CASE UPDATE: Summary Dismissal Can Be Fair Without a Single Act of Gross Misconduct

Mr Mbubaegbu v Homerton University Hospital NHS Foundation Trust

The Facts

The Claimant, of black African origin, was a consultant surgeon at the Respondent hospital. He was dismissed for multiple breaches of the new internal reporting procedures introduced by the hospital.

The Claimant had worked at the hospital for 15 years, and had not been subject to any disciplinary proceedings prior to those which led to his dismissal for gross misconduct on 22 February 2016. None of the 22 allegations in themselves amounted to gross misconduct.

Several employees in the Claimant’s department faced similar disciplinary proceedings, but the Claimant was the only one dismissed for gross misconduct. He was also the only black African consultant.

The Claimant brought proceedings before the Tribunal on 15 July 2016 alleging he had been unfairly dismissed, wrongfully dismissed and discriminated against due to his race.

The Decision

The Employment Tribunal (“ET”) at first instance dismissed the Claimant’s case on all grounds finding that the Dismissal was fair, not wrongful and there was no discrimination.

An Appeal was then brought before the Employment Appeals Tribunal (“EAT”). The decision was upheld, and the EAT said as follows:

“The Respondent’s reliance upon a pattern of conduct giving rise to concerns about patient safety as a sufficient reason to dismiss was within the range of reasonable responses notwithstanding the fact that there was no single act that could be said to amount to gross misconduct”

The decision means that in some instances, it is appropriate for an Employer to dismiss an employee, despite there being no single act of gross misconduct. The judgment can be summarised as follows:

“It is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficiently 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. There is no authority to suggest there must be a single act amounting to gross misconduct before summary dismissal would be justifiable…”

However, it is important to remember that this decision is specific to the facts, it is therefore important to always take advice if you are considering summary dismissal in similar circumstances.

If you would like further information, contact our Employment Team who would be happy to help.