Temitope Adeshina v St. George's University Hospitals Nhs Foundation Trust and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Beatson LJ,Longmore LJ |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] EWCA Civ 257 |
| Docket Number | Case No: A2/2015/1719 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 April 2017 |
[2017] EWCA Civ 257
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HH JUDGE EADY QC AND LAY MEMBERS
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Beatson
and
Lord Justice Underhill
Case No: A2/2015/1719
Mr James Laddie QC (instructed by Thomas Mansfield Solicitors Limited), with Mr David Gray-Jones of Thomas Mansfield for the Appellant
Mr Ben Cooper QC and Ms Corinna Ferguson (instructed by Capsticks LLP) for the Respondents
Hearing dates: 8 th and 9 th March 2017
Approved Judgment
INTRODUCTION
The Appellant is a pharmacist. Since 2002 she has worked in HM Prison Service. At the time material to this appeal she was Principal Pharmacist in the Pharmacy Department at Wandsworth Prison, employed by the St. George's University Hospitals NHS Foundation Trust ("the Trust"). She describes her ethnicity as black African.
Following a disciplinary hearing which took place over several days some weeks apart, the Appellant was summarily dismissed by letter dated 15 June 2012. The decision to dismiss was taken by Fiona Ashworth, the Trust's Divisional Director of Operations. The Appellant appealed in accordance with the Trust's appeal procedures. Again, the hearing took place on a number of dates, over a period of no less than ten months, before a panel chaired by Neil Deans, the Trust's Joint Director of Estates and Facilities. By letter dated 31 October 2013 the dismissal decision was upheld.
The Appellant brought proceedings against the Trust in the Employment Tribunal for both "ordinary" unfair dismissal, by reference to section 98 of the Employment Rights Act 1996, and "automatic" unfair dismissal by reference to section 103A (part of the so-called "whistleblower" provisions); for "whistleblower detriment" pursuant to Part IVA of the Act; and for wrongful dismissal. She also claimed against the Trust and three of its employees – Ms Ashworth, Ms Caulfield-Stoker and Ms Leegood – for racial discrimination arising out of the dismissal itself and the events leading up to it, and for victimisation. (The Prison Service was also initially a respondent, but no claim is now pursued against it.)
The Appellant's claim was heard by a Tribunal chaired by Employment Judge Freer at London South over fourteen days between 18 November and 5 December 2013. By a judgment sent to the parties on 10 April 2014 all her claims were dismissed. The Tribunal's Reasons are very full, running to over 50 pages and some 353 paragraphs.
The Appellant appealed to the Employment Appeal Tribunal as regards her claims for ordinary unfair dismissal, wrongful dismissal and racial discrimination (as regards her dismissal). The appeal was heard by a tribunal presided over by HH Judge Eady QC on 30 April and 1 May 2015. By a judgment promulgated on 19 June 2015 her appeal was dismissed.
This is an appeal against that decision. The Appellant is represented by Mr James Laddie QC and Mr Gray-Jones, a solicitor advocate. The Respondents are represented by Mr Ben Cooper QC and Ms Corinna Ferguson of counsel. Both Mr Laddie and Mr Cooper appeared in the EAT. Mr Cooper and Mr Gray-Jones also appeared in the ET.
THE APPELLANT'S DISMISSAL
THE BACKGROUND
The reasons given by the Trust for the Appellant's dismissal arise out of her involvement in a project, for which the go-ahead was given in January 2011, to re-organise the way in which pharmacy services were provided at Wandsworth: the existing arrangements were to be replaced by a "Central Pharmacy Unit" ("the CPU"). The aims of the project were set out in a document described as "the Operational Policy". One of the principal features was a change from the provision of pharmacy services at the prison being "nurse-led" to being "pharmacist-led". To anticipate, that was a change of which the Appellant strongly disapproved. The process proved difficult. A meeting of senior managers from both the prison and the Trust took place on 20 July 2011, a few days before the CPU was due to open, because of the lack of progress. The Appellant attended that meeting. She also attended a meeting with Ms Leegood, who was Acting Head of Healthcare, the following day. The CPU formally opened on 25 July.
