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Court Of Appeal Result

Amazingly in my opinion the Court of Appeal have ruled that my appeal is dismissed.  

For those of you who are interested in reading the whole judgment it can be found by clicking here 

On the three grounds on which I submitted my appeal the following comments may be of interest.  

Firstly Daniel Barnet a barrister specialising in Employment Law has made the following comment about my judgement, "It stands as authority for the proposition that employers are entitled to dismiss employees for having a difficult personality, even when they are technically good at their jobs and there are no criticisms of their integrity, on the grounds of 'some other substantial reason'. (Note, on the facts, the dismissal was technically unfair because the decision-maker was biased, but the tribunal declined to award compensation).

It is also authority for the proposition that, in an appropriate case, it is possible to:

because of the aggressive way in which the employee defended himself (making allegations of fraud against the Chief Executive of the NHS Trust), any disciplinary panel - even if not chaired by the biased chairperson - would be 100% certain to have dismissed him on the grounds he would not be able to continue working with senior executives of the Trust".

In addition according to Robyn McIlroy, an employment law specialist with Pinsent Masons, (see Out-law.com)

"For any dismissal to be fair it needs to be for one of the statutorily prescribed fair reasons - conduct, capability, redundancy, 'some other substantial reason' and contravention of an enactment. Clearly 'difficult personality' is not one of the potentially fair reasons for a dismissal.”

“It is often the case, however, that employers are faced with the issue of how to deal with an employee whose difficult interrelationship with colleagues impacts on his or her ability to do the job. In this case Mr Perkin was described as being unable to function in the way required by membership of the senior management team to permit that team to function effectively. Sometimes if an employee's behaviour cannot be improved by way of training, counselling and/or performance management as appropriate, dismissing the employee can be for the long-term benefit of the organisation and the team, as long as the dismissal is handed fairly.”

“This decision is useful therefore in that it will give some comfort to employers that they can potentially fairly dismiss an employee for 'some other substantial reason' (one of the potentially fair reasons for a dismissal) where an employee's difficult personality has resulted in a loss of confidence in their ability to do the job.”

This opinion highlights the fact that as a result of my case employees are now far less safe in their jobs and that employers can now clearly dismiss an employee where employers do not like a particular employee's personality and sight that, as the only reason for dismissal, notwithstanding that the employee is a person of integrity otherwise doing a good job.   Robin also makes the point that the dismissal for this reason should only be valid if the employers have tried to improve the employee's behaviour by way of training, counselling and/or performance management as appropriate and as long as the dismissal is handed fairly.  As any reading of the full judgement of my case will reveal these elements were all missing in the decision made about me.

It is interesting that the Appeal Court found that one of the main reasons why my second and third grounds for appeal failed was because I had defended myself aggressively and made allegations of fraud against Ian Hamilton the Chief Executive.   The Sissling Inquiry while lacking in independence nevertheless in 2004 reported that Ian Hamilton had of course disadvantaged the tax payer by inappropriately charging a Savoy Hotel Bill for a private function to the public purse and that St George's had inappropriately altered the cancelled operations figures, about which I had made an admitted protected disclosure (whistle-blown) and that the very people I had apparently falsely accused of acting without honesty and integrity had been wrong to offer a variety of incorrect excuses for why the figures had been changed in the first place.  In addition Lord Justices, Tuckey, Mance and Wall had this to say about Miss McLoughlin in their judgement. 

I have to say that I find it quite extraordinary that a person in Ms McLoughlin's position could think it right to chair an internal disciplinary procedure when she herself, only days before, had made it clear beyond peradventure that she wanted Mr. Perkin dismissed. The overwhelming and irresistible inference is that she not only wanted him out, but was of the view that this was the speediest and most effective way of achieving her objective, since there was plainly no prospect, with her in the chair, that the disciplinary procedure would result in anything other than confirmation of Mr. Perkin's dismissal. Against that background, it must, at first blush, be reasonable to think that a fair procedure, and a genuinely independent investigation would – or at the very lowest might - have produced a different result – and certainly not a result which placed the entire responsibility for his dismissal on Mr. Perkin itself.

Mr. Perkin was, of course, entitled to defend himself, but the manner of his defence, and in particular his attacks on the honesty, financial probity and integrity of his colleagues (and in particular his dogged insistence on maintaining his stance in relation to those attacks when they were manifestly ill-founded – see, as an example, the notes taken by Mr. Watts referred to in paragraph 4 of this judgment) opened the door, in my judgment, to the Tribunal being able to find that any other disciplinary process would have ended with exactly the same result. In my judgment, the Tribunal was plainly entitled to reach the conclusion that it would have been quite impossible for Mr Perkin to work again with, for example, Mr. Hamilton, after the former had called the latter a bully and a liar. Mr. Jeans was also entitled to make the point that Mr. Perkin behaved in this way, even though he was not at the outset aware of Ms McLoughlin's unprincipled conduct".

Therefore although I had been submitted to a completely unfair and biased NHS disciplinary hearing, which with Miss McLoughlin chairing it could only of possibly have led to my dismissal, the Court of Appeal ruled that it was all my fault in any event, because I dared to say that the Miss McLoughlin (who chaired the hearing), Mr Hamilton (who was the Chief Investigator of the hearing) and Mr Watts (who as Director of Human Resources was responsible for seeing that a fair hearing was conducted) were individuals who were behaving dishonestly and without integrity, nothwithstanding the fact that it was agreed they had subjected me to a "Kangaroo Court" and that shortly before my dismissal the Employment Tribunal had found as a matter of fact that I had made a Protected Disclosure about the misreporting of Cancelled Operations.  It is a judgement that clearly needs to be challenged and I have given instructions to my lawyers to make application to the House of Lords for leave to appeal against this decision.

I shall not give up in trying to expose the truth about the NHS until I can take it no further and then I shall publish my book "Don't Blow The Whistle" as a warning to others about what happens if you tell the truth and how those that do not are the ones who win.

Interesting note that Miss McLoughlin who is criticised so heavily in the Court of Appeal judgement has been appointed by the Mental Health Foundation to Chair an inquiry into the reasons why young people self harm.  Nice to see the Mental Health Foundation have entrusted this task which involves a very vulnerable group of people to such a TRUSTWORTHY PERSON!!!!!!!!!!