Unfair dismissal and discrimination

Can a series of small acts of misconduct from an employee, over time, amount to a reason for dismissal, despite none of the acts being classed as gross misconduct? Yes – answered the Employment Appeals Tribunal (EAT) in Mbubaegbu v Homerton University Hospital.

Unfair dismissal and discrimination

Mr Mbubaegbu was a black orthopaedic surgeon employed by Homerton University Hospital NHS Trust (the defendant). Mr Mbubaegbu had worked for the hospital for 15 years without receiving any disciplinary warnings. However, in April 2013 the defendant introduced new regulations and informed their staff that their compliance with these regulations would be monitored.

In early 2014, a HR Consultant informed members of staff at the hospital that an investigation into their level of compliance with the new regulations would be taking place. After the investigation was concluded, the report was reviewed, and although Mr Mbubaegbu had fewer instances of non-compliance than his colleagues, his instances were deemed more serious, and following further investigations, Mr Mbubaegbu was dismissed following a disciplinary hearing on 22 February 2016. Mr Mbubaegbu brought a claim for unfair dismissal, wrongful dismissal and racial discrimination.

The Judgment

Although one member of the Employment Tribunal (ET) felt that dismissal was an unreasonable response to the conduct of Mr Mbubaegbu, the majority of the ET felt that Mr Mbubaegbu would be unable to change his behaviour and that dismissal was therefore a reasonable response.

Mr Mbubaegbu appealed the judgment to the Employment Appeals Tribunal (EAT). The EAT, dismissing the appeal, held that an employer is entitled to dismiss an employee where there exists a pattern of misconduct which is sufficiently serious so as to undermine the relationship of mutual trust and confidence between the two parties.

In applying that reasoning to this case, the EAT found that some of Mr Mbubaegbu’s acts were “grossly careless and negligent” and owing to their repeated nature, had the effect of causing the defendant to lose confidence in Mr Mbubaegbu. The appeal was dismissed on these grounds.

What does this mean for you?

To summarise, whilst this judgment suggests that an employer has greater scope to dismiss employees where a pattern of behaviour occurs, which when taken together has serious consequences and causes the employer to lose confidence in the employee, however this only applies in the following specified circumstances :

• The employer must make clear to their employees any changes in the way in which their compliance with company regulations is monitored;
• any instances of non-compliance must be sufficiently serious so as to undermine the relationship of mutual trust and confidence which exists between employees and their employers;
• the employee's lack of compliance with company regulations must amount to a pattern of behaviour which, when judged by reasonable standards, is unlikely to change;
• when a pattern of behaviour is identified the normal dismissal process should be followed and the employee should be invited to a disciplinary hearing; and
• crucially, this judgment should not be taken as a way to replace the traditional disciplinary procedure for scenarios where an employee has been responsible for a series of unrelated instances of misconduct.

As a result of this judgment, businesses should consider taking the following actions:

• Ensure all your employees are aware of company guidelines and what behaviour would be classified as an instance of non-compliance, and therefore misconduct;
• contact an HR Specialist or Employment Solicitor to review their existing guidelines to ensure they are sufficiently clear; and
• continue to communicate with, and train, their staff. This reduces the risk of litigation and ultimately reduces the risk of having to pay any form of damages.

If you require assistance with any of the topics discussed in this article, you can contact Susan Mayall on 0161 684 6948 at your earliest convenience.

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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