31 May 2018

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust (UKEAT/0218/17 and UKEAT/0306/17), the Employment Appeal Tribunal had to decide whether a series of misconduct issues could justify a dismissal for gross misconduct.

Facts

Mr Mbubaegbu was a consultant orthopaedic surgeon and was of black African origin. He was employed by Homerton University Hospital NHS Foundation Trust (the Trust) in its Trauma and Orthopaedics department (the TOD). In April 2013 the Trust introduced new Department Rules and Responsibilities (the DRR) to address dysfunctionality in the TOD and various patient incidents. Consultants were told that the Trust would monitor their compliance with the DRR. An external HR consultant later carried out an investigation into compliance with the DRR and found that Mr Mbubaegbu and four other consultants had failed to comply with the DRR. The findings against Mr Mbubaegbu were the most serious. Disciplinary action was taken against three of the other consultants: one was given a first written warning, one was given a final written warning and the other resigned at his disciplinary hearing.

The Trust postponed disciplinary action against Mr Mbubaegbu and another consultant while an associate medical director carried out further investigations. Some eight months later, he was told that disciplinary action was being taken against him in respect of 17 allegations.

Mr Mbubaegbu had worked for the Trust for more than 15 years and had a clear disciplinary record. He was dismissed without notice for gross misconduct and his appeal was unsuccessful. He was the only black African consultant in the TOD. He brought claims in the employment tribunal (ET) for unfair dismissal, race discrimination and wrongful dismissal.

Employment tribunal decision

The ET dismissed the claims. The procedure followed by the Trust was fair and the decision to dismiss was within the range of reasonable responses. There had been a repudiatory breach of contract on the part of Mr Mbubaegbu, warranting his summary dismissal. The ET found that he had been treated less favourably than the other consultants since his behaviour was classified as more serious than that of the other consultants. However this was because of his role as lead for audit, meaning there was a non-discriminatory reason for the Trust's actions and no discrimination.

Mr Mbubaegbu's conduct was referred to the General Medical Council (GMC). It carried out an investigation and decided (after the ET decision was sent to the parties) to close the case with no action since the evidence did not support a conclusion that his conduct or practice was likely to result in a finding of impaired fitness to practise. Mr Mbubaegbu applied for a reconsideration of the ET judgment in the light of the GMC's decision but this was refused.

Mr Mbubaegbu appealed to the Employment Appeal Tribunal (EAT) against the judgment of the ET and its reconsideration decision.

Employment Appeal Tribunal decision

The EAT dismissed the appeal in relation to unfair dismissal and race discrimination but allowed the appeal in relation to wrongful dismissal.

The EAT held that it was not necessary for there to be a single act that amounted to gross misconduct for a summary dismissal to be fair. It was possible for an employer to rely on a series of acts, none of which would on its own justify summary dismissal. It has been previously established that conduct that undermines the trust and confidence in the employment relationship can amount to gross misconduct.

The disciplinary panel had considered some of Mr Mbubaegbu's actions to be grossly careless and negligent, which led to increased risks for patients. The panel had a concern that a final written warning would not be sufficient because Mr Mbubaegbu's actions showed that he was wilful and inconsistent and would not change. The EAT held that those findings showed that the relationship of trust and confidence had been undermined. Dismissal therefore fell within the range of reasonable responses open to the Trust.

There was no error in concluding that the Trust had not discriminated against Mr Mbubaegbu.

As for wrongful dismissal, the test was different from unfair dismissal. The ET had to consider whether the claimant was guilty of a repudiatory breach of conduct. The ET in this case had not addressed the question of whether the breaches were serious enough to justify summary dismissal, and this issue was remitted to the ET.

Finally, the EAT held that the ET's refusal to reconsider its decision after the GMC had made its decision was not perverse. The ET was considering a different legal question from that being decided by the GMC. There was a considerable need for caution before reopening a case on the strength of a regulator's decision and there was a strong interest in the prompt determination of employment claims and the finality of ET judgments.

Comment

This decision is a helpful one for employers, as it confirms that a series of acts of misconduct can be taken together and amount to gross misconduct in some cases, justifying a dismissal without notice. However, it pays to be cautious when considering dismissing an employee who has no previous warnings where there is no clear act of gross misconduct; even if the dismissal is found to be fair, an employer can still be liable for damages for breach of contract if the ET concludes that notice should have been given.

The decision is also interesting since the EAT accepted the Trust's concerns that Mr Mbubaegbu's conduct would not change in the future and that patient safety could be compromised as a result, which justified his dismissal for a first offence.