Cases concerning gross misconduct usually involve one single act or omission by the employee, however, a recent decision by the Employment Appeal Tribunal (EAT) has confirmed that where there are a series of less serious events, these can be capable of adding up to gross misconduct.
Where an employee has no previous warnings for their conduct, in order to dismiss fairly, the employer would need to show that they had a reasonable suspicion that their misconduct was so serious that it amounted to gross misconduct. Gross misconduct is conduct that undermines the mutual trust and confidence between the employer and employee to the extent that would justify dismissal.
Mbubaegbu v Homerton University Hospital NHS Foundation Trust
This case concerned a consultant orthopaedic surgeon who had worked at a hospital for 15 years without any previous disciplinary warnings. In April 2013, the hospital introduced some new department rules. The purposes of these were to address a dysfunction working environment. The employee, was investigated, along with other colleagues, for breaches of the new rules and he was eventually invited to a disciplinary hearing to consider 17 acts of misconduct against him.
The hospital decided to dismiss Mr Mbubaegbu without notice and he made claims for unfair dismissal, wrongful dismissal and race discrimination. All of his claims were unsuccessful. Despite none of the allegations being serious enough by themselves to amount to gross misconduct, the Employment Tribunal and the EAT, which looked at this issue on appeal, agreed that it was possible for several less serious acts of misconduct to add up to gross misconduct and for summary dismissal to be lawful.
Whilst this case demonstrates that it is possible for the cumulative effect of several acts of misconduct to be serious enough to justify dismissal, employers should be careful not to see this as a green light to dismiss wherever there are two or more allegations against an employee. The EAT stressed that the focus should be on whether an employee’s actions taken together have undermined the trust and confidence in the employment relationship, not necessarily the number of allegations.
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