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Case law: Dismissal for refusing to return to dysfunctional working environment was unfair

Employers should ensure they seek solutions to improve poor relations at work – for example, when investigating grievances – before deciding whether to insist an employee returns to work.

September 2017

This update was published in Legal Alert - September 2017

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Poor working relations, involving allegations of bullying and race discrimination, between a consultant surgeon and his colleagues created a dysfunctional environment at work.

An internal investigation recommended management training and mediation, and it was agreed that the employee should take three months’ unpaid leave. However, while on leave he raised issues of patient safety and accused his colleagues of turning away NHS work while accepting private work. In turn, they claimed he was incompetent and unsafe, and one of them made a police complaint alleging he had threatened to assault them. The police took no action but he was reported to the General Medical Council.

Further investigations recommended that steps should be taken to improve relations, but no action was taken. The employee was not kept up-to-date on these investigations and recommendations, although his colleagues were.

His request that he should be able to remain off work longer than three months failed, and so the employer treated his continued absence as unauthorised. The employee argued that the outstanding issues with his colleagues meant it was impossible for him to return to work without affecting patient safety. He also said he was worried about being arrested (his employer had not told him the police had decided to take no further action).

His employer said it could not deal with his complaints unless he came back to work. Finally, he was dismissed for unauthorised absence following a disciplinary hearing, and he claimed unfair dismissal.

The Employment Tribunal agreed the dismissal was unfair. It found that the treatment of his absence as unauthorised was unfair because the employer had not taken the circumstances into account, and had failed to take steps to improve relations at work. It was particularly unfair given that returning to work in a dysfunctional department could put lives at risk – there was a clear link between the poor relations and that risk.

Operative date

  • Now

Recommendation

  • Employers should ensure they seek, and act on, solutions to improve poor relations at work, for example, when investigating grievances – before deciding whether to insist an employee returns to work

Case ref: Brighton & Sussex University Hospitals NHS Trust V Akinwunmi & Ors [2017] UKEAT 0345_16_2906

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