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No single act of gross misconduct results in fair summary dismissal says EAT

AM
BY Anita Mulholland
Employment law

In Mbubaegbu v Homerton University Hospital UKEAT/0218/17, the Employment Appeals Tribunal (EAT) held that the Employment Tribunal had not erred when it decided that a Black African consultant was fairly dismissed for gross misconduct despite none of his alleged failures being considered gross misconduct individually.

The claimant, Mr Mbubaegbu, was a consultant for 15 years at Homerton University Hospital until he was dismissed for gross misconduct. This was following alleged failures to comply with rules and procedures that were introduced in 2013. Although others in Mr Mbubaegbu’s department were also subject to disciplinary action for this, he was the only one dismissed. He had no prior warnings on file and he was the only black African who was subject to disciplinary action. The Hospital decided that the cumulative effect of his failures justified dismissal as they believed it put patients at risk.

In his judgement Choudhury J stated;

“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. That may be so even if the employer is unable to point to any particular act and identify that alone as amounting to gross misconduct”

This judgment is helpful for employers as it can in certain circumstances remove the obligation to find a single act of gross misconduct. In this case it was decided that there had been a ‘pattern of conduct’ that put patients at risk and therefore undermined the implied duty of trust and confidence integral to an employment relationship.

The judge stated that he saw no reason why a dismissal should be unreasonable in these circumstances. Among the grounds of appeal was that the tribunal was incorrect to conclude that the dismissal was not wrongful as it did not do enough to find facts as to whether the claimant was guilty of a repudiatory breach of contract. This ground was upheld in the EAT and was remitted back to the same tribunal to make necessary findings of fact.

Despite the judgement in this case, it is important, that employers should be consistent when considering potential disciplinary sanctions and if there are multiple people being disciplined for similar reasons, make sure you can clearly justify treating one differently from another. Employers should be cautious when trying to dismiss an employee with no prior warnings, where this is no obvious gross misconduct. This case shows that multiple acts of misconduct can be seen to be a pattern of behaviour that amounts to gross misconduct; each case will be decided on its own facts and the decision may well be outwith the band of reasonable responses. 

If you want to discuss the implications of this case on your business or the circumstances around a tricky dismissal you may have, then please contact your legal manager. 

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