When is Gross Misconduct Not Gross Misconduct?

Background

A common question raised by clients often regards scenarios where disciplinary investigations have identified a number of acts of misconduct by an employer, however all of the actions fall just short of the common perception of gross misconduct. The employer is generally left in a tricky situation as to whether they should look at the allegations in their totality and which, if any, of those allegations could warrant a gross misconduct finding.

Such claims often end up in a tribunal, with a claimant often pointing to a “witch hunt” by the employer in an attempt to trump up the charges.  When considering whether a dismissal for misconduct is fair, whether it is a single allegation or a number of allegations, a tribunal will generally look to ask itself two questions:

• Did the employer undertake a fair investigation process when reaching the decision to dismiss? and;
  
  
• Did the employer act reasonably in treating the misconduct identified as a sufficient reason for dismissal?

Failure to satisfy one or both of the above limbs would likely lead to a finding of unfair dismissal.  Also, as the tribunal are often keen to point out, it is irrelevant whether or not the tribunal would have dismissed the employee if it had been in the employer's shoes: the tribunal must not "substitute its view" for that of the employer. The focus therefore is on the employer’s actions and what was the genuinely held belief of the employer at the time of the dismissal given the facts available to them.

Mbubaegbu v Homerton University Hospitals

In May 2018 the Employment Appeal Tribunal handed down its judgment in this interesting case involving Mr Mbubaegbu, a consultant orthopaedic surgeon who was dismissed by the Hospital following allegations of misconduct. 

Mr Mbubaegbu had served the hospital for 15 years and had maintained a clean disciplinary record throughout. In 2013 the Hospital introduced new disciplinary rules to address what was considered to be “a dysfunctionality” in Mr Mbubaegbu’s department. As a result of the new rules, a number of individuals, including the Claimant, were investigated and charged with counts of misconduct.

The charges against Mr Mbubaegbu amounted to 17 different allegations including potential negligence and grossly careless actions. After following its internal process, and despite the Hospital being unable to classify any of the allegations alone as gross misconduct, they felt that the sheer number of allegations were, when accumulated, enough to amount to gross misconduct. As a result of the findings, the Claimant was summarily dismissed.  Mr Mbubaegbu was subsequently unsuccessful in an internal appeal. 

As a result of the summary dismissal. Mr Mbubaegbu brought tribunal claims for unfair dismissal, race discrimination and wrongful dismissal.  For the purpose of this article we will only concentrate on the unfair dismissal element of his claim.

At the first instance, the 3 members of the Employment Tribunal were split on their findings.  However in a 2/1 ruling, the Employment Tribunal found that the Hospital’s investigation process was fair and that a gross misconduct dismissal in such circumstances was within the range of reasonable responses open to an employer when faced with the facts of this particular case.  The dissenting view from the minority panel member was that at least two of the 17 allegations were trivial and suggested therefore that a gross misconduct finding was harsh in the circumstances. Despite this, the Claimant lost on all points.

On appeal the EAT upheld the finding of the ET. In his judgment, Employment Judge Choudhury stated that:

“Whether or not the label of gross misconduct is applied to such conduct is not determinative. It is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee. That may be so even if the employer is unable to point to any particular act and identify that alone as amounting to gross misconduct. 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.“

The Tribunal was further concerned with the Claimant’s answers during the disciplinary hearing.  It stated that his continued inconsistency in his responses made matters difficult for the Hospital to feel confident that Mr Mbubaegbu would change his behaviour in the future.  

What should you be doing now?

All HR professionals should be aware of this case and the potential to utilise the findings in the future. Until now, disciplinary chairs and HR have often been reluctant to dismiss where no single element of gross misconduct can be found.   

What does this mean for your business?

Whilst this case is of course good news to employers, it is always recommended that an employer takes advice prior to dismissing an employee with no previous warnings on their record and where none of the allegations amount to gross misconduct.

The case of Mr Mbubaegbu was considered purely on the facts of this case alone and consideration was given to his employment in a regulated profession and patient safety. Ultimately though, this judgment gives scope for consideration by an employer for different acts of misconduct to be considered together to culminate in a breakdown in trust and confidence leading to a finding of gross misconduct.

Recommended Reading

A copy of the Employment Appeal Tribunal’s judgment can be found HERE

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.