EAT holds that disciplinary procedures do not have to be followed in case of dismissal due to breakdown in trust and confidence, even where the dismissed employee’s conduct may have caused or contributed to such a breakdown.
In this case, the EAT heard an appeal from a decision of the Employment Tribunal sitting in Cardiff. Mr Ezsias’ allegations of automatic unfair (whistleblowing) and ordinary unfair dismissal took up 38 days of the Tribunal’s time and its judgment ran to 205 pages.
The EAT upheld the Tribunal’s finding that Mr Ezsias dismissal had been fair. A key issue was whether the Trust’s failure to follow one of the disciplinary procedures that applied in “conduct” cases rendered the dismissal unfair. The Trust argued that such procedures did not apply as the dismissal had not been on the grounds of “conduct”.
The EAT stated that whether “conduct” is the reason for a dismissal depends on “the actual reason for taking the action... i.e. what were the set of facts which caused the Trust to take action against him”. It found the Tribunal to have been “alive to the refined but important distinction between dismissing Mr Ezsias for his conduct in causing a breakdown of relationships, and dismissing him for the fact that those relationships had broken down”, stating that, “It was the fact of the breakdown which was the reason for his dismissal...not his conduct”.
In this case, the employer had been presented with a clear choice to dismiss Mr Ezsias either (a) on the grounds of his conduct - in causing the breakdown of relationships between him, his colleagues and the Trust (a “conduct” dismissal), or (b) because of the breakdown itself (a “some other substantial reason” dismissal). The distinction will often be a fine and, arguably, artificial one.
It can be tempting for employers to rely on “some other substantial reason” (“SOSR”), rather than “conduct” as grounds for dismissal. Not least because it may avoid the need to follow potentially more onerous, contractually-binding disciplinary procedures. However, employers should be aware that trying to draw the fine distinction between dismissals that genuinely fall within the SOSR category, and those which do not, may be a difficult task. The EAT in Ezsias warned that tribunals would no doubt be “on the lookout” for cases where SOSR is used as a pretext to conceal the real reason for the dismissal.
The fact that the employer in this case set out the reason for the dismissal in clear terms that did not relate to the individual’s conduct was key to the EAT’s finding on this point. However, employers should be wary of relying solely on documentary evidence to support an SOSR where conduct is a factor, as the Tribunal will take in to account all facts and evidence available to it in determining the real reason for dismissal.
In most cases it is the employee’s conduct itself which will be the cause of the dismissal. If the employer is going to rely on an irretrievable breakdown, it will need to show a substantial breakdown in relationships beyond the conduct of the individual.
Mr Ezsias worked for North Glamorgan NHS Trust from 1 July 1998 until his dismissal on 1 February 2005. He had been openly critical of his colleagues (and one colleague in particular) and regularly raised his concerns regarding the operation of the Trust.
It was established that Mr Ezsias’ actions were having a detrimental effect on his department’s ability to function effectively, and on his relationships with colleagues. Eventually, this led to nine members of the department signing a petition to the Trust highlighting the “complete lack of confidence” in Mr Ezsias and seeking “urgent confirmation that immediate progress will be made to redress these issues before a complete breakdown of the service results”.
In response to the petition, the Trust commissioned a senior HR professional (Mr Jones) to undertake an investigation in to the breakdown in relations and to report on his findings and provided recommendations for a resolution. Mr Jones found that relationships had irreparably broken down and that “Mr Ezsias’ behaviour has, to a significant extent, led to the breakdown of relationships”.
Mr Jones confirmed that, it would be for the Trust to decide whether to instigate disciplinary proceedings or to terminate Mr Ezsias’ employment on the basis of the irretrievable breakdown of relationships.
The Trust wrote to Mr Ezsias on 1 February to confirm that it had “come to the clear conclusion that the working relationship...has fundamentally and irretrievably broken down” and that it had “no alternative but to terminate your employment on the basis of the fundamental and irretrievable breakdown”.