University Hospitals Birmingham NHS Foundation Trust v Reuser UKEAT/0020/19/BA

Appeal by the Respondent against the ET’s decision that the Claimant had been dismissed unfairly and in breach of contract, and cross-appeal by the Claimant against the ET’s dismissal of his automatic unfair dismissal claim. Appeal dismissed and cross-appeal allowed.

The Claimant, a consultant ophthalmic surgeon, was dismissed by the Respondent following disciplinary proceedings in relation to two incidents. He brought claims in the ET for unfair dismissal, breach of contract, and automatic unfair dismissal on account of having made a protected disclosure. The ET upheld the unfair dismissal and breach of contract claims but rejected the automatic unfair dismissal claim. The Respondent appealed in relation to the upheld claims on a number of grounds, including that the ET had erred (1) by substituting its own view for that of the Respondent, (2) in its approach to and assessment of contributory fault, and (3) in misinterpreting the test for wrongful dismissal. The Claimant cross-appealed, contending that, in reaching its conclusion that the relevant protected disclosure could not have been the principal reason for dismissal, the ET took account of irrelevant, and failed to take account of relevant, matters.

The EAT held that no error of law or perversity was demonstrated on the Respondent's appeal, which would be dismissed. As to the cross-appeal, the EAT held that the ET had failed to give full consideration to the Claimant's submission that, whilst the incidents in question had presented the opportunity for dismissal, the reason for the latter had been the (admitted) protected disclosure. Accordingly, the issue of automatic unfair dismissal would be remitted to the same ET for reconsideration.

Published: 07/05/2020 11:35