Dismissal without warning

One of the potentially fair reasons for dismissing an employee is in response to their misconduct. When someone has an unblemished record, the ACAS Code of Practice on Disciplinary and Grievance Procedures recommends that, unless the employee’s conduct amounts to gross misconduct, the appropriate sanction would usually be a first or final warning. In the recent case of Mbubaegbu v Homerton University Hospital, the Employment Appeal Tribunal (“EAT”) considered whether a series of acts, each of which alone did not amount to gross misconduct, could still justify summary dismissal of an employee with a previously unblemished record.

The Claimant was a consultant orthopaedic surgeon employed by Homerton University Hospital (the “Hospital”). In 2013, the Hospital introduced new rules and procedures to address dysfunctionality in the Claimant’s department. Following an investigation the Hospital decided that disciplinary action was appropriate against the Claimant in connection with 17 occasions on which he failed to comply with these new rules and procedures. This culminated in his summary dismissal for gross misconduct. Prior to the disciplinary proceedings the Claimant had an unblemished record and was well respected by his peers.

The EAT decided that it was not necessary for there to be a single identifiable act of gross misconduct in the circumstances. The series of acts showed a pattern of conduct by the Claimant that had undermined the relationship of trust and confidence between the Claimant and the Hospital and was therefore sufficiently serious conduct to justify summary dismissal. The decision to dismiss therefore fell within the range of reasonable responses of the employer.

The decision is an important one for employers since it confirms that a series of acts of misconduct can amount to gross misconduct justifying summary dismissal in certain circumstances. That said, employers should approach such matters with extreme caution, particularly where an employee has no previous formal warning on record, as the employee’s actions would need to be of a specific nature to have undermined the relationship of trust and confidence between the parties. In this case the employer could show that they had genuine concern that the Claimant’s conduct was wilful and demonstrated he would not change his behaviour which could put his patients at risk.