When does conduct amount to “gross misconduct”?

When does conduct amount to “gross misconduct”?

Dismissing an employee for gross misconduct is the ultimate sanction. It means that the employee’s misconduct is so serious that the employer can terminate the contract with immediate effect without notice or payment in lieu.

The Acas Code of Practice on Disciplinary and Grievance Procedures describes acts of gross misconduct as being ‘so serious in themselves or hav[ing] such serious consequences that they may call for dismissal without notice for a first offence’. Examples of this, as defined in the Acas Guidance on disciplinary matters include acts of theft, fraud or physical violence.

In the case of Mr C Mbubaegbu v Homerton University Hospital NHS Foundation Trust, the Tribunal had to decide whether an employer could summarily dismiss (which is only allowed in serious cases of gross misconduct) an employee where there was no single act of gross misconduct.

Facts of the case

Mr Mbubaegbu (‘M’) was employed by Homerton University Hospital NHS Foundation Trust (‘Trust’) as a consultant orthopaedic surgeon. He was employed by the Trust for 15 years. Until his dismissal, he had no prior disciplinary warnings.

Around 2013, the Trust introduced new rules to address concerns about interpersonal relations between surgeons in the orthopaedic department. The department was deemed to be dysfunctional, which led to concerns about patient care. In 2014, an external HR consultant was appointed to investigate compliance with the new rules and her report identified a number of concerns. A further investigation was conducted and M and several of his colleagues were invited to disciplinary hearings. Although M was not the least compliant with the new rules, his non-compliance was treated more seriously because he was Audit Lead. He was dismissed from his post and subsequently brought claims for unfair dismissal, wrongful dismissal and race discrimination.

At first instance, the Employment Tribunal (‘ET’) dismissed M’s claims, accepting the Trust’s conclusions that M’s conduct raised concerns over patient safety, he continued to pose a risk to patients and that they were not satisfied his behaviour would improve in the future. M appealed.

M argued that his dismissal was unfair because none of the allegations against him amounted to an act of gross misconduct. Furthermore, some of the issues were performance related and he should have been offered support to address those rather than being dismissed. He also noted that the Trust had not suspended him from his duties prior to dismissal.

The Employment Appeal Tribunal upheld the ET’s findings confirming that the dismissal was fair. It found that an employer could dismiss an employee where there was a pattern of behaviour, not only a single act, which had led the employer to lose trust and confidence in the employee. There was no authority to suggest that dismissal for gross misconduct could only be justified in relation to a single act.

Impact of this case

This case is a useful judgement for employers struggling to manage unruly employees. The case shows that gross misconduct can be a single act or a series of acts over a period of time. However, this is a developing area of law and the Tribunal will consider each case on its own facts and circumstances. It is essential that a fair and reasonable disciplinary process is followed prior to issuing any disciplinary sanction, especially when dismissal is being contemplated.

How Blaser Mills Law can help

If you would like more information on the effect of this case or on the termination of employment in general, join us at our termination of employment seminar on Thursday 29th November.

Click HERE to register.

In the meantime, if you have any questions about this case or any aspect of employment law, please do not hesitate to contact Debbie Sadler on 01494 478671 or at djs@blasermills.co.uk