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Summary dismissal and misconduct

The recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust provides an interesting insight into the circumstances in which employers can summarily dismiss an employee for misconduct.

 Mr Mbubaegbu, a surgeon, was employed by Homerton University Hospital NHS Foundation Trust for 15 years. Prior to the disciplinary proceedings that led to his dismissal, he had an unblemished disciplinary record with no previous warnings. Following the introduction of new Department Rules and Responsibilities (the DRR) in 2013, Mr Mbubaegbu was informed that his compliance with the DRR would be monitored. An investigation was later carried out which found that there had been non-compliance with the DRR by Mr Mbubaegbu. In total, 17 allegations of non-compliance were made against him during the investigation and Mr Mbubaegbu was subsequently summarily dismissed for gross misconduct, despite the Trust being unable to point to one allegation that, on its own, amounted to gross misconduct.

 Mr Mbubaegbu issued a claim in the Tribunal for unfair dismissal and, when his claim failed, appealed to the EAT. However, the EAT dismissed the claim and held that it was not necessary for there to be one particular act that amounted to gross misconduct for a summary dismissal to be fair. It held: “There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely upon a series of acts, none of which would, by themselves, justify summary dismissal“.

 This case illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. The focus is likely to be on whether the employee’s actions have undermined the relationship of trust and confidence, not whether one act on its own could amount to gross misconduct.

 This is a helpful case for employers. However, employers should be very cautious before using it as justification to dismiss an employee without any prior warnings where there is no clear act of gross misconduct. In this case, the tribunal was entitled to find that dismissal was within the range of reasonable responses open to the employer, however, similar cases will always turn on their own facts. The decision in this case was also impacted by the fact the employer was operating within a regulated industry (the NHS) and Mr Mbubaegbu’s conduct could be used as a benchmark for measuring the conduct of other employees.

Summary dismissal and misconduct

Notice of termination: are you sure your employee has been dismissed?

It is a common misconception amongst employers that notice of dismissal (or in cases where no notice is given, dismissal itself) will take effect on the date the employer writes to the employee to give them notice or inform them of the decision to dismiss. A long line of case law from the Employment Appeal Tribunal (EAT) has established that this is not the case. Where, as is often the case, there is no contractual provision dealing with communication of notice, notice (or dismissal) will take effect on the date on which this is communicated to the employee. This means that, where an employer writes to an employee to give notice or inform them of their dismissal, it is only once the employee has personally taken delivery of the letter that the notice (or dismissal) will be deemed to have been received.
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Notice of termination: are you sure your employee has been dismissed?

Summary Dismissal – Calculating the Effective Date of Termination

In the recent case of Cosmeceuticals Ltd v. Parkin it was held that the effective date of termination (EDT) is not moved if notice is subsequently given following an earlier summary dismissal.
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Summary Dismissal – Calculating the Effective Date of Termination

Watch out for ‘post employment notice pay’

At the moment contractual payments in lieu of notice are subject to tax and NIC deductions. In the absence of a contractual right to make a payment in lieu of notice, such a payment is generally regarded as damages for breach of contract, and can be paid without deduction of tax up to the £30,000 threshold.
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Watch out for ‘post employment notice pay’

Autumn Budget – employment provisions

The Chancellor has spoken and presented his first Autumn Budget.
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Autumn Budget – employment provisions

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity

So, where’s “mutual agreement” on this pension form?

Pensions and Employment speak different languages and as an employer it's important to have a team working for you that understands both. A recent example arose in the Pensions Ombudsman case of Mr. O (PO-7782).
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So, where’s “mutual agreement” on this pension form?

The Fall of Big Sam

Last week, the Football Association (FA) dispensed with the services of its shortest-serving England manager after just 67 days in the role and following only one game in charge. Sam Allardyce (Allardyce) was removed from his position last Tuesday after reports revealed that he advised undercover reporters (posing as businessmen) on how to circumvent the FA’s third party ownership rules. The FA stated that this amounted to a “serious error of judgement” and “inappropriate conduct”, which undermined the integrity of the game.

Allardyce was previously investigated by the BBC’s Panorama for impropriety in 2006 in a programme called “Football’s Dirty Secrets”, when he was accused of accepting bribes from agents to sign players. Reports state the latest revelations are the result of a 10-month investigation by The Telegraph to uncover corruption in football. However, the actions that have led to Allardyce’s departure post-date his appointment to the role. Therefore, the due diligence the FA will have likely undertaken as part of the recruitment process will not have revealed these issues.

