Bashir v Sheffield Teaching Hospital NHS Trust

A number of employees raised grievances alleging race discrimination by other members of staff. At the employees’ request, the employer held a grievance meeting. However, the employees failed to attend the meeting and the employer made a fi nding in their absence that the allegations were made in bad faith. The employer held a disciplinary hearing and decided to dismiss the employees for making allegations in bad faith and for two other reasons. Again the employees failed to attend. They argued unfair and wrongful dismissal as they had no right to appeal the grievance decision and were absent when the decision to dismiss was taken.

While it would usually be unfair to use the outcome of a grievance hearing as the main basis for a fi nding of misconduct and take disciplinary decisions in the employees’ absence, the EAT upheld the Tribunal’s fi nding that the employees’ dismissal was fair. This was decided because the majority of the problems encountered were caused by the employees themselves. Furthermore, the lack of appeal or opportunity to challenge the fi nding of bad faith at the disciplinary hearing was not fatal to the overall fairness of the decision to dismiss.

This case demonstrates that in some circumstances employers are entitled to make decisions to dismiss in the absence of employees. This is permitted in the ACAS Code of Practice. However, the employee must have failed to attend the hearing without good reason.