In a recent Court of Appeal (CA) case, it was held that the Employment Tribunal (ET) was entitled to find that an employee's poor attitude to organisational change had, on the facts, amounted to gross misconduct and a repudiatory breach of contract constituting dismissal.
The Claimant (Ms Adeshina) objected to the introduction of a Central Pharmacy at her place of work (HMP Wandsworth), which involved a change in the way that pharmaceutical services were delivered. Following an investigation, she was dismissed for gross misconduct due to her unprofessional behaviour and a failure to support and lead the change. Her dismissal was upheld on appeal.
The ET recognised several procedural failings in the dismissal process, including the fact that some of the allegations relating to Ms Adeshina’s behaviour had not been put to her during her disciplinary (despite forming part of the decision to dismiss). It was also found that one of the members of the appeal panel was more junior than the manager who had conducted the initial disciplinary process, which goes against ACAS guidance. However, the ET held that the procedural failings were corrected by the appeal which had been conducted as a rehearing and the other members of the appeal panel were senior to the initial disciplining manager.
Accordingly, the ET dismissed Ms Adeshina’s unfair dismissal, wrongful dismissal and race discrimination claims and made factual findings that she knew she was meant to be leading the project and had deliberately resisted it.
Ms Adeshina’s appeal to the EAT was also dismissed.
On appeal to the CA, each of Ms Adeshina’s arguments was rejected based on the following:
- there was no doubt that Ms Adeshina had known the allegations against her and been able to respond;
- if a case is reheard on appeal, it is not necessarily unfair for the panel to make findings that are more serious than the original dismissal officer;
- where an ET has dealt at length with unfair dismissal it need not repeat the factual detail again in giving its reasons on wrongful dismissal; and
- it was affirmed that mere unfairness is not enough to shift the burden of proof in a discrimination claim. Ms Adeshina's race discrimination claim was based on the dismissing officer’s actions and she argued that the flaws in the dismissal process constituted a prima facie case of discrimination. The CA agreed with the EAT that the mistakes were nothing more than human error.
This is a useful case that highlights a sympathetic approach by the EAT to challenges which many employers face. Small and medium sized employers in particular often encounter practical difficulties when identifying an appropriate appeal manager and find that there is no one of sufficient seniority who is also independent. Large organisations may find it difficult to identify someone who has had no prior dealings with the employee. The EAT has helped by adopting a realistic approach which took into account the challenges that employers face, rather than simply applying the ACAS Code.