Case law: Employee can be summarily dismissed for gross misconduct following a series of acts, even if none amounted to gross misconduct on its own

Employers will welcome confirmation that a dismissal for gross misconduct can be lawful if there is no one act that amounts to gross misconduct on its own, provided there is a cumulative series of acts which, taken together, undermine the duty of mutual trust and confidence between employees and employers.

A consultant surgeon of 15 years' standing and no previous disciplinary history was dismissed for gross misconduct. This followed an external investigation that found he and four others had not followed new departmental rules, and another investigation in which 17 specific allegations were made against him. By the time his disciplinary hearing took place 16 month later, there had been no further issues.

His claims of unfair dismissal, wrongful dismissal and race discrimination were dismissed. The Employment Appeal Tribunal confirmed that an employee could be summarily dismissed for gross misconduct even though there was no one act that amounted to gross misconduct on its own, provided there was a series of acts that cumulatively did so.

In this case, the disciplinary process had revealed grossly careless and negligent actions, and a final written warning was unlikely to be effective because of the employee's wilful attitude. The relationship of mutual trust and confidence between employer and employee had therefore been undermined, and the dismissal was within the range of reasonable responses by an employer in the circumstances.

Operative date

• Now

Recommendation

• Employers dismissing an employee for gross misconduct in circumstances where there is no act that on its own amounts to gross misconduct, should ensure the dismissal is based on a cumulative series of acts which, taken together, undermine the mutual trust and confidence which employees and employers should have in each other, or the dismissal may be unfair

Case ref: Mbubaegbu v Homerton University Hospital NHS Foundation Trust, UKEAT/0218/17