Broken relationships

The Employment Appeal Tribunal has recently ruled on the fairness of a dismissal based on a breakdown of relationships between a doctor and members of his department. Julian Milford looks at its conclusions.

In Ezsias v North Glamorgan NHS Trust UKEAT/0400/09 (18 March 2011), the EAT upheld the Tribunal’s decision that the Trust had fairly dismissed Mr Eszias for “some other substantial reason”, in circumstances where his behaviour had led to a breakdown of relations between him and other members of his department.

The decision raises questions about when an employee can properly be dismissed for a breakdown in trust and confidence, without going through the full panoply of statutory or contractual procedures applicable to conduct or capability dismissals. Given the complex and lengthy procedures that may apply to dismissals of medical staff (e.g. “Maintaining High Professional Standards in the NHS”), the answer to those questions will no doubt be of considerable interest to NHS Trusts and those advising them.

The background and ET decision

Mr Eszias’s dispute with the Trust has taken up much court time over a 6-year period from 2005 to 2011. An earlier judgment of the CA in his case (Ezsias v North Glamorgan NHS Trust [2007] ICR 1126) is the leading authority for the proposition that tribunal claims involving disputed facts should only be struck out in the clearest cases, and that the same principles apply to striking out whistleblowing cases as apply in discrimination claims.

The background to the dispute (as found by the Tribunal) is set out below. It is necessary to set it out in some detail, because it was critical to the Tribunal’s finding (upheld by the EAT) that the Trust was entitled to dismiss Mr Ezsias without going through its disciplinary procedure.

Mr Eszias was employed as a consultant oral and maxillofacial surgeon at the Trust. He was very critical of several other surgeons in the Oral and Maxillofacial Department. He questioned their clinical competence, and clinical standards in the Department generally. His complaints led to serious difficulties in working relationships, as a result of which the Trust established an inquiry panel in March 2001.

The panel found that there were “major and long-standing interpersonal difficulties in the Department… of a nature and degree that make impossible the running of a harmonious and competent clinical department”. The panel also said that: “whatever his reasonable or possibly mistaken grounds for complaint against clinical colleagues and managers of the Trust, Mr Ezsias’ correspondence and complaints against colleagues are excessively frequent, unacceptably detailed and unrelenting to an extreme degree.”

Following the panel’s report, relationships did not improve. Mr Ezsias was not prepared to resolve his interpersonal difficulties with colleagues, and continued to raise clinical issues.

Eventually the Trust decided in February 2003 that there should be an independent external inquiry into the issues Mr Ezsias raised. Following that decision, the nine other senior members of the Department sent a petition to the Trust’s Chief Executive, stating: “There is a complete lack of confidence in, and a total breakdown of the relationships between, this consultant and the senior staff within the Department. This has significant effects on the service provision and the quality of care provided to patients within the Hospitals. We all seek urgent confirmation that immediate progress will be made to redress these issues before a complete breakdown of the services results”.

Once it had received the petition, the Trust decided to commission a senior HR professional (Mr Jones) to investigate the breakdown in working relationships, and suspended Mr Ezsias on grounds of an “apparent total breakdown” in those relationships. The inquiry into clinical issues did not proceed, because Mr Ezsias refused to participate.

Mr Jones reported in March 2004. He said that Mr Ezsias’ conduct had to a significant extent led to the breakdown in relationships, which was irreparable. He made a recommendation that Mr Ezsias had a disciplinary case to answer.

The Trust’s HR Director contacted Mr Jones and expressed her concern that he had made a recommendation about Mr Ezsias’ conduct, but none about the breakdown of relationships.

Following that conversation, Mr Jones added the following sentence to his report: “It will be for the Trust to decide whether to instigate disciplinary proceedings against Mr Ezsias or to take steps to terminate Mr Ezsias’ employment on the basis of there having been an irretrievable breakdown of relationships between him and his colleagues.”

Following receipt of the report, the Trust’s Director of HR interviewed the signatories to the petition, who confirmed that if Mr Ezsias was reinstated, they would consider resigning themselves. Against that background, the Trust’s Chief Executive wrote to Mr Ezsias on 1 February 2005, stating that he was dismissed on the basis of the breakdown of trust and confidence between him and his colleagues.

