NHS hospital consultant surgeon with unblemished record summarily dismissed even though no gross misconduct

The consequences of summary dismissal from a professional role for misconduct are grave and life disrupting – the abrupt loss of a hard won high status career and earning capacity, possible referral to a Regulator (GMC etc) and intense personal distress. Normally misconduct would have to be extremely serious, or have serious consequences, to justify immediate termination of employment for a first offence. Certainly, it would be reasonable to expect that a previously clean disciplinary record, and the fact that the misconduct was not serious, would merit a lesser penalty such as a high-level warning, providing a chance to improve.

This issue was considered by the Employment Appeal Tribunal (“EAT”) in the case of Mbubaegbu v Homerton University NHS Foundation Trust. Mr Mbubaegbu, a consultant orthopaedic surgeon and audit lead, had a 15-year unblemished record with his employer and there were no concerns about his clinical judgment or abilities. He was highly regarded by colleagues. The department in which he worked was dysfunctional with difficult interpersonal relations between three surgeons. The employer’s Medical Director implemented new Departmental Rules and Responsibilities (“DRR”). The doctors were told that compliance by them with the DRR would be monitored. A subsequent investigation discovered compliance failures by five surgeons, including Mr Mbubaegbu, who was not the worst offender. An investigation into his practice and that of another surgeon took 8 months. He was not suspended at any stage, and no further incidents occurred. He was referred by his employer to the GMC, which in due course found there were no grounds supporting a finding of impaired fitness to practice.

On the conclusion of the employer’s investigation Mr Mbubaegbu was faced with 17 disciplinary allegations. At the disciplinary hearing he was summarily dismissed for gross misconduct. Of the other colleagues facing disciplinary proceeding, one was given a first written warning, one a final warning and a third resigned.

He then brought claims against his employer for unfair dismissal, wrongful dismissal, and race discrimination. All three claims were rejected by the Tribunal (the unfair dismissal claim by a 2 to 1 majority) which ruled that the dismissal was fair, he had not been subject to race discrimination and had not been wrongfully dismissed. He appealed this decision to the EAT claiming, among other things, that the decision to dismiss was outside the range of reasonable responses. He said that there was nothing in the case against him which amounted to gross misconduct, and the employer should not have relied on an aggregation of less serious matters (“a pattern of conduct”) as amounting to gross misconduct.

The judge in the EAT noted the Tribunal finding that the relationship of trust and confidence between Mr Mbubaegbu and the employer had been undermined by his pattern of conduct, and inconsistent responses during the disciplinary hearing. This made it difficult for the employer to be confident there would be a change in behaviour that could be relied on in future. The employer had felt that there was a pattern of conduct which cumulatively raised concerns over patient safety. It was concerned particularly about a breach of policy concerning prescribing aspirin; failures in relation to audit; and failures to document consent appropriately.

The Employment Appeal Tribunal upheld the dismissal as being fair. The judge in the EAT ruled it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee. That may be so even if the employer is unable to point to any act and identify that alone as amounting to gross misconduct.

There is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable or that it is impermissible to rely upon a series of acts, none of which would, by themselves, justify summary dismissal.