Reasonable conduct

In the unusual case of Brighton & Sussex University Hospitals NHS Trust v Akinwunmi and ors, the Employment Appeal Tribunal (EAT) held that where an employee was dismissed for refusing to follow a reasonable management instruction the tribunal was entitled to consider whether the employee was acting reasonably or not in refusing to obey the instruction.

Basic facts 

Mr Akinwunmi, a consultant neurosurgeon, and the five other permanent neurosurgeons employed by the Trust had a very difficult relationship. Following allegations he made of race discrimination, the Trust carried out an investigation which found a culture of poor working relationships, but not discrimination. As a result of this outcome, Mr Akinwunmi lodged a tribunal claim which was subsequently settled. 

Part of the settlement included an agreement allowing him to go on a three-month sabbatical from November 2012. Both Mr Akinwunmi and the other consultant neurosurgeons had made a number of serious allegations against each other and he had outstanding grievances which were not resolved when the sabbatical came to an end in February 2013. He asked for an extension to allow time for the grievances to be resolved but this was refused. He refused to return on grounds which included that he feared the environment was unsafe and was causing him stress which would affect patient care and his reputation. He was treated as being absent without leave from February 2013. 

In October 2013, the Trust wrote to him saying it had commissioned an investigation into his unauthorised absence. The subsequent report said that it was “untenable” for Mr Akinwunmi to remain on unauthorised leave, even though he had outstanding grievances. Following his dismissal in October 2014, Mr Akinwunmi lodged various tribunal claims including victimisation, whistleblowing and unfair dismissal. 

Tribunal decision

The tribunal accepted that the reason for dismissal was the Trust’s genuine belief that Mr Akinwunmi’s absence from work without authority for some 20 months constituted gross misconduct entitling it to terminate his employment. This belief was based on reasonable grounds.

It noted that the toxicity of the working environment was obvious to any neutral observer and said that the Trust had decided not to go through the normal management processes but had moved to a disciplinary process on the narrow basis of unauthorised absence to “exclude and avoid the complexities of the case of which they were well aware”. The dismissal was substantively unfair on this basis.

The tribunal said that Mr Akinwunmi had been treated as if he was simply an employee being disciplined for failing to obey a reasonable management instruction. This ignored that his position, held on reasonable grounds, was that a return to work was unsafe for him and others. 

EAT decision

The EAT held that the tribunal had expressly directed itself not to substitute its view for that of the Trust and had understood that there was a band of reasonable responses when considering misconduct. The tribunal had considered the reasonableness of the Trust’s conduct and concluded that the dismissal was substantively unfair. The tribunal had not at this point considered whether the claimant’s refusal to return to work was reasonable.

However, the tribunal had gone on to consider whether it was reasonable for Mr Akinwunmi to have returned to work in relation to whether he had contributed to his dismissal and should have his damages reduced for his contributory fault. The EAT found obiter* remarks made in an old Court of Appeal case (UCATT v Brain) highly persuasive. In that case the court had said that the primary factor in deciding whether to dismiss an employee for refusing to follow instructions was to ask “Is the employee acting reasonably or could he be acting reasonably in refusing to obey my instruction?”. There was no error in that approach, provided the tribunal did not wrongly ask: “Would we dismiss?”. The remarks were obiter because in UCATT a majority of the judges had decided that the instruction was not one the employer was entitled to give.

It was logical for the tribunal to come to the conclusion that Mr Akinwunmi’s position was reasonable. If it was reasonable he could not be culpable or blameworthy which is a necessary condition for finding contributory fault.

The Trust’s appeal was dismissed. 

*An obiter remark is a passing comment in a judgment which was not essential to the decision and therefore does not create a precedent.