Hello and welcome back to your weekly case law update.  Last week’s newsletter had features on the World Cup, dress code policies, the post-Brexit workforce and a barrister who was sacked for spanking. Prior to that, our most recent case law update concerned disability discrimination, unfair dismissal and a teacher who showed the film “Halloween” to his class.

This week we are looking at unfair dismissal and wrongful dismissal. The questions this week are:

  1. Can summary dismissal for gross misconduct following several misconduct incidents, that on their own do not equate to gross misconduct, be fair?
  2. Will a dismissal for circumstances listed in question one be fair if other employees have committed similar, but less serious, offences and not been dismissed?
  3. Will a dismissal for circumstances listed in question one be fair if the Claimant’s regulator believes there is no misconduct?

Mr Mbubaegbu, the Claimant, was a Black African orthopaedic consultant for Homerton University Hospital, the Respondent. Before the incidents that resulted in his dismissal, the Claimant had 15 years’ service with a clean disciplinary record.

The Respondent introduced new procedures which the Claimant, and several other colleagues, failed to comply with. The Claimant, and several colleagues, were also involved in a series of patient incidents. Disciplinary proceedings were then initiated against the Claimant and his colleagues. The Claimant was the only employee to be dismissed. The Claimant was the only Black African consultant.

The Claimant brought unfair dismissal, wrongful dismissal and race discrimination claims before the ET. The ET rejected the claims. Whilst there was no single finding of gross misconduct, the number of individual misconduct offences committed by the Claimant amounted to a breach of the implied term of trust and confidence. As the other employee’s breaches were less numerous and serious the Respondent was entitled to dismiss the Claimant and not his colleagues.

After the ET judgment, the Claimant’s conduct had been referred to the GMC, who regulate medical practitioners. The GMC held that the Claimant’s conduct did not suggest he was unfit to practice. The Claimant applied for the ET to reconsider its decision highlighting the GMC’s findings. The ET rejected the Claimant’s application.

The Claimant appealed the ET’s decision and the rejection of his review application. The EAT rejected the appeal. It held that the ET was right to find that, despite the individual offences not amounting to gross misconduct, the decision to dismiss was within the range of reasonable responses. Likewise, the discrimination finding was also fair. The EAT did rule that the GMC’s findings meant that the dismissal might have been wrongful even if it was fair.

Takeaway point:

Yes, if the employee has committed more numerous and/or more serious misconduct offences then that will mean the conduct warrants more severe disciplinary sanctions, making any dismissal fair. However, the dismissal could be wrongful if the evidence suggests there was no fundamental breach of contract.

The reason a dismissal can be fair but also wrongful is not paradoxical. Unfair dismissal is a statutory right and is based on whether the employer acted reasonably and whether the decision reached was fair. Wrongful dismissal is a contractual right, if there was no breach of contract – such as the implied term of trust and confidence – then the dismissal will be wrongful even if the employer’s reasoning and rationale for dismissal were fair.

In this case, the employer did not have the GMC’s evidence at the time of dismissal – the report came nearly 2 years after dismissal – so their reasoning was fair even if the dismissal was wrongful.