MR A EZSIAS v NORTH GLAMORGAN NHS TRUST [2011] UKEAT 0399_09_1803

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2011] UKEAT 0399_09_1803

Case No Appeal No. UKEAT/0399/09/CEA UKEAT/0400/09/CEA UKEAT/0401/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A EZSIASAPPELLANT

NORTH GLAMORGAN NHS TRUSTRESPONDENT

Before

Mr Justice Keith Mr G Lewis Mr D Norman

Date 18 March 2011

[1]APPEARANCES For the Appellant MR A EZSIAS (The Appellant in Person) For the Respondent MR TIMOTHY PITT-PAYNE (One of Her Majesty's Counsel) Instructed by: Messrs Capital Law LLP One Caspian Point Caspian Way Cardiff Bay CF10 4DQ SUMMARY CONTRACT OF EMPLOYMENT – Disciplinary and grievance procedure UNFAIR DISMISSAL – Reason for dismissal including substantial other reason(1) An employee who has been dismissed because of the breakdown of working relationships between himself and his colleagues (irrespective of whether he had been responsible for, or had contributed to, that breakdown) had not had action taken against him because of his conduct. Accordingly, it had been open to the Employment Tribunal to rule that such disciplinary procedures as applied when allegations of misconduct were made did not have to be invoked in his case.

(2) The other issues to which the appeal related did not raise any questions of principle. THE HONOURABLE MR JUSTICE KEITH Introduction The Claimant, Mr Andrew Ezsias, was a consultant oral and maxillofacial surgeon employed by the Respondent, North Glamorgan NHS Trust ("the Trust"), from 1 July 1998 until he was dismissed on 1 February 2005 with immediate effect, receiving a payment in lieu of the three months' notice to which he was contractually entitled. He complained to an Employment Tribunal of unfair dismissal. After Mr Ezsias' dismissal, the Trust amalgamated with another NHS Trust to form a unified trust, but that trust has since been replaced by the Cwm Taf Health Board ("the Board"). The Board has always accepted that any liability arising out of Mr Ezsias' dismissal has been transferred to it, and it follows that Mr Ezsias' position in this litigation has not been affected in any way by this series of administrative reorganisations. For convenience, the Board will also be referred to as the Trust in this judgment.

[2]Mr Ezsias' claim was heard by an Employment Tribunal ("the Tribunal") sitting at Cardiff on various dates between 14 December 2007 and 30 April 2008. The case took up 38 days of the Tribunal's time in all: 36 days of evidence and 2 days for closing submissions. On 10 November 2008, the Tribunal issued its judgment dismissing the claim. The judgment consisted of 757 paragraphs and ran to 205 pages.

[3]Mr Ezsias appealed against the dismissal of his claim to the Employment Appeal Tribunal. It was considered by the Employment Appeal Tribunal at a preliminary hearing (Judge Serota QC presiding) on 15 January 2010. By a reserved judgment handed down on 28 January 2010, the Employment Appeal Tribunal ordered that the appeal be set down for a full hearing on a limited number of grounds, and it dismissed the remainder of Mr Ezsias' grounds of appeal. The appeal has therefore been limited to the grounds previously identified by the Employment Appeal Tribunal. Since the Employment Appeal Tribunal had had to read so much for the preliminary hearing, it was thought to be an efficient use of the Employment Appeal Tribunal's manpower for the two lay members who had sat with Judge Serota QC (Mr Lewis and Mr Norman) to be part of the constitution for the hearing of the substantive appeal.

[4]It should be noted that Mr Ezsias has at all times represented himself. The hearing of the substantive appeal lasted three days, and we had a good opportunity to assess the kind of man Mr Ezsias is. He is man of considerable charm, but he is also someone who struck us as being inclined to take a blinkered view of what people think of him and as someone who sees things starkly in terms of black and white. The fervour with which he has sought to put right what he genuinely sees as the injustice of his dismissal has bordered at times on the obsessive. Having said that, we wish to pay tribute to the moderate and measured way in which he presented his appeal, and to the courtesy which he showed us at all times, though there were occasions when he had some difficulty in confining his submissions to the limited grounds of appeal which the Employment Appeal Tribunal was addressing.

[5]In due course, it will be necessary to identify the particular grounds of appeal which the Employment Appeal Tribunal permitted to proceed to a full hearing, but for the moment it is sufficient to state that Mr Ezsias' primary case in the Tribunal was that his dismissal had been unfair because he was dismissed for making a series of protected disclosures. In other words, he claimed that he had been dismissed for what is colloquially called "whistle-blowing", and a dismissal for such a reason is rendered automatically unfair by section 103A of the Employment Rights Act 1996 . Alternatively, Mr Ezsias claimed that his dismissal was unfair on conventional principles. The grounds of appeal which the Employment Appeal Tribunal permitted to proceed to a full hearing related to both aspects of Mr Ezsias' case, but to understand them an overview of the case is necessary. All references in this judgment to sections of an Act are references to sections of the Employment Rights Act 1996 ("the Act") unless otherwise stated. The Facts in Outline

[6]Mr Ezsias comes from Hungary. He received some of his medical training there. He left Hungary in 1986 when he was 33 years old and settled in the UK. He had a number of appointments before accepting the post of consultant oral and maxillofacial surgeon with the Trust in the Trust's Department of Oral and Maxillofacial Surgery ("the Department"). There were three hospitals at which the Department provided treatment to patients: hospitals in Merthyr Tydfil, Bridgend and Llantrisant.

[7]In his evidence, Mr Ezsias claimed that before he took up his appointment he had been informed that there were serious issues about the clinical standards in the Department. It is fair to say that from quite early on in his employment with the Trust, Mr Ezsias was expressing his own concerns on the topic. He would do so bluntly. Indeed, the Tribunal noted that in the course of his evidence Mr Ezsias had described himself as someone who "will stand up for what he considers to be right, whatever the consequences". The Tribunal commented that Mr Ezsias would use language which was "unlikely to meet with a positive reaction from his colleagues". If anything, that was a significant understatement.

[8]Mr Ezsias was to claim that his concerns were not only ignored, but that he was victimised and harassed by "senior managers" because he had had the effrontery to raise these concerns. Indeed, the skeleton argument which he submitted to the Tribunal at the conclusion of his evidence listed no less than 75 topics which he claimed he had brought to the attention of the Trust, the Trust's advisory body and the police. These constituted the protected disclosures which Mr Ezsias alleged he had been dismissed for making.

[9]Matters first came to a head as a result of the breakdown of Mr Ezsias' relationship with Nick Moran and Keith Smart, who were associate specialists in the Department but who later became consultants. They claimed that their clinical competence had been unfairly questioned by Mr Ezsias, and that had led to an undermining of their confidence. In addition, Mr Ezsias had been critical of Eric Nash, a fellow maxillofacial surgeon in the Department who became the clinical director of the Department in April 2000, and that that had affected Mr Nash's working relationship with Mr Ezsias. Because of these difficulties, the Trust established an inquiry panel in March 2001.

[10]The panel reported in July 2001. It looks as if the panel did not address Mr Ezsias' concerns about the clinical competence of his colleagues, but it did not believe that there were any outstanding issues of clinical governance in respect of any of the clinicians who had been interviewed. It was completely satisfied that "there had been major and long-standing interpersonal difficulties in the Department which, while they may not in any way necessitate action by the Trust on grounds of professional deficiency or clinical risk, nevertheless are of a nature and degree that make impossible the running of a harmonious and competent clinical department". It considered that "whatever his reasonable or possibly mistaken grounds for complaint against clinical colleagues and managers of the Trust, Mr Ezsias' correspondence and complaints against colleagues are excessively frequent, unacceptably detailed and unrelenting to an extreme degree". The Tribunal was unhesitatingly to find that it was Mr Ezsias who had caused, or at least contributed significantly to, the sense of alienation from him which his colleagues felt. It also agreed with the assessment of the panel's report by Dr Terence Morris, who had been appointed as the Department's Medical Director in April 2001, that the report had attempted to produce a reconciliation between Mr Ezsias and his colleagues, and that there was no question of the "knives" being "out for anyone".

