Akinwunmi – v – Brighton and Sussex University Hospitals NHS Trust is the perfect example of when employment law reaches the limits of its usefulness in HR practice.

For a fuller description of the facts, see our blog. For our purposes, however, Dr Akinwunmi fell out with five of his neurosurgeon colleagues over alleged discrimination, clinical malpractice, victimisation, breach of contract, intimidation, misrepresentation, whistleblowing, bullying and pretty much everything else in the grievance lexicon. There were reciprocal reports to the Police and the General Medical Counsel, all ultimately baseless, and the air was thick with mutual recriminations and toys flung out of prams all round.

It was quite apparent to the Trust, said the Employment Appeal Tribunal, that its Pituitary Unit was in crisis. Assorted internal investigations all confirmed that the working relationship between Akinwunmi and his colleagues was so poor as to pose (because that entailed a lot of people not talking to each other when they should) a potential hazard to patient safety. The only person to emerge from the Judgement with any credit at all (Akinwunmi included) was the Trust Manager who at a very early stage had suggested some management and diversity training within the team and then a follow-up mediation. Despite a further two years’ guerrilla warfare in the Unit, however, this had not been following up by the Trust. Akinwunmi said that working under such conditions represented a threat to his own health too, and so refused to return to work after an agreed three month career break for a further definitely non-agreed twenty months.

His resulting dismissal, even after twenty months’ unauthorised absence, was found unfair. Moreover, he was not even guilty of any contributory fault in that dismissal. How could that be?

The legal arguments revolved around the reasonableness of the dismissal – is it within the range of reasonable responses to dismiss an employee for failure to comply with a management request where he has reasonable grounds for refusing? But the practical question was different – where an employee refuses to come in because he fears harm to himself or others through working with people he believes are out to get him, what should the employer do either to mend those bridges or sever them cleanly?

Two factors separated this case from the norm – first, the Employment Tribunal found that Akinwunmi’s belief that his colleagues had behaved abysmally towards him was not just genuine but entirely well-founded. Second, it was accepted that dysfunctional relationships between the doctors in the Pituitary Unit did indeed constitute a threat to patients’ safety. Both those factors strengthened Akinwunmi’s hand very considerably. However, they didn’t affect the key point of the ET’s findings (upheld by the EAT), i.e. that it was incumbent on the employer to take proactive steps to address the problems it knew existed before it could reasonably expect Akinwunmi to return. The Trust did not discharge that burden simply by once or twice asking Akinwunmi what he thought. In particular, it could not insist that he came back as a pre-condition of dealing with his issues.

Lessons for employers

1. The EAT considered that the Trust should have pushed the mediation proposal as hard as it could, accepting that it could not make it compulsory. Akinwunmi should perhaps have been consulted about alternative roles, and prompt conclusions should have been reached and communicated to him in relation to his complaints about his colleagues. In a case less clear-cut than this, it might prove possible to get the employee to change his mind about the attitude of his colleagues, or at least (if he won’t), to persuade the Tribunal that he should have done.

2. As a practical question, we are left with the puzzle of what could actually have been done to resolve the situation. Even if Akinwunmi’s colleagues had been trained or warned before he came back, would that take away what they had done or persuade Akinwunmi that thereafter they thought better of him?   Clearly the answer is no. It was also accepted that in this case any mediation would have been very complex because of the number of individuals concerned and again the problem would be how far anyone involved could reasonably be expected to believe that whatever the other doctors said in that process, their daily attitude would be any different.

3. It would therefore be easy to understand an argument on Akinwunmi’s part that things had gone too far to allow a return at all so long as his five colleagues remained in post. However, you are then pushed back on the principle that co-workers do not have to like each other so long as they can work together civilly and professionally. If the Trust had taken more proactive steps, Akinwunmi could have been put in a situation where whatever he felt about his colleagues and vice versa, and however genuine and reasonable those sentiments, he had no legally-legitimate reason for staying away from work. Then a failure to return would be a contributory fault matter.

4. Of course if after a mediation and the undertaking of other management training, etc. the behavioural issues remained then it would be open to the Trust to find one party principally to blame and warn/dismiss on that basis. Alternatively it could conclude that whatever the original source of the problem, it had escalated to an untenable position for all concerned such that there was “some other substantial reason” for a dismissal anyway.

5. So it may well be worth the employer relying less on the unauthorised nature of the absence as the basis for dismissal and more on the irresolvable conflict causing it or the refusal of one or other party to the dispute to engage in or comply with reasonable steps to address it.

6. Keep in mind that absence on these grounds is unlikely to be found disability-related despite its duration.