Unfair dismissal and establishing gross misconduct from a series of acts

Summary dismissal is one of the most extreme sanctions open to an employer and any UK Employment lawyer would caution the dismissal of an employee without notice unless there is clear evidence of gross misconduct. A recent case before the Employment Appeal Tribunal that will be of interest to Employment claim solicitors, has established that summary dismissal can be justified not just when there has been one act of gross misconduct by an employee, but in circumstances where a series of acts together undermines the relationship of trust and confidence and amounts to gross misconduct. This can be the case even if individually none of the acts relied on was itself gross misconduct.

Along with other London employment solicitors, our top employment solicitors here at OTS Solicitors recognise that while this is a helpful case for employers, it does not give carte blanche to summarily dismiss for gross misconduct where there has been a ‘series of acts’ in this case. All cases turn on their facts – and in this case, the facts favoured the employer. We would always suggest taking advice from the best employment lawyers you can find before taking action in such a case, to avoid litigation.

The facts in Mbubaegbu v Homerton University Hospital NHS Foundation Trust

The Employment Appeal Tribunal heard the appeal of Mr Mbubaegbu, a consultant orthopaedic surgeon who had worked for Homerton University Hospital NHS Trust for over 15 years with a previously unblemished record. In 2013, certain rules and procedures were introduced to deal with problems in his department – in particular the relationships between some of the consultants (although not, in fact, the Claimant). A lengthy investigation found that several consultants, including the Claimant had failed to comply with the procedures that had been introduced. This finding led to disciplinary action against all the surgeons involved.

Action against the Claimant was delayed because in addition to the concerns about his compliance with these procedures, incident reports had thrown up concerns about his clinical practice. The disciplinary hearing in respect of the Claimant dealt with allegations arising out of both the initial report into the failure to comply with the new procedures and also the investigation arising out of the incident reports.

Following a hearing that lasted 3 days, the Claimant was dismissed for gross misconduct on 22 February 2016. He appealed but his dismissal was upheld.

The Tribunal found the dismissal was fair

The Employment Tribunal (in a majority decision, rather than a unanimous decision) found that the decision to dismiss was fair. They found that the pattern of conduct cumulatively raised concerns over patient safety. The Tribunal unanimously held that there had been a repudiatory breach of contract by the Claimant, and so he had not been wrongfully dismissed either.

The Employment Appeal Tribunal’s decision on unfair dismissal

The Employment Appeal Tribunal considered the Claimant’s argument that there should have been a finding of gross misconduct before consideration of the question of whether summary dismissal was within the range of reasonable responses. The dissenting member of the Employment Tribunal had found that some of the incidents taken in to consideration were too trivial to have warranted inclusion, and as such dismissal was too harsh. The Claimant argued that as none of the incidents involved had individually been an act of gross misconduct, a less severe sanction would have been more appropriate. Indeed 2 of the other surgeons involved had received written warnings (in one case, a final written warning).

The Employment Appeal Tribunal did not accept this. Rather it preferred the analysis in Neary v Dean of Westminster relied on by the Respondent hospital which states that conduct by an employee which undermines the relationship of trust and confidence between employer and employee can justify summary dismissal. There does not need to be one act of gross misconduct. A ‘pattern of behaviour’ – a series of acts such as in this case – can amount to sufficiently serious conduct to undermine trust and confidence. This in turn means that the employer can summarily dismiss the employee even though there has been no one act of gross misconduct.

Although summary dismissal will not usually be an appropriate response at a first disciplinary hearing (Children’s Aid Society v Day), as was the case here, there are some circumstances where it will be appropriate. The Employment Appeal Tribunal found that the Tribunal had made explicit findings that the Respondent hospital had lost confidence in the Claimant and did not think he would change his ways.

Wrongful dismissal remitted back to the Tribunal

Although the Employment Appeal Tribunal upheld the fairness of the dismissal for the purposes of unfair dismissal, it did not agree with the Tribunal’s conclusion that the dismissal was not wrongful and remitted the case back to the Employment Tribunal to make findings of fact in respect of the repudiatory breach that would entitle the Respondent hospital to summarily dismiss.

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