When considering a complaint of unfair dismissal the first decision an employment tribunal must make long, before there is any consideration of reasonableness of the decision, is what the reason for dismissal was, and together with that, whether the reason for dismissal is for one of the potentially fair reasons for dismissal.
In many, and probably most cases, the reason the employer puts forward is accepted by the tribunal and not disputed by the claimant and therefore that task is completed has something of a formality.
The lengthy judgement of the Employment Appeal Tribunal in University Hospital Birmingham NHS Trust v Reuser (2020) is a timely reminder that this is a task they can forget to complete. The claimant in this case who was a hospital consultant brought three main claims: that he had been unfairly dismissed (ordinary unfair dismissal), that he had been wrongfully dismissed, and that he had been automatically unfairly dismissed because of whistleblowing.
The employer had conducted disciplinary proceedings against the consultant on two main allegations. The first was that he had put patients safety at risk when he conducted a surgery without a trained assistant present, the tribunal found that this was not misconduct since the evidence was that he did deliberately proceed in the absence of a trained assistant because if he did not then the patient would have been at greater risk and could have lost their sight. The second allegation was that he had placed patients at risk by attending a meeting and leaving inexperienced staff to cover some clinical duties without permission but the evidence showed that the manager (a senior NHS executive at the hospital) dismissing him was himself well aware from the outset that he did have permission and that the allegation was false.
Arising from this and a few other factors the employment tribunal found (which was affirmed by the EAT) that the consultant had been unfairly and wrongfully dismissed. However, when it came to the whistleblowing complaint the tribunal rejected the claim on the basis of its finding that “the principal reason for the dismissal was the claimant’s use of an untrained member of staff in theatre and his perceived lack of insight, coupled with the additional supervision concerns raised by the second incident.” In short, the tribunal accepted that even though unfair, it was the conduct that was the principal reason for dismissal and so the whistleblowing complaint must fail.
In a pithy summary the appeal criticised the tribunal for this decision and argued that “the tribunal failed to take account of his submission that, whilst the incidents in question had presented the opportunity for dismissal, the reason for the latter had been the (admitted) protected disclosure.” Addressing the argument the EAT agreed that there had been no consideration of whether the ‘misconduct’ was a pretext to dismiss the claimant and, on my reading, were close to being persuaded it was:
The tribunal had accepted the Claimant’s submission that the Respondent had not genuinely viewed the incidents as gross misconduct (Judgment, paragraph 36). It had found that the allegations were not treated as potentially justifying dismissal until after the protected disclosure (paragraphs 45 and 27.1 to 27.9); and that the failure to have acted on that disclosure, or to have mentioned it to the GMC had given further grounds for suspicion (paragraphs 46 and 23.1 to 23.2). The suspicion in question can only have been as to the reason for dismissal.
The reality is that employers by an large do not openly dismiss an employee because they have made a protected disclosure, when they do dismiss for that reason they try to hide that fact suggesting the real reason is something else. If they did, whistleblowing cases would be among the easier cases to bring rather than the hardest as they now are!
Even though not a whistleblowing case itself the principle of an employer hiding the real reason for dismissal. This principle was famously summarised in Aslef v Brady (2006):
if the employer makes the misconduct an excuse to dismiss an employee in circumstances where he would not have treated others in a similar way, then in our view the reason for dismissal- the operative cause – will not be the misconduct at all. On this analysis, that is not what has brought about the dismissal. The reason why the employer then dismisses is not the misconduct itself. Even if that in fact merited dismissal, if the employee is treated differently to the way others would have been treated, being dismissed when they would not have been, then in our judgment a Tribunal would be fully entitled to conclude that the misconduct is not the true reason or cause of the dismissal.
The decision in Reuser is not new and is not unique to whistleblowing. Mr Reusner has not appealed to the findings of ordinary unfair dismissal but based on the fact of the finding of an error of law identifying the reason for dismissal in the whistleblowing context then this was also probably an (unpleaded) error of law in the ordinary unfair dismissal claim as well in that the ET did not consider whether the dismissal was for a potentially fair reason (conduct) in the first place. However, with the impact of the Jhuti decision – which was not relevant here because the decision maker was the one potentially knowingly subjecting him to whistleblowing detriment – then the reason for dismissal will I suspect become a more important battleground in future cases.
Reusner is a good case to demonstrate how the reason for dismissal cannot be assumed to be what the employer says it is.
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