There are several measures employers can take during the recruitment process to try and protect themselves against appointing individuals who will bring the organisation into disrepute. For example, employers should:

  • Carry out thorough pre-employment checks to safeguard the organisation and certify the information they are relying on. Employers should be transparent and open with candidates about the process they intend to adopt.
  • Adopt a cautious approach to use of social media when researching candidates’ backgrounds. Employers should ensure that they limit their searches to only target information relevant to the decision whether to employ the individual. Employers should also remember that employment laws on discrimination apply to online and offline checks in equal measure.
  • Undertake due diligence to satisfy themselves that candidates will not discredit the organisation or cause difficulties with colleagues or clients following their appointment.
  • Seek references from previous employers. Where previous employers reference events that occurred several years ago, these might no longer be relevant to a candidate’s suitability. However, where employers are regulated, they may wish to set tougher conditions that must be met to qualify for the role, or include warranties in the contract of employment to cover the risks associated with the information revealed.
  • Consider where their information has come from before using it. Where information is already in the public domain, it may be legitimate for an employer to rely on this. However, employers should not rely on information based solely on rumour or suspicion.
  • Make provision for any specific rules and regulations that will affect the employee.

Where the candidate will be subject to certain regulations, employers may wish to include a clause in the employment contract that encompasses the duties under these regulations. For example, the contract could include a term that states “you will abide by all your duties including all regulatory duties”.

Where an employee’s misconduct only arises after their appointment (or only comes to light following the recruitment process), employers should be careful not to have a knee-jerk reaction and instead assess whether the behaviour in question justifies disciplinary action. Employers should carry out any disciplinary processes in accordance with their policies and procedures to ensure that they take a fair approach. It may be that the employee is simply given a written warning, but, in the most extreme cases, an employer may wish to terminate the employment contract.

If a fixed-term contract does not allow for early termination, an employer can only end the contract early without breaching it if the employee has committed a repudiatory breach of contract. It is reported that the FA has entered into a settlement agreement with Allardyce, though, due to the confidentiality of the agreement, it is not clear on what terms. Had the parties not entered into this mutual agreement, the FA may have been able to justify dismissal without notice on grounds of gross misconduct. To do so lawfully, it would have to show that Allardyce’s actions fundamentally undermined the trust and confidence between himself and the governing body, essentially amounting to a repudiatory breach of contract.

It is unclear at this stage whether The Telegraph’s investigations will thrust any other managers into the headlines: only time will tell. However, any manager who encourages or condones a breach of the FA’s regulations is likely to face severe questioning and, potentially, disciplinary action.

The Fall of Big Sam

Can you dismiss an employee if they have allegedly committed a criminal offence?

An American football team, the San Francisco 49ers, has dismissed its player Bruce Miller following his arrest on suspicion of assault after an altercation about a hotel room. Although both an American and sports related story, it poses an interesting question to employers in the UK … can you dismiss an employee who faces a criminal conviction?

You would first need to consider whether this behaviour was misconduct. There is no outright rule that an employer should dismiss an employee who it is alleged has committed or is found to have committed a criminal offence. The Acas Code of Practice states at paragraph 31 that “if an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”

Some points an employer may want to consider include:
• the seriousness of the offence;
• whether it can leave the job open while the employee cannot work;
• whether the conviction affects the employee’s job (e.g. loss of driving licence); and
• the employee’s refusal to cooperate with the employer’s disciplinary investigations.

Employers should also consider what its employee handbook says on this topic. For example, a typical clause in the handbook may state “a criminal investigation, charge or conviction relating to conduct outside work may be treated as a disciplinary matter if we consider that it is relevant to your employment.” Therefore, the employer will need to review and consider whether an investigation or suspension would be necessary. Responding to an employee’s criminal conviction remains a grey area on which advice should be sought.

Can you dismiss an employee if they have allegedly committed a criminal offence?

Insight: UK Employment Law Round-up – July 2016

In this issue, we look at whether Britain’s decision to leave the European Union is actually likely to have a significant impact on UK employment law.

In our case law review, we will also consider the extent to which without prejudice privilege attaches to protected conversations.
UK Employment Law Round-up – July 2016
There is also some useful guidance from recent case law about the types of dismissal to which the ACAS Code of Practice on Disciplinary and Grievance Procedures applies.

We give comment on the current position in relation to Employment Tribunal fees, and the implication of the equal pay claims brought against ASDA in the Employment Tribunal.

Read the full newsletter here.

Insight: UK Employment Law Round-up – July 2016