Dismissal of surgeon following 20-month absence ruled unfair

The dismissal of a surgeon who took 20 months’ unauthorised absence after falling out with colleagues has been ruled unfair.

The case involved a consultant neurosurgeon whose relationship with other medical staff broke down after they made allegations against each other.

The issue arose as he was about to take four month’s unpaid leave as part of his contract arrangement. However, due to the toxic atmosphere in his department, he did not return to work when scheduled and took another 20 months’ unauthorised leave.

He was dismissed in November 2014. The surgeon responded by claiming unfair dismissal because the trust had failed to engage with him to bring about a return to work.

He said it had not taken account of the reason why he had not returned to work, which was that his health and safety, and potentially that of his patients, would be endangered if he returned without the trust addressing the allegations made against him by colleagues.

The Employment Tribunal accepted that the trust had a genuine belief that the surgeon’s unauthorised absence was misconduct but it was not within the band of reasonable responses to dismiss him for that.

The Employment Appeal Tribunal has upheld that decision. It held that once a fair and reasonable observer appreciated that there was considerably more to the history of the case than a dismissal for 20 months' unauthorised absence, he would not find the decision surprising.

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