In Adeshina v St George's University Hospitals NHS Foundation Trust, the Court of Appeal has ruled that a manager's poor attitude to, and failure to lead change in, a organisation was capable of being gross misconduct.
We noted the decision of the EAT in this case in our July 2015 Bulletin. The key point from the EAT judgment, which was not the focus of this appeal, was that an employer can, under certain conditions, correct mistakes made during a disciplinary process at the internal appeal stage and that the dismissal was fair despite an possible breach of the Acas code. This remains good law.
The Court of Appeal was asked to consider the reason for Ms Adeshina's dismissal. Ms Adeshina was employed as principal pharmacist in the Prison Service as part of St George's University Hospitals NHS Foundation Trust. She was involved in leading a project to change the way prison pharmacy services were provided. She was dismissed due to her poor attitude to and lack of engagement with this project.
She brought claims in the Employment Tribunal of unfair dismissal, wrongful dismissal, race discrimination, victimisation and whistleblowing detriment. At first instance all of her claims were dismissed. The EAT agreed.
Her appeal to the Court of Appeal focused on whether her alleged misconduct could amount to gross misconduct, including whether the allegations against her had been properly set out in the invitation to the disciplinary hearing; and whether the appeal panel had breached her contract by finding that her misconduct was more serious than the disciplinary panel had determined it to be. The claimant sought to rely on the case of McMillan v Airedale NHS Foundation Trust  EWCA Civ 1031, in which it was held that it is not ordinarily permissible for an internal appeal panel to increase a disciplinary sanction unless permitted to do so under the contract.
The Court of Appeal dismissed Ms Adeshina's appeal. It made clear that it was not material that the invitation to the disciplinary hearing had not set out the categories of gross misconduct which were alleged as it was clear that the claimant understood the allegations she was facing and she had been able to put her case on these. It was rather for the decision-maker to determine whether the alleged conduct was serious enough to constitute gross misconduct. It also held that the appeal panel had not found the misconduct to be more serious than the disciplinary panel had found. It commented that the case of McMillan was, in any event, not relevant to the facts of this case as the disciplinary sanction applied to Ms Adeshina had not been increased by the appeal panel.