It can be, said the Employment Appeal Tribunal in the case of Mbubaegbu v Homerton Hospital NHS Foundation Trust.
- Mr Mbubaegbu was a surgeon at Homerton Hospital. He had been employed for 15 years, with a clean disciplinary record, until he was dismissed for gross misconduct.
- He faced 17 allegations at a disciplinary hearing. The allegations related to his failure to follow a number of the Hospital’s departmental rules and processes.
- None of the allegations, on their own, amounted to gross misconduct. However, the Hospital decided Mr Mbubaegbu’s actions were careless and compromised patient safety, and dismissed him without notice.
- Mr Mbubaegbu brought claims for unfair dismissal and wrongful dismissal.
- The Hospital referred Mr Mbubaegbu to the General Medical Council (GMC). The GMC investigated, but did not take any formal action.
What does this mean for employers?
- The decision on the unfair dismissal claim is of some help to employers.
- An employer does not necessarily have to point to a single act and identify that as being gross misconduct in order to justify summary dismissal.
- That said, employers should still take care, as this case definitely does not give them carte blanche to take this approach in all situations. As always, whether a dismissal is fair will depend on the facts of the particular case, and employers will need to think things through carefully.
- It is very unlikely an employer would get away with simply ‘totting up’ a series of minor misdemeanours by an employee with a clean disciplinary record, and then using that to dismiss the employee without notice.
- Even if a dismissal is fair, this case reminds employers that the dismissal could still be wrongful, in which case the employer would be liable for damages.
- The case also illustrates that even if a regulator, such as the GMC, investigates an employee’s conduct and decides the issues are not serious enough to take action against them, an ET may not necessarily reach the same view.
What was decided?
- The Employment Tribunal (ET) dismissed Mr Mgubaegbu’s claims. He appealed to the Employment Appeal Tribunal (EAT).
- For the unfair dismissal claim, the EAT said there is no reason why there has to be a single act of gross misconduct before summary dismissal is justifiable.
- It is possible for a series of acts to be of sufficient seriousness to undermine ‘trust and confidence’ between the employer and employee, and therefore amount to gross misconduct.
- For the wrongful dismissal claim, which is a claim for breach of contract relating to the notice period, the legal test is different. The EAT had to look at whether, in fact, Mr Mbubaegbu had acted in fundamental breach of his contract of employment, rather than what the employer ‘reasonably believed’, which is the test for unfair dismissal. The EAT decided the ET had not looked at this properly, so sent the case back to a new ET to consider the point.