In Ezsias v North Glamorgan NHS Trust (UKEAT/0399/09), the Employment Appeal Tribunal (EAT) decided that where a dismissal is primarily because of a breakdown in trust and confidence caused by the employee's conduct, the reason for dismissal is not conduct but rather some other substantial reason (SOSR) and therefore an employer is not under an obligation to follow its conduct dismissal procedures.
Mr Ezsias was employed by North Glamorgan NHS Trust as a consultant surgeon. He raised concerns over clinical standards within his department which caused relationship difficulties to the extent that many of his colleagues said that they were not happy to work with him and the department became impossible to run. He was subsequently dismissed and brought claims for automatic unfair dismissal due to making protected disclosures (whistleblowing) and unfair dismissal on the basis that the Trust had not followed its contractual disciplinary procedure.
For a dismissal to be fair, an employer must have a potentially fair reason for dismissal and must have acted reasonably in treating that as a fair reason (which generally involves following a fair process). One potentially fair reason is SOSR. It was held that Mr Ezsias' alleged protected disclosures had not been made in good faith and so his whistleblowing claim was dismissed. In addition, it was held that the decision to dismiss was due to the breakdown in trust and confidence caused by his conduct and his dismissal was therefore upheld as being fair for SOSR. Accordingly, the NHS's conduct disciplinary procedures did not apply.