The
case dates back to August 2002, when Ian Perkin, then the finance
director at St George’s Healthcare NHS Trust in London, was
suspended from his job for reasons relating to his personality and
management style.
A disciplinary meeting was then held, chaired by the Trust
Chair, Catherine McLoughlin - the very person who, according to
court papers, had been seeking to dismiss Mr Perkin as early as
July that year. She was assisted in running the hearing by a Mrs
Mark.
During the course of the meeting Mr Perkin made accusations
against Ian Hamilton, the Chief Executive of the Trust, and other
colleagues, leading the disciplinary tribunal to comment in Mr
Perkin’s letter of dismissal:
“Whilst you are of course entitled to defend
yourself against allegations made against you, to have done so by
engaging in personal attacks, extending on occasions to abuse,
against Ian Hamilton and other witnesses with whose evidence you
disagreed has resulted in the situation where we do not see you
could ever work together again. Even if, therefore, we had decided
that the allegations had not been made out, your conduct would
still have led us to the conclusion that you cannot return to a
senior position within the Trust."
Mr Perkin took the case to an Employment Tribunal, arguing that
he had actually been dismissed because of whistleblowing
allegations he had made against the Trust in 2001 over the
reporting of incorrect figures for cancelled operations. (Under the
Employment Rights Act 1996 ("ERA"), whistleblowers are protected
from dismissal.)
Mr Perkin also complained that the dismissal was unfair.
The Employment Tribunal found that Mr Perkin had been unfairly
dismissed because the original disciplinary hearing had not been
chaired by an impartial individual. The fact that Ms McLoughlin had
been assisted by a third party did not, in the opinion of the
Tribunal, change matters.
However, the Tribunal then found that Mr Perkin had contributed
100% towards his dismissal, and that even if a different
disciplinary procedure had been used he would not have been kept
on.
No award of compensation was therefore made.
Mr Perkin appealed to an Employment Appeal Tribunal (EAT),
arguing that no allegations had been made against him in respect of
his ability or integrity but that he had been dismissed solely on
the grounds of “personality”.
He pointed out that the Trust had not argued before the Tribunal
that he had been dismissed on the grounds of “capability”, into
which questions of personality might fall, but on the grounds of
“conduct”, in respect of which personality was not relevant.
Technically, he said, personality was not a ground for his
dismissal.
The EAT accepted this argument to a certain extent, but found
that it is often not possible to pigeonhole the reasons for an
employee’s dismissal. In such cases, said the EAT, one had to look
for another substantial reason for the dismissal and that was
clearly evident here.
It upheld the Employment Tribunals findings.
Mr Perkin appealed again, but on Wednesday the Court of Appeal
found in favour of the Trust.
Warning that the case was one “in relation to which
generalisations, or statements of general principle, are likely to
prove unhelpful,” Lord Justice Wall, giving the opinion of the
three-panel court, found that Ms McLoughlin’s conduct had
undoubtedly rendered the dismissal unfair.
“The question is,” he wrote, “whether it goes further, and
whether the Tribunal was right to find; (1) that had Mr Perkin's
disciplinary proceedings been conducted before a properly
constituted and unbiased tribunal there was a 100% chance that he
would have been fairly dismissed; and (2) that Mr Perkin ‘by his
conduct Mr Perkin contributed to his dismissal to the extent of
100%.
Looking at the Tribunal’s factual findings, wrote Lord Justice
Wall, “it must be said that they are very powerful indeed, both in
so far as they precede the disciplinary hearing and in so far as
they relate to the manner of Mr Perkin's defence of the case
against him.”
The Judge found that the manner in which Mr Perkin conducted his
defence made it possible for the Tribunal to rule that any other
disciplinary process would have concluded the same way.
The Judge was less certain as to whether he, if he had been in
the Tribunal, would have found Mr Perkin 100% contributory to his
own dismissal.
“Mr Perkin was plainly operating in a difficult world, where the
standards set by Ms McLoughlin, to take the obvious example, left a
great deal to be desired and where his desire to protect his back
was understandable,” he explained.
However, said the Judge, he was not going to second-guess the
Tribunal on the facts of the case. He dismissed the appeal.
According to Robyn McIlroy, an employment law specialist with
Pinsent Masons, the international law firm behind OUT-LAW.COM:
"For any dismissal to be fair it needs to be
for one of the statutorily prescribed fair reasons - conduct,
capability, redundancy, 'some other substantial reason' and
contravention of an enactment. Clearly 'difficult personality' is
not one of the potentially fair reasons for a dismissal.”
“It is often the case, however, that
employers are faced with the issue of how to deal with an employee
whose difficult interrelationship with colleagues impacts on his or
her ability to do the job. In this case Mr Perkin was described as
being unable to function in the way required by membership of the
senior management team to permit that team to function effectively.
Sometimes if an employee's behaviour cannot be improved by way of
training, counselling and/or performance management as appropriate,
dismissing the employee can be for the long-term benefit of the
organisation and the team, as long as the dismissal is handed
fairly.”
“This decision is useful therefore in that
it will give some comfort to employers that they can potentially
fairly dismiss an employee for 'some other substantial reason' (one
of the potentially fair reasons for a dismissal) where an
employee's difficult personality has resulted in a loss of
confidence in their ability to do the job.”
