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Employment Update – July 2018

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  • Employment Update – July 2018

Summary dismissal without gross misconduct

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust the Employment Appeal Tribunal (EAT) has upheld the Employment Tribunal’s (ET) finding that a Claimant’s summary dismissal for a number of misconduct issues was not unfair despite the fact that there the there was no one act that could be construed as gross misconduct.

The Facts

The Claimant, Mr Mbubaegbu, was a consultant orthopaedic surgeon who had been employed by the Respondent for 15 years prior to his dismissal occurring as a result of disciplinary proceedings. The Claimant previously had an untarnished career and was held in high regard by his colleagues.

The dismissal arose from disciplinary investigations into the Claimant’s alleged failures to comply with new rules and procedures that had been introduced in 2013 to address issues within his department. The disciplinary hearings that resulted from the investigation took place in December 2015 and February 2016, which lead to him being summarily dismissed for gross misconduct.

The ET dismissed the Claimant’s claims of unfair dismissal, wrongful dismissal and discrimination on the grounds of race. They held that it was within the ‘range of reasonable responses’ to dismiss the Claimant as the Respondent had reasonably believed that there would not be a change in the behaviour of the Claimant that could be relied on in the future. The Claimant applied for the decision to be reconsidered following a finding from the General Medical Council (GMC) that the evidence did not support a finding that the Claimant was unfit to practice. The ET declined to reconsider the case, and the Claimant appealed this and the original ET decision.

EAT Decision

The EAT dismissed the unfair dismissal appeal, holding that there does not need to be a single act of gross misconduct for a summary dismissal to be justified, and that ‘a pattern of conduct’ can be sufficiently serious so as to undermine the relationship of trust and confidence between the parties. The claimant’s appeal for wrongful dismissal was however successful on the basis that the ET had failed to consider whether there had been a fundamental breach when finding that the Claimant had breached his contract of employment. This was remitted to the ET to make the necessary findings of fact.

This decision shows that there need not always be one singular act of gross misconduct that must be identified to justify a summary dismissal and that in some circumstances a series of acts of misconduct may be sufficient. This finding may be good news for Practice Owners as it can often be frustrating when an employee commits a series of acts of misconduct yet they feel unable to summarily dismiss the employee as no singular one amounts to gross misconduct. However, employers should be careful when basing a dismissal on such facts if there is no clear act of gross misconduct, especially when it is a first offence and no previous warnings have been given. Each situation should be assessed on a case by case basis and you should always seek expert legal advice.

At FTA Law we can offer advice on all aspects of an employer’s duties towards their employees, so please contact us on 0330 088 2275 for further information.

The team at FTA Law provides advice to clients across the commercial and healthcare sectors with many of our instructions coming from referrals from long standing clients and industry contacts.

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