When an employee is dismissed as a result of a conflict at work, it can sometimes be difficult to determine whether the reason is misconduct or if the employer can treat the dismissal as being for some other substantial reason (SOSR). The distinction can have a significant impact on what processes the employer should follow when conducting the dismissal. The case of Ezsias v North Glamorgan NHS Trust 2011 explores this issue in further detail.
The Claimant, Mr Ezsias, was a Consultant Surgeon employed by North Glamorgan NHS Trust. During his employment he had frequently raised concerns about his team. He was constantly raising grievances alleging that the clinical standards in his department were not up to scratch.
The Trust investigated the allegations by running an inquiry to establish what the situation was. The inquiry concluded that a conflict at work and interpersonal issues were the cause of the problem and there were no issues with the clinical standards. The inquiry recognised that Mr Ezsias' complaints were excessively frequent and too detailed.
Mr Ezsias failed to accept these findings and made further complaints. The senior members of the team became so frustrated that all of them presented a petition to the Trust's Chief Executive. This was, effectively, a "vote of no confidence" in Mr Ezsias. The Trust suspended Mr Ezsias and asked an HR professional from another NHS Trust to investigate further.
The conclusion of the investigation was that there had been an irretrievable breakdown in relations. It was held that this was mainly due to Mr Ezsias' behaviour. The HR professional concluded that the Trust had the option of either commencing disciplinary action against Mr Ezsias or ending his employment on the basis that there had been an irretrievable breakdown in the relationship with his colleagues.
The Trust wrote to Mr Ezsias, dismissing him on the grounds that there had been a "fundamental breakdown of trust and confidence" between Mr Ezsias and his colleagues.
Mr Ezsias bought claims for unfair dismissal and whistle blowing. The Employment Tribunal held that he had not made any protected disclosures and concluded that the Trust had acted fairly when dismissing him. There was no need to follow the NHS' Whitely Council contractual dismissal procedures because the dismissal was for some other substantial reason.
Mr Ezsias appealed to the Employment Appeal Tribunal (EAT) on the grounds that the dismissal should have been for misconduct. He argued that the dismissal was procedurally unfair because the contractual dismissal procedure and Whitely Council rules should have been followed.
The EAT concluded that the Whitely Council terms only apply when the reason for taking action against the employee is conduct or capability. Agreeing with the Tribunal, the EAT held that the dismissal was for some other substantial reason, namely the conflict in the department and the irretrievable breakdown of relationships.
Some employers treat "some other substantial reason" as a "catch-all" term that can incorporate pretty much anything. This is wrong and an SOSR dismissal needs to have solid grounds. If there is a conflict in the workplace and dismissal is a possibility, then employers may rely on SOSR but should ensure that they are certain this is the main reason and it is not a misconduct dismissal in disguise.