The Employment Appeals Tribunal (EAT) has held in the case of Ezsias v North Glamorgan NHS Trust that an employee dismissed because of a breakdown in working relationships was dismissed for some other substantial reason of a kind such as to justify dismissal (SOSR) and not for misconduct. The distinction between SOSR and misconduct can be a fine one particularly in cases involving dysfunctional relationships, where there are personality clashes and an alleged breakdown of trust and confidence.
In order to dismiss fairly, an employer must have a potentially fair reason for dismissal, dismissal must be reasonable and the employer must have followed a fair procedure. If the matter is one of misconduct then for a doctor, maintaining high professional standards (MHPS) will apply and the employer will have to apply the relevant disciplinary procedure. It is clear then that much rests on whether an employer defines such issues as misconduct or not.
The facts of the case are that Mr Ezsias was employed by the trust as a consultant oral and maxillofacial surgeon and was dismissed with three months pay in lieu of notice, following what was said to be an irretrievable breakdown of relationships between him and others in the department. The trust had established that Mr Ezsias’s actions and behaviour were responsible for the breakdown of working relationships and informed him, in writing, that “I have no alternative but to terminate your employment on the basis of the fundamental and irretrievable breakdown of trust and confidence between yourself and colleagues.”
Mr Ezsias issued proceedings for unfair dismissal and one of his grounds of claim was that his dismissal was unfair as the trust had failed to follow the contractual disciplinary procedure. The EAT drew attention to the “refined but important distinction” between dismissing Mr Ezsias for his conduct in causing the relationships to breakdown as compared to dismissing him for the fact of the breakdown of those relationships. The former would require the application of the disciplinary procedure, the latter would not.
It is clear however that this is a difficult path to tread and there is always a risk that some employment tribunals may see SOSR dismissals as a hidden conduct dismissal.