Is dismissal fair where there is a pattern of behaviour?

  • Insight

29 June 2018

Mbubaegbu v Homerton University Hospital NHS Foundation Trust

The Employment Appeal Tribunal (“EAT”) has considered whether summary dismissal is fair where there’s been a series of acts of misconduct, none of which alone amount to gross misconduct.

What was the background?

A consultant orthopaedic surgeon was employed for 15 years until his summary dismissal. Prior to the events leading up to his dismissal, he had a clean disciplinary record. The issue arose out of alleged failures to comply with new rules introduced to address dysfunctionality in the surgeon’s department. A disciplinary hearing was held to consider 17 allegations against the surgeon and he was subsequently dismissed. None of the allegations on their own amounted to gross misconduct. The surgeon raised proceedings for unfair dismissal, among other claims.

What was decided?

The disciplinary panel’s belief that the surgeon could not be relied upon to change his behaviour in the future was deemed to be a reasonable belief. The dismissal was therefore fair. The EAT noted 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. This may be so even if the employer is unable to point to any particular act as gross misconduct. The correct approach here is to consider whether the employee’s actions had undermined the relationship of trust and confidence, not whether one act on its own amounts to gross misconduct. Whilst this was found to be within the range of reasonable responses in this particular case, employers should be careful when deciding whether to dismiss where the employee has previously had a clean disciplinary record and no single act amounts to gross misconduct.

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