[11]The Tribunal went on to find that, following the panel's report, Mr Ezsias had not been prepared to resolve the "interpersonal difficulties" with his colleagues, since he believed the problem to be about wider issues regarding the Department. It would be wrong to suggest that Mr Ezsias was alone in not letting things rest. For example, Mr Smart wanted grievances which he had lodged against Mr Ezsias to be addressed. But Mr Ezsias continued to make complaints about his colleagues, including complaints in June 2003 to Mrs Ann Lloyd, the Director of the NHS in Wales, in which he raised what he described as his "extremely serious concerns" about a number of matters relating to a handful of the Trust's senior managers, and to the Post-Graduate Medical Dean of the University of Wales about Mr Nash.

[12]That was the context in which in April 2002 Jenny Ludlow, the Trust's Acting Chief Executive, asked an independent consultant psychologist, Dr Michael Walton, to review working relationships in the Department. Dr Walton met the senior members of the Department including Mr Ezsias, and produced his report in September 2002. His view was that many of the difficulties within the Department appeared to revolve around the behaviour and actions of Mr Ezsias. He thought that the problems which had arisen in the Department were likely to have been caused more by the way in which Mr Ezsias' concerns had been raised rather than by what those concerns had related to. His conclusion was that the long-standing and deeply ingrained mistrust suggested that total retrieval of good working relationships was extremely unlikely.

[13]This initiative did not yield beneficial results. In October 2002, Mr Ezsias complained to the police that Mr Smart had claimed fees higher than he was entitled to. The police referred the complaint to the Trust. It was then investigated by a firm of independent counter-fraud specialists, and was found to be without substance. In the course of that investigation, Mr Ezsias complained to the firm that Mr Nash had fraudulently claimed holiday pay to which he was not entitled. When that complaint was investigated, it was found to be a genuine error on Mr Nash's part, and no question of fraud arose. However, Mrs Lloyd was still considering what should be done about the wider concerns which Mr Ezsias had expressed to her. By July 2003, she had discussed the problems with colleagues in the National Assembly of Wales, and the thinking was that perhaps the way forward was for there to be an independent inquiry chaired by a lawyer into the issues which Mr Ezsias had raised.

[14]The Trust's view of this initiative was that there should be an independent investigation of the kind which Mrs Lloyd had in mind, and that it should be commissioned by the Trust. Indeed, on 11 February 2003, Mrs Ludlow informed Mr Nash that there would be an external inquiry into the issues which Mr Ezsias had raised. It was then that matters finally came to a head. The nine senior members of the Department signed a petition addressed to Mrs Ludlow in these terms:

"All the senior members of the Maxillofacial Department within the three District General Hospitals wish to register their grave concerns in regard to the lack of progress that has been made in resolving a large number of outstanding issues concerning Mr Ezsias. There is a complete lack of confidence in, and a total breakdown of the relationships between, this consultant and the senior staff within the Department. This has significant effects on the service provision and the quality of care provided to patients within the Hospitals. We all seek urgent confirmation that immediate progress will be made to redress these issues before a complete breakdown of the services results."

The Tribunal found that the petition had been signed by 17 February 2003 when a copy of it was given to Mrs Sandra Spray, the Trust's Director of Human Resources, and then it was enclosed with a letter dated 26 February 2003 from Mr Nash to Mrs Ludlow.

[15]On 10 March 2003, most of the signatories of the petition met Mrs Ludlow, Dr Morris and Mrs Spray. They repeated what the petition had said. Dr Morris was surprised by the reference in the petition to the fact that the quality of patient care was being affected, because that was something which had not emerged before. The consultants and the associate specialists said that Mr Ezsias' behaviour was having a highly detrimental effect on the Department. Staff felt that the Trust had bent over backwards to be fair to Mr Ezsias, and that their welfare was being overlooked. They wanted the concerns to which the petition referred to be dealt with as a formal grievance.

[16]Following that meeting, the Trust decided to do two things. First, it decided to commission a senior professional in the field of human resources to undertake an investigation into the breakdown in relations which the petition revealed. Mr Ian Jones, the Assistant Director of Personnel with another NHS Trust, was approached. He met Mrs Ludlow and Mrs Spray on 2 April 2003 to discuss the assignment, and following the meeting he agreed to undertake the investigation. Mr Jones' remit to investigate the breakdown in working relationships was obviously very different from an investigation into the concerns which Mr Ezsias had raised. Secondly, the Trust decided that Mr Ezsias should be suspended. The letter sent to Mr Ezsias notifying him of his suspension was dated 4 April 2003, and gave as the reason for the suspension the fact that "serious concerns have been raised with the Trust concerning an apparent total breakdown in the working relationship between [Mr Ezsias] and the senior staff working in the Department".

[17]During the course of Mr Jones' investigation, the Trust decided to implement the proposal which had previously been canvassed that there should be an independent inquiry into the concerns which Mr Ezsias had raised. A barrister was appointed to chair the inquiry. Mr Ezsias made his participation in the inquiry dependent on various conditions which the Trust regarded as unacceptable, and when Mr Ezsias was informed of that, he said that he would not participate in an inquiry which he thought might be "an organised stitch-up and a whitewash". In those circumstances, the Trust decided not to proceed with the inquiry since it would in effect be "a desk-top exercise" as it would not have the input of the person whose concerns the inquiry would be investigating.

[18]Mr Jones completed his report on 29 March 2004. The Tribunal described it as "comprehensive, thorough and extremely detailed". He thought that Mr Ezsias' practice of firing off letters to all and sundry, which had continued despite Dr Walton's hope that it would cease, had led to a sense of exasperation among his colleagues which was irreparable. Mr Jones believed that Mr Ezsias had little or no understanding of the impact of his behaviour on his colleagues. Rightly or wrongly, Mr Ezsias regarded himself as superior to them, and when what he regarded as best practice was not followed, he took it as a personal affront. Mr Jones' judgment was that Mr Ezsias found it very difficult to move on when things had not turned out to Mr Ezsias' liking. His conclusion was that working relationships between Mr Ezsias and his colleagues appeared to have broken down irretrievably, and there was little, if any, prospect of good relations ever being restored.

[19]Mr Jones' report concluded with his recommendation. He changed the language of his recommendation in circumstances which give rise to one of the grounds of appeal, and we shall refer in due course to why he did that, and what the effect of the new language was. However, for the moment we set out his recommendation in its original form (tracking the changes which were subsequently made to it in italics):

"The potential recommendations available to me are as follows: If I considered that Mr Ezsias had no case to answer then clearly I would recommend immediate reinstatement. If that were the case I would also make suggestions about future work to repair and rebuild the working relationships within the Maxillofacial department. I have already alluded to my view that the working relationship has irreparably broken down and in my view the cause of that breakdown in large measure is down to Mr Ezsias. I therefore am unable to recommend reinstatement. I am also mindful that attempts to rebuild the working relationships have floundered in the past most notably with the involvement of Dr Michael Walton. It would be recalled that Dr Walton's view on accepting the assignment in September 2002 was that – 'some progress is possible but it is extremely unlikely that the situation can be totally retrieved.' Whilst acknowledging the presence of a number of complex factors it is my view that Mr Ezsias' conduct behaviour has, to a significant extent, led to the breakdown of relationships. It is well established that unacceptable behaviour towards colleagues can amount to misconduct, and in serious cases can be gross misconduct. Paragraph 1.3 of the Trust's Disciplinary Rules [which are included at pages 15-19 of the Trust's Disciplinary Policy] give examples of the sorts of unacceptable behaviour towards staff that would amount to gross misconduct. It will be for the Trust to decide whether Mr Ezsias is guilty of misconduct and, if so, the appropriate disciplinary sanction . It is my view based on the evidence presented to me that Mr Ezsias's behaviour towards his colleagues in the Maxillofacial department at North Glamorgan NHS Trust has been unreasonable and unacceptable. This has led to a situation where his colleagues justifiably no longer have any confidence or trust in him and the working relationship has irreparably broken down. The Trust has a duty of care to all employees. It cannot therefore ignore such unreasonable behaviour where it is clearly having a significant adverse impact on colleagues in the department. Paragraph 3.1.2 of the Trust's Staff Investigation Policy requires me to submit a report to an 'appropriate senior manager who will be responsible whether or not there is a case which requires action …' It is my recommendation that on the basis of the evidence Mr Ezsias has a case to answer . It will be for the Trust to decide whether to instigate disciplinary proceedings against Mr Ezsias or to take steps to terminate Mr Ezsias's employment on the basis of there having been an irretrievable breakdown of relationships between him and his colleagues. "

[20]Mr Jones' report was sent to Mr Ezsias on 27 May 2004. Thereafter there were three meetings between Mr Ezsias (and his BMA representative) and Mr James Hayburn who had been appointed as Chief Executive of the Trust in February 2004. Following those meetings, the Trust's new Director of Human Resources, Anne Phillimore, who had succeeded Mrs Spray, interviewed eight of the nine signatories of the petition (the remaining signatory having left the Trust's employment by then). They told her that they would not be happy to work with Mr Ezsias again, and they all expressed the view to her that Mr Ezsias' return would have a seriously detrimental effect on the Department. She was told that if Mr Ezsias was reinstated, they would consider resigning themselves, but if they did not, they expected that a significant number of departmental staff would resign. Mr Ezsias claims that what Mrs Phillimore was really trying to do was to get the nurses in the Department to say that they could not work with him, since none of them had told Mr Jones that. But whatever Mr Ezsias believes, the Tribunal did not make any finding to that effect.

