IS IT FAIR TO DISMISS AN EMPLOYEE WITHOUT NOTICE WHERE THERE IS NO SINGLE ACT OF GROSS MISCONDUCT AND WITHOUT PRIOR WARNINGS?
In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, the Employment Appeal Tribunal considered whether a hospital trust had fairly dismissed a consultant for misconduct.
Mr Mbubaegbu, a consultant orthopaedic surgeon, was employed at Homerton University Hospital NHS Foundation Trust (the Trust) for 15 years.
In 2013 new Department Rules and Responsibilities (DRR) were introduced designed to address a dysfunctional working environment within the department in which Mr Mbubaegbu worked. A few months later an investigation into compliance with the DRR was carried out by an external investigator. The investigation found that there had been non-compliance with the DRR by Mr Mbubaegbu and some of the other surgeons. Although there were fewer findings against Mr Mbubaegbu, the medical director considered that the findings against him were more serious as he was the audit lead.
Disciplinary action was taken and Mr Mbubaegbu was summarily dismissed for gross misconduct. None of the allegations, on their own, amounted to gross misconduct. However, the Trust decided that Mr Mbubaegbu’s actions were careless and compromised patient safety. He was the only surgeon to be dismissed. His internal appeal was unsuccessful.
Prior to his dismissal, Mr Mbubaegbu had a clean disciplinary record with no question mark over his clinical judgment or abilities, and he was highly regarded by his colleagues.
Mr Mbubaegbu brought claims for unfair dismissal and wrongful dismissal (breach of contract). These were dismissed by the Employment Tribunal.
The tribunal found that the procedure followed by the Trust was fair and that the disciplinary panel had reasonably believed that Mr Mbubaegbu could not be relied upon to change his behaviour in future.
The GMC also investigated Mr Mbubaegbu, but took no action against him on the basis that the evidence did not support a conclusion that his conduct or practice was likely to result in a finding of impaired fitness to practice.
Mr Mbubaegbu appealed to the Employment Appeal Tribunal (EAT).
The EAT dismissed the appeal. The EAT held that there is no reason why there has to be single act of gross misconduct before summary dismissal is justifiable. They were of the view that it is possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine ‘trust and confidence’, therefore amounting to gross misconduct. In this case, the tribunal’s findings showed quite clearly why the relationship of trust and confidence was undermined: it considered some of the acts were grossly careless and negligent, amounting to a repeated pattern of unsafe behaviour which led to an increased risk in patient safety. The Trust had lost confidence that Mr Mbubaegbu would change his behaviour so as to avoid the risk of the misconduct occurring.
For the wrongful dismissal claim (which is a claim for breach of contract relating to the notice period), the EAT said that the legal test was different to the test for unfair dismissal. The tribunal had to look at whether Mr Mbubaegbu had acted in fundamental breach of his contract, rather than what the employer ‘reasonably believed’. The EAT remitted the case back to the tribunal to consider this point.
What does this mean for employers
This decision is of some help to employers. The case illustrates that several incidents, taken together, can amount to gross misconduct. The focus is on whether an employee’s actions had undermined the relationship of trust and confidence; an employer does not necessarily have to point to a single act and identify that as being gross misconduct.
However, employers should always exercise caution. This case does not give an employer carte blanche to take this approach in all situations.