The dismissal of a surgeon with an unblemished record for a series of misconduct issues was potentially fair, even though no single incident amounted to gross misconduct.

The facts

Mr Mbubaegbu was employed by Homerton University Hospital NHS Foundation Trust as a consultant orthopaedic surgeon for over 15 years.

The department for which Mr Mbubaegbu worked had for some years been dysfunctional. Matters came to a head when the medical director implemented new Department Rules and Responsibilities ("DRR"), which set out rules and reporting requirements. A few months later, an investigation into compliance with the DRR was carried out by an external investigator. The investigation was thorough, and the investigation report drew negative conclusions about five surgeons, including Mr Mbubaegbu. Although there were fewer findings against Mr Mbubaegbu than some of the other surgeons, the medical director considered the findings against Mr Mbubaegbu to be the most serious because he was the audit lead. A further internal investigation about Mr Mbubaegbu's clinical practice, and that of another surgeon, was instituted. This investigation took about eight months, during which time Mr Mbubaegbu was not suspended, and no further incidents occurred. Following the internal investigation Mr Mbubaegbu was told that disciplinary action would be taken against him in respect of 17 allegations: four arising out of the external investigation and 13 from the subsequent internal investigation. After a disciplinary hearing, Mr Mbubaegbu was summarily dismissed for gross misconduct: he was the only surgeon to be dismissed. His internal appeal was unsuccessful.

Prior to the disciplinary proceedings that led to his dismissal, Mr Mbubaegbu had an unblemished career with no question mark over his clinical judgment or abilities, and he was highly regarded by his colleagues.

Mr Mbubaegbu brought claims of unfair dismissal, wrongful dismissal and race discrimination. All claims were dismissed by the employment tribunal. This summary only considers his unfair dismissal claim.

The tribunal found unanimously that the procedure followed by the Trust had been fair. However, the panel did not agree as to whether dismissal was an appropriate sanction. The majority accepted the disciplinary panel's belief that Mr Mbubaegbu could not be relied upon to change his behaviour in the future and that the decision to dismiss was within the range of reasonable responses. A dissenting lay member, however, considered that dismissal was not a reasonable response because 17 of the disciplinary charges were trivial, and (the member believed) the disciplinary panel had not properly taken into account that no further incidents occurred between the date on which Mr Mbubaegbu was informed about the disciplinary matter and the date of his dismissal.

The GMC also investigated Mr Mbubaegbu, but took no action against him on the basis that his conduct or practice was unlikely to result in a finding of impaired fitness to practice. The tribunal rejected an application for reconsideration on the basis of GMC's findings.

Mr Mbubaegbu appealed to the EAT. He said that nothing he had done could amount to gross misconduct, and that the Trust could not rely on allegations that comprised an aggregation of less serious matters – a "pattern of conduct" - as amounting to gross misconduct. He said that the issues complained of were largely related to performance, and could have been managed in a way that did not involve summary dismissal and the "abrupt end of an otherwise successful and blemish free career".

The EAT dismissed the appeal. The judge said that it is possible for a series of acts demonstrating a pattern of conduct to be sufficiently serious to undermine the relationship of trust and confidence, whether or not the employer can point to any particular act and identify that act alone as amounting to gross misconduct. In this case, the tribunal's findings showed quite clearly why the relationship of trust and confidence was undermined: it considered that some of the acts were grossly careless and negligent, amounting to a pattern and repeated process of unsafe behaviour which led to an increased risk to patients. Not only was the relationship of trust and confidence undermined by the pattern of conduct, but also by the fact that Mr Mbubaegbu was inconsistent in what he said during the disciplinary hearing. The Trust had lost confidence that Mr Mbubaegbu could change his behaviour and avoid the risk of recurrence of his misconduct.

The EAT also held that the tribunal's refusal to reconsider its decision in light of the GMC's findings was not perverse. It was too simplistic to argue that the tribunal's conclusions could not stand because the Trust and the CMD's views differed on whether failure to follow guidelines was a serious conduct matter.

What does this mean for employers?

This is a useful case for employers.   The EAT has made it clear that there may be occasions when several incidents, taken together,  amount to gross misconduct and are sufficiently serious to undermine trust and confidence. However, employers should be cautious in their approach to this particularly where no warnings have been given.  They must be able to show that they have considered lesser sanctions, and that they have good reason to believe that the employee's behaviour is unlikely to change. 

The case is also a reminder that the decision of a regulator will not necessarily be relevant in determining or reconsidering whether an employee has been unfairly dismissed.

The EAT also highlighted the difference between the tests for wrongful and unfair dismissal. In this case the tribunal had identified breaches of contract but not addressed whether they were sufficiently serious to justify summary dismissal.  Employers often fall into the same trap in their dismissal letters: summary dismissal letters need to address both the fact that gross misconduct and a fundamental breach of contract have taken place.

Mbubaegbu v Homerton University Hospital NHS Foundation Trust