United States: Dismissal Following A Breakdown In Working Relationships Was For Some Other Substantial Reason, And Not For Misconduct

This article originally appeared in Jones Day's HR Headlines, March 2011.

Where a breakdown in working relationships was caused primarily by an employee's conduct, it does not necessarily follow that the dismissal of that employee will be on the grounds of misconduct. The employer may dismiss the employee for the fact of the breakdown in relationships and this will be a dismissal for some other substantial reason.

Key facts

The Claimant was employed by the Respondent NHS Trust as a consultant surgeon. During the course of his employment he frequently raised concerns about clinical standards in a manner that antagonised many of his colleagues and led to a breakdown in workplace relationships. Reports by an independent psychologist and the Trust's HR department concluded that the retrieval of good working relationships was extremely unlikely and nine senior members of the Claimant's department signed a petition confirming the breakdown of their relationships with the Claimant. The Claimant was dismissed with immediate effect, receiving three months' payment in lieu of notice. The dismissal was on the basis of the fundamental and irretrievable breakdown of trust and confidence and not for misconduct. Consequently no disciplinary procedure was followed.

The decision

The Claimant alleged that his dismissal was unfair because it was connected to the concerns he raised and that these were protected disclosures and/or that the Trust should have followed its disciplinary procedure because the matters leading to his dismissal had involved his alleged misconduct. The Tribunal dismissed the claim, finding that the disclosures were not protected and that his making them was not the reason for his dismissal. The Trust was entitled to take the view that the dismissal was for some other substantial reason and did not require the disciplinary procedure to be followed. The Claimant appealed. The EAT upheld the Tribunal's decision, commenting that the tribunal had carefully considered the distinction between dismissing the Claimant for having caused the breakdown in relationships (a misconduct dismissal) and the fact of the breakdown of those relationships (a dismissal for some other substantial reason). On the facts it was the breakdown of the relationships that led to the dismissal and the Claimant's responsibility for the breakdown was regarded as incidental.

What this means for employers

Where there has been a breakdown in relationships the fact that the employee is primarily responsible for the breakdown does not automatically mean that the employee's conduct is the reason for his dismissal and employers are therefore able to characterise such a dismissal as being for some other substantial reason. There may be advantages to employers in characterising a dismissal as being for some other substantial reason as it circumvents the need to follow a disciplinary procedure. Dismissal for some other substantial is unlikely to be without notice or pay in lieu of notice though. The Tribunal was clear that reliance on some other substantial reason should not be used for this purpose and the EAT considered that tribunals will be alert to the possibility that it is simply a fabrication to hide the real reason for dismissal.

Ezsias v North Glamorgan NHS Trust [2009] UKEAT/0401/09

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