Mr Ezsias brought ET proceedings against the Trust three days after his dismissal, alleging (1) “ordinary” unfair dismissal and (2) automatically unfair dismissal for making protected disclosures.

The substantive hearing of his claim took place over 38 days in 2007 and 2008. The Tribunal concluded that Mr Ezsias had made protected disclosures, but the vast majority were not made in good faith; and that in any event he had not been dismissed as a result of making them. Critically, the Tribunal also found that he had been dismissed for “some other substantial reason” (i.e. the breakdown in relationships) rather than for conduct, and that the dismissal was fair. The Tribunal referred to and relied upon Perkin v St George’s Healthcare NHS Trust [2005] IRLR 934.

The EAT’s decision: conduct or SOSR?

For present purposes, the important ground of Mr Eszias’ appeal was ground (iv): the Trust, he said, should have followed the misconduct procedures in his contract when dismissing him. Properly characterised, he was accused of misconduct. If his misconduct was professional, he had lost the opportunity to have his case investigated and inquired into in accordance with the Whitley Council’s terms (at that time, HC(90)9). If his misconduct was personal, he had been denied the opportunity to have his case investigated and to have a hearing in accordance with the Trust’s disciplinary procedure [1].

When permitting Mr Ezsias’ grounds of appeal to go forward to a full hearing, the EAT had said that he had reasonable prospects of succeeding in an argument that inability to work with colleagues, leading to the irretrievable breakdown of relationships with them, should have been classed as professional misconduct, properly dealt with under Whitley Council procedures.

However, the EAT concluded at the full hearing that, properly analysed, the Employment Tribunal had validly found that the reason for Mr Ezsias’ dismissal was indeed SOSR – being “the breakdown of relationships with his colleagues” – and not misconduct.

The EAT’s conclusion depended upon close analysis of exactly what the Tribunal had concluded on the facts (see [50] of the judgment).

The Tribunal might have been saying one of two things, said the EAT. The first was that the reason for dismissal was Mr Ezsias’ behaviour, which had caused a breakdown in relationships. The second was that the reason for dismissal was the fact that working relationships had broken down.

If the first was the case, said the EAT, then the reason for dismissal might be misconduct. It would not, however, necessarily be misconduct. For example, a similar type of situation had been characterised in Perkin v St George’s Healthcare NHS Trust as SOSR, even though it had been Mr Perkin’s management style and manner which had led to the breakdown of relationships with colleagues.

If the second was the case, then the reason for dismissal would not be misconduct. It would be SOSR. That is because even if Mr Ezsias might have been to blame for the breakdown in relationships, that was simply part of the background history.

After lengthy analysis of the Tribunal’s rather sparse reasoning, the EAT found that the Tribunal had reached the second conclusion. It was the fact of the breakdown which was the reason for Mr Ezsias’ dismissal (his responsibility for that being incidental).

It followed that Whitley Council terms did not apply to Mr Ezsias’ dismissal, and the Tribunal was entitled to find the dismissal fair notwithstanding non-compliance with HC(90)9.

What conclusions can be drawn from the EAT’s judgment?

The EAT’s judgment usefully indicates that there are some circumstances in which a trust can dismiss a doctor whose behaviour has led to a breakdown in relationships, without going through the rigmarole of complex conduct or capability proceedings. At the very least, that will be possible where the issue is the fact of the breakdown itself, and not responsibility for the breakdown.

However, I think the thrust of the EAT’s decision indicates that such circumstances are likely to be relatively rare.

First, the EAT pointed out that Tribunals would and should be astute to ensure that the rubric of “relationship breakdown” is not used as a cloak to avoid properly applicable disciplinary procedures. See e.g. [57] - [58].

