Disciplinary procedures – Doctors – Gross misconduct – Unfair dismissal

Sameer Sarkar v West London Mental Health NHS Trust: CA (Civ Div) (Lords Justice Mummery, Richards, Rimer): 19 March 2010

The appellant employee (S) appealed against the decision of the Employment Appeal Tribunal (EAT) to overturn the employment tribunal’s finding that he had been unfairly dismissed by his employer (W).

S was a consultant psychiatrist. Following an investigation into complaints about S’s treatment of colleagues, W embarked on its fair blame policy (FBP), which was designed for fairly low-level breaches of conduct. Under FBP a written warning was the most severe sanction. The sanction of summary dismissal for gross misconduct was not available under FBP. The FBP procedure broke down between the parties at a meeting at which W’s medical director informed S that she would have to send a report to the General Medical Council about his behaviour. The allegations against S were found proved at a hearing before a disciplinary panel. It made findings of gross misconduct and he was summarily dismissed. The tribunal upheld S’s unfair dismissal claim, concluding that the decision to dismiss S fell outside the range of reasonable responses. In applying section 98(4) of the Employment Rights Act 1996 the tribunal found that the dismissal was unfair because the use of FBP implied that the alleged misconduct was of a relatively minor nature rather than gross misconduct justifying summary dismissal; additional matters which happened subsequent to the FBP process did not, individually or cumulatively, amount to gross misconduct; the FBP discussions had been deliberately frustrated by W’s medical director. The EAT allowed W’s appeal against that decision on the basis that the tribunal had erred in law by failing to take relevant matters into account on the core question of whether the decision to dismiss fell within the range of reasonable responses; and by substituting their view of S’s conduct for that of W.

Held: The issue was whether the tribunal erred in law by misapplying section 98(4) of the 1996 act. The question for the tribunal was whether it was within the range of reasonable responses for W to have dismissed S, Iceland Frozen Foods Ltd v Jones [1983] ICR 17 EAT applied. The tribunal had to answer the question without substituting themselves for W, HSBC Bank Plc (formerly Midland Bank Plc) v Madden [2001] 1 All ER 550 CA (Civ Div) applied. W no longer pursued its argument that the FBP and the events under it were irrelevant in assessing the reasonableness and fairness of the dismissal. It followed that, subject to a perversity challenge, the tribunal did not err in law in taking account of the FBP factor and that the weight to be attached to it was a matter for the tribunal. The tribunal did not err in law on the reasonable responses point. The tribunal was entitled to conclude that it was inconsistent of W to use the FBP, which indicated that the misconduct was relatively minor, and then go on to charge S with gross misconduct and summarily dismiss him. The tribunal was entitled, on the evidence, to find that the additional matters which occurred after the FBP were of a relatively minor nature. There was also no error of law in the tribunal’s findings about the conduct of W’s medical director. The judgment of the tribunal was restored.

Appeal allowed.

Sandhya Drew (instructed by Russell Jones & Walker) for the appellant; Mark Sutton, Ben Cooper (instructed by Capsticks) for the respondent.