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02 July 2018

104: Employee was fairly dismissed for a series of misconduct incidents even though no single act amounted to gross misconduct

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, the Employment Appeal Tribunal (EAT) held that dismissal of a surgeon for a series of incidents of misconduct was fair even though none of those acts individually amounted to gross misconduct. The EAT also held that the Tribunal did not need to reconsider this decision in the light of the GMC’s conclusion that it would take no regulatory action against the surgeon.

Mr Mbubaegbu was a consultant orthopaedic surgeon with 15 years’ unblemished service. Mr Mbubaegbu and his colleagues were monitored in order to assess their compliance with revised departmental rules and responsibilities. An investigation by external HR consultants found non-compliance with the new requirements by Mr Mbubaegbu and four other consultants. Although there were fewer findings against Mr Mbubaegbu, the departmental medical director considered that they were the most serious. Further investigations took place during which Mr Mbubaegbu continued to practise.  Disciplinary action was then taken against him in respect of 17 allegations.  He was subsequently summarily dismissed for gross misconduct. At the time of the disciplinary hearing, he had been working for 16 months with no further concerns being reported. Mr Mbubaegbu brought various claims, including a claim for unfair dismissal.

The Employment Tribunal found that Mr Mbubaegbu had been fairly dismissed. The Tribunal noted that the disciplinary panel had considered some of Mr Mbubaegbu’s actions to be grossly careless and negligent, amounting to a repeated pattern of unsafe behaviour which increased the risks to patients. The panel was also concerned that a final written warning would not be sufficient because Mr Mbubaegbu was wilful in his approach. Although there was no single act of gross misconduct, the individual offences of misconduct clearly amounted to a breach of the implied term of trust and confidence and dismissal was within the range of reasonable responses.  It was also fair to dismiss Mr Mbubaegbu, and not his colleagues, because his breaches were more numerous and more serious. The Tribunal rejected an application by Mr Mbubaegbu for reconsideration of its judgment in light of the GMC’s subsequent conclusion from its own investigation that his fitness to practise was not impaired.

On appeal, the EAT agreed that the dismissal was fair. It confirmed that a series of acts which demonstrates a pattern of conduct can be sufficiently serious to undermine the relationship of trust and confidence between employer and employee, even where no single act amounts to gross misconduct on its own. Although summary dismissal will not usually be the outcome in a first disciplinary hearing, in this case, the employer had lost confidence that the employee would change his behaviour so as to avoid the risk of the misconduct reoccurring. The EAT also upheld the Employment Tribunal’s refusal to reconsider its judgment in light of the GMC’s decision, noting that the Tribunal and the GMC had to apply different legal tests and that it would only be in rare cases that reconsideration would be appropriate following the decision of a regulatory body.

Although this case illustrates that a series of acts of misconduct can, when taken together, amount to gross misconduct, employers should always proceed carefully since it may be difficult to persuade a Tribunal that dismissal was within the range of reasonable responses in these circumstances. It is also useful to note that the findings of a regulatory body will not always be relevant to a Tribunal’s consideration of unfair dismissal since different legal tests apply.

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