This was an appeal to Employment Appeal Tribunal from a decision that the claimant, who was employed as a consultant neurosurgeon, had been unfairly dismissed. The core of the Trust’s case before the Employment Tribunal was that it was entitled to dismiss the claimant because he had taken 20 months of unauthorised absence.

The claimant argued that his employer failed to take account of the reason why he had not returned to work i.e. that his health and safety and that of his patients would be endangered if he returned without the Trust addressing allegations made against him by former colleagues and generally facilitating his return to work.

The original Employment Tribunal accepted that the Trust had a genuine belief that the unauthorised absence was misconduct and that it had reasonable grounds for that belief. However, it also found that the claimant's position, held on reasonable grounds, was that a return to work, without more, was unsafe both for him and for others. The main question was whether it was within the band of reasonable responses to dismiss the claimant for his refusal to return to work given the other circumstances. The Tribunal found it was not. The appeal was also dismissed - " there was more (considerably more) to the history than the bald fact of a dismissal for 20 months’ unauthorised absence..."

Practical Lessons

An interesting aspect of this decision is the reliance and approval of the decision in UCATT V Brain and whether an employee who refuses to obey even a ‘reasonable and proper instruction’ can be dismissed for non-compliance. The EAT here echoed the UCATT decision in that the key question which a reasonable employer must ask itself in such a situation is: ‘Is the employee acting reasonably or could he be acting reasonably in refusing to obey my instruction?’

Ordinarily, there must be a serious breach to justify dismissal and employees must always be warned beforehand about the consequences of a breach as well as being able to give their side of the story. Other authorities have noted that the contract of employment will dictate the scope of lawful orders and thus the written terms, customs and practice and collective agreements will be useful reference points.

However, flexibility may be expected of employees, particularly in small businesses, and thus it will often be a fact-specific exercise.
http://www.bailii.org/uk/cases/UKEAT/2017/0345_16_2906.html