Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/02018/17/JOJ
Why care?
In this case, the judge held that an employer is entitled to dismiss an employee for gross misconduct after a series of acts which, when taken together, can be considered gross misconduct even if none are sufficiently serious on their own.
An employee commits gross misconduct when he or she behaves so wrongly the employer can no longer be expected to employ the employee. Examples include dishonesty, an intent to damage the employer's business, a deliberate intent to break the rules of the employment contract, or gross negligence, and it must be so bad that it is reasonable to dismiss without warnings or opportunities to improve.
All employment contracts contain an implied (unwritten) term of mutual trust and confidence between employer and employee. This is fundamental to the relationship and binding on both parties. They must not behave in a way which is intended or likely to destroy or serious damage trust and confidence between them without reasonable cause to do so. If the employer breaches this term, the employee is entitled to immediately resign and claim constructive dismissal; if the employee breaches it, the employer is entitled to dismiss him or her without notice (although, if the employee has more than two years' service, the employer will be at risk of a procedurally unfair dismissal if it does not follow a proper dismissal process before doing so).
The case
The Claimant was a consultant orthopaedic surgeon employed by the Respondent for more than 15 years with an unblemished record before his dismissal for gross misconduct in February 2016.
The Respondent introduced new rules and procedures in 2013 "to address dysfunctionality in the Claimant's department and various patient incidents", the last of which was in July 2014. An HR consultant carried out an investigation into his department in 2014 and in 2015, there was an investigation into his clinic practice which was followed by disciplinary proceedings against the Claimant. Although some of the Claimant's colleagues were also subjected to disciplinary proceedings, he was the only one dismissed for gross misconduct. He was also the only Black African consultant. He brought claims for unfair dismissal, wrongful dismissal and race discrimination.
The Employment Tribunal rejected all his claims (although in the case of the unfair dismissal claim, only by a majority that dismissal was within the range of reasonable responses).
The GMC concluded that the evidence did not support a conclusion that his conduct or practice was likely to result in a finding of impaired fitness to practice, and closed the case. The Claimant applied to the Employment Tribunal for a reconsideration of its judgment, which was also refused.
The Claimant appealed to the Employment Appeals Tribunal (EAT) against both decisions of the Employment Tribunal.
The EAT (Choudhury J) dismissed his appeals in respect of unfair dismissal and race discrimination, but remitted the wrongful dismissal claim to the Employment Tribunal.
The EAT held that, as the Employment Tribunal had identified, gross misconduct arises where there are sufficient matters to undermine trust and confidence between employer and employee. Previous case law had held that, as a matter of fact, a series of acts of misconduct may together in appropriate circumstances amount to gross misconduct, even if no single act alone amounts to gross misconduct. An employer may rely upon a series of acts which are not gross misconduct, but taken together breach the implied term of trust and confidence, and dismiss without notice.
Here, it was not a case of the employer "collecting sufficient ammunition… to dismiss", but rather that the employer, having examined the pattern of actions which it believed put patient safety at risk, had lost confidence that the employee would not behave that way again. The dismissal could not feel sure that the Claimant would change his behaviour not only because of the series of acts which it considered to be a risk to patients, but because of his inconsistent responses during the dismissal process itself.
In those circumstances, there is no reason why an employer would be acting outside the range of reasonable responses were it to dismiss.
What to take away
A series of acts may, together, amount to a breach of trust and confidence. That can be gross misconduct, even if no one act amounts to gross misconduct on its own.
A breach of the implied term of trust and confidence does not mean that the employer has simply lost confidence in the employee's ability to do his or her job; that is a matter of capability not conduct. In this case, the judge considered that the claimant's actions, which had put patient safety at risk, and which showed a lack of capacity to change, were sufficiently serious to breach the implied term.
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