Employment Law Case Update: Mbubaegbu v Homerton University Hospital NHS Foundation Trust

Misconduct is a potentially fair reason for dismissal; in considering whether a dismissal for misconduct was fair, the tribunal will ask whether the employer undertook a fair investigation when they reached the decision to dismiss, and whether the misconduct was a sufficient reason for dismissal. A dismissal for misconduct will only be fair if the employer had grounds to believe that the employee was guilty of misconduct, and carried out a reasonable investigation.

In this case, Mr Mbubaegbu was a consultant orthopaedic surgeon employed by the Homerton University Hospital NHS Foundation Trust (the Trust). He had worked there for 15 years and had an unblemished disciplinary record.

From April 2013, new department rules were introduced and the various consultants were informed that their compliance with the rules would be monitored. An external HR consultant carried out an investigation and found events of non-compliance by Mr Mbubaegbu and four other consultants. The findings against Mr Mbubaegbu were considered to be more serious than for the other consultants, although there were fewer incidents.

Mr Mbubaegbu and the other consultants had disciplinary action taken against them (the others had less serious disciplinary sanctions applied to them). Two investigations were carried out, during which Mr Mbubaegbu continued to work, and the final reports were produced eight months later. In the 16 months prior to the hearing, no more incidents occurred. The outcome of the disciplinary hearing was that Mr Mbubaegbu was summarily dismissed for gross misconduct – and his appeal was unsuccessful.

Mr Mbubaegbu brought a claim to the Employment Tribunal (ET) for unfair dismissal, wrongful dismissal and race discrimination. One member of the ET believed that the dismissal was not a reasonable response as a number of the various incidents were trivial and the Trust had not taken the recent absence of incidents into account. However, the majority accepted that the Trust reasonably believed that Mr Mbubaegbu would not be able to change his behaviour and that dismissal was within the Trust’s range of reasonable responses. The ET dismissed all claims.

Mr Mbubaegbu appealed to the Employment Appeal Tribunal (EAT). The EAT stated that it is possible for a series of acts demonstrating a pattern of conduct to be sufficiently serious and could undermine the relationship of trust and confidence between an employer and an employee; even if there was not one sole act which amounted to gross misconduct. In this case, the Trust had found that some of the actions were grossly careless and negligent, which amounted to repeated conduct of unsafe behaviour which put patients at risk. The Trust had lost confidence in him that he could change his behaviour, and so the EAT dismissed the appeal.

It is useful to have authority from the EAT on this issue. It reflects an earlier decision in Neary v Dean of Westminster that conduct which undermined the trust and confidence in the employment relationship could amount to gross misconduct – and conduct could be made up of a single act or several acts over a period of time. The focus was on whether the conduct throughout the course of employment had undermined that trust and confidence, not whether one incident on its own amounted to gross misconduct. This will not be so in every case, however, and employers should be very cautious before deciding to dismiss with no prior warnings where there is no definite act of gross misconduct.

This article is from our weekly Employment Law Newsletter published on 28/06/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.