfairly and wrongfully dismissed, reduced awards by 50% for contributory conduct, and dismissed the automatic-unfair-dismissal claim.