[21]Mr Hayburn decided that Mr Ezsias should be dismissed. He wrote to Mr Ezsias on 1 February 2005. Having set out the history of the attempts which had been made to repair working relationships within the Department, including Mr Jones' conclusion that the cause of the breakdown in working relationships was "in large measure" due to Mr Ezsias' actions, he said that he had:

"… come to the clear conclusion that the working relationship between yourself and your colleagues in the Maxillofacial Department has fundamentally and irretrievably broken down and consequently I have no alternative but to terminate your employment on the basis of the fundamental and irretrievable breakdown of trust and confidence between yourself and your colleagues."

Mr Ezsias initially indicated that he wished to appeal against his dismissal, but the hearing of his appeal never took place. Since that is one of the grounds of appeal, it will be necessary for us to return to that in greater detail later on. The Tribunal's Decision

[22]Automatically unfair dismissal . The Tribunal's decision was unnecessarily long on narrative and surprisingly short when it came to analysis, but the main strands of the decision are clear enough. The Tribunal first addressed the question whether the disclosures which Mr Ezsias had made were protected disclosures. Although the relevant statutory provisions are well known, it is worth setting them out here:

"43A Meaning of 'protected disclosure' In this Act a 'protected disclosure' means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 43B Disclosures qualifying for protection (1) In this Part a 'qualifying disclosure' means any disclosure of information which, in the reasonable belief of the worker in making the disclosure, tends to show one or more of the following – (a) that a criminal offence has been committed, is being committed or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, or (f) that information tending to show that any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed. 43C Disclosure to employer or other responsible person (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith – (a) to his employer, or (b) where the worker reasonably believes that the relevant failure relates solely or mainly to – (i) the conduct of a person other than his employer, or (ii) any other matter for which a person other than his employer has legal responsibility, to that other person."

The requirement that the disclosure must have been made in good faith for it to be a qualifying disclosure also applies to disclosures made otherwise than to one's employer (section 43G) and to disclosures of a failure of an exceptionally serious nature (section 43H).

[23]The Tribunal dealt with several of the protected disclosures which Mr Ezsias claimed to have made:(i) In 1998, Mr Ezsias had asked for data on cancer cases. He wanted a feel for the kinds of cancer cases which the Department had to deal with in order to assist his "forward planning". The Tribunal found that he was provided with some information in respect of that request, but it also held that the request did not fit within any of the categories of qualifying disclosures. The Tribunal meant by that, we think, that the information which Mr Ezsias requested did not tend to show any of the matters falling within section 43B(1), although a more obvious finding might have been that a request for information does not amount to the disclosure of information.

(ii) In 1998, Mr Ezsias had asked for copies of the CVs of applicants for clinical and locum posts within the Department. Mr Ezsias thought that he should have some say in who was appointed. He went on to complain about the system of appointments within the Department, and eventually a new protocol for recruitment of senior house officers was agreed in October 1999. The Tribunal found that Mr Ezsias took on responsibility for such appointments the following month. To the extent that Mr Ezsias' complaints about the system of appointments amounted to a complaint that the Trust had failed to comply with any legal obligation to which it was subject, the Tribunal found that any legal obligation which the Trust may have had to comply with had been rectified by November 1999. We think that this was the Tribunal's way of saying that, if Mr Ezsias' complaint amounted to the making of a protected disclosure, it was very remote in time from the events leading up to his dismissal.

(iii) There were times when Mr Ezsias complained about the size and geographical extent of his workload. The Tribunal found that this was a legitimate concern for Mr Ezsias as he had to work at all three hospitals, but the Tribunal found that this complaint did not amount to a qualifying disclosure. It did not say why, but presumably it thought that this was not a complaint that the Trust had failed to comply with any contractual obligation owed to Mr Ezsias under his contract of employment.

(iv) There were many occasions on which Mr Ezsias criticised the services which the Department provided. The Tribunal found that these criticisms were not qualifying disclosures. Its reason was that Mr Ezsias had been motivated by his personal antagonism towards Mr Smart, Mr Nash and others in the Department who he thought supported or sympathised with Mr Smart and Mr Nash. The Tribunal characterised what Mr Ezsias did as "a vitriolic and personal campaign". So what the Tribunal was finding, we infer, was that in making these criticisms Mr Ezsias had not been acting in good faith, since a finding that a disclosure was made with an ulterior motive such as personal antagonism towards one's colleagues was held by the Court of Appeal in Street v Derbyshire Unemployed Workers Centre

[2005] ICR 97

at [56] and [74] to be tantamount to a finding that it was not made in good faith. Technically, that would not have prevented the disclosures from being qualified disclosures, but it would have prevented them from being protected ones.

(v) In 1988 Mr Ezsias complained about delays on the part of the Pathology Department of the University Hospital of Wales in providing histo-pathology reports. The Tribunal found that these complaints amounted to qualifying disclosures, although the Tribunal did not say that Mr Ezsias had been subjected to a detriment for raising the issue. Indeed, it is unlikely that he would have been since the Tribunal went on to find that Mr Ezsias' concerns were shared by his colleagues, and that the Trust itself took up those concerns with the University Hospital of Wales.

(vi) The complaints which Mr Ezsias made about the lack of clinical governance within the Department were found by the Tribunal not to amount to qualifying disclosures. We are not sure that we understand the Tribunal's reasoning. The Tribunal found that Mr Ezsias was making these complaints at times when he was complaining about how the Trust investigated his complaints, and that there was no evidence of a lack of clinical governance. The former suggests that the Tribunal may have thought that his complaints about the lack of clinical governance were not made in good faith. The latter suggests that the Tribunal thought that Mr Ezsias' belief in the complaints he was making about the lack of clinical governance was not reasonable.

(vii) The Tribunal found that Mr Ezsias did not reasonably believe the complaints of fraud he made in respect of Mr Smart and Mr Nash. The same was true of a complaint he made that Mr Nash interfered with the work of the inquiry panel in 2001. The Tribunal also found that these complaints were not made in good faith. The Tribunal must therefore be treated as finding that these complaints did not amount to protected or qualified disclosures, even though the tribunal did not say that in so many words.

(viii) Mr Ezsias complained to the Trust that he had been victimised and harassed by "senior managers" because he had raised his concerns with them. The Tribunal rejected the claim that he had been victimised or harassed, and it went on to find that the complaint that he had been had not amounted to protected or qualifying disclosures "for the reasons set out above". We cannot tell what reasons the Tribunal was referring to, but it may be that the Tribunal thought – understandably – that complaints of victimisation and harassment are very different from the disclosure of information.

[24]Having addressed these topics, the Tribunal explained why it did not propose to deal individually with the rest of the 75 matters which Mr Ezsias claimed he had complained about. The Tribunal downplayed the significance of these complaints when it said that they were no more than the sort of "problems which arise from time to time in any employment". But critically the Tribunal added that all these complaints were part of Mr Ezsias' campaign against Mr Smart, Mr Nash and others in the Department and within the Trust. We read the Tribunal as having found that even if Mr Ezsias had believed this "litany of complaints" to be justified, the real reason why he had made them had been to further that campaign, and for that reason they had not been made in good faith, and did not amount to protected disclosures.

