Summary dismissal was fair even though no single act of gross misconduct


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The Employment Appeal Tribunal (EAT) has held in Mbubaegbu v Homerton University NHS Foundation Trust that the hospital trust fairly dismissed a consultant orthopaedic surgeon for a series of misconduct issues, even though no single act amounted to gross misconduct. Prior to the disciplinary proceedings that led to his dismissal, Mr Mbubaegbu had an unblemished disciplinary record with no previous warnings.  

New Department Rules and Responsibilities (the DRR) were introduced and consultants in the Trauma and Orthopaedics department were told that their compliance with the DRR would be monitored. An investigation subsequently carried out by an external HR consultant found that there had been non-compliance with the DRR by Mr Mbubaegbu and four other consultants, though the findings against Mr Mbubaegbu were the most serious. Disciplinary action was taken and Mr Mbubaegbu was summarily dismissed for gross misconduct and his appeal was not upheld.

The EAT held that it was not necessary for there to be one particular act that amounted to gross misconduct for a summary dismissal to be fair. The disciplinary panel had considered some of Mr Mbubaegbu's actions to be grossly careless and negligent. The repeated process of his unsafe behaviour led to increased patient risks. His actions showed that he was wilful in his approach and the EAT held that these findings clearly demonstrated that the relationship of trust and confidence was undermined. The trust had lost confidence that Mr Mbubaegbu would change his behaviour so as to avoid the risk of the misconduct reoccurring.

Take note: Although the EAT found that the employer had been entitled to dismiss Mr Mbubaegbu where there were no prior warnings and no clear single act of gross misconduct, employers should tread with caution before taking a similar approach. Here a series of acts of misconduct, taken together, amounted to gross misconduct, and the correct focus to take was whether the employee's actions had undermined the relationship of trust and confidence (which, in this case, they clearly had).

This article is taken from HR Law - June 2018.

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