Unfair dismissal - Reasonableness Of dismissal

Perry v Imperial College Healthcare NHS Trust: Employment Appeal Tribunal (Mr Justice Wilkie, Mr Justice Harris, Mr D Smith): 22 September 2011

The employee was a midwife. She worked for the employer NHS Trust for 19 hours a week. Her function included home visits which meant that she had to be capable of going to a number of different places, accessing a number of different types of accommodation, including, for example, high-rise council flats with broken lifts.

From about 2006 the employee developed a chronic knee problem made worse following surgery. She subsequently took up part-time employment as a family planning nurse. Accordingly, she had two jobs at the relevant time, both of them part time and both of them involving working at mutually exclusive hours. From December 2007, her medical condition was such that she could no longer perform her work for the employer because her knee condition made it too difficult and painful for her to access the community location.

The employer dismissed the employee for alleged gross misconduct, the allegation being that she had been in paid employment by Ealing PCT whilst certified as sick at Imperial College NHS Trust. The employment tribunal dismissed the employee's claim that she had been unfairly dismissed, for disability discrimination and unpaid holiday pay. The employee appealed in respect of the decision on her unfair dismissal claim.

The issue was whether the dismissal was fair in all the circumstances. The appeal would be allowed.

In the instant case, the decision of the employment tribunal in dismissing the claim for unfair dismissal was fundamentally flawed in law and could not stand. In the particular circumstances, it was unreasonable for the employer to have concluded that summary dismissal for gross misconduct was a warranted sanction for what, by that stage, had emerged was a minor deception, if, indeed that was what it was. It followed that dismissal was a sanction which was not within a range of reasonable responses(see [8], [49]-[50] of the judgment).

The finding that the dismissal was fair would be substituted by a finding that the dismissal was unfair. The questions of remedy and award will be remitted for decision on the basis of our findings (see [62] of the judgment).

A Perry for the employee. Robert Moretto (instructed by Capsticks LLP) for the employer.