The Employment Appeal Tribunal (EAT) has held in Mbubaegbu v Homerton University Hospital NHS Foundation Trust that it is fair for an employer to summarily dismiss an employee for gross misconduct based on a pattern of conduct, even if it could not point to one particular act that amounted to gross misconduct.
Mr Mbubaegbu, the only black African consultant surgeon in the hospital’s trauma and orthopaedics department, enjoyed an unblemished career for over 15 years. In April 2013, the medical director introduced a set of new rules and responsibilities to address problems in the department, which was known to be dysfunctional. The five surgeons covered by the rules were told that they would be monitored for compliance.
A report compiled by an external consultant in 2014 found widespread failure to comply by all the surgeons. Although there were fewer findings against Mr Mbubaegbu, the medical director decided that they were the most serious and a further investigation was carried out, During this time, he was not suspended and continued to practice. He was eventually dismissed in 2016 for gross misconduct, 16 months after the last reported incident of non-compliance. None of the other surgeons were dismissed.
Mr Mbubaegbu brought claims of unfair and wrongful dismissal and race discrimination.
The tribunal panel hearing his claims found unanimously that the procedure followed by the Trust was fair. It also unanimously dismissed his claim of wrongful dismissal on the ground that, by breaching hospital policy, he had committed a repudiatory breach of contract warranting his summary dismissal.
The panel was, however, split, on the question of whether dismissal was within the band of reasonable responses. A majority decided that, as a whole, the allegations against him that were upheld showed a pattern of conduct which raised concerns about patient safety. The minority view was that dismissal was outside the range of reasonable responses as at least two of the allegations were trivial and the hospital had taken insufficient account of the fact that he had not been involved in any further incidents since being told about the disciplinary investigation.
After the General Medical Council decided not to take any action against him, Mr Mbubaegbu asked the tribunal to reconsider its judgment. However, it refused to do so and he appealed to the EAT on a number of grounds.
The EAT dismissed the appeal against unfair dismissal, holding that it was within the range of reasonable responses for the Trust to rely on a pattern of conduct that was sufficiently serious to undermine the relationship of trust and confidence between employer and employee, even if it could not point to a particular act that amounted to gross misconduct. As the Trust believed he could not change his behaviour and had lost confidence in him, it was not unfair to dismiss him after a first disciplinary without giving him an opportunity to improve.
The tribunal was also right to conclude that Mr Mbubaegbu had not been discriminated against. Contrary to his argument that it had failed to stand back and look at the picture as a whole, the EAT held that the tribunal was “alive to the need to consider matters in the round as opposed to taking a purely fragmentary approach”. As it had made extensive findings of primary facts, it had established a sufficient basis from which to conclude that the explanations provided by the Trust were sufficient to discharge the burden of proof.
However, it allowed his appeal on wrongful dismissal as the tribunal had failed to make the necessary findings of fact which could establish that Mr Mbubaegbu’s conduct amounted to a repudiatory breach.