Poor attitude to change can be gross misconduct

April 2017

By Eliza Nash of Osborne & Wise

In Adeshina v St George’s University Hospitals NHS Foundation Trust and Others, Ms Adeshina had been in a management position and was dismissed having failed to cooperate with, support or lead a change in the service in which she worked. This included at least one instance of unprofessional behaviour at a meeting. Ms Adeshina brought claims for unfair and wrongful dismissal and race discrimination.  She argued that the misconduct did not amount to gross misconduct and that the nature of the allegations against her had not been properly spelt out.  

In its investigation report, the Trust had cross-referenced categories of gross misconduct from its disciplinary policy (disrepute, serious insubordination, and negligence). However, those categories were not repeated in the Trust’s letter inviting her to a disciplinary hearing.  The dismissing manager did not, in terms, describe Ms Adeshina’s failure to cooperate and lead as deliberate, whereas the appeal panel did.  There were also a number of procedural failings as part of the original disciplinary process, including the fact that the decision was based partially on matters which had not been put to Ms Adeshina during the process.

The case went first to the Employment Appeal Tribunal (EAT) and then the Court of Appeal. The Court of Appeal rejected Ms Adeshina’s arguments, which depended on an overly formalistic analysis, which was inappropriate in an unfair dismissal context. It was clear that the Trust was asserting that Ms Adeshina was potentially guilty of one of the categories of misconduct.

This case is an interesting example of how poor attitude might, fairly, result in dismissal.  Of wider relevance, are the Employment Appeal Tribunal’s findings in relation to the internal appeal process, which it found was capable of curing defects in the original decision.  Whilst ideally, advice should be sought at an early stage, to ensure the process is carried out correctly from the outset, this case shows it is still worth taking advice later down the line, as early procedural defects can sometimes be corrected.