[25]But ultimately whether the disclosures were protected disclosures or not did not matter because the Tribunal went on to find that even if Mr Ezsias should be regarded as having been made protected disclosures, the making of those disclosures had not been the reason for his dismissal. The Tribunal found that the reason for Mr Ezsias' dismissal related to the breakdown of Mr Ezsias' working relationships with his colleagues in the Department. These two findings of fact – that the disclosures which Mr Ezsias made (apart from the delay in the provision of histo-pathology reports by the University Hospital of Wales and possibly his complaints about the system of appointments within the Department) were not protected disclosures and that the making of the disclosures was not the reason for his dismissal – were fatal to Mr Ezsias' claim that his dismissal was automatically unfair. If his appeal on this aspect of the case is to succeed, he has to overturn those findings.

[26]Ordinary unfair dismissal . Having decided that the reason for Mr Ezsias' dismissal related to the breakdown of his working relationships with his colleagues in the Department, the Tribunal categorised that reason as amounting to a dismissal, not for misconduct or any lack of capability on Mr Ezsias' part, but for "some other substantial reason of a kind such as to justify the dismissal" of someone in Mr Ezsias' position within the meaning of section 98(1)(b). The Tribunal reached that conclusion in the light of the Court of Appeal's observations in Perkin v St George's Healthcare NHS Trust

[2005] IRLR 934

. In that case, a senior employee had been dismissed because his manner and management style had led to a breakdown in his relationships with other members of the senior executive team. The employment tribunal had considered whether his dismissal for that reason had been unfair without deciding whether the reason for his dismissal could be characterised as relating to his conduct or as amounting to some other substantial reason for his dismissal. The Court of Appeal said that it would have been preferable for the employment tribunal to have found into which category the reason for the employee's dismissal had come, but Wall LJ (with whose judgment the other members of the Court agreed) said at [63] that like Sedley LJ (who had considered whether permission to appeal should be given) he saw it as a case falling within "some other substantial reason" rather than conduct.

[27]The Tribunal then addressed whether Mr Ezsias' dismissal for that reason had been fair. In summary, it found that Mr Ezsias had been "the author of his own misfortune … His communications and general attitude explained why people became alienated from him and were deeply offended and hurt." Before coming to his decision, Mr Hayburn had familiarised himself with Mr Ezsias' case. He had met Mr Ezsias a number of times to discuss what had happened to cause the breakdown in relationships. It was reasonable for Mr Hayburn to conclude that Mr Ezsias would never be satisfied with anything which the Trust had done or would do in the future. (1) The grounds of appeal: automatically unfair dismissal

[28]When permitting the appeal to proceed, the Employment Appeal Tribunal said that the grounds of appeal relating to the dismissal of the claim that Mr Ezsias' dismissal had been automatically unfair were "more problematical" than the grounds relating to the other aspect of the appeal, and that they were being referred to a full hearing "with some hesitation". The Employment Appeal Tribunal had in mind the fact that this aspect of the appeal was on the grounds of perversity, Mr Ezsias' case being that the Tribunal's finding that he had not been dismissed for making protected disclosures had been perverse. This contention was permitted to be argued on three grounds only, and it is necessary to consider each of them separately.

[29]Ground (i): evidence and credibility . This ground of appeal is that the Tribunal failed to record any of Mr Ezsias' evidence in cross-examination, which was given over a period of 3½ days, and failed to make any findings or any assessment of his credibility. In evaluating this ground of appeal, it is important to appreciate how the Tribunal decided to structure its judgment. The Tribunal decided to set out its findings of fact in narrative form under various headings which were largely, though not exclusively, chronological, rather than setting out the evidence of each witness and stating whether or not it accepted the witness' evidence. We agree with Mr Timothy Pitt-Payne QC for the Trust that, given the long and complex history with which the Tribunal was concerned, as well as the large number of witnesses, this was a legitimate approach to take. It is therefore unsurprising that there was not a discrete section of the judgment which summarised Mr Ezsias' evidence.

[30]Having said that, in the course of setting out its findings of fact in narrative form, it was always going to be likely that the Tribunal would summarise Mr Ezsias' account of particular incidents or events which were disputed but which were material to the issues which the Tribunal had to decide. A careful reading of paras. 42-688 of its judgment, in which the Tribunal set out its findings of fact, shows that the Tribunal repeatedly recorded Mr Ezsias' evidence on various issues, and made findings about his credibility as a witness, his motives for doing what he did, and his belief about the justifiability of his actions. It is unnecessary to lengthen this judgment by giving the many examples we have seen of that. Mr Pitt-Payne has himself carried out the laborious exercise of doing that in paras. 34-36 of, and appendix A to, the Trust's skeleton argument for this appeal. The lists contained there are not exhaustive, and we have seen other instances for ourselves. In the circumstances, this ground of appeal cannot be sustained.

[31]Ground (ii): the petition . This ground of appeal is that the Tribunal failed to determine what lay behind the petition of February 2003. Had its signatories been motivated by Mr Ezsias' treatment of them? Or had they been motivated by the fact that he had made what the Employment Appeal Tribunal described as "public interest disclosures" (by which it meant protected disclosures) about them? The determination of that issue might have been affected by whether the making of those disclosures had pre-dated the breakdown in the working relationships between Mr Ezsias and his colleagues, and it is said that the Tribunal failed to determine that as well.

[32]Mr Pitt-Payne argued that these questions did not arise. Apart from the delay in the provision of histo-pathology reports by the University Hospital of Wales and possibly Mr Ezsias' complaints about the system of appointments within the Department, the Tribunal found that none of the matters raised by Mr Ezsias amounted to protected disclosures – in the vast majority of cases because they had not been made in good faith since the real reason why they had been made had been to further Mr Ezsias' campaign against those in the Department towards whom he had developed a personal antagonism. All of that is true, but if that finding was set aside, and if the disclosures which Mr Ezsias claimed he had made were found to have been protected disclosures, the question would then have arisen whether his dismissal for the breakdown of the working relationships between him and his colleagues would have been fair might have turned on who was responsible for the breakdown of the relationships.

[33]However, it is plain to us that the Tribunal found that it was the way Mr Ezsias treated his colleagues, rather than any concerns on their part that he was disclosing things which they would have preferred to be kept secret, which was the cause of the breakdown of working relationships. As we have said, the Tribunal unhesitatingly found that, by the time the inquiry panel reported in July 2001, it was Mr Ezsias who had caused, or at least contributed significantly to, the sense of alienation from him which his colleagues felt. The Tribunal did not say that that sense of alienation arose from concern about what Mr Ezsias was saying. We have already noted that the Tribunal referred rather to the way in which the inquiry panel had said Mr Ezsias expressed his concerns, namely by writing letters which were "extremely frequent, unacceptably detailed and unrelenting to an extreme degree". That echoed Dr Walton's finding that the problems which had arisen in the Department were likely to have been caused by the way in which the concerns had been raised rather than by what the concerns related to. Finally, the Tribunal regarded as significant Mr Jones' finding that it was Mr Ezsias' behaviour towards his colleagues in the Department which had led to the irretrievable breakdown in working relationships. So when the Tribunal said at [742] that "[t]he reason or principal reason for the dismissal of [Mr Ezsias] was the reason given by Mr Hayburn in the letter of dismissal, that is the breakdown of relationships with his colleagues caused, in the main, by the behaviour of [Mr Ezsias]", the Tribunal was plainly accepting that it was Mr Ezsias' behaviour towards his colleagues, rather than any concern on their part about what he was saying about them, which resulted in the fracturing of working relationships. It follows that this ground of appeal cannot be sustained.

[34]Ground (iii): the 75 topics . This ground of appeal is that the Tribunal failed to consider separately all of the 75 topics which Mr Ezsias claimed he had disclosed and which amounted to protected disclosures, apart from those summarised at [23] above. The criticism of the Tribunal is that without doing that, it could not have decided whether those disclosures raised legitimate matters of concern, and whether they could be categorised as qualifying or protected disclosures. It is said that without making such findings, the Tribunal was not properly able to determine the reasons why the relationship between Mr Ezsias and his colleagues had broken down.

