EAT (Unfair Dismissal : Reasonableness of Dismissal) The ET having found the Respondent’s dismissal of the Claimant – a Consultant Psychiatrist in its employment – on three charges of gross misconduct was unfair, the Respondent appealed.
On the first charge, the ET had concluded that the Respondent had previously addressed the patients’ complaints in issue and there were no ‘exceptional circumstances’ making it reasonable to raise previously determined matters in this context.
The ET thereby failed to apply section 98(4) in a straightforward way; the band of reasonable responses did not require the importation of a higher test of ‘exceptional circumstances’. The question for the ET was simply whether it was fair to institute the second set of proceedings (per Elias LJ at paragraph 56 of Christou and Anor v London Borough of Haringey [2013] IRLR 379 CA). Having acknowledged that the doctrines of res judicata and estoppel were ‘not strictly applicable’, the ET had proceeded to assume those doctrines provided the answer in this case. It failed to allow that the process in question – the internal HR process – might be different in nature to the response to a patient complaint and failed to consider the evidence (accepted by the Claimant in evidence) that the internal HR process had never been closed but had expressly been left open and only delayed because of subsequent complaints.
On the second charge, the ET had been concerned with the Respondent’s conclusion that the Claimant had made contact with a vulnerable adult patient on Facebook. The difficulty was that the ET elided ‘contacted a patient via Facebook’ (the charge) with ‘initiating contact’. The former did not necessarily imply the latter. The more general framing of the charge – the inappropriate use of social media in relation to a patient – did not suggest that the Respondent was contending the Claimant had necessarily initiated the contact. That being so, the ET’s conclusion could not stand. Substantively, it could not sensibly be suggested that the Respondent did not have a reasonable belief in this regard, there were plainly reasonable grounds for that belief (not least as the contact was admitted by the Claimant), and the ET’s criticisms of the investigation were founded upon its erroneous interpretation of the charge and could not save the finding.
The third charge was really one of failing to obey a reasonable management instruction. The ET therefore needed to consider (1) what instruction had been given to the Claimant and (2) whether that was a reasonable instruction (which might give rise to the need to make a finding as to contractual rights of the parties).
The ET’s approach appeared to assume that the instruction could only have been given by a member of the Respondent’s ‘medical hierarchy’, specifically by the case manager under MHPS. The Reasons did not explain why the case manager might not give direction to the practitioner through others. The ET also characterised the Respondent’s direction as the expression of an opinion rather than an instruction, but there was no sensible basis for that construction.
As for the Respondent’s right to give the instruction this was not a matter that the Claimant had put in issue. The ET had, further, failed to consider the Respondent’s more general case that the Claimant had a general obligation of co-operation (an approach consistent with the language of MHPS) and had not demonstrated engagement with the circumstances, which included the apparent understanding of both the Respondent and the Claimant that this had been a reasonable requirement. The appeal would be allowed.
Eady QC HHJ
[2016] UKEAT 0075 – 15 – 0801
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.560978