Fair Dismissal

Fair Dismissal

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7 Jun 2018

Mr Mbubaegbu, a consultant surgeon, was dismissed by an NHS Foundation Trust after 15 years service and despite not having any previous warnings and not committing gross misconduct.

The Trust introduced a new set of departmental operating standards, but 4 surgeons including M ignored them, in M’s case clocking up numerous breaches that, in the Trust’s opinion, gave rise to patient safety concerns.

While M’s 3 colleagues were disciplined, M was dismissed with the Trust taking the view that M’s pattern of behaviour was unlikely to change and that the accumulation of his breaches of the standards amounted to a fundamental breach of trust and confidence (amounting to gross misconduct) despite none of the breaches in isolation being particularly serious in their own right.

In considering the case the Employment Appeal Tribunal considered a leading judgement from 1978 when Lord Denning said that "while summary dismissal will not ordinarily be the outcome of a first disciplinary hearing, that is not a rule that has to be applied in every case and that there will be cases where it is proper and reasonable to dismiss at once, especially with a man who is determined to go on in his own way."

This case illustrates that a series of acts of less serious misconduct when taken together can amount to gross misconduct, though normally of course we would have expected warnings to precede the dismissal.

Another factor not commented on by other observers it seems was the significance of the EAT’s consideration of Lord Denning’s historical remarks in this case. In a situation where we are faced with an employee who has made it very clear that he will never adhere to a reasonable rule or requirement of him, do we need to step through the warnings from informal to written to final written before affecting the dismissal? In some cases it seems we do not, though a wise employer will rely on this with great caution.

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