UK: Summary Dismissal Fair Because A Series Of Acts Undermined Employer's Trust And Confidence In Employee

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, the EAT held that a dismissal for a series of acts was fair as it was within the band of reasonable responses, ven though none of those acts on its own amounted to gross misconduct. However, the case was remitted to the employment tribunal to reconsider whether the claimant had been wrongfully dismissed.

Mr Mbubaegbu was a consultant orthopaedic surgeon with 15 years' service for his NHS employer. He was clinical audit lead for his department. New rules were brought in to his department following dysfunctional interpersonal relationships and concerns that clinical audits were not being properly carried out. The consultants were informed that compliance with the new rules would be monitored. Non-compliance was alleged against Mr Mbubaegbu and some of his colleagues. These allegations were investigated and disciplinary action, short of dismissal, was taken against other consultants. Further investigations were carried out and it was decided that disciplinary action should be taken against Mr Mbubaegbu in relation to 17 allegations. He was summarily dismissed.

Mr Mbubaegbu was not suspended from practice during the investigations. At the time of his dismissal, he had been working for a period of 16 months without any further concerns being reported.

Mr Mbubaegbu brought claims of unfair dismissal, wrongful dismissal (for his notice pay) and race discrimination. The employment tribunal dismissed all of his claims. It found by a majority that it was within the band of reasonable responses for the employer summarily to

dismiss on the basis that the employer reasonably believed: the employee's behaviour had at times been grossly careless; this had led to increased risks to patients; that the employee had been wilful in his non-compliance; and that he could not be relied upon to change his behaviour in the future. The dissenting member expressed her view that the decision to dismiss was not within the band of reasonable responses because a number of the allegations were trivial and the tribunal had failed to take into account the evidence that the claimant had continued to work for some time without any further reports of non-compliance since he had been notified of the disciplinary process.

The EAT agreed that the dismissal was fair. It clarified that gross misconduct is conduct which undermines the employer's trust and confidence in the employee (Neary v Dean of Westminster [1999] IRLR 288). It noted that there is no authority to suggest that there must be one single act which amounts to gross misconduct to justify summary dismissal and that it is possible for a series of acts which demonstrate a pattern of conduct to be sufficiently serious to undermine the relationship of trust and confidence. It made clear that this can be the case even where none of the acts in the series would be gross misconduct on its own.

However, the EAT held that the tribunal had not properly considered the wrongful dismissal claim and remitted this claim to the same employment tribunal. The EAT highlighted that the tests for unfair and wrongful dismissal are different. For unfair dismissal, the tribunal must consider whether the decision to dismiss was within the band of reasonable responses of a reasonable employer. For wrongful dismissal, the tribunal must make its own decision on whether the employee committed a fundamental breach of contract.

The EAT also had to consider the implications of a General Medical Council decision that no regulatory action should be taken against Mr Mbubaegbu. The claimant had asked the tribunal to reconsider its judgment on the basis of the GMC's decision. The tribunal rejected this application.

The EAT upheld the employment tribunal's decision. It pointed out that the tribunal and the GMC had to consider different legal questions and stated that it would only be in rare cases where reconsideration would be appropriate following the decision of a professional regulator.

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