Is it acceptable for an employer to dismiss a member of staff for misconduct without prior warning after multiple issues have arisen, even if none of the individual issues are, by themselves, gross misconduct?
What is considered a reasonable response?
Kate Fretten, a Partner in our Employment Team, says “In short, yes, it is sometimes permissible for an employer to dismiss someone on these grounds. An employer could be said to be acting within the range of reasonable responses if it took a decision to dismiss an employee in whom it had lost trust and confidence in."
Multiple alleged breaches
Let’s consider the facts of a related case as an example. Mbubaegbu v Homerton University Hospital went to the Employment Appeal Tribunal recently.
In this case, the Claimant was a consultant surgeon, of black African origin, Mr Mbubaegbu. He was dismissed for multiple alleged breaches, despite an unblemished career.
The Hospital had introduced internal reporting procedures designed to address a dysfunctional working environment. Mr Mbubaegbu’s colleagues had also faced similar, less serious allegations and none were dismissed.
The tribunal held the dismissal was fair, not discriminatory and not wrongful. There was no single finding of an act of gross misconduct by the Claimant.
Trust and confidence
The tribunal accepted that trust and confidence had been undermined by the employee's conduct.
The Employment Appeal Tribunal noted that "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".
It saw "no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way".
Another issue was whether the tribunal had made a mistake by looking at the discrimination allegations individually rather than cumulatively when deciding if the burden of proof shifted to the employer.
This ground also failed; the Employment Appeal Tribunal was satisfied on a fair reading of the judgment that the tribunal had been "alive to the need to consider matters in the round as opposed to taking a purely fragmentary approach".
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.