Unfair dismissal and race discrimination: poor attitude to organisational change can constitute gross misconduct

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Unfair dismissal and race discrimination: poor attitude to organisational change can constitute gross misconduct

Published 2 May 2017

The Court of Appeal has held that an employee's poor attitude to organisational change had amounted to gross misconduct, and that flaws in the employer's original decision were nothing exceptional, so did not point to race discrimination.

The facts

Ms Adeshina was the Principal Pharmacist in the Pharmacy Department of Wandsworth Prison, and employed by St George's University Hospitals NHS Foundation Trust. She was involved in a project to re-organise the way in which pharmacy services were provided at Wandsworth. One of the principal features of the change was a move from nurse-led pharmacy services to pharmacist-led services. Ms Adeshina strongly disapproved of this and showed this openly. The Governor and Deputy Governor of the Prison and two senior Trust staff raised concerns about her lack of leadership in the process. The Trust's Chief Pharmacist, Mr Kumar, carried out a disciplinary investigation. His investigation report concluded that each of the allegations against Ms Adeshina had been made out. Ms Adeshina was sent a copy of the investigation report, and a letter summarising the allegations and inviting her to attend a disciplinary meeting. Following the disciplinary meeting, she was dismissed for gross misconduct, having failed to co-operate with, support or lead the change, including at least one instance of unprofessional behaviour at a meeting.

Ms Adeshina appealed the decision to dismiss her. The Trust conducted a full re-hearing of the decision, with a panel of three senior managers. An independent advisor to the panel was also appointed.

Ms Adeshina objected to the appointment of one of the members of the panel, who had been involved in an operational document which was part of the case against her and also a mentor to the victim of one of Ms Adeshina's alleged acts of misconduct. Another member of the appeal panel (Mr James) was junior to the original dismissing officer, and reported into her.

The appeal panel upheld the decision that Ms Adeshina's conduct amounted to gross misconduct and that dismissal was the appropriate sanction.

Ms Adeshina brought claims for unfair dismissal, wrongful dismissal and race discrimination. The claims were all dismissed by the tribunal. The Employment Tribunal held that there had been some procedural flaws in the original decision to dismiss Ms Adeshina, including the fact that the decision was based partially on matters which had not been put to Ms Adeshina during the process. However, these flaws had been cured by the internal appeal process.

Ms Adeshina appealed to the EAT, and then to the Court of Appeal.

The EAT held that, although there were serious flaws in the first stage of the disciplinary process, these flaws had been remedied at the internal appeal.

In relation to the composition of the internal appeal panel, the EAT acknowledged that senior managers may manage a number of employees, and may also sit on disciplinary panels in which those employees might be involved. It would be both unworkable and undesirable for senior managers to avoid these connections, and that prior dealings with an employee, without something more which suggested bias, could not render the dismissal unfair. The EAT considered the involvement of Mr James. ACAS guidance states that the person hearing the appeal should be senior to the original decision taker. However, the EAT looked at the panel in context: Mr James was one of a panel of three, and the two other members of the panel were senior to the dismissing officer. The panel also benefitted from an independent advisor. Mr James was not therefore likely to have been unduly influenced or incapable of overturning the original decision.

At the Court of Appeal, Ms Adeshina argued that the misconduct found against her was incapable of justifying dismissal – it could not amount to gross misconduct, and the nature of the allegations had not been properly spelt out. The Court of Appeal rejected her arguments, saying that her appeal on this depended on a formalistic approach to documents generated in the course of the disciplinary process and that this is inappropriate in an unfair dismissal context. The judge commented that "Employment tribunals are concerned with substantive justice. I have no doubt that the Appellant always understood the substance of the case against her and had a full opportunity to meet it."

Ms Adeshina also argued that the appeal panel had made a more serious finding than the dismissing panel. The Court of Appeal dismissed this point. It did not agree that the appeal panel's findings were substantively more serious and, even if they had been, it held, this could be distinguished from previous case law where a disciplinary sanction was increased on appeal as here it was not.

Ms Adeshina also argued at the Court of Appeal that the flaws in the original dismissal decision process pointed towards race discrimination, reversing the burden of proof. The Court of Appeal disagreed. Following well established case law, the Tribunal had correctly found that the flaws in the decisions made in the original decision to dismiss were just the kind of mistake that a manager might make in a tricky conduct case – nothing more than human error. Without more, genuine mistakes are not enough to found a successful discrimination claim.

What does this mean for employers?

The following findings of the Employment Tribunal, EAT and Court of Appeal (most of which are not new law) are a welcome reminder to employers:

  • A poor attitude to organisational change can, depending on the facts of the case, amount to gross misconduct;
  • An internal appeal is capable of curing defects in the original decision to dismiss;
  • The dismissal was fair in spite of an apparent breach of the ACAS Code in relation to the composition of the internal appeal panel;
  • Tribunals should look at the overall dismissal procedure when deciding if a dismissal is fair, and should not take a formalistic approach;
  • Genuine mistakes which are not tainted by discrimination are not sufficient to found a successful discrimination claim.

Where there are potentially significant errors in a dismissal process, employers should consider holding a full rehearing at appeal to maximise the likelihood of curing the defects.

Temitope Adeshina v St George's University NHS Foundation Trust



Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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