Can you dismiss an employee if there is no clear act of gross misconduct and a regulator takes no action against the employee?

In the case of Mbubaegbu v Homerton University Hospital NHS Trust, the EAT has found that no single act of gross misconduct is required for a fair dismissal for misconduct.

The Law

Misconduct is a potentially fair reason for dismissal. Case law has established that a misconduct dismissal will only be fair if the employer believed the employee to be guilty of misconduct, it had reasonable grounds for that belief, and it had carried out a reasonable investigation (the ‘Burchell’ test).

Gross misconduct is conduct that undermines the relationship of trust and confidence between employer and employee and warrants dismissal with immediate effect. Most employers do not dismiss unless there is a clear act of gross misconduct for fear of an unfair dismissal claim. Indeed, the Acas Code recommends that employees should usually have at least one chance to improve before any dismissal.  

Facts

Mr Mbubaegbu, a consultant orthopaedic surgeon, was employed by Homerton University Hospital NHS Foundation Trust (the Trust) for 15 years until he was dismissed for gross misconduct. Before his dismissal, Mr Mbubaegbu had an unblemished disciplinary record with no previous warnings.

With the introduction of new rules in April 2013, the Trust told consultants that they would monitor their compliance. Mr Mbubaegbu was subject to an investigation, during which he was not suspended and continued to practice, which found he had committed several acts of non-compliance with the rules.

The investigation report was produced eight months after the initial discovery of non-compliance. At the time of the disciplinary hearing, no further reported incidents in respect of Mr Mbubaegbu had taken place for 16 months.

Mr Mbubaegbu was summarily dismissed for gross misconduct and brought proceedings for unfair dismissal, wrongful dismissal and race discrimination, all of which were dismissed by the tribunal.

Employment Tribunal decision

The Tribunal found unanimously that the procedure the Trust followed was fair. The majority accepted that the disciplinary panel reasonably believed that Mr Mbubaegbu could not be relied upon to change his behaviour in the future and the decision to dismiss was within the range of reasonable responses open to the Trust. However, the dissenting view was that it was not a reasonable response. Some of the disciplinary charges were trivial, and the disciplinary panel had not properly taken into account that no further incidents had occurred from the date Mr Mbubaegbu was informed on the disciplinary matter to the date of his dismissal. Mr Mbubaegbu appealed to the Employment Appeal Tribunal (EAT).

EAT decision

The EAT dismissed the appeal, finding that it was not necessary for there to be one particular act that amounted to gross misconduct for a summary dismissal to be fair. It found that a series of acts demonstrating a pattern of conduct can be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee.

The disciplinary panel had a real concern that a final written warning would not be sufficient because Mr Mbubaegbu’s actions showed that he was willful in his approach. The EAT held that those findings clearly demonstrated that the relationship of trust and confidence was undermined.

Regulator’s determination is not automatically relevant

Mr Mbubaegbu unsuccessfully applied for a reconsideration of the Tribunal judgment on the basis that the General Medical Council (GMC) decided that no action should be taken against him.

The EAT held that the Tribunal’s refusal to reconsider its decision did not cross the high threshold for it to be considered perverse. It held that the Tribunal had to consider a different legal question from that considered by the GMC and so the GMC’s decision was not relevant to the question of unfair dismissal in this case.

The EAT held that there will be rare cases in which it would be appropriate to reconsider a Tribunal judgment in the light of a regulator’s decision, but that this was not such a case.  

Comment

This case highlights the following helpful guidance for employers considering whether summary dismissal is an appropriate outcome when there is no single act of gross misconduct:

• A series of acts of misconduct can amount to gross misconduct in some circumstances.
• The correct focus should be on whether the employee’s actions had undermined the relationship of trust and confidence, not whether one act on its own could amount to gross misconduct.
• Employers should always exercise caution before deciding to dismiss an employee with no prior warnings where there is no clear act of gross misconduct. This case is an example of one turning on its own facts; it will not always fall within the band of reasonable responses to dismiss.
• The decision of a regulator will not necessarily be a relevant factor for the Tribunal in determining, or reconsidering, whether an employee has been unfairly dismissed. Regulated employers can decide on disciplinary sanctions without waiting for regulator determinations or feeling bound to reduce or vary the sanction based on the regulator’s view of the conduct.

For more information

If you require assistance with your disciplinary procedures or processes, please get in touch with your usual contact in our Employment Team or speak to Hannah Bollard.

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