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.

Elizabeth Marshall

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