Shortly afterwards both the Governor and the Deputy Governor of the prison and two senior Trust staff – the Chief Pharmacist, Chris Evans, and Ms Leegood – raised concerns about the leadership, or lack of it, shown by the Appellant in the process leading up to the opening of the CPU. As a result of those concerns Ms Caulfield-Stoker, who was the Chair of the Trust's Community Services Division, asked its Deputy Chief Pharmacist, Mr Kumar, to carry out a disciplinary investigation. The Appellant was suspended.
THE INVESTIGATION
On 26 August 2011 Mr Kumar wrote to the Appellant to inform her of the allegations which would be the subject of the investigation, which he formulated as follows:
"a) your unprofessional behaviour and attitude as a senior manager during a Trust and Prison senior management meeting on Wednesday 20 July 2011 and as a result of what occurred when Chris Evans, Pharmacy Services, St. George's Healthcare NHS Trust and I left the room during the meeting
b) your failure as Head of Pharmacy Services at HMP Wandsworth to be co-operative and to support and lead the major service change in the Pharmacy Department which has resulted in a negative impact on the new treatment centre. Actions were not implemented, the Operational Policy was not instigated by yourself and when the centre opened your attitude was unhelpful and detrimental to the prisoners, your staff and other healthcare colleagues
c) your unprofessional and threatening behaviour towards Sam Osborne, Pharmacy Technician on 1st June 2011 when you confronted him outside the pharmacy dispensary when senior staff were present and your subsequent refusal to apologise to him for your unacceptable behaviour."
The result of Mr Kumar's investigation was a "Management Statement of Case" ("the MSC"). Section 4 of the MSC, headed "Findings of the Investigation", sets out, in relation to each of the three allegations in turn, the gist of the evidence that Mr Kumar had heard and his conclusions. He does so with some particularity and there are a series of appendices containing contemporary documents and interview notes. It is a clear and well-presented piece of work. The final section is headed "Summary". It begins by concluding, with brief reasons, that each of the allegations is made out. It continues:
"These incidents constitute gross misconduct and misconduct in line with the Trust's Disciplinary Procedure in that:
Gross Misconduct
Disrepute– by her actions and behaviour TA has brought the Trust into disrepute.
Serious Insubordination– TA's serious failure to lead the Central Pharmacy Room service development and has failed to carry out reasonable instructions to ensure this development as well as her deliberate failure to discharge responsibility and maintain the accepted standards in accordance with statutory requirement, professional standards of conduct and Trust policies and procedures.
Negligence– wilful insubordination and failure to lead the Central Pharmacy Room service development which meant that prisoners' healthcare and safety was compromised and also negligence with regard to standards of work and working practice.
Misconduct
Verbal Abuse– disrespectful and confrontational behaviour towards a work colleague and a member staff which may cause personal offence."
The four labels there used – "disrepute", "serious insubordination", "negligence" and "verbal abuse" – derive from examples of "gross misconduct" and "misconduct" given in the Trust's Disciplinary Procedure. Although we were not shown a copy, it appears that, as is conventional, the Procedure makes clear that gross misconduct may lead to dismissal whereas mere misconduct will only attract lesser penalties.
It is convenient at this stage to say something more about the three allegations considered in the MSC, which I will refer to, as (a)-(c) as per para. 9 above. It is convenient to take (a) and (b) in reverse order:
(1) Allegation (b) is the most general in character. The essential point is that the Appellant disapproved of the philosophy behind the CPU project, and was determined so far as possible to have nothing to do with implementing it. In the Findings section of the MSC several particulars are given of her failing to take necessary action or refusing to take decisions, but it is unnecessary for present purposes that I itemise them – though I should note, because the point comes up later, that one of the pieces of evidence relied on was an e-mail from Ms Leegood following their meeting on 21 July giving details of the Appellant's unco-operative attitude.
(2) Allegation (a) concerns the Appellant's conduct at the meeting on 20 July. As appears from the Findings section of the MCS, the complaint was both about the Appellant's attitude during the meeting itself and about an incident during a break while the meeting was adjourned. As regards the former, she was said to have been dismissive and rude in her demeanour towards colleagues and appeared not to be paying any attention. As regards the latter, she had a conversation during the break on her mobile phone with another pharmacist, Ms Shuramo, in which she expressed her hostility to the project. Other colleagues, including Ms Leegood, were in the room, and when Ms Leegood tried to remonstrate with her she told her in very direct terms to mind her own business.
(3) Allegation (c) is rather different inasmuch as it involves a one-off act of rudeness unrelated to the CPU...
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