In Brighton & Sussex University Hospitals NHS Trust v Akinwunmi, the EAT has upheld an employment tribunal's decision of unfair dismissal on the basis that the NHS Trust failed to take steps to improve the working environment (and consequent patient safety) in a neurosurgery department where the employee worked.

Mr Akinwunmi worked as a consultant neurosurgeon for the NHS Trust.  The claimant had very poor relationships with a number of his fellow surgeons.  There were historic complaints that the claimant had been bullied.  The claimant had also previously brought a race discrimination claim in an employment tribunal which was settled.  An internal investigation at this time recommended that there should be formal management training and that mediation should be considered in an attempt to improve working relationships in the team.

It was agreed that Mr Akinwunmi should take an unpaid three month sabbatical.  During this break from work, the claimant raised concerns about patient safety in the department and alleged that his colleagues were turning away NHS patients while accepting private work.  Colleagues also raised complaints against the claimant, including suggestions that he was incompetent and that his working practices were unsafe.  A complaint was made to the police that the claimant had threatened to assault one of his colleagues.  Although the police decided to take no action concerning these allegations, they were referred by a colleague to the General Medical Council.

A number of investigations were commissioned by the employer into the allegations by and about the claimant.  Some of these made recommendations that the NHS Trust should take steps to improve working relationships in the interests of the efficient and safe running of the department.  The employer did not take any of the recommended actions.  Nor did the employer keep the claimant as well informed about the progress and outcomes of these reports as it did his colleagues.

Mr Akinwunmi appealed against the decision to limit his sabbatical to three months.  His appeal was not upheld and from that point on his absence was considered to be unauthorised.  The claimant argued that it was impossible for him to return to work given that there were a number of serious outstanding issues with his colleagues which could lead to risks to patient safety.  He was also concerned that the police might arrest him if he returned to work given that he would come into contact with the colleague he was alleged to have threatened.  (The employer had not told the claimant that the police had dropped the matter.)  The NHS Trust argued that his complaints could not be dealt with unless he returned to work.

A disciplinary hearing was held and Mr Akinwunmi was dismissed because of his unauthorised absence.  He brought claims for unfair dismissal, automatic unfair dismissal because of whistle-blowing and victimisation in the Employment Tribunal.  The tribunal dismissed his claims for victimisation and whistle-blowing.  But it found that his dismissal was unfair.

The EAT agreed.  It held that the reason for the dismissal (unauthorised absence misconduct) was unfair because the full context of the absence was not taken into consideration by the employer.  It was unreasonable of the employer to insist on the claimant's return to work before taking any steps to deal with outstanding issues and to improve working relationships.  (The tribunal had found as a matter of fact that the claimant was totally isolated from his colleagues.)  It was particularly unreasonable of the employer to insist on a return to work as this workplace was one in which people's lives could be dependent on good communication and the smooth running of the department.  The EAT also noted that the tribunal found the employer's witnesses to be "disingenuous" when giving evidence.

This judgment recounts the long and sorry tale of a dysfunctional department.  It should be noted that the tribunal's and the EAT's decision in this case was influenced by the clear link between the safety risk to critically ill patients and the poor working relationships of the surgeons in the team.  However, all employers should note the importance of acting on recommendations to improve working relationships, for example in grievance investigation reports.  Where relationships in the team continue to be unworkable and/or risky, the employer should carefully consider whether it is reasonable to insist on a return to work before taking such steps.