Where an employee is absent without leave, how long would it be before dismissal of that employee would be fair? Two weeks? One month? Six months? How about 20 months?

That is the question that was faced by the employer in the recent case of Brighton & Sussex University Hospitals NHS Trust v (1) Akinwunmi (2) Norris & 4 Ors. Akinwunmi was employed as a consultant neurosurgeon. Relations with colleagues were poor and tit for tat complaints were made every which way. Partly as a result of all this he took an unpaid employment break between November 2012 and February 2013.

Given this “toxic” environment, Akinwunmi was perhaps understandably reluctant to return to work and appealed the length of his employment break as he had actually wanted 6 months. When that was refused, he alleged discrimination. That didn’t get him anywhere either and so he simply did not return to work. Right up until he was finally dismissed for unauthorised absence in November 2014.

It would be unfair to the NHS Trust to suggest that nothing happened during the intervening period. A plethora of reports and investigations were prepared and undertaken by or at its request. However, what did not happen during this period was any real communication with Akinwunmi. One example given in the judgement was a report on his unauthorised absence dated January 2014 which was not sent to him until May. Suffice to say that it took the Employment Tribunal a whopping 713 paragraphs over 137 pages to rehearse the whole ghastly story.

Unsurprisingly, the Trust’s position was that it was a fair dismissal due to the 20 months of unauthorised absence. In return Akinwunmi argued that the employer had not engaged with him in order to allow a return to work and that the dismissal was unfair because it did not take into account his reasoning for not returning to work. Those reasons included the demonstrated potential adverse effect of the colleagues’ allegations against him not only on his health and safety but that of patients too.

The Tribunal accepted that the employer had a genuine belief that Akinwunmi’s unauthorised absence was misconduct and that it had reasonable grounds for that belief, and so the question that remained was whether dismissal was within the familiar band of reasonable responses. The Tribunal found it was not and therefore it was an unfair dismissal. Essentially it had been up to the employer to manage relationships in the department and to make arrangements for Akinwunmi to return to work. As it did not do so, it was reasonable for Akinwunmi to refuse to come back until issues were addressed.

That is not to say that if an employee acts reasonably in refusing a reasonable management request, any resulting dismissal will necessarily be unfair. If there is an impasse of this sort, something has to give. The issue here, however, was that the Trust’s failure to take any of the necessary steps to facilitate Akinwunmi’s return in the face of the hostility and ineptitude he had experienced made its request that he returned an unreasonable one. A dismissal for a reasonable failure to follow an unreasonable management instruction will almost always be unfair, as here.

On appeal, the EAT agreed with the Tribunal. The decision was not perverse and there had been no substitution of the Tribunal’s view for that of the employer. The Judge completed her judgement with both a concluding explanation and a moment of what passes for levity in legal circles. Responding to Counsel’s reference to the views of the “man on the Clapham omnibus” as the essence of reasonableness, she said, 

“Once he appreciated, from the vantage point of his historic mode of transport, that there was more (considerably more) to the history than the bald fact of a dismissal for 20 months’ unauthorised absence, and once he appreciated what that “more” was, any sense of amazement or outrage at the ET’s decision would vanish.”

Therein lies the lesson behind this case. While the attention-grabbing headline suggests that an employer could not fairly dismiss an employee even after 20 months AWOL, there was a Game of Thrones-esque saga beneath that headline which threw rather a different light on proceedings.

While unauthorised absence can often be a serious matter of misconduct, this case reminds employers that it is not solely ammunition for disciplinary processes. One has to question the reasoning behind the absence. If the reasoning is or could be work-related, as it was in this case, a Tribunal will expect an employer to have at least attempted to identify and address the issues. If it does not, then unless the employee is shown to be delusional about the alleged issues or unreasonable in some other way, it may be faced with a similar outcome to this one.

To end on a lighter note, I will leave you with another extract from the Judgement as evidence that not everything an Employment Judge hears is about law:

“SR was a prisoner who had put something up his own nose. It was thought this was a pencil and that it had been removed, but that turned out not to be so.” 

Just so many questions….