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Dismissal unfair after 20 months of unauthorised absence

The Employment Appeal Tribunal in the case of Brighton & Sussex University Hospitals NHS Trust v Akinwunmi has upheld a decision that a dismissal was unfair even after 20 months of unauthorised absence.

Background

The Claimant was a neurosurgeon at Brighton & Sussex University Hospital NHS Trust (“the Trust”). His relationships with colleagues were poor and there were numerous complaints made by both the Claimant and his colleagues about each other.

The Claimant then took an agreed three month career break between November 2012 and February 2013 during which he raised more concerns including patient safety. The Claimant refused to return to work at the end of the agreed three month period saying that the working atmosphere was a risk to his own health.

During what then become a period of unauthorised absence, numerous reports were prepared by the Trust which recommended that the Trust should take steps to improve the working relationships in the interests of the efficient and safe running of the department. However, none of the recommended actions were taken and there was very little communication with the Claimant during his unauthorised absence.

In November 2014, after 20 months of unauthorised absence, the Trust held a disciplinary hearing and the Claimant was dismissed for misconduct (on the grounds of his unauthorised absence). He subsequently brought a claim for unfair dismissal.

Decision

The Employment Tribunal found the dismissal to be unfair. It held that although the Trust had a genuine belief that the Claimant’s unauthorised absence amounted to misconduct, the decision to dismiss did not fall within the band of reasonable responses. The Trust should have managed the relationships of its employees and its failure to do so meant that the Trust’s instruction for the Claimant to return to work without dealing with the issues was unreasonable and the Claimant’s refusal to return to work was reasonable.

The Employment Appeal Tribunal (“EAT”) agreed that the dismissal was unfair. The instruction by the Trust for the Claimant to return to work without taking any steps to deal with the issues raised was unreasonable and the Trust should have looked at the full context of the absence when considering whether to dismiss the Claimant.

Comment

Although employers may expect unauthorised absence to amount to misconduct, the reason behind the unauthorised absence should always be explored, particularly before any disciplinary action is taken in response. It will not always be reasonable for the employer to instruct an employee to return to work if there are work-related issues in the background.

If you would like to speak to us about misconduct issues, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

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