[35]The difficulty for the Tribunal was that at no time prior to the conclusion of the evidence did Mr Ezsias clearly identify with any precision the topics which he claimed he had brought to the attention of the Trust or other bodies. Neither his original ET1 nor an amended one did anything more than identify in general terms the topics which he had raise. They were:

"(i) serious dereliction of duties, directly affecting patients' care and safety (ii) gross and serious inadequacies within the histo-pathological service and reporting, thus endangering patients' safety and treatment (iii) concerns involving competency issues with some colleagues and issues of clinical governance (iv) administrative and other irregularities, including breakdown of corporate governance and alleged fraudulent submission of claims (v) his victimisation and harassment by senior managers since he raised his concerns to management"

. Since these did not specify the particular criticisms he was making, he was asked to identify them with greater particularity. The further information which was provided pursuant to that request simply identified the letters in which the complaints had been made. Those letters were attached, but it was left to the Trust and ultimately to the Tribunal to work out which parts of the letters were said to amount to protected disclosures. The Tribunal could not have been expected to go through each of these letters and consider whether every criticism contained in them amounted to a protected disclosure.

[36]Mr Ezsias' witness statement might have been expected to spell out the particular disclosures on which he was relying, and although his final witness statement was fuller than an earlier draft, it still did not identify the particular criticisms which he claimed to have made. That is not surprising because in para. 2 of that witness statement Mr Ezsias said that it was "neither full nor comprehensive [n]or complete", and that it was intended rather "to illustrate a general trend of unfolding of events than specific issues although some such issues would be referred to in it". The upshot was that the only list which the Tribunal received of the complaints which Mr Ezsias claimed to have made consisted of the 75 topics listed in the skeleton argument which Mr Ezsias submitted to the Tribunal at the conclusion of the evidence. It is impossible for us to tell how many of those 75 topics were the subject of evidence from Mr Ezsias (as opposed to comment by him in his closing address), but it goes without saying that the Tribunal could not have been expected to address those of the 75 topics about which Mr Ezsias did not give evidence.

[37]We acknowledge, of course, that in the ordinary course of events an employment tribunal will have to address the topics which a claimant claims to have complained about to decide whether they amounted to protected disclosures. It will then need to decide which of those topics the claimant actually complained about, whether they amounted to the disclosure of information, and if so whether the information comes within any of the categories set out in section 43B(1). That is less appropriate where it is claimed that a large number of topics were the subject of complaints, if the complaints followed the same pattern. But since the information has to have been disclosed in good faith if it was to amount to a protected disclosure, an employment tribunal does not have to address the matters it would normally have had to address if it concludes that the information was not disclosed in good faith. That is what the Tribunal found in respect of Mr Ezsias' complaints. So even if Mr Ezsias reasonably believed that such information as he was disclosing tended to show one or more of the things set out in section 43B(1), the Tribunal's finding that this information was not disclosed in good faith made it unnecessary for the Tribunal to consider each complaint separately.

[38]Nor do we think that the Tribunal had to make findings about each of the 75 complaints in order to decide why the relationships between Mr Ezsias and his colleagues broke down. The inquiry panel, Dr Walton and Mr Jones had all been able to conclude why the relationships had broken down without having to consider every one of Mr Ezsias' complaints. Indeed, once the Tribunal had found that Mr Ezsias had made the overwhelming majority of his complaints out of personal antagonism towards some of his colleagues, it would have been very surprising if the Tribunal had gone on to find that the working relationships had broken down because of the nature of the complaints he had made. This ground of appeal cannot be sustained either. (2) The grounds of appeal: ordinary unfair dismissal

[39]Ground (iv):contractual disciplinary procedure . When permitting the appeal to proceed, the Employment Appeal Tribunal described this ground of appeal as the "principal" ground of appeal. In a nutshell, Mr Ezsias claimed that he was dismissed otherwise than in accordance with the disciplinary procedures which had been incorporated into his contract of employment. Although it was common ground that these procedures had been incorporated into his contract of employment, the crucial question was whether, in the light of the reason for his dismissal, those procedures applied to his case. To understand how that issue arose, it is necessary to set out the material terms of Mr Ezsias' contract of employment and of the disciplinary procedures which were incorporated into it.

[40]The source of the terms of Mr Ezsias' employment were identified in para. 7 of the principal statement of the main terms and particulars of employment for consultant medical and dental staff:

"7.1 The terms and conditions of service including pay which apply to the post are determined by national agreements reached by the General and Hospital Medical and Dental Staff (England and Wales) Whitley Councils and any changes to those conditions which the Secretary of State for Wales may authorise from time to time … 7.3 Any Trust terms and conditions of service developed and introduced will be incorporated into and form part of your contract of employment …"

Para. 7.1 therefore incorporated nationally-agreed terms into Mr Ezsias' contract of employment ("the Whitley Council terms"). Para. 7.3 incorporated such terms as had been agreed within the Trust.

[41]The disciplinary procedure to be followed under the Whitley Council terms for medical and dental staff depended on the nature of the case, i.e. whether the case involved personal conduct, professional conduct or professional competence. It was for the Trust to decide into which category Mr Ezsias' case fell, though as the House of Lords held in Skidmore v Dartford & Gravesham NHS Trust

[2003] ICR 721

at [15], in which action had been taken against a surgeon on contractual terms similar to those of Mr Ezsias, that decision had to comply with the terms of the surgeon's contract. It was therefore for the Tribunal to decide whether the correct contractual disciplinary procedure had been adopted in Mr Ezsias' case, though a circular issued by the Welsh Office had provided the Trust with some guidance as to whether his case involved personal conduct, professional conduct or professional competence. The relevant passage read:

"The procedure(s) to be followed following allegations of misconduct will depend on the nature of the allegation. It is recognised that authorities sometimes have great difficulty defining the nature of the conduct which is the subject of an allegation, and the following definitions have been agreed between the Departments and the professions: PERSONAL CONDUCT – Performance or behaviour of practitioners due to factors other than those associated with the exercise of medical or dental skills. PROFESSIONAL CONDUCT – Performance or behaviour of practitioners arising from the exercise of medical or dental skills. PROFESSIONAL COMPETENCE – Adequacy of performance of practitioners related to the exercise of their medical or dental skills and professional judgment."

[42]In cases involving personal conduct, the position of a doctor or dentist was no different from that of other members of staff. In cases involving professional conduct or professional competence, the Whitley Council terms contained detailed provisions for:(i) an external investigation to decide whether there was a prima facie case which, if well-founded, could lead to serious disciplinary action such as dismissal, and

(ii) an external investigating panel to inquire into the facts (in the event of it being decided that such a prima facie case existed), unless the facts were not in dispute, and to report its findings to the employing authority, before the employing authority could decide whether a disciplinary sanction was appropriate and what it should be. There were provisions for an appeal against any dismissal to the Secretary of State.

[43]The Trust's disciplinary procedure did not apply to medical and dental staff in cases of professional conduct or competence. In all other cases involving what the Trust's disciplinary policy described as "unacceptable behaviour or conduct" which might result in disciplinary action, the Trust's disciplinary procedure applied to medical and dental staff as it did to other members of staff. If an informal discussion with the member of staff concerned did not rule out the need for disciplinary action, the disciplinary procedure provided for:(i) an internal investigation in accordance with the Trust's staff investigation policy to decide whether the member of staff had a case to answer, and

(ii) an internal disciplinary hearing if it was decided that the member of staff had a case to answer, before the Trust could decide what the disciplinary sanction, if any, should be. The disciplinary procedure also provided for an appeal against disciplinary warnings or dismissal to be heard by a committee of the Trust's Board.

[44]Mr Ezsias' case in the Tribunal was that the Trust had acted in breach of his contract of employment by failing to follow the disciplinary procedures which applied when disciplinary action against a member of staff for misconduct was being contemplated. If the misconduct for which disciplinary action was being contemplated in his case should have been characterised as professional, he had been denied the opportunity to have his case investigated and enquired into in accordance with the Whitley Council's terms. If the misconduct should have been characterised as personal, he had been denied the opportunity to have his case investigated and to have a disciplinary hearing in accordance with the Trust's disciplinary procedure.

