Bashir and anor v Sheffield Teaching Hospital NHS Foundation Trust

This is a useful case showing the factual circumstances that might warrant a departure from the usual procedures required under principles of natural justice in disciplinary and grievance hearings. Both the tribunal and the EAT were satisfied that the non-appearance of the claimants at the both grievance and disciplinary hearings was attributable to their unreasonable and obstructive behaviour, and that this did not affect the overall fairness of the decision to dismiss. The Facts The claimant and his wife worked in the NHS in accountancy roles. Both were of Asian extraction. The Trust was going through a process looking at making efficiency savings. The claimant came accross a document prepared as a result of this process and quickly raised a grievance. A more detailed grievance followed. Taken together the grievances suggested that other accountants wanted to break up the claimant's team and share the work among themselves and further that the suggestion was racially motivated against him and his wife. The claimant's wife also presented a grievance. The grievance process was subject to numerous delays. Objections were made to the person appointed to investigate and a further grievance was raised against the claimant's line manager. It was finally agreed that the grievance would be heard by a panel of non-executive directors sitting at the final stage of the Trust's grievance procedure, which meant there was no appeal against the panel's decision. A hearing date was set for June 2007. The claimants attempted to delay the hearing by claiming witness unavailability and pressures of work, and when this failed, on the day before the hearing, both announced they were ill and unable to attend. The claimant also argued that the people who were the subjects of the grievance should not be allowed to attend the whole hearing, and should instead give evidence and leave. The Grievance Panel agreed to delay the hearing until 9 July, but declared it was appropriate for those named in the grievance to attend the whole hearing. On the day of the hearing the claimant suddenly decided he wasn't competent to represent his case, despite earlier claiming quite the opposite and demanded union representation. The Panel had had enough and said the hearing would proceed and both claimants left. The Panel decided the grievance in their absence. The grievances were rejected, moreover the panel found that they were not made in good faith. To that extent the matter would be pursued further. It will be remembered there was no right of appeal because of the earlier difficulties. The Claimant was suspended pending a disciplinary investigation and on the same day those who had been accused by the grievance penned a letter to the effect that all trust had been broken between them and the Claimants. The Claimant's line manager also indicated that he could no longer work with him. The claimants argued that trust could be rebuilt but again problems arose with the procedure. The claimants claimed ill health prevented their attendance and so there was a delay of several months. In March 2008 a further date was set but again the Claimants cited ill health and refused to attend. The Trust decided to proceed in any event and found that the claimant had taken a confidential document without permission (the document relating to making savings), and that he and his wife had made complaints of discrimination in bad faith. It concluded that there had been an irretrievable breakdown in the relationship between the claimants and their colleagues. Accordingly, they were dismissed. Claims followed including race discrimination, victimisation and unfair dismissal. The claims failed. The tribunal did not find any evidence of less favourable treatment on the grounds of the claimants' race, was satisfied that a comparable white employee would have been treated in exactly the same way and did not consider disciplining the claimants was an act of victimisation for having made a complaint of race discrimination. In relation to unfair dismissal, the tribunal found that the Trust had raised two potentially fair reasons for dismissal: some other substantial reason, in that the claimants' colleagues could no longer work with them; and the claimants' conduct. The tribunal found the former reason on its own justified dismissal, but even had there been no breakdown in trust, there was sufficient material on which a reasonable employer could find the claimants guilty of gross misconduct. In relation to the conduct of their grievances, the tribunal considered the claimants' behaviour to be unreasonable: they would not cooperate with attempts to investigate and persistently sought to delay the hearing. The tribunal considered the finding of bad faith to be warranted, adding that 'we are driven to the conclusion that the claimants sought to engineer a situation whereby the weakness of their grievance might be overlooked because of the position they sought to manipulate the respondent into - proceeding in their absence'. In relation to proceeding with the disciplinary hearing in the absence of the claimants, the tribunal considered that the Trust had to take account of the excessive delays and their effect on the employees named in the grievance and the running of the Trust's finance department. To that end the decision to proceed in their absence was reasonable. The claimants appealed criticising the way in which the tribunal approached the finding of bad faith and its effect on the disciplinary process. The EAT found that the tribunal's decision had clearly identified the primary reason for dismissal as being the breakdown in trust, and that this was independent from the finding of bad faith. The EAT did say it felt unease about a process whereby the claimants had their grievances resolved in their absence with a finding of bad faith; had no appeal against that finding; were denied the opportunity to challenge that finding at a disciplinary hearing, at which they were not present; and were found guilty of gross misconduct in acting in bad faith and dismissed. However, they thought the factual context was crucial - the claimants had behaved unreasonably and in an obstructive manner throughout, and had by their own conduct denied themselves the opportunity to respond to the finding of bad faith and to seek to mitigate its effects at the disciplinary hearing. It was not appropriate, as the claimants sought to do, to consider elements of the procedure or of the tribunal's decision in isolation: taken as a whole, the tribunal had found that the claimants' unreasonable behaviour, baseless allegations of racism and adoption of procedural machinations to delay the grievance hearing justified the finding of bad faith, and that the lack of an appeal was not fatal to the fairness of the overall decision to dismiss. The case should be caefully read because it is its factual background that is important to understanding why the usual procedural safeguards could be set aside. Full case:EAT, 27.5.10 (0448/09).