Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Dismissal for misconduct without prior warning

The case of Mbubaegbu v Homerton University Hospital considered when dismissal for misconduct without prior warning can be reasonable. It considered whether when multiple issues arise (even if individually they are not gross misconduct) they could collectively be deemed as misconduct. 

The Claimant was a consultant surgeon, of black African origin, with an unblemished career. He was dismissed for multiple alleged breaches of internal reporting procedures. His colleagues had also faced similar, less serious allegations yet none were dismissed.

The EAT held the dismissal was fair, and not discriminatory and not wrongful regardless of the fact that there was no single finding of an act of gross misconduct by the Claimant.

The tribunal accepted that trust and confidence had been undermined by the employee’s conduct and the tribunal confirmed it could see “no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way”.

Legal comment

This is a very important case as often employers have issues where an employee can frequently over step the boundary of what is acceptable, but those individual instances don’t constitute gross misconduct.

This case illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. The EAT considered the correct focus was on whether the employee’s actions had undermined the relationship of trust and confidence, not whether one act on its own could amount to gross misconduct.

However, employers should always exercise caution before reaching a decision to dismiss an employee with no prior warnings where there is no clear act of gross misconduct. In this case, the tribunal was entitled to find that dismissal was within the range of reasonable responses open to the employer. But, this will not be so in every case.


Share