Veitch Penny LLP - Exeter | Crediton, Devon

Case

Perkin v St George’s Healthcare NHS Trust
Court of Appeal – 12 October 2005

Issues

The Issues

1)Conduct
2)Reason for Dismissal
3)Personality

Facts

Ian Perkin had been employed as a director of finance for the Trust in September 1986. He was in a senior position managing a group of employees and cooperating with senior colleagues. At no point was there any criticism of his competence but many employees experienced difficulties with his manner and management style.

In 2002 the Trust became concerned about the situation. Without prior warning, Perkin was called to a meeting with the chief executive and asked to resign. When he declined to do so, the Trust initiated the disciplinary procedure. During that process, evidence was heard that Perkin was stubborn, intimidating and was not constructive in his approach to problem solving. It was made clear that Perkin’s conduct at the hearing alone was sufficient in the Trust’s view to allow them to conclude that he could not continue in the role. The Trust dismissed him, concluding that his relationship with the executive team had broken down to such an extent that Perkin was unable to discharge his role effectively.

The Tribunal accepted the Trust’s arguments, but found Perkin’s dismissal to be procedurally unfair because the Chairman of the Disciplinary Procedure had previously made negative comments about Mr Perkin and lacked independence. The Tribunal went on to say that there was a 100% chance that Mr Perkin would have been dismissed in any event if the hearing had been conducted by an independent person. Accordingly, no compensation was awarded.

Decision

Perkin’s appeals to the Employment Appeal Tribunal and Court of Appeal failed. At the Court of Appeal, he argued that personality could not be grounds for dismissal within Section 98 of the Employment Rights Act 1996. However, in the decision, Lord Justice Wall said that:
“Personality, of itself, cannot be a ground for dismissal within Section 98 of the Employment Rights Act 1996. For there to be a potentially fair reason for dismissal, an employee’s personality must, it seems to me, manifest itself in such a way as to bring the actions of the employee, one way or another, within the section. Whether, on the facts of a particular case, the manifestations of an individual’s personality result in conduct which can fairly give rise to the employee’s dismissal; or whether they give rise to some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held, the employer has to establish facts which justify the reasonable principal reason for the dismissal. Provided the employer can do so, Section 98(4) then kicks in”.

Comments

At first sight this decision is uncontroversial. As stated in the judgment, it must be potentially fair to dismiss a senior employee because of the effects their “personality” has on the organisation. However, little attention was given to the apparent failure of the Trust to give Perkin any warning before his dismissal. As he had been employed by the Trust for 17 years, it is difficult to see how fairness did not demand that he should be given an opportunity to improve before being asked to leave.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
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