Summary Dismissal Fair, Despite No Single Act Of Gross Misconduct
Thursday 7th June 2018
In the recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust (the “Trust”), Mr Mbubaegbu (“M”) was employed as a consultant orthopaedic surgeon for some 15 years until he was dismissed for gross misconduct. Prior to his dismissal, Mr Mbubaegbu had an unblemished disciplinary record and no previous warnings.
In April 2013, the Trust introduced new rules in the department where M worked and he and his colleagues were informed that their compliance with the new rules and responsibilities would be monitored. External HR consultants were responsible for the monitoring and carried out an investigation which concluded that M and four other consultants had not been compliant. The HR consultants investigated 22 separate charges and informed M that disciplinary action would be taken against him in respect of 17 allegations.
M was summarily dismissed for gross misconduct and his appeal against dismissal was not upheld. He brought claims for unfair dismissal, wrongful dismissal and race discrimination, all of which were dismissed by the tribunal. He appealed the employment tribunal’s decision to the EAT, which dismissed the appeal in relation to unfair dismissal but allowed the appeal in relation to wrongful dismissal.
This doctor had been grossly careless and negligent and had demonstrated a pattern of repeated unsafe behaviour leading to increased patient risks. There was a real concern that a final written warning would not be sufficient in ensuring his compliance with the Trust’s procedures in future because his actions showed that he was unlikely to change his approach/practices.
This case illustrates there need not be a single act amounting to gross misconduct before summary dismissal can be justifiable. A series of acts demonstrating a pattern of conduct can be sufficiently serious to undermine the relationship of trust and confidence between the employer and the employee even if none of those single acts amounted to gross misconduct.