Introduction
If an employee has been in continuous employment in the UK for over two years and they believe they have been unfairly dismissed, they have the right to pursue a claim for unfair dismissal at an employment tribunal. Employers are required to follow a fair disciplinary procedure, usually involving stages of warnings, before they consider dismissal. The exception to this is summary dismissal. In this circumstance, whilst the employer still requires to follow a disciplinary procedure, the employer is entitled following a disciplinary meeting to dismiss the employee without warnings or notice if the situation is serious enough to warrant this.
Summary dismissal is usually reserved for situations where the employee’s conduct is of such a serious nature that it is deemed to constitute gross misconduct.
The recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust is demonstration of the fact that one single act of gross misconduct does not always have to be found to warrant summary dismissal.
What happened in this case?
- Mr Mbubaegbu (Mr M), a consultant orthopaedic surgeon, had worked at Homerton Hospital for 15 years with an unblemished record until his dismissal.
- In 2013 there had been new department rules and responsibilities introduced into Mr M’s department and consultants were advised compliance with these rules and responsibilities would be monitored.
- An investigation was carried out by an external HR Consultant which found that Mr M and four other colleagues had not complied with the new rules and responsibilities.
- Disciplinary action was taken against three of Mr M’s colleagues. One was given a first written warning, one was given a final written warning and one resigned.
- Disciplinary proceedings against Mr M and another colleague were postponed pending further investigation. Mr M was not suspended during the investigation and continued to practice while a further 22 charges against him were investigated.
- An investigation report was produced some 8 months later. At that time Mr M was informed that disciplinary action would be taken against him for 17 allegations.
- Following the disciplinary hearing, Mr M was summarily dismissed.
- Although several of Mr M’s colleagues had been subject to disciplinary proceedings, he was the only person to be dismissed as a result. He was the only black African consultant.
- Mr M made claims to the employment tribunal for unfair dismissal, breach of contract and race discrimination. (For the purposes of this article we are concentrating on the unfair dismissal element to this claim.)
Employment tribunal decision
The tribunal dismissed all of Mr M’s claims.
In respect of the unfair dismissal claim the tribunal panel unanimously found that the procedure followed by the Trust was fair but the panel were not unanimous when considering the appropriateness of dismissal as a sanction. The majority found that the decision to dismiss was in the band of reasonable responses open to the Trust and accepted Mr M could not be relied upon to change his behaviour in the future and accepted that the Trust reasonably believed that some of Mr M’s actions were grossly careless and negligent and showed wilful intent, amounting to a pattern and repeated process of unsafe behaviour which led to increased patient risks. However the dissenting view of one lay member was that the decision to dismiss Mr M was not in the band of reasonable responses as some of the charges were trivial and there had been no further incidents between the commencement of the disciplinary proceedings and the dismissal.
Following dismissal Mr M’s conduct was referred to the General Medical Council for investigation. They concluded that no action should be taken on the basis that the evidence did not support a finding of impaired fitness to practice. In light of this Mr M applied to the tribunal to reconsider the matter but they refused to do so.
Mr M appealed to the employment appeal tribunal.
Employment appeal tribunal decision
The EAT dismissed the appeal against the finding that the dismissal was fair.
The EAT held that although there had not been one single act of gross misconduct justifying dismissal, it was possible for a series of acts to demonstrate a pattern of conduct which was sufficiently serious so as to undermine the mutual implied term of trust and confidence between an employer and employee.
In their judgement they stated:
“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”.
The EAT also dismissed the appeal against the refusal to reconsider the case in light of the GMC’s decision. The EAT held that there was “a considerable need for caution before reopening a case on the strength of a regulator’s determination”. There was a strong interest in the prompt determination of employment tribunal claims and in the finality of tribunal judgments. However, it noted that there will be rare cases in which it would be appropriate to reconsider a tribunal judgment in the light of a regulator’s decision.
The EAT did uphold the appeal against the breach of contract claim as they found the employment tribunal had failed to consider whether Mr M’s breach of contract was sufficiently serious to justify dismissal without any notice pay.
Case comment
This case is an example of when multiple acts of misconduct can add up to a finding of gross misconduct without the presence of one single act of gross misconduct. The EAT placed their focus on whether the employee’s actions had undermined the relationship of trust and confidence with the employers rather than just looking at whether one act on its own could amount to gross misconduct.
Despite this decision, this is not a precedent to say that in future an employer can decide to dismiss someone without warning due to multiple acts of misconduct. Employers should exercise caution when deciding to dismiss someone with no warnings when there is not one clear single act of gross misconduct. As is the same in every situation, each case will depend on its own individual facts and circumstances.
This case also shows that the decision of a regulatory body (in this case the General Medical Council) is not always a deciding factor for the employment tribunal when they are deciding, or reconsidering whether the employee was unfairly dismissed.
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Note: This article was first published on the Moray Employment Law website in July 2018.