[45]When permitting this ground of appeal to proceed to a full hearing, the Employment Appeal Tribunal said that the argument which had a reasonable prospect of success was that the conduct alleged against Mr Ezsias, namely an inability to work with colleagues leading to the irretrievable breakdown of relationships with them, should have been classed as professional misconduct. The Employment Appeal Tribunal said that it had been classified in that way in Buxton v Swansea NHS Trust (27 April 2007, Mercantile Court, Birmingham, unreported), and that the judgment of the Court of Appeal in D'Sa v University Hospital Coventry and Warwickshire NHS Trust

[2001] EWCA Civ 983

supported that view. It was therefore arguable that the Whitley Council's terms applied to his case, and by dismissing Mr Ezsias without having implemented that procedure, the Trust may have dismissed him unfairly. The Employment Appeal Tribunal cited the order which the House of Lords had made in Skidmore in support of the proposition that a failure to implement a contractual disciplinary procedure may lead to a dismissal being unfair. Action had been taken against the surgeon in that case on the basis of what had been classified as personal conduct, and he had therefore been dealt with according to the disciplinary procedure applicable to an allegation of that kind. It was held on appeal that the action taken against him should have been classified as relating to his professional conduct. The House of Lords remitted the case to the employment tribunal for it to consider whether in those circumstances the surgeon's dismissal had been unfair.

[46]The Tribunal dealt with this issue relatively perfunctorily. Its conclusion at para. 756 was that there had not been a breach of contract on the part of the Trust in the way it had gone about dismissing Mr Ezsias. Its reasoning was at para. 749:

"Mr Hayburn took the view that to have a formal disciplinary hearing was not appropriate. He did so because it was not a dismissal within the conduct grounds as set out in the Whitley Council and other documents already referred to. We consider this was a legitimate and appropriate view to adopt bearing in mind the reason for the dismissal being some other substantial reason. As Mr Hayburn said, it would have made no difference to the situation if there had been a disciplinary hearing."

The Employment Appeal Tribunal described this reasoning as "arguably both brief (to the point of being questionably Meek compliant) and unsatisfactory".

[47]In our view, the relevant question for the Tribunal was whether the action which the Trust took against Mr Ezsias should have been regarded as action taken against him because of his conduct . If it was not, the need to classify it as personal or professional conduct would not arise. But if the Tribunal was to find that the action which the Trust took against Mr Ezsias should have been regarded as action taken against him because of his conduct, the Tribunal would then have to consider whether it should have been classified as personal or professional conduct. If the latter, the Tribunal would have had to consider whether the failure to follow the correct disciplinary procedure had made Mr Ezsias' dismissal unfair. If the former, Mr Ezsias' dismissal would only have been capable of being unfair if the procedure in fact adopted by the Trust did not meet the requirements of the Trust's own disciplinary procedure,

[48]The Tribunal addressed the question whether the action which the Trust took against Mr Ezsias should have been regarded as action which the Trust took against him because of his conduct. It said that it was "legitimate and appropriate" for Mr Hayburn to conclude that it was not. The Tribunal gave as its reason for that the fact that the reason for Mr Ezsias' dismissal had been "some other substantial reason of such a kind as to justify his dismissal". Of course, the question whether, for the purposes of the law of unfair dismissal, Mr Ezsias was regarded as having been dismissed for his conduct or for some other substantial reason was a different question from whether the action which had been taken against him should have been regarded as having been taken because of his conduct for the purpose of determining whether any disciplinary procedure applied to the case. Since the answer to both questions is inevitably going to be the same, the link which the Tribunal made between the two is understandable. The critical question, therefore, is whether the Tribunal's conclusion that the action which had been taken against Mr Ezsias had properly been regarded as having been taken because of his conduct was legally flawed. That depended on what the actual reason for taking action against Mr Ezsias was, i.e. what were the set of facts which caused the Trust to take action against him. At [25] above, we referred to the Tribunal's finding that the reason for his dismissal had not been because of the disclosures he had made. But it is now necessary to identify the Tribunal's finding about the reason for Mr Ezsias' dismissal with greater precision. The Tribunal's finding (which we referred to at [33] above but which we repeat here) was at para. 742 of its decision:

"The reason or principal reason for the dismissal of [Mr Ezsias] was the reason given by Mr Hayburn in the letter of dismissal, that is the breakdown of relationships with his colleagues caused, in the main, by the behaviour of [Mr Ezsias]."

[49]Before we analyse that finding, we should make one important comment. The case which Mr Ezsias may have been struggling to get across in the Tribunal could have been that, if the reason for his dismissal had not been the making of protected disclosures, the real reason for his dismissal had been his conduct which had caused relationships to break down. The Trust had opportunistically used the breakdown of working relationships on its own, i.e. without identifying whether Mr Ezsias had been responsible for the breakdown, together with the rubric of "some other substantial reason", as a pretext for getting rid of him without a lengthy disciplinary investigation to cover up what had really been behind his dismissal. If that had been Mr Ezsias' case in the Tribunal, it must have been rejected by the Tribunal because the Tribunal never questioned Mr Hayburn's good faith when it came to the reason for Mr Ezsias' dismissal. The issue was how the reason for his dismissal should be classified, because that was the issue on whether any disciplinary procedure applied to Mr Ezsias' case turned. In any event, when permitting the appeal to proceed to a full hearing, the Employment Appeal Tribunal did not permit Mr Ezsias to challenge such findings as the Tribunal had made about the reason for his dismissal. It only permitted him to challenge how the Tribunal had classified the reason for his dismissal.

[50]We return, then, to the Tribunal's finding at para. 542 of its decision about the reason for Mr Ezsias' dismissal. There could, at first blush, be said to be an element of ambiguity in what the Tribunal said. The Tribunal could have been saying that Mr Ezsias' behaviour, i.e. the behaviour which had caused the breakdown of working relationships with his colleagues in the Department, had been the reason for his dismissal. If that is what the Tribunal had been saying, it is possible that the action which the Trust took against Mr Ezsias should have been classified as action taken against him because of his conduct. But it does not necessarily follow that it should have been classified in that way. After all, in Perkin the Court of Appeal classified the reason for Mr Perkin's dismissal as coming within the category of "some other substantial reason", even though it was his manner and management style which had led to the breakdown of relationships. On the other hand, the Tribunal could have been saying that Mr Ezsias had not been dismissed for the things he had done which caused his relationship with his colleagues to break down, but rather for the fact that working relationships had broken down. In other words, the fact that Mr Ezsias had been in the main to blame for that might have been part of the history, but it was immaterial to why the Trust chose to take action against him. If that is what the Tribunal had been saying, then the Tribunal's finding that Mr Ezsias had been dismissed, not for a reason relating to his conduct, but for some other substantial reason of such a kind as to justify his dismissal, becomes understandable.

[51]Considerable assistance about what the Tribunal was in fact saying can be gleaned from how it dealt with the change in the language of Mr Jones' recommendation. In its original form, Mr Jones had recommended disciplinary action against Mr Ezsias for his conduct which had caused relationships in the Department to break down, leaving it to the Trust to decide whether Mr Ezsias was guilty of misconduct, and if so what the appropriate disciplinary sanction should be. In its final form, Mr Jones did not resile from his conclusion that Mr Ezsias had been responsible for the breakdown of relationships in the Department, but he no longer recommended that disciplinary action should be taken against Mr Ezsias for his conduct. Instead, he left it to the Trust to decide whether to instigate disciplinary action against Mr Ezsias, or whether to take steps to terminate his employment on the basis that there had been an irretrievable breakdown of relationships between him and his colleagues. The distinction between dismissing him for his conduct in causing the breakdown of the relationships and for the fact that those relationships had broken down (Mr Ezsias' responsibility for that being incidental) was apparent for all to see.

[52]How did this change come about? The Tribunal's findings are at para. 530 of its decision:

"Mr Jones completed the report on 29 March … Mrs Spray contacted Mr Jones to thank him but she had a concern that Mr Jones had made a conclusion regarding conduct and the breakdown but the recommendation was only about the conduct not the breakdown and Mrs Spray queried whether Mr Jones intended this. Mr Jones was asked whether he intended to be silent on irretrievable breakdown in the conclusion part of it. Mr Jones said to Mrs Spray that he would re-read the report and it then seemed clear to him there were two possibilities to find personal misconduct and go to a disciplinary hearing, the other possibility was the relationship had broken down for some other substantial reason. Any HR person would know about the potentially fair reasons of dismissal. Clearly there was a case to answer and possibly two cases to answer. Consequently Mr Jones amended his recommendations but with no direct reference to some other substantial reason. In his view that was enough to terminate the relationship."

