The EAT has held, in the case of Ezsias v North Glamorgan NHS Trust, that where the reason for a dismissal is an irretrievable breakdown in working relationships and not the employee's conduct in causing that breakdown, the dismissal will be for "some other substantial reason" rather than misconduct. The employer is not required to follow its disciplinary procedure relating to misconduct in those circumstances.

Mr Ezsias was a consultant oral and maxillofacial surgeon employed by North Glamorgan NHS Trust.  From early in his employment, he was highly critical of standards in the department and made numerous complaints about colleagues.  An investigation found that Mr Ezsias’ conduct had led to the breakdown of relationships.  It concluded that the breakdown appeared to be irretrievable and that there was little, if any, prospect of good relations being restored.  Eight senior members of his department maintained they would resign if he were reinstated following the investigation.  The trust eventually dismissed Mr Ezsias because of the "fundamental and irretrievable breakdown of trust and confidence" between himself and his colleagues.

Mr Ezsias claimed unfair dismissal, contending that the NHS should have implemented its disciplinary procedures under the nationally agreed Whitley Council terms.  He also claimed that his dismissal was on the grounds that he was a whistle blower.  His claims did not succeed.  The EAT held that the decision to dismiss was fair for ‘some other substantial reason’, as the dismissal was due to the breakdown in trust and confidence and not because of Mr Ezsias’ conduct.  The contractual disciplinary procedures therefore did not apply.

The EAT was at pains to indicate that this decision was made on its specific facts and did not allow NHS Trusts the opportunity to bypass the Whitely Council terms simply by not allocating blame for the breakdown in working relationships.  However, the EAT confirmed that the Whitley Council terms only apply when it is the employee's conduct or competence which is the real reason why the action was taken against him.  In this case while the history of the case showed that Mr Ezsias' conduct was blamed for the breakdown, his contribution to that breakdown was not the real reason for the dismissal. 
Impact on employers

  • Employers in similar situations should be alive to the options open to them where there is a relationship breakdown.  Where no blame is allocated, it maybe possible to dismiss fairly because of "some other substantial reason".  If that is the case, it will not be necessary to follow a conduct procedure (whether contractual or not).  The sole requirement for an employer in such a situation is to follow a fair procedure.
  • However, employers should beware of simply relying on "some other substantial reason" where the real reason is in fact connected with the employee's conduct.  The EAT warned that tribunals will be on the lookout for cases where "some other substantial reason" is put forward as a pretext to conceal the real reason for the dismissal.  Employers should analyse carefully their real reason for dismissal and follow an appropriate procedure.
  • Training should be given to those who carry out investigations covering the full range of options for dealing with conflict in the workplace.  In this case, the astute Director of HR appreciated the difference between disciplining the employee for his conduct in the relationship breakdown and approaching the matter on a "no-fault" basis on the grounds of irretrievable breakdown of workplace relationships.

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