19 April 2017

In the case of 'Adeshina v St George’s University Hospitals NHS Foundation Trust' the Claimant was Head of Pharmacy Services at HMP Wandsworth. Her employer wished to embark upon organisational change and create a central pharmacy at the prison. The proposals would change the way pharmacy services were delivered.

The Claimant refused to accept the proposals and was unprofessional during a meeting about the changes. She was dismissed for gross misconduct. Her dismissal was upheld on appeal.

At first instance the Employment Tribunal held that her dismissal was fair. Although there were procedural failings the appeal process had cured these when it embarked upon a full rehearing of the matter. The Claimant knew she was meant to be leading the project and deliberately resisted and obstructed it. Her claims were dismissed.

On appeal to the Court of Appeal the Claimant argued that the disciplinary charges she faced did not specify that her actions were wilful and therefore the issue ought to have been treated as a capability issue and that the appeal panel made findings which were essentially more serious than those following the disciplinary hearing. The Court of Appeal dismissed her appeal.

The Court of Appeal took a broad brush approach to the procedural errors noting that provided the “charges” against the employee are clear in the disciplinary invite letter, they are to be read in conjunction with the management case and investigation report. The Court noted that it may not be necessary for an employer to specify whether conduct is wilful in the charges since that is for the decision maker to determine. If the appeal amounts to a full rehearing, it is not necessarily unfair for the appeal panel to make findings that are more serious than the original decision maker. Interestingly the dismissal was found to be fair despite a potential breach of the ACAS Code in relation to the composition of the appeal panel.

This case is a good example of how poor attitude could potentially amount to a fair dismissal on grounds of conduct and serves as a good reminder that having a full rehearing of each of the issues on appeal can resolve discrepancies that arise at first instance. The case also provides assistance when dealing with procedural failings during the dismissal process. As ever, speak to your BTO employment law expert if you need help dealing with these issues.

For the Court’s decision see http://www.bailii.org/ew/cases/EWCA/Civ/2017/257.html

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.