Multiple Instances of Misconduct Could Justify Summary Dismissal Without Prior Warning
In a recent decision, the Employment Appeal Tribunal ('EAT') has confirmed that multiple instances of misconduct can be accumulated to justify summary dismissal even where the employee has a prior clean disciplinary record.
In the case of Mbubaegbu v Homerton University Hospital, the Claimant was a consultant orthopaedic surgeon who was investigated for non-compliance with internal rules, giving rise to concerns about patient safety. Following a disciplinary hearing, the Claimant was summarily dismissed even though none of the singular allegations amounted to gross misconduct. Prior to his dismissal for gross misconduct, the Claimant had been employed at the hospital for 15 years and had an unblemished record.
The Claimant brought proceedings for unfair dismissal, wrongful dismissal and race discrimination, all of which were dismissed by the Tribunal. Following the Tribunal decision, the GMC, investigating independently, decided that no action should be taken against the Claimant. The Tribunal rejected the Claimant's application for a reconsideration of its judgment in the light of the GMC decision, following which the Claimant appealed to the EAT.
EAT Decision
The EAT dismissed the appeals in relation to unfair dismissal and the Tribunal's refusal to reconsider following the GMC investigation finding. The EAT stated that it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee such that summary dismissal might be justified in the circumstances.
However, the EAT ordered the wrongful dismissal claim to be remitted to the same Tribunal for reconsideration. It found that the Tribunal had relied on its finding that the dismissal had been fair when determining whether the Claimant should have been his notice pay. This was not the correct approach - the Tribunal should have made separate findings of fact as to whether the acts of misconduct were sufficiently serious to amount to a breach of contract justifying summary dismissal. The EAT also held that the GMC findings could be taken into account at the reconvened hearing.
Best Practice
This decision demonstrates that it is not always necessary to identify a single act of gross misconduct in order to justify summary dismissal. It may be appropriate to consider the cumulative effect of a series of acts of misconduct where the relationship of trust and confidence between employer and employee is undermined. The facts of each individual case will be important in determining the correct approach.
The EAT's decision may be used to strengthen an employer's position that accumulated misconduct can damage trust and confidence in the employee. However, it remains sensible not to rely solely on trust and confidence in order to justify a decision to dismiss an employee but rather include it as an additional ground where appropriate.