Dismissal without single act of gross misconduct
26 June 2018
The Employment Appeal Tribunal (EAT) has considered the fairness of a summary dismissal, in circumstances where the employee had not committed a single act of gross misconduct but a series of acts of misconduct.
Mbubaegbu v Homerton University Hospital NHS Foundation Trust, UKEAT/0218/17
The claimant was a consultant orthopaedic surgeon, dismissed for gross misconduct after 15 years of service with an unblemished disciplinary record. An external investigation had found that the claimant, along with four others in the department, had failed to follow new departmental rules. Following a further investigation, the claimant was informed that disciplinary action would be taken against him in respect of 17 allegations. At the time of the disciplinary hearing, there had been no further reported incidents in respect of the claimant for a period of 16 months.
The claimant was summarily dismissed for gross misconduct. His appeal against the Trust’s decision was not upheld. His claims for unfair dismissal, wrongful dismissal and race discrimination were dismissed by an employment tribunal. The tribunal (by a majority) accepted that the decision to dismiss was within the range of reasonable responses on the basis that the claimant could not be relied upon to change his behaviour in the future, notwithstanding that 16 months had elapsed with no further incidents.
The EAT dismissed the claimant’s appeal, confirming that it is not necessary for there to be one particular act that amounts to gross misconduct for a summary dismissal to be fair: “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”. The disciplinary panel had found some of the claimant’s actions to be grossly careless and negligent, and were concerned that a final written warning would not be sufficient because the claimant’s actions had shown that he was wilful in his approach. According to the EAT, these findings clearly demonstrated that the relationship of trust and confidence was undermined.
This decision provides a good illustration of the principal that a series of acts of misconduct can, when taken together, amount to gross misconduct in certain circumstances. For such a dismissal to be upheld as fair, it is important that the disciplining manager/panel reaches a decision based on the employee’s actions collectively undermining the relationship of trust and confidence.
This article is from the June 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2018.