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Can there be gross misconduct where there is no single identifiable act of misconduct?

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The EAT in Mbubaegbu v Homerton University Hospital NHS Foundation Trust [2018] considered whether a hospital trust had fairly dismissed a consultant for misconduct where there was no single act of gross misconduct.

Facts

Mr Mbubaegbu had been employed as a consultant surgeon in the Trauma and Orthopaedics department of an NHS Hospital (the Trust) for 15 years. Prior to disciplinary proceedings that led to his dismissal for gross misconduct, Mr Mbubaegbu had an unblemished career with no previous warnings.

The matters giving rise to the finding of gross misconduct arose out of alleged failures to comply with rules and procedures (DRR) introduced in 2013 to address dysfunctionality and incidents in the department. Mr Mbubaegbu was informed at the time that compliance would be monitored.

An investigation carried out in 2014 found that there had been non-compliance with the DRR, the most serious by Mr Mbubaegbu. Disciplinary action was taken against three other surgeons. Further investigations into 22 charges against Mr Mbubaegbu arising out of the incident reports were announced by letter in October 2014, during which time he continued to practice. An investigation report was produced eight months later and Mr Mbubaegbu was informed that disciplinary action would be taken against him in respect of 17 allegations. He had not been involved in any incidents since being told about the disciplinary investigation.

Mr Mbubaegbu was summarily dismissed for gross misconduct and his appeal was not upheld. Mr Mbubaegbu brought proceedings for unfair dismissal, wrongful dismissal and race discrimination.

Tribunal

Mr Mbubaegbu’s proceedings were all dismissed by the tribunal.

In relation to the unfair dismissal claim, the tribunal unanimously found that the procedure followed by the Trust was fair. However, the panel was not unanimous as to the appropriateness of dismissal as a sanction. The majority accepted that the disciplinary panel reasonably believed that Mr Mbubaegbu could not be relied upon to change his behaviour in the future and the decision to dismiss was within the range of reasonable responses open to the Trust. The dissenting view was that it was not a reasonable response as some of the 17 disciplinary charges were trivial and the disciplinary panel had not properly taken into account that no further incidents had occurred from the date Mr Mbubaegbu was informed of the disciplinary matter to the date of his dismissal.

Employment Appeal Tribunal

The EAT dismissed the appeals in relation to unfair dismissal and the tribunal's refusal to reconsider, but allowed the appeal in relation to wrongful dismissal.

The EAT held that the Tribunal's approach to the acts of misconduct relied upon was not erroneous and that there is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable. It said:

As stated in Neary [v Dean of Westminster [1999] I.R.L.R. 288], conduct amounting to gross misconduct is conduct such as to undermine the trust and confidence inherent in the relationship of employment. Such conduct could comprise a single act or several acts over a period of time.

That the disciplinary panel had considered some of Mr Mbubaegbu's actions to be grossly careless and negligent amounting to a pattern of unsafe behaviour which led to increased patient risks, and had a real concern that a final written warning would not be sufficient because his actions showed that he was wilful in his approach, clearly demonstrated that the relationship of trust and confidence was undermined. The Tribunal had not therefore erred in finding that the dismissal fell within the range of reasonable responses open to the Trust.

Comment

This case illustrates that a pattern of conduct on the part of an employee can amount to gross misconduct, even where there has not been one single act that constitutes 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. It will not always be the case that dismissal is within the range of reasonable responses open to the employer.

Francesca Jus-Burke

Francesca Jus-Burke Senior Associate

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