Can a series of misconduct issues constitute gross misconduct?

Neha Sarin reports on an EAT ruling regarding a surgeon who failed to comply with rules and procedures but did not receive warnings about his actions

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, the claimant, who worked as a consultant orthopaedic surgeon at the Homerton University Hospital in London for more than 15 years, was dismissed for gross misconduct. This resulted from his repeated failure to comply with the hospital’s rules and procedures, introduced to address patient incidents and other dysfunctionality within his department. 

It was made clear by the hospital that relevant rules must be followed and where no improvement was seen, formal action would follow. Disciplinary action was also brought against other consultants for similar non-compliance, but only the claimant, who was the sole black African consultant, was dismissed. The hospital found that as the claimant had a role in audit, he carried more responsibility than his counterparts. His actions were perceived as serious enough to warrant dismissal. The claimant’s appeal against his dismissal was rejected. 

Notably, the claimant had a clean record and had not received any prior warnings for his failure to comply with the hospital’s procedures. At first instance, the tribunal dismissed the claims brought by the employee for race discrimination, unfair dismissal and wrongful dismissal. 

Although the EAT found that the tribunal had erred in finding that the dismissal was not wrongful, it upheld the tribunal’s decision that the treatment of the claimant was not discriminatory and the hospital had a fair reason to dismiss the employee. The decision to dismiss the claimant was found to be within the range of reasonable responses. The hospital had relied on a pattern of conduct raising concerns over patient safety. This was found to be serious enough to undermine the implied duty of mutual trust and confidence, justifying summary dismissal – even though there was no single act by the claimant, which in itself amounted to gross misconduct. 

What the decision means

It is common to come across employees who have a pattern of conduct of sufficient seriousness, which breaches the relevant rules and procedures in place. Employees are far less likely to be guilty of a single act of gross misconduct, which would entitle the employer to terminate their employment summarily. 

Examples of acts which may normally be regarded as gross misconduct include: theft, abuse of drugs, deliberate damage to the employer's property and physical violence. As we would expect, these are not common scenarios at work. 

This case will be helpful for employers, but it must be approached with caution as every case is determined on its individual facts. The tribunal may not reach the same decision in every case. 

Employers must continue to carry out a fair investigation and procedure, and be prepared to justify a dismissal for misconduct. Employers should have a disciplinary policy in place, which should be kept up to date.

Employers should also continue to exercise caution when dismissing an employee for a pattern of conduct without any warnings. Where possible, employees should be provided with appropriate warnings to give them a chance to improve prior to considering more serious disciplinary sanctions.

Employers should impose disciplinary sanctions on employees in a manner that is fair and consistent. Where the employer has taken disciplinary action against more than one employee for the same or similar acts of misconduct, they must justify their decision if one employee is given a different outcome than the other. Failure to do so may expose the employer to various claims, including for discrimination. 

Neha Sarin is a solicitor at Thrings