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Home » Latest News » Can a summary dismissal be fair without a single act of gross misconduct?

Can a summary dismissal be fair without a single act of gross misconduct?

Can a summary dismissal be fair without a single act of gross misconduct?

Yes, said the EAT in Mbubaegbu v Homerton University NHS Foundation Trust.

BUT, this case comes with a health warning…the facts are unusual and although it is a preferential case for employers, care should be taken before reliance is placed on it.

In this case, Mr Mbubaegbu, a consultant orthopaedic surgeon with an unblemished record was dismissed summarily over 17 incidents of misconduct. Not one act in itself constituted gross misconduct. However, the NHS Trust felt that taken as a series of incidents, he failed to demonstrate in the disciplinary hearing that he had learnt from his mistakes or was willing to change. This led to a finding of gross misconduct based upon a breakdown in the mutual obligation of trust and confidence.

Mr Mbubaegbu worked in the Homerton NHS Trust for over 15 years. During 2013, new rules and responsibilities following concerns over patient safety were implemented and staff were informed that they would be monitored. Following an initial investigation, there had been non-compliance by 5 consultants including Mr Mbubaegbu. A subsequent investigation followed into Mr Mbubaegbu and one other.

The disciplinary process took 16 months to complete. In that time there were no further reported incidences of non-compliance and Mr Mbubaegbu continued to practice. However, at the end of the disciplinary process, he was summarily dismissed. He was unsuccessful on appeal.

Mr Mbubaegbu brought claims for, amongst other things, unfair dismissal in the ET. The ET held by a majority that his dismissal was fair so Mr Mbubaegbu appealed to the EAT.

The EAT upheld the original judgment. It concluded that the pattern of behaviour which gave rise to the concerns regarding patient safety was a sufficient reason to dismiss and found that it was within the band of reasonable responses. The EAT went on to confirm that there is nothing to say that there must be a single act of gross misconduct to justify a summary dismissal. Conduct, which, if it is determined to be “sufficiently serious” to undermine the relationship of trust and confidence can also be sufficient to justify summary dismissal.

This case is unusual and does turn on the facts so before you rely on it to dismiss an employee summarily for acts of misconduct, please speak to Joanne Wright or your usual Employment specialist.