Summary dismissal fair where no single act of gross misconduct

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Posted on 26 Jun 2018

It was fair to dismiss a consultant orthopaedic surgeon without notice for a series of misconduct issues, even though no single act amounted to gross misconduct. 


In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, Mr Mbubaegbu, a consultant orthopaedic surgeon, was dismissed for gross misconduct after he failed to comply with new rules introduced to address failings in his department.  Prior to the disciplinary proceedings which led to his dismissal he had an unblemished disciplinary record.  

He claimed unfair dismissal but the employment tribunal ruled that the dismissal was fair.  The employer had a fair reason for dismissal and had followed a fair procedure.  The majority of the employment tribunal considered that dismissal was within the band of reasonable responses as the allegations upheld by the employer showed a pattern of conduct which cumulatively raised concerns over patient safety and the employer reasonably believed that it could not rely on Mr Mbubaegbu to change his behaviour in the future.  

Mr Mbubaegbu appealed, arguing that the employment tribunal should have found that dismissal was outside the band of reasonable responses.  There was no single act of gross misconduct and it was not permissible for the employer to rely on the aggregation of a series of less serious matters as amounting to gross misconduct.  


The Employment Appeal Tribunal rejected the appeal.  It is not necessary for there to be a single act amounting to gross misconduct before an employer can dismiss fairly without notice.  Conduct amounting to gross misconduct is conduct which undermines trust and confidence between employer and employee.  That conduct can comprise a single act or several acts over a period of time.  It is quite possible for a series of acts demonstrating a pattern of behaviour to be of sufficient seriousness that it undermines trust and confidence. 

The employment tribunal had found that the employer considered some of Mr Mbubaegbu’s to be grossly careless, amounting to a pattern and repeated process of unsafe behaviour which led to increased patient risks. The employer also had a real concern that a final written warning would not be sufficient because his actions showed that he was wilful in his approach. Those findings clearly showed that trust and confidence was undermined and the employment tribunal had therefore been entitled to find that dismissal was within the band of reasonable responses. 


A summary dismissal may be fair, even though an employer cannot point to a single act of gross misconduct. Where a series of acts demonstrates a pattern of conduct of sufficient seriousness that it undermines trust and confidence, a decision to dismiss without notice may be within the band of reasonable responses.  

This case does not, however, give employers carte blanche to “tot up” a series of minor acts of misconduct in order to dismiss without notice. In most cases where there are acts falling short of gross misconduct it will still be necessary to issue warnings before it is fair to dismiss.

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