24 May 2018

Employers are generally expected to issue warnings to employees, requiring them to mend their ways, rather than to immediately dismiss for a first offence.

It has been said:

“It is good sense and reasonable that in the ordinary way for a first offence you should not dismiss a man without any warning or giving him a further chance. You should warn him that, if it happens again, it would be an offence for which he should be dismissed.”

Traditionally the exception to that has been cases of gross misconduct; where the employee’s conduct is so serious - even though it is a first offence and no warning has ever been issued - that dismissal is merited.

The recent Employment Appeal Tribunal (“EAT”) decision in Mbubaegbu v Homerton University Hospital NHS Trust considered whether there are other circumstances where dismissal could be justified for an employee with a clean record. The employee in that case had 17 years of unblemished service. His department however was dysfunctional and management issued detailed rules for the surgeons to comply with. Concerns arose in relation to Dr Mbubaegbu and he was faced with 22 allegations at a disciplinary hearing. There was said to be a “pattern of conduct” even though no single allegation was said to amount to gross misconduct. Since the disciplinary allegations had been raised there had been no further incidents giving rise to concern. The employee was dismissed and an employment tribunal held this to have been a fair dismissal.

The EAT did not interfere with that conclusion. They stated that to justify dismissal of an employee with a clean record, it is not necessary to identify one or more acts of gross misconduct, which would merit dismissal in themselves. Where the cumulative or aggregate effect of a number of more minor offences is to cause the employer to fundamentally (and reasonably) lose trust and confidence in the employee, then that indicates that the conduct is sufficiently serious as to justify dismissal. To focus unduly on the phrase “gross misconduct” is not necessarily helpful. Even though the failure to warn the employee formally, denied him the opportunity to improve his behaviour (and his actions since the concerns were raised with him indicated that he likely would have improved) the employer was allowed to treat the “pattern of conduct” as sufficiently serious to dismiss – it was “within the band of reasonable responses”.

While this decision may give some comfort to employers, it also emphasises the need to be clear, when dealing with disciplinary matters, as to the findings against the employee, the impact of his behaviour, and why these are being treated so seriously. As ever, do contact your BTO employment lawyer for guidance on any disciplinary matters you are dealing with.

EAT decision here: Mr C Mbubaegbu v Homerton University Hospitals NHS Foundation Trust 

Contact: Douglas Strang Senior Associate dst@bto.co.uk T. 0141 221 8012