Can smaller offences ever ‘add up’ to gross misconduct?

Usually, most people would tend to associate gross misconduct with situations where an employee has committed one particularly serious act (or omission). Staff handbooks and policies tend to list examples of offences that can amount to potential gross misconduct, and these are generally the most serious, such as theft, fraud and bullying.

In fact, even in the ACAS Code it states that gross misconduct will be where acts (or the consequences of the acts) are so serious that they may warrant dismissal for a first offence.

But in the recent case of Mbubaegbu v Homerton University Hospital, the Employment Appeal Tribunal (EAT) concluded that a collection of more minor acts could be treated as gross misconduct, and this was fair even where other colleagues had faced similar allegations without having been dismissed. So what was the reasoning behind that decision?

Background

Mr Mbubaegbu was a consultant orthopaedic surgeon and described himself as black African. He had 15 years’ service with the hospital, and had an unblemished record.

In 2013 the hospital introduced new rules and procedures to deal with some alleged dysfunction in the department where Mr Mbubaegbu worked. Several employees in the team, including Mr Mbubaegbu, failed to follow these new rules and procedures (such as documentation regarding patient consent) on a number of occasions, and as a result the hospital instigated disciplinary proceedings against them. However, Mr Mbubaegbu was the only one who was dismissed for gross misconduct, and he was also the only black African consultant.

He brought claims for unfair dismissal and breach of contract, as well as race discrimination. Those claims were rejected by the Employment Tribunal, so he appealed to the EAT.

The EAT’s conclusions

Amongst other things, the EAT considered the question of whether there needs to be ‘an act of gross misconduct’ in order to justify a summary dismissal (i.e. a dismissal without notice). They came to the conclusion that the essential question is whether the employee’s misconduct is serious enough to amount to a fundamental breach of the relationship of trust and confidence between employer and employee. The EAT felt that a pattern of minor issues could potentially amount to gross misconduct – there doesn’t need to be one single act. Here, they found that Mr Mbubaegbu’s actions were acts which put patients at risk, and the pattern of incidents made it reasonable in the circumstances for the hospital to conclude that they had lost faith in him not to let similar incidents happen again. Cumulatively, those incidents had undermined the relationship of trust and confidence.

Mr Mbubaegbu’s unfair dismissal and discrimination claims were rejected. His breach of contract claim was sent back to the Employment Tribunal for re-hearing because they had not stated their reasons clearly enough.

What does this mean in practice?

Although the EAT did find that a pattern of more minor issues could amount to gross misconduct, they did also go on to emphasise that “ordinarily” that will not be the case. Therefore we do not expect to suddenly see a trend of summary dismissals based on minor offences! I suspect that the fact that the hospital put their rules and procedures in place to protect patients was a factor in the Tribunal’s decision to take the minor breaches more seriously, which obviously may not apply in other contexts.

Nevertheless, this decision is potentially good news for employers, as it makes it clear that gross misconduct can apply even without one particularly serious act, so it gives more options when dealing with disciplinary cases. It will always be important to consider whether there has been a fundamental breach of trust and confidence – if in doubt, give us a call for advice.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.