Adeshina v St George’s University Hospitals Nhs Foundation Trust: EAT 1 May 2015

adeshinaEAT201506

EAT Unfair Dismissal: Reasonableness of Dismissal – CONTRACT OF EMPLOYMENT – Wrongful dismissal
RACE DISCRIMINATION – Burden of proof
Unfair dismissal
(1) Whether the ET had erred in the approach to the question of fairness, having regard to the whole process, including the appeal.
Held: When looking at the question of fairness, the ET was bound to consider the process overall (Taylor v OCS Group Ltd [2006] EWCA Civ 702). It did so. Having made its findings as to the unfairness that tainted Ms Ashworth’s decision, it did not consider the flaws found to be such as to mean that the position could not be remedied. That was a view it was entitled to reach. When considering the process as a whole, the ET did that which it should: it had regard to the nature and extent of the flaws at the earlier stage/s, specifically going through those points when assessing the appeal process; it had in mind the seriousness of the flaws it had found at the earlier (dismissal decision) stage; its findings on the appeal process were not made in a vacuum but took into account the findings it had made as to the original decision.
As for the question whether the appeal stage was itself flawed such as to mean that it could not rectify the position because of the composition of appeal panel:
(a) The ET made a finding of fact as to Ms Ludlam’s earlier involvement in matters relevant to the case, she was not sitting in judgment on her own prior decision or involvement in the case; at most the Claimant had raised a question as to Ms Ludlam’s management role more generally (which included her role as mentor to Ms Leegood), which she was suggesting gave rise to an appearance of bias.
(b) The approach to apparent bias was not the same as that in judicial proceedings. Even if it was, the fair-minded informed observer would not consider any risk arose.
(c) As for Mr James, the Claimant objects that he was junior and reported to the dismissing manager, Ms Ashworth, albeit she did not make this point at the time. Accepting the ACAS Guidance, this case could be distinguished as it involved a panel, which included two directors senior to the original decision-taker.
(d) Further, the ET was entitled to look at substance not just form, to take into account the actual appeal process and decision taking; all matters going into the mix.
The ET took into account all factors and reached a conclusion properly open to it.
(2) Whether the ET had erred/reached a perverse conclusion in holding that the reasons relied on by the Respondent justified the dismissal. Specifically, whether Allegation 1 (hostile comment made at meeting) was sufficiently serious; and/or, whether Allegation 2 (failure to cooperate and lead on operational policy change) could amount to a conduct matter at all.
Held: This was a perversity challenge; the Claimant had not done sufficient to make good the appeal.
On allegation (2) the EAT considered this was properly to be described as a matter of conduct and, looking at the substance of the case, it was apparent that is how the First Respondent (and the Claimant) had seen it, certainly when it ‘looked back over events as a whole through ‘the prism of the final alleged escalation of behaviour’ ‘.
Similarly, when considering events of 20 July, the Respondent was entitled to have regard to what the meeting was about and see the Claimant’s conduct in the light of that background, as. the Respondent did when characterising the behaviour as breaching the Code of Conduct.
Wrongful dismissal
(3) Whether the ET erred in law, alternatively reached a perverse conclusion in its consideration of the wrongful dismissal claim; alternatively failed to give proper reasons in this respect.
Held: The ET heard the evidence of the Claimant and a number of other witnesses over period of time. It reached its own views. In part, its reasoning was set out in its findings on the unfair dismissal claim, but its descriptions of the Claimant’s conduct (e.g. at paragraph 200: ‘palpable resistance’, ‘deliberate reluctance’) were expressions of its own views on the evidence. Given the finding as to what was required of the Claimant as part of her job (see e.g. paragraph 199), it was entitled to find there was a wilful breach of the Claimant’s contract (to do that which was reasonably required of her) and, taken overall, the conclusions were sufficiently reasoned.
Race discrimination
(4) Whether the ET erred in law in its consideration whether Ms Ashworth (Fifth Respondent), who took the decision to dismiss the Claimant, thereby discriminated against the Claimant because of her race; in particular in failing to have proper regard to the complete picture.
Held: This was not a case where the ET had found matters tipped beyond what might be described as ‘mere unreasonableness’. In any event, the ET had considered the Respondent’s explanation and had found as fact Ms Ashworth’s decision-making was not tainted by race discrimination. She had made genuine mistakes but genuinely believed in the Claimant’s misconduct and her decision-making was not informed – consciously or subconsciously – by the Claimant’s race. That was a sufficient answer.
Appeal dismissed.

Eady QC HHJ
[2015] UKEAT 0293 – 14 – 0105
Bailii
England and Wales
Citing:
CitedTaylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 11 November 2021; Ref: scu.549357