Summary dismissal but no single act of gross misconduct

Mbubaegbu v Homerton University Hospital NHS Foundation Trust

The summary dismissal of an employee for a series of misconduct issues was fair (although possibly wrongful), even though no single act amounted to gross misconduct and he had an unblemished disciplinary record.

Mr Mbubaegbu, a consultant orthopaedic surgeon, worked at Homerton Hospital from 1999 until his dismissal for gross misconduct in 2016. Up until the disciplinary proceedings which led to his dismissal, he had had an unblemished career with no question mark over his clinical judgment or abilities and was highly regarded by colleagues. The last incident relied upon had been on 28 July 2014 and he had continued to work up until his dismissal.

The matters giving rise to the finding of gross misconduct arose out of alleged failures to comply with rules and procedures introduced in 2013 to address dysfunctionality in Mr Mbubaegbu’s department and various patient incidents. An investigation took place into five surgeons, two of whom were given warnings, one resigned and the other two, included Mr Mbubaegbu, were postponed. Mr Mbubaegbu was then advised that a second investigation into 22 charges against him was being undertaken by a second investigator. He continued to practice and was not suspended. Disciplinary action was then taken in respect of 17 allegations which resulted in his summary dismissal for gross misconduct. Although several surgeons in his department were subject to disciplinary proceedings (and were sanctioned with warnings), Mr Mbubaegbu was the only one dismissed for gross misconduct. The medical guidelines that had been breached were not legally binding. The General Medical Council decided that no action against Mr Mbubaegbu was warranted as the evidence didn’t support a conclusion that his conduct or practice was likely to result in a finding of impaired fitness to practice. He brought claims of unfair dismissal, race discrimination and wrongful dismissal. It’s only the unfair dismissal and wrongful dismissal issue which we cover here.

A tribunal dismissed all the complaints, finding that trust and confidence had been undermined by Mr Mbubaegbu’s conduct. The majority held 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’. Mr Mbubaegbu appealed.

EAT decision

His appeal against the finding of unfair dismissal was dismissed. Even though the conduct complained of was a first offence and the medical guidelines that had been breached were not legally binding, the EAT held that this did not alleviate the seriousness of Mr Mbubaegbu’s failure to follow established protocol, based on his employer’s perception of this failure and its potential consequences. Nor did it matter that Mr Mbubaegbu’s conduct had improved following the investigation. The EAT’s reasoning is neatly encapsulated in the following paragraph from its judgment:

'Whether or not the label of gross misconduct is applied to such conduct is not determinative. 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. That may be so even if the employer is unable to point to any particular act and identify that alone as amounting to gross misconduct. There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely upon a series of acts, none of which would, by themselves, justify summary dismissal’.

However, with regards to wrongful dismissal, the test is completely different. It is not a question of reasonable belief on the part of the employer and band of reasonable responses. The question is one of fact for a tribunal, having heard all the evidence, as to whether there was in fact a fundamental breach of contract by Mr Mbubaegbu which meant he could be dismissed without notice. The tribunal did not make findings of fact to support this and so the case was returned to the same tribunal to consider the wrongful dismissal point, the EAT making the point that now the GMC findings were available, Mr Mbubaegbu might like to produce these to the tribunal on this point. This was as close as the EAT could come to saying ‘it clearly was a wrongful dismissal’.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0218_17_1805.html

Comment

It has long been the case in constructive dismissal that a series of breaches ending in a final straw can be sufficient for an employee to leave immediately and claim constructive dismissal. Here that line of thinking has been extended to actual dismissals by an employer, where a series of acts which are not themselves gross misconduct, can ultimately justify a dismissal for gross misconduct. In an almost contemporaneous case dealing with a similar issue, Quintiles Commercial UK Ltd v Barongo, the EAT allowed an appeal against a tribunal finding that if something is serious but not gross misconduct, it must be unfair to dismiss for a first offence. Not so said the EAT; s. 98(4) of the Employment Rights Act does not lay down any rule that, absent earlier disciplinary warnings, a conduct dismissal for something less than gross misconduct must be unfair.  It may be that in most cases a tribunal will find that a dismissal in such circumstances falls outside the band of reasonable responses, but it should be careful not to simply assume this is so, as if it were a rule laid down by s. 98(4); it is not.

However, as well as being a claim for unfair dismissal - where the test is based on reasonable belief and band of reasonable responses - Mr Mbubaegbu sensibly included a claim for wrongful dismissal. Here the test is quite different, and it is for the tribunal to hear the evidence and conclude if it was in fact a fundamental breach, irrespective of what the employer reasonable believed.

On balance, this is a decision to be treated with some caution. Although it is likely that other employers will try and run this line of defence, generally speaking tribunals will not be impressed if an employee has received no indication that continuing down a particular course will lead to their instant dismissal. Here Mr Mbubaegbu was very senior, and his conduct was used as a benchmark for measuring the conduct of other employees – the decision may have been different had this not been the case. One for the appeal courts?