A RECENT CASE IS A WARNING FOR EMPLOYERS WHO RELY ON EMPLOYEES TO MEET CERTAIN LEVELS OF ARTISTIC CAPABILITY.

Welsh National Opera -v- Johnston [2012] EWCA Civ 1046

The Claimant, Mr Johnston, was employed by the Welsh National Opera (WNO) as Principal Oboist from 1974 until he was dismissed in September 2008.  He was dismissed following allegations of lack of capability and difficulties in the relationship between him and the musical director. The alleged capability issues included intonation problems, emission of sound issues and problems of blending of sound. An audition to assess these concerns was held on 23 October 2006.  At the audition Mr Johnston satisfied the panel, in relation to intonation and emission of sound, but the WNO considered the audition procedure to be inapplicable to assessing blending of sound.  The WNO then dealt with the non-blending of sound through their disciplinary procedure, not under the procedure agreed with the Musician's Union to deal with "poor artistic performance."  This resulted in the Claimant's dismissal.

Mr Johnston's internal appeal against the dismissal was unsuccessful. He brought a claim in the Employment Tribunal (ET) for unfair dismissal.  The ET decided that the dismissal had been substantively and procedurally fair. On appeal to the Employment Appeal Tribunal (EAT), it ruled that the WNO had made a “legal error” in its construction of the agreement with the Musician's Union in dealing with "poor artistic performance". The Appeal was upheld and the case was remitted to the ET. 

The WNO appealed to the Court of Appeal seeking to restore the decision of the ET on the ground that it was free from legal error.  The Court of Appeal held that it was “absolutely clear” that the disciplinary process did not apply to poor performance by musicians.  Lord Justice Kay stated that the WNO's decision "was not a reasonable response to the problem that had arisen" and that a finding of procedural unfairness was inevitable.