Thu 05 Jul 2018

Summary dismissal without gross misconduct

The EAT has recently considered the fairness of a summary dismissal where there was no single act of gross misconduct and no warnings were given prior to dismissal.

Summary dismissal is a sanction that is usually reserved for gross misconduct offences - actions so serious that the employer can terminate the employee's employment without having previously warned them about their behaviour.  However, in Mbubaegbu v Homerton University Hospital NHS Foundation Trust Mr Mbubaegbu, a consultant orthopaedic surgeon, was summarily dismissed following 17 disciplinary allegations being made against him, none of which were identified as gross misconduct.

Although several people in the Claimant's department were subject to disciplinary proceedings, he was the only one that was dismissed.  He was also the only black African consultant.  He brought a claim before the employment tribunal for unfair dismissal, breach of contract and discrimination on the grounds of race.  All the claims failed, although the unfair dismissal claim was decided by the majority of the tribunal panel and was not unanimous. The dissenting panel member concluded that dismissal was outside the band of reasonable responses as some of the disciplinary allegations were trivial and no further incidents had occurred between the disciplinary proceedings beginning and the date of dismissal.  The majority of the panel accepted that the employer reasonably believed that some of the employee's actions were grossly careless and negligent, that his actions amounted to a pattern of unsafe behaviour and that the Claimant was wilful in his actions. 

Following the dismissal the Claimant's conduct was referred to the General Medical Council (GMC). The GMC determined that the no action should be taken as there was no evidence to support a finding of impaired fitness to practice.  The Claimant then applied to the tribunal to reconsider the matter in light of the GMC's finding which they refused to do.  The Claimant then appealed both the tribunal's original judgement and their refusal to reconsider the matter.  

The EAT dismissed the appeal against the finding that the dismissal was fair.  Although there had been no single act of gross misconduct alleged against the Claimant they found it was possible for a series of acts to demonstrate a pattern of conduct sufficiently serious to undermine the mutual term of trust and confidence between employer and employee.  The EAT 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 appeal against the refusal to reconsider in light of the GMC's findings also failed but the tribunal did uphold the appeal against the breach of contract claim as the tribunal had failed to identify whether the Claimant's own breaches of contract were sufficiently serious to justify dismissal without any notice being paid.   

While this is a helpful case for employers, it is not a green light to assume that multiple misconduct allegations can be "totted up" to a gross misconduct offence.  Whether that is possible will depend on the particular circumstances of each case.  When assessing those circumstances the focus should be on whether the employee's actions have undermined the relationship of trust and confidence and not simply on whether any one act on its own could amount to gross misconduct.

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