Employment Law Case Update: Brighton & Sussex University Hospitals NHS Trust v Akinwunmi

Getting on well with your workmates is desirable for all of us – but sometimes it’s a matter of life and death.

In the case of Brighton & Sussex University Hospitals NHS Trust v Akinwunmi, Mr Akinwunmi  (‘Mr A’)  was a consultant neurosurgeon for the NHS trust. Mr A had poor relationships with a number of  fellow surgeons, and had previously complained that he was being bullied - and bought a race discrimination claim to the Employment Tribunal, which was settled.

It had been agreed that Mr A would take an unpaid three month sabbatical. During this sabbatical, Mr A raised some concerns about patient safety and alleged that his colleagues were turning away NHS patients whilst accepting private work. His colleagues claimed that he was incompetent and his practices were unsafe. A complaint was made to the police that Mr A had also threatened to assault one of his colleagues. The police decided to take no further action - but the Trust failed to notify Mr A of this.

A decision was made to limit his sabbatical to three months, Mr A appealed against this decision but his appeal was not upheld, and his absence from work became unauthorised. Mr A argued that it was impossible for him to return to work as there were various serious outstanding issues with his colleagues and this could be a risk to patient safety. Mr A was also concerned the police might arrest him if he returned to work and came into contact with the colleague he was alleged to have threatened.

The Trust stated that the complaints could not be dealt with until he returned. A disciplinary hearing was held and Mr A was dismissed because of his unauthorised absence. Mr A brought claims for unfair dismissal, automatic unfair dismissal because of whistleblowing and victimisation.

The ET dismissed Mr A’s claims for whistleblowing and victimisation but did find that his dismissal was unfair. On appeal the Employment Appeal Tribunal agreed that dismissing Mr A for his unauthorised absence was unfair because the full context of the absence was not taken into consideration by the Trust. The EAT held it was unreasonable for the Trust to expect Mr A to return to work before trying to resolve the outstanding issues and improve working relationships. The EAT agreed that insisting Mr A return to a workplace where people’s lives could depend on good working relationships was particularly unreasonable. The EAT noted that the Trust’s witnesses were found to be ‘disingenuous’ when giving evidence.

Employers should recognise the importance of acting on recommendations to improve working relationships and should carefully consider whether it’s reasonable to expect an employee to return to work before any changes have been made.

This article is from our weekly Employment Law Newsletter published on 07/09/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.