Secondly, the EAT quoted with some apparent approval the sentiment of HHJ Serota QC giving permission to appeal (though not its application). HHJ Serota, pointing out that the nationally agreed Whitley procedures gave consultants “significant protection from dismissal on the grounds of misconduct”, stated (quoted at [57]):

“My colleagues, who have considerably more industrial experience take the view that an employer in the position of the Trust would have considered itself bound to implement the Whitley Council procedures, if it intended to assert (as the Trust did) that Mr Ezsias was at fault for the breakdown in relationships with his colleagues and to dismiss him on that ground, whether or not that ground might be classified as 'some other substantial reason'”.

Here, Keith J found that in fact the reason for dismissal was not that Mr Ezsias was at fault for the relationship breakdown: it was simply the fact of relationship breakdown itself. Also, Whitley Council procedures no longer apply to misconduct (and have not since June 2005).

But the thrust of HHJ Serota’s remark remains, which is that even in cases which may be characterised as SOSR rather than misconduct, it may be appropriate to apply disciplinary procedures designed to protect the employee, if it is really the employee’s behaviour which lies at the heart of the reason to dismiss.

That remark is lent some support by Perkin v St George’s Healthcare NHS Trust. Mr Perkin was dismissed for behaviour which gave rise to a breakdown in relationships with staff and senior managers (e.g. making attacks on colleagues’ honesty, financial probity and integrity).

On appeal, Mr Perkin argued that the Tribunal had applied the wrong test of fairness under s.98(2)(b) ERA by characterising his dismissal as being for conduct, rather than SOSR. They had applied the test [2] in British Home Stores v Burchell [1980] ICR 3032, which is a test for misconduct dismissals. But, per Wall LJ at [65], while Burchell was a conduct case, there was no reason why the principles it set out should be limited to “conduct” cases – they could in appropriate instances (of which Perkin was one) apply also to dismissal for SOSR.

The issue addressed by HHJ Serota – must an employer use disciplinary procedures in a SOSR dismissal? – is of course not the same as the issue in Perkin, which was whether the Tribunal itself erred by applying Burchell to a dismissal for SOSR. But Perkin shows why there may be a close relationship between issues of conduct and SOSR, which makes it appropriate to apply the same processes and tests of fairness.

Thirdly, there are likely to be relatively few occasions on which it can genuinely be said the breakdown of relationships itself is the reason for, and justifies, dismissal, irrespective of fault on the part of the employee.

In many cases, an employer may assert that trust and confidence has broken down because of an employee’s behaviour. But there would be no justification for dismissal unless the employee was actually guilty of the behaviour alleged. If so, it would generally be appropriate to apply misconduct procedures when deciding whether to dismiss, for the reasons given by HHJ Serota.

In Ezsias, the breakdown in relationships justified dismissal in and of itself: but it was a case on quite extreme facts. Every other senior member of Mr Ezsias’ department wrote stating that relationships were impossible. They all threatened resignation if Mr Ezsias returned to work. They all contended that the relationship breakdown was damaging patient care. The situation genuinely was one in which – irrespective of fault – Mr Ezsias’ continued employment had the capacity seriously to damage the Trust’s operation.

In conclusion, Ezsias is a useful pointer to situations in which a fair dismissal may be effected without cumbersome capability/conduct procedures: but it is important to set the decision in context and to appreciate the limits of its application.

Julian Milford is a barrister at 11KBW. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 020 7632 8500.

1. Mr Ezsias’ case was decided at a time when the distinction between personal and professional misconduct was important for doctors, because professional misconduct was properly dealt with under the DoH’s Circular HC(90)9, whereas personal misconduct was properly dealt with under the Trust’s internal disciplinary procedures.

That distinction no longer obtains after the replacement of HC(90)9 by “Maintaining High Professional Standards in the NHS” (“MHPS”). All conduct issues fall to be dealt with under trusts’ internal procedures; capability issues are dealt with under MHPS.

2. I.e. the 3-part “Burchell” test: (1) the employer must believe that the employee is guilty of the conduct alleged; (2) the employer must have in its mind reasonable grounds on which to sustain that belief; and (3) the employer must at the stage at which that belief was formed on those grounds have carried out as much investigation into the matter as was reasonable in the circumstances.