The Court of Appeal this week rejected an appeal against an Employment Appeal Tribunal ruling that a man, who had been found to be unfairly dismissed from his job on procedural grounds, had contributed 100% to that dismissal because of his difficult personality.
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.”
