Dismissal for misconduct without prior warning was reasonable

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust the EAT upheld an employment tribunal's decision that a hospital trust fairly dismissed an employee for a series of misconduct issues despite there being no evidence of gross misconduct or previous wrongdoing.

The Claimant, a Consultant Orthopaedic Surgeon, was employed in the Trauma and Orthopaedics department at a hospital trust (the “Respondent”) for 15 years. He had an unblemished disciplinary record with no previous warnings prior to his dismissal for gross misconduct in 2016.

In 2013, new rules and procedures were introduced to address dysfunctionality in the Trauma and Orthopaedics department. It was intended that compliance with these new rules would be monitored.

In early 2014, an external HR consultant was appointed to investigate compliance with the new rules. The HR consultant produced a lengthy report which made various findings against five surgeons in the department including the Claimant. The Medical Director deemed the findings against the Claimant to be the most serious. In addition to these findings, a separate internal investigation regarding concerns about the Claimant’s clinical practice was carried out and a report was produced. A total of 22 charges arose from the reports and a further investigation was announced in late 2014.

In August 2015 the Claimant was notified that there would be a disciplinary hearing to consider 17 of the charges. The first four arose out of the external HR consultant’s report and 13 from the subsequent internal investigation. The Claimant was not suspended during this time and continued to practice. No further incidents were reported from the date the Claimant was told of the disciplinary matter up to the date his contract of employment was terminated.

The disciplinary hearing took place on 14/15 December 2015 and 12 February 2016. The Claimant was summarily dismissed on 22 February 2016 for gross misconduct and his appeal was not upheld. Out of the five surgeons who were identified in the reports, the Claimant was the only one to be dismissed. He was the only black African consultant.

The Claimant put forward claims asserting that he had been unfairly dismissed, wrongfully dismissed and discriminated against on the grounds of his race. All of these claims were dismissed by the employment tribunal.

The employment tribunal found unanimously that the dismissal procedure followed by the Respondent was fair; however the disciplinary panel was not unanimous as to the appropriateness of the dismissal as a sanction. One panel member “considered that the decision makers had not properly taken into account the fact that no further incidents had occurred from the date the claimant was told of the disciplinary matter to the date of dismissal. In her view this was evidence of improvement such as to make the sanction of dismissal inappropriate and outside the reasonable range of responses.”

The Claimant appealed to the EAT. The EAT held it was not necessary for there to be one particular act that amounted to gross misconduct for a summary dismissal to be fair. The EAT held that “it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee. That may be so even if the employer is unable to point to any particular act and identify that alone as amounting to gross misconduct. There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely upon a series of acts, none of which would, by themselves, justify summary dismissal”.

This case illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. The EAT considered the correct focus was on whether the employee's actions had undermined the relationship of trust and confidence, not whether one act on its own could amount to gross misconduct. However, employers should always exercise caution before reaching a decision to dismiss an employee with no prior warnings where there is no clear act of gross misconduct. In this case, the tribunal was entitled to find that dismissal was within the range of reasonable responses open to the employer. However, this will not be so in every case.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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