Difficult staff who may be good at their jobs but make their colleagues’ lives a misery because of the way they work may have to tread more carefully following a recent Court of Appeal decision in an unfair dismissal case.
Ian Perkin had been employed by the St George’s Healthcare NHS Trust for more than 16 years. As the trust’s finance director, he was in a senior position with a high level of responsibility. Technically, it was accepted that he was very capable at his job. However difficulties had arisen because of his personality.
His management style made it very difficult for other senior colleagues to work with him. The discord grew until eventually things came to a head, when the chairman of the trust announced in a meeting that she wanted an “exit strategy in place” to remove Perkin from his job. These feelings were mirrored by other senior officers who found his behaviour “aloof”, “stubborn” and “at times intimidating”.
Disciplinary proceedings were instigated against Perkin. His response was to make an open and unfounded attack on the integrity of the chief executive and other senior officers. At the conclusion of the disciplinary hearing, Perkin was summarily dismissed.
His complaint of unfair dismissal, while technically successful, did not result in compensation. The tribunal found that the procedure was unfair. The decision to dismiss had been taken by the chairman, who had already expressed a desire for him to leave.
However, the manner in which he had conducted himself in defending the proceedings had led to the Trust having no alternative other than to dismiss him.
It found that even if the disciplinary hearing had been chaired independently, there was no prospect of any other decision than to dismiss Perkin being reached. He was entirely to blame for his dismissal.
The Employment Appeal Tribunal upheld the tribunal’s decision, so Perkin appealed to the Court of Appeal. He argued that the dismissal could not be fair on the grounds of conduct, as there had been no allegations of misconduct against him and he had received no warnings.
The Court of Appeal found the reason to dismiss should not have been described as conduct. However, it held that this did not make it unfair. Perkin had been dismissed because of his personality, which had manifested itself in such a way that the Trust was justified in dismissing for “some other substantial reason”. The decision that Perkin was totally to blame for the dismissal was upheld.
This decision should be welcomed. On many occasions, businesses suffer because of “difficult employees”, but management feel helpless. The employee may not necessarily break any rules and might be very good at their job yet their personality may cause discord among employees.
Even so, performance management and disciplinary options are not usually appropriate and are unlikely to meet with any success. In this case, however, the court took into account the reality of what a business needs from a senior employee in a position of responsibility and it found that dismissal in such circumstances fell within a general non-specific category of fair reasons.
- Stipulate in contracts of employment that there is an expectation the employee will conduct their work in a co-operative manner
- Undertake a full investigation if it is alleged that the employee’s attitude to work is causing problems with other staff
- Consider whether training may resolve problem areas or whether there is a conduct issue
- Conduct procedures in a fair manner and reserve any decision to a member of management not previously involved with the employee
- Keep a full record of the disciplinary hearing and the manner in which the employee defends the case
Michael Ball, employment partner, Halliwells