In Bashir v Sheffield Teaching Hospital NHS Trust, the EAT has held that the claimants' dismissal was fair, notwithstanding that the decision to dismiss had been taken in their absence.

The factual background to this case is complex and involved several allegations of race discrimination against the Trust, leading the claimants to raise multiple grievances against their line managers and colleagues in the finance department. The investigation and hearing of the grievances were beset by various procedural difficulties and protracted delay. The claimants ultimately refused to attend the grievance hearing, and, in their absence, the Trust found that the allegations of discrimination had been made in bad faith. As the grievances had, at the claimants' request, been instigated at the highest level of the Trust's internal procedures they did not have a right of appeal against the decision of the grievance panel.

The finding of bad faith led to the Trust raising subsequent disciplinary proceedings against the claimants. The claimants again failed to attend the final disciplinary hearing and, in their absence, the decision was taken to dismiss them.

The EAT noted that, under normal circumstances, it would usually be unfair to use the outcome of a grievance hearing (against which the claimants had no right of appeal) as the key basis for a finding of gross misconduct. It would also usually be unfair to take disciplinary decisions in the absence of the relevant employees. However, in this case the majority of the delays and procedural difficulties that beset the grievances and disciplinary processes were the fault of the claimants themselves. Furthermore, the EAT accepted that the allegations and grievances raised by the claimants had caused such an irreparable breakdown of relationships within the finance department that the Trust could establish that there was a free-standing and justifiable reason for dismissal, quite apart from the finding of gross misconduct. In these exceptional circumstances, the dismissals were found to be fair.

Impact on employers

  • The ACAS Code of Practice on disciplinary and grievance proceedings permits a decision to be made in the employee's absence if they fail to attend hearings without good reason.
  • This case was an extreme example of such circumstances but there may be others where an employer decides to dismiss in an employee's absence. Employers will be judged according to whether doing so was within the range of reasonable responses and therefore they have some latitude, provided they carefully consider the circumstances and their options.