A recent case focused on the right of employers to dismiss employees who have a difficult personality. Can you dismiss people just because you don’t like them?
People Business – October 2005
Personality Dismissals
Caroline Dunne
Osborne Clarke
caroline.dunn@osborneclarke.com
A recent case has provided authority for the right of employers to dismiss employees for having a difficult personality, despite the fact they might otherwise be technically good at their jobs. However, does that mean you can get rid of all of those employees who you just don't like?
The Law
In order for a dismissal to be fair, an employee must have a fair reason and follow a fair procedure (which must comply with the statutory dismissal procedures).
Under the Employment Rights Act 1996 ("ERA") there are 5 potentially fair reasons for dismissal. They are:
- Capability;
- Conduct;
- Redundancy;
- Illegality; or
- Some other substantial reason.
As well as complying with the 3-step statutory dismissal procedures, the dismissal will be determined as being fair or unfair depending on whether in respect of the size and resources of the employer, the employer acted reasonably in treating the reason for dismissal as sufficient and taking into account the substantial merits of the case.
Employees with more than one year's service have the right to bring a claim for unfair dismissal, and maximum compensation is currently £56,800.
The Case
The case of Perkin v St Georges Healthcare NHS Trust involved the Director of Finance of the Trust, Mr Perkin, who had been employed by the Trust for 6 years. His job required him to manage a group of employees and cooperate with senior colleagues at the same level as him and above. He was acknowledged to be technically competent and his integrity was not questioned. However, his personality, management style and inter-relation with colleagues caused numerous difficulties. The situation came to a head in 2002 and he was subjected to disciplinary proceedings due to serious concerns arising in relation to his: (i) management style and (ii) ability to form the necessary quality of relationships with internal and external colleagues. Following a full investigation and disciplinary hearing, it was decided by the trust that his 'conduct and behaviour has been such that you are not able to discharge effectively the role of Finance Director'. He was dismissed and paid in lieu of notice.
He brought a claim to an employment tribunal, where, in summary, the main claim was that he had been unfairly dismissed. He argued that management style and personality was not a potentially fair reason under s98 ERA. The Trust argued that the reason for his dismissal, fell under either the potentially fair reason of conduct or some other substantial reason.
The Tribunal agreed with the Trust, although the dismissal was found to be procedurally unfair. Mr Perkin appealed that decision all the way to the Court of Appeal.
The nub of the argument was whether someone's personality could fall under the 'some other substantial reason'.
Although this case was very specific to its facts, the Court of Appeal decided that personality itself cannot be a ground for dismissal under s98 ERA, BUT, if that personality results in conduct which can fairly give rise to the employee's dismissal, or some other substantial reason of a kind such as to justify the dismissal and the employer can establish the facts which justify that reason or principal reason, it will be a potentially fair reason under s98 ERA.
Can you get rid of people you don't like?
The good news is – if you employ a particularly difficult character whose personality makes it impossible for his/her colleagues to work with them, and you have no other misconduct or ability issues with the individual on which to commence a disciplinary process, there's now a potentially fair reason for dismissing that employee.
The bad news is – the way in which that dismissal is effected must be procedurally fair under the ERA and statutory dismissal procedures. Ignoring procedures, regardless of how awful someone's personality is, could lead to a finding of procedural unfair dismissal.
