Whilst this headline might seem startling, when you read the facts of the case (Brighton and Sussex University Hospitals NHS Trust v Akinwunmi and others) it is a reminder that tribunals really do look at the full facts of a case before making their decision.

A tribunal often has to consider whether the decision to dismiss was ‘within the bounds of reasonableness’.   It is helpful to ask ourselves the question ‘what would the ordinary person in the street think if we told them the facts?’.  In this case, the appeal tribunal considered what ‘the man on the Clapham omnibus’ would have thought, another way of referring to a hypothetical ordinary and reasonable person.

In this case the claimant had stayed away from work because he said the working environment and relationships with colleagues was so bad that it was endangering his health.  He asked his employers to investigate and remedy the situation before he felt able to return.  They did not do so, eventually dismissing him for gross misconduct due to his unauthorised absence.

The tribunal felt that the employers should have made efforts to resolve the problems before simply moving to dismissal and that the ball had been firmly in their court to deal with the situation.  Their decision that the dismissal was unfair was appealed by the employers.  The appeal court upheld the decision, saying that: “any sense of amazement or outrage” at the tribunal’s decision, from the man on the Clapham omnibus would vanish “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”.

Please don’t let problems build up.  If you have poor working relationships, or absence management problems, don’t ignore them but get in touch with us at an early stage so that we can help to resolve them.