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Home > News > Unfair Dismissal – summary dismissal where no single act of gross misconduct.

Unfair Dismissal – summary dismissal where no single act of gross misconduct.

16 May 2018 | Nick Jones

Nick Jones, Associate Director and solicitor in GL’s Bristol employment team considers the recent Employment Appeal Tribunal case of Mbubaegbu v Homerton University Hospital.

Ordinarily, employers will only summarily dismiss an employee where there is one single identifiable act of gross misconduct. But does that have to be the case every time? Can a dismissal without any previous disciplinary warning be a fair dismissal when multiple issues of misconduct arise, even if none of those issues is a single act of gross misconduct?

The Facts

The Claimant was a consultant orthopaedic surgeon, who had been employed for over 15 years. He had an unblemished career and was highly regarded by his colleagues.  He was however dismissed on 22nd February 2016 for gross misconduct arising from a series of alleged failures to comply with internal rules.  The Employer had introduced these rules in 2013 due to the department where the Claimant worked being ‘dysfunctional’.  Investigations were then conducted in 2014 and 2015 to assess the extent to which the internal rules were being complied with.  The investigation identified that the Claimant had breached the rules on several occasions, but no single identifiable act of alleged gross misconduct was identified.

The Claimant claimed, among other things, unfair dismissal. His claims were heard over 10 days before the East London Employment Tribunal, but were dismissed.  The Claimant therefore appealed.

The Appeal

The Claimant argued that it was unfair to dismiss for misconduct after a first disciplinary hearing without first taking steps to improve the Claimant’s conduct through disciplinary action short of dismissal (i.e. giving a warning). It was argued that in the absence of a single specific act of gross misconduct it would generally be unfair to dismiss at the first disciplinary hearing.  The Claimant asserted that the issues complained of were largely ones of performance which could have been easily managed in a way that did not warrant summary dismissal, which had the effect of bringing to an end an otherwise successful and blemish-free career.

However, the Employment Appeal Tribunal (EAT) did not agree, and concluded that it was 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. The EAT stated that there is no case law to suggest that there must be a single act of gross misconduct before summary dismissal would be justifiable.  It was possible to rely upon a series of acts, none of which would by themselves, justify summary dismissal.  Gross misconduct could be a single act or several acts over a period of time, sufficient to undermine the trust and confidence necessary in the employment relationship.

Comment

The decision is not authority for employers to deliberately build a case to find sufficient ammunition against an employee to dismiss. It should also not be relied upon where an employer has stored up a series of relatively minor acts of misconduct in an effort to combine them into creating a situation where it can summarily dismiss.  However, if during an investigation an employer becomes aware of several matters, which independently would not amount to gross misconduct, but which taken cumulatively result in a breach of trust and confidence, then an employer will be able to fairly and summarily dismiss.

If you have any queries or issues arising from this article please don’t hesitate to contact our Employment Team.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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