Leslie Butler v Synergy Health UK Limited

In assessing a conduct dismissal for refusal to follow an instruction, an employment tribunal must consider not only whether the instruction was lawful and reasonable, but also whether the employee was or could have been acting reasonably in refusing it.

Procedural fairness must be assessed as a whole. This requires analysis of whether an appeal actually remedied earlier defects and whether the cumulative effect of all deficiencies made the dismissal unfair. A genuine, though mistaken, belief about contractual rights, a longstanding uncriticised practice, lack of notice of a new policy, and lack of opportunity to alter conduct after an appeal decision may be decisive considerations.

The claimant, a technician, was dismissed for misconduct after leaving his workstation shortly before the end of his shift to change out of required protective clothing before clocking out.

He had followed that practice for about eight years without criticism. During a year-long absence, the employer introduced and monitored a policy requiring staff to remain at their workstations until the end of the shift and change afterwards. The tribunal found that the policy had not been explained to him on his return.

The Employment Tribunal held that no implied contractual term entitled him to change during working time, that the instruction was reasonable, and that his dismissal was fair. He appealed. The central issues were the alleged implied term, the reasonableness of the instruction, and whether the procedure and dismissal fell within the range of reasonable responses.

1. Appeal allowed on grounds 4 and 5. The Employment Tribunal was entitled to find that the claimant had not established an implied contractual right to change out of PPE before clocking out. His longstanding practice was objectively capable of being explained by the employer’s discretion rather than legal obligation. The Tribunal was also entitled to find that the instruction to comply with the established policy was reasonable.

2. The lawfulness and reasonableness of the instruction did not determine the fairness of dismissal for refusing it. A reasonable employer had to consider whether the employee was or could have been acting reasonably in refusing compliance. The claimant’s genuine, albeit mistaken, belief that he retained a contractual entitlement was therefore materially relevant.

3. Fairness of procedure had to be considered as a whole, consistently with Taylor v OCS Group Ltd [2006] EWCA Civ 702. That required the Tribunal to analyse whether the appeal process remedied the earlier defects, including the disciplining manager’s closed mind, and whether the combined deficiencies rendered the process unfair. The Tribunal supplied no such analysis.

4. The Tribunal also failed properly to engage with material findings. The claimant had followed the former practice for years, was absent when the new policy was introduced, was not told of it on his return, and genuinely believed he was entitled to continue it. He was subjected to a final warning almost immediately, then dismissed for conduct occurring before the appeal against that warning had been determined. He had no opportunity after the unsuccessful appeal to understand its basis, reflect on it, and alter his conduct before dismissal proceedings.

5. Those omissions made the conclusions that the procedure and dismissal were fair perverse. No properly directed reasonable tribunal could, on the findings made, have held that dismissal fell within the range of reasonable responses. Written submissions on disposal were invited within 14 days.

• Employment Appeal Tribunal: Allowed the appeal against the finding that the dismissal was fair. The implied-term and reasonable-instruction grounds were dismissed. Written submissions on disposal were invited.
• Employment Tribunal, Midlands West: Oral judgment given on 3 September 2020, sent on 8 September 2020, with written reasons sent on 1 December 2020. The Tribunal dismissed the claimant’s unfair dismissal claim.