In Simmonds v Salisbury NHS Foundation Trust [2018] EWCA Civ 1864, the Court of Appeal held that an employment tribunal was right to find that an employer had acted reasonably when it dismissed an employee who had been bullied by her colleague, after her colleague was disciplined for misconduct.

Facts

Louise Simmonds (S) started work with Salisbury NHS Foundation Trust (the Trust) in 2007 as a trainee medical photographer. In February 2008, there were concerns about the working relationship between S and a senior medical photographer (J). In April 2009, S referred herself to occupational health where she complained about J bullying her. After that, efforts were made to physically separate S and J within the department.

In July 2010, S raised a grievance alleging bullying and harassment by J. The grievance investigator concluded that there was evidence that J had bullied and harassed her. J was moved out of the office that she shared with S and disciplinary proceedings commenced against J. In May 2011, J was issued with a final written warning. This was reduced to a formal warning on appeal due to J's clean disciplinary record.

In August 2011, following a period of sickness, S's GP advised that S was suffering from significant levels of stress and reactive depression as a result of the bullying and harassment. In November 2011, an incident occurred whereby J entered a room and S became extremely upset and distressed.

In January 2012, an external investigator's report concluded that there was an irreparable breakdown in the working relationship between S and J. It found that separating them was unsustainable and it had a negative effect on the department's service. In addition, the Trust did not consider the separation to be a reasonable adjustment.

In May 2012, both S and J confirmed that they were willing to enter mediation and both attended individual meetings. J said that she would do whatever was necessary to re-build the working relationship with S. However, S was not willing to meet with J and mediation failed.

The Trust met with S and told her that she could either work with J, be redeployed to another role or resign. S said that she wanted to do her job without any contact with J and she was told that this was not an option. On 10 August 2012, the Trust wrote to S to inform her that she was dismissed as a result of the irretrievable breakdown in working relationships. S appealed but the decision to dismiss was upheld.

S brought claims in the employment tribunal (ET) for unfair dismissal, disability discrimination and failure to make reasonable adjustments.

Employment tribunal decision

During the 12 day hearing, S was represented by an individual who was not legally qualified. The ET dismissed her claims. While S suffered from depression/anxiety/phobia, it was not found to amount to a disability for which the Trust had to make reasonable adjustments. S appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal decision

The EAT considered S's appeal and concluded that there were no arguable grounds of appeal. The employee subsequently engaged counsel to represent her and appealed again.

Court of Appeal decision

In the Court of Appeal, S submitted that (1) she should not have been dismissed since she was an innocent party, and it was J who had bullied her; (2) the ET should have found that she suffered from a disability as claimed; (3) she had not had a fair hearing because of the incompetence of her representative.

The Court of Appeal dismissed her appeal.

It held that an ET decides whether the conduct of an employer is reasonable, and an appeal is only available to the EAT or the Court of Appeal if the ET can be shown to have made an error of law. This was not the position here. The ET had considered the case with great care and had been entitled to reject the unfair dismissal claim.

The Court of Appeal found that the ET had been entitled to require medical evidence concerning the disability claim, and the employee had not challenged that evidence. The ET had been justified in finding that she did not suffer from a disability.

The Court of Appeal was doubtful whether the incompetence of a party's representative could give rise to an error of law. ETs often have to deal with parties who are unrepresented or represented by people who are not professional advocates. They are experienced in ensuring that they are familiar with all the arguments and evidence. It concluded that the ET had reached a fair and sustainable conclusion.

This is an interesting decision because it is often difficult for employers to decide which employee should be dismissed where there is a breakdown in the working relationship. Of course where bullying and harassment are very serious or discriminatory, that will often result in dismissal for gross misconduct. It can be difficult for an employer to manage a situation where the conduct is not considered to be serious enough to dismiss the employee accused of bullying but the relationship has still broken down.

In this case, the investigation found evidence of bullying and harassment by J but her employer did not consider it to be serious enough to dismiss her. It was significant that in the two years between J's misconduct and S's dismissal, J was keen to re-build the working relationship. S admitted that the bullying did not continue but she was unable to have any contact with J due to the involuntary reaction that this caused.

The Court of Appeal acknowledged that people's views may vary as to whether J should have been dismissed rather than S and that this was debatable. However, the ET's view had to be respected. It is important to consider all options, particularly redeployment and reasonable adjustments, where appropriate.