The Tribunal added to that in para. 654 of its decision when it referred (without criticism) to Mr Jones' evidence that he had not been requested to change his conclusions or recommendations, but that he had merely been asked to reflect on his recommendation in the light of his overall conclusions. As for whether it had been wrong for Mr Jones to alter his recommendation, the tribunal said at para. 752 of its decision:

"We do not consider that the amendment made by Mr Jones to his report was at all wrong or unsatisfactory or outside his remit. Indeed, it is well within what could be considered by an investigator asked to look at the situation. The case of Perkin demonstrates that that is something that Mr Jones should have considered, namely, some other substantial reason as pointed out by Mrs Spray."

[53]It is apparent from that passage that the Tribunal was alive to the refined but important distinction between dismissing Mr Ezsias for his conduct in causing the breakdown of relationships, and dismissing him for the fact that those relationships had broken down. In these circumstances, the only fair reading of the Tribunal's finding at para. 542 about the reason for Mr Ezsias' dismissal is that although as a matter of history it was Mr Ezsias' conduct which had in the main been responsible for the breakdown of the relationships, it was the fact of the breakdown which was the reason for his dismissal (his responsibility for that being incidental).

[54]With that in mind, we return to the question whether the action taken against Mr Ezsias for that reason should properly have been classified as action taken against him because of his conduct. As we said at [48] above, the law about whether someone's dismissal is for their conduct or for some other substantial reason of such a kind as to justify their dismissal is not directly relevant, but the reasoning which underlies that jurisprudence would inevitably apply here. Once you have excluded Mr Ezsias' responsibility for the breakdown of the relationships as the cause of, or a factor contributing to, that breakdown, and you concentrate only on the fact of the breakdown of the relationships, the answer, in our view is inevitable. However you characterise the reason for the action taken against him, it was not his conduct.

[55]That is entirely consistent with Perkin , and with the other authorities which Mr Ezsias drew to our attention, namely Skidmore , D'Sa and Buxton : Skidmore does not help at all because Skidmore related to whether the criticisms of the surgeon amounted to allegations relating to his professional as opposed to his personal conduct. It did not address whether the criticisms of him should be classified as relating to his conduct or something else. In D'Sa , an inquiry panel had concluded that a surgeon had been guilty of professional misconduct, but had recommended that the appropriate disciplinary sanction was that the surgeon should be warned about his behaviour. The issue was whether at a subsequent disciplinary hearing it was open to the NHS Trust which employed the surgeon to consider whether the matters of professional misconduct which the inquiry panel had investigated had given rise to a breakdown of trust and confidence. The Court of Appeal held that the NHS Trust could not consider that issue. So D'Sa related to what issues the disciplinary hearing could address, not to whether a particular allegation amounted to an allegation about someone's personal conduct. Mr Ezsias relied on a passage at [29] at the end of the judgment of May LJ:

"An employer who says that trust and confidence have broken down is not, in my judgment, entitled to dispense with the terms of a contractual inquiry process."

But this comment has to be seen in its context. The previous sentence read:

"If there are problems about confidence and trust that have not been found to amount to serious professional misconduct, these are inappropriate for consideration at a disciplinary hearing, following this Panel's inquiry at least."

So May LJ was not saying that an employer who wishes to take action against an employee on the ground of a lack of trust and confidence can only take the action in the context of a disciplinary process. He was saying that once a disciplinary procedure has been invoked to consider particular allegations of misconduct and those allegations have been rejected, the process cannot be continued on the basis that those allegations gave rise to a lack of trust and confidence in the employee. Buxton was another case involving a surgeon. He had been dismissed by the NHS Trust which employed him. The reason for his dismissal was described as "a breakdown in relations between yourself and your Consultant colleagues that is both mutual and most likely irrevocable". The case proceeded on the assumption that the surgeon's dismissal for that reason related to his conduct – no doubt because there were factors not referred to in the court's judgment which showed that the surgeon was in fact dismissed for his conduct which had caused those relationships to break down. The surgeon appealed against his dismissal. The appeal procedure depended on whether the dismissal had been for personal misconduct or professional misconduct. It was held that the dismissal had been for professional misconduct. The case was, therefore, addressing the same issue as in Skidmore , and did not address the question whether action taken against an employee simply because of the breakdown of the working relationships could be regarded as action taken against the employee because of his conduct.

[56]We agree with Judge Serota QC that the Tribunal dealt with the issue at para. 749 of its decision less than satisfactorily. Its comment that "it would have made no difference to the situation if there had been a disciplinary hearing" suggests that it may have thought that convening a disciplinary hearing was a matter for the Trust's discretion. It was not. The Trust was obliged to consider Mr Ezsias' case in accordance with whatever disciplinary procedure was appropriate to it, however obvious the outcome of the disciplinary process may have been thought to be. And the Tribunal gave no reason for its conclusion that the action taken against Mr Ezsias could not be regarded as action taken against him because of his conduct. But the reality is that once the Tribunal is regarded as having found that the reason for his dismissal was the fact of the breakdown of his relationships, and not his contribution to that breakdown, the conclusion which the Tribunal reached was inevitable.

[57]When permitting this ground of appeal to proceed to a full hearing,

Judge Serota QC said this:

"My colleagues, who have considerable industrial experience take the view that an employer in the position of the [Trust] would have considered itself bound to implement [the Whitley Council procedures], if it intended to assert (as the [Trust] did) that [Mr Ezsias] was at fault for the breakdown in relationships with his colleagues and to dismiss him on that ground, whether or not that ground might be classified as 'some other substantial reason'… In the case of a Consultant who is given significant protection from dismissal on the grounds of misconduct by virtue of [the] Whitley Council terms and conditions, which are negotiated nationally and issued through a Government agency, an employer should not be able to avoid implementation of the disciplinary and investigatory procedures by relying on [some other substantial reason] as grounds for dismissal, when the employee's conduct is blamed for the breakdown."

We can see where Judge Serota QC was coming from. The concern he expressed was driven, we think, by the worry that if the Trust's approach in Mr Ezsias' case is sanctioned, an unscrupulous NHS Trust which wants to get rid of a medical or dental professional who may be a thorn in its side will be able to avoid the need for the kind of external scrutiny which the Whitley Council terms provide for by dismissing the member of staff in the way Mr Ezsias was. That raises the spectre of the Whitley Council terms being bypassed in cases to which they were intended to apply.

[58]We understand that concern, but the fact is that the Whitley Council terms only apply when it is the employee's conduct or competence which is the real reason for why the action was taken against him. Although as a matter of history Mr Ezsias' conduct was blamed for the breakdown, the Tribunal's finding in the present case was that his contribution to that breakdown was not the reason for his dismissal. We do not suppose that those who were responsible for negotiating the Whitley Council terms had this in mind, but the fact is that the Whitley Council terms do not apply to cases where, even though the employee's conduct caused the breakdown of their relationship, the employee's role in the events which led up to that breakdown was not the reason why action was taken against him. We have no reason to think that employment tribunals will not be on the lookout, in cases of this kind, to see whether an employer is using the rubric of "some other substantial reason" as a pretext to conceal the real reason for the employee's dismissal.

[59]In the interests of completeness, we should add that Mr Ezsias argued that the fact that he had been suspended from duty pending Mr Jones' investigation was inconsistent with the notion that the action taken against him had been for something other than his conduct. He also argued that by suspending him and no-one else the Trust had pre-judged the outcome of Mr Jones' investigation. The latter point was not something which Mr Ezsias was permitted to argue at the full hearing. In any event, Mr Pitt-Payne told us that he did not recall that having been put to Dr Morris when he gave evidence. Moreover, the justification for suspending Mr Ezsias alone may well have been that the Trust had to keep the Department going, and rather than dismissing all or even some of the other consultants or associate specialists in the Department, it made sense for the time being for the person to whom the petition related to be removed from the scene temporarily. Nor do we think that the former point is telling at all. Mr Ezsias' suspension was not a disciplinary act which required the invocation of the appropriate disciplinary procedure. The only action which was taken against Mr Ezsias which might have required the invocation of the appropriate disciplinary procedure was his dismissal.

