CAN YOU FAIRLY DISMISS AN EMPLOYEE BECAUSE OF THEIR PERSONALITY?

Perkin v St George's Healthcare NHS Trust, considered whether an employer could fairly dismiss an employee because of their personality. In order to fairly dismiss an employee, an employer must show two things. First, that the reason it dismissed the employee was one of the fair reasons set out in the Employment Rights Act 1996 (ERA). Second, that the employer acted reasonably in treating that reason as sufficient reason for dismissing the employee. The most commonly relied upon 'fair' reasons are conduct and capability. A dismissal can also be 'fair' for 'some other substantial reason of a kind such as to justify the dismissal of an employee holding the position the employee held.' The question in Mr Perkin's case was whether the Trust could rely on Mr Perkin's personality as being 'some other substantial reason' justifying his dismissal.

Mr Perkin was Director of Finance at the Trust. The Trust had no criticism of Mr Perkin's technical competence or his integrity. However, the Trust had concerns about Mr Perkin's management style and his relationships with colleagues and external advisors. A disciplinary hearing was convened. At the hearing, evidence was given of Mr Perkin being intimidating during meetings and adopting an aloof and stubborn attitude. Mr Perkin responded to these allegations by launching a full-scale attack upon the honesty and integrity of the Chief Executive calling him a liar and accusing him of financial impropriety.

Following a lengthy period of consideration, the Trust dismissed Mr Perkin. The reasons given for Mr Perkin's dismissal were his failure to form relationships with colleagues and external advisors and his aloof management style. In addition, the Trust found that Mr Perkin's behaviour during the disciplinary process had resulted in a break down in the trust and confidence between him and the Trust. There was no right of appeal.

Mr Perkin brought an unfair dismissal claim that eventually reached the Court of Appeal. The Court of Appeal were keen to stress that 'personality' of itself is not a fair ground for dismissal under the ERA. However, they accepted on the facts of this case that the Trust could rely on Mr Perkin's personality as being 'some other substantial reason' of a kind such as to justify his dismissal. The Court of Appeal went on to find that the dismissal was unfair due to procedural faults, most notably, the chair of the disciplinary hearing was biased and there was no right of appeal. The Court also found that Mr Perkin had contributed 100% to his dismissal and that there was no prospect of Mr Perkin retaining his job had a fair procedure been followed. In these circumstances, the Court made no award of compensation to Mr Perkin.

So what does this mean for employers? Although this case appears to be authority for the proposition that employers can fairly dismiss employees for having a difficult personality, the Court of Appeal were clear that their decision is based on unusual facts and 'it is accordingly a case in relation to which generalisations or statements of general principle are likely to prove unhelpful.' Employers who are faced with an employee with a difficult personality should proceed with care and be certain that the personality is sufficiently difficult to warrant dismissal.

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