[60]For these reasons, this ground of appeal cannot be sustained.

[61]Ground (v): Mr Jones' investigation . This ground of appeal is a very narrow one. When giving permission for this ground of appeal to be considered at a full hearing, the Employment Appeal Tribunal said that Mr Ezsias should be entitled to argue that Mr Jones' investigation was unfair "by reason of the circumstances in which he amended his draft report" and "that his investigation failed to comply with the [Trust's] obligations under the Whitley Council terms and conditions". The latter point falls away in view of our decision on ground (iv). As for the circumstances in which Mr Jones amended his draft report, we proceed on the basis that the Employment Appeal Tribunal was referring to Mr Ezsias' contention that Mr Jones should not have altered his recommendation at the request of the Trust, and even if it had been appropriate for the Trust to request him to alter it, he should have given Mr Ezsias an opportunity to address him on the proposed alteration. Mr Ezsias sought to argue that the recommendations which Mr Jones had made were not within his remit, but that was not something which the Employment Appeal Tribunal permitted to be argued at the full hearing of the appeal.

[62]Mr Jones' remit had been in effect to investigate the facts which had given rise to the petition, and having reached conclusions on those facts, to make recommendations to the Trust as to what should be done. The facts which he found were that(a) working relationships between Mr Ezsias and his colleagues in the Department had broken down irretrievably, and

(b) the cause of that breakdown had in large measure been down to Mr Ezsias. When it came to his recommendations, he only made one recommendation in his original draft, which was that Mr Ezsias had a case to answer as to whether the way he had treated his colleagues was capable of amounting to misconduct which was sufficiently serious to justify disciplinary action.

[63]However, this recommendation assumed that there was only one course of action which could be taken if Mr Ezsias was not going to be reinstated, which was that the appropriate disciplinary procedure be invoked to determine whether his conduct was such as to warrant disciplinary action. There was, though, another course open to the Trust, which was to consider whether Mr Ezsias' employment should be terminated on the basis that there had been an irretrievable breakdown of working relationships, irrespective of who had been responsible for it. Although this possibility had occurred to Mrs Spray when she read Mr Jones' report, it had not occurred to Mr Jones. In our view, there was nothing wrong in Mrs Spray pointing that out to Mr Jones, so that he could, if he thought it appropriate, mention that option in his recommendations. Indeed, when he did mention it, it was not as if he was recommending that the Trust should take that course. He was merely identifying another course of action which would be open to the Trust to take in the light of his factual findings.

[64]In our opinion, this is what the Tribunal meant in para. 752 of its decision (which we have quoted at [52] above). We think that it was entirely open to the Tribunal to reach the conclusion which it did. Having said that, we also think that in the interests of transparency, it would have been better if Mr Jones had invited Mr Ezsias' comments on the omission in his initial recommendation which Mrs Spray had pointed out to him. Mr Ezsias would then have been in a position to make representations as to why Mr Jones' original recommendation should not be altered. Having said that, we wonder whether Mr Ezsias would really have argued against altering the original recommendation. Mr Ezsias is likely to have realised that it may well have been in his interests in the long run for that alternative option to be considered by the Trust. If he had ultimately been dismissed for misconduct (whether that misconduct was classified as personal or professional), it is likely that Mr Ezsias would have thought that it would be more difficult for him to find employment within the NHS in the future. He would be likely to realise that the termination of his employment on the grounds of a breakdown of his relationships with his colleagues would carry less of a stigma. After all, that was what must have been behind his solicitors' letter of 12 June 2003 to Dr Morris which was written following Mr Ezsias' suspension from duty. They made the point that Mr Ezsias had not been "the subject of allegations of gross misconduct but rather of a breakdown in working relationships".

[65]In reality, though, whether Mr Jones had altered his recommendation was an irrelevance. Even if he had not, the Trust was alive to the options it had. If the original recommendation had stood alone, the Trust would still have had to decide whether(a) to adopt Mr Jones' recommendation and initiate disciplinary proceedings against Mr Ezsias for his misconduct, or

(b) to consider terminating his employment on the ground of the breakdown of relationships, since even though that option had not been pointed out by Mr Jones, it was one which had occurred to Mrs Spray. For these reasons, this ground of appeal cannot be sustained.

[66]Ground (vi): the appeal . This ground of appeal is that although Mr Ezsias initially indicated that he wanted to appeal against his dismissal, the hearing of his appeal never took place. This ground of appeal was not referred to in the order of the Employment Appeal Tribunal drawn up to give effect to Judge Serota QC's judgment. Mr Ezsias claims that it arises because of a passage at [10] in the judgment which said that Mr Ezsias was "permitted to challenge the fairness of the dismissal on the basis that the procedures adopted by the [Trust] (including the absence of an appeal) were not consistent with its contractual obligations". Although Mr Pitt-Payne conceded that this passage permitted Mr Ezsias to argue this ground as an independent ground of appeal, we do not agree. The Employment Appeal Tribunal was simply saying that if Mr Ezsias should be regarded as having been dismissed for his conduct (which is what the Employment Appeal Tribunal was saying was arguable), he had not only been denied his contractual right to have his dismissal considered according to the appropriate disciplinary procedure, but he had also been denied the opportunity for his dismissal to be reconsidered at the kind of appeal provided for by the appropriate disciplinary procedure.

[67]However, we can say that the ground of appeal which Mr Ezsias wishes to argue does not have any realistic prospect of success. Since he was not dismissed for his conduct or competence, his dismissal was not a disciplinary matter at all, and neither the Whitley Council terms nor the Trust's own disciplinary procedure applied to his case. However, the Trust thought it appropriate for him to be able to challenge Mr Hayburn's decision to dismiss him by way of an appeal to the Trust's Board, and it was that ad hoc appeal which Mr Ezsias sought to invoke. So why did it not take place? On 20 July 2005, a differently constituted Employment Tribunal had struck out Mr Ezsias' complaint of unfair dismissal, and Mr Ezsias claims that the Trust therefore thought that it was no longer necessary to proceed with hearing Mr Ezsias' appeal. We should add, lest anyone reading this judgment wonders how Mr Ezsias' claim came to be heard, that his complaint was subsequently restored by Elias P (as he then was) in the Employment Appeal Tribunal, and an appeal by the Trust from Elias P's order was subsequently dismissed by the Court of Appeal.

[68]It is not clear to us whether this was the case advanced by Mr Ezsias in the Tribunal, but even if it was, it is apparent that the Tribunal rejected it. At para. 674 of its decision, the Tribunal said that Mr Ezsias had not been "prepared to participate in an appeal as suggested" by the Trust, which we take to mean that he was not prepared to participate in an appeal of the type which the Trust had in mind, though its finding on the topic at para. 750 of its decision is expressed slightly differently:

"There was no appeal hearing in this case. This can be explained because [Mr Ezsias] had determined to adopt another avenue of an appeal, namely, to the National Assembly of Wales. The fact is that [Mr Ezsias] did not pursue any appeal with the [Trust] and it is unnecessary to look at any other explanation for that but that appears to be the explanation. It is clear that [Mr Ezsias] was not interested in pursuing an appeal, no doubt for the same reasons that he was not interested with the … enquiry [to be conducted by the barrister], namely, that he determined not to allow the [Trust] to undertake any further steps in respect of his dismissal."

It was not quite accurate for the Tribunal to say that Mr Ezsias "did not pursue any appeal" with the Trust. What the Tribunal meant, we think, was that Mr Ezsias lodged an appeal, but he did not pursue that appeal to its conclusion because he did not believe that the Trust would deal with it fairly. That was a finding of fact which the Tribunal was open to make on the evidence. Conclusion

[69]For these reasons, this appeal must be dismissed. We know that this will come as a great disappointment to Mr Ezsias, who has invested a considerable amount of time and emotional commitment into it. But Mr Ezsias is a man of much charm and with many qualities, and we hope that he can harness them in a way which will give him a sense of personal achievement and enable him to make a valuable contribution to the community. We regret the time which has elapsed since the hearing of the appeal, but as the parties know, the hearing of the appeal took place in the week before I was due to go on an extended period of leave.

Cited in 1 later judgment

MR G MECHKAROV v CITIBANK N.A. 2016