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Dismissal without notice was fair despite no single act of gross misconduct

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In the recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust, the Employment Appeal Tribunal (EAT) agreed with the Employment Tribunal that, in some instances, it is not necessary for there to be one particular act of misconduct that amounted to gross misconduct for summary dismissal to be fair.

In brief, the facts are as follows. Mr Mbubaegbu was a surgeon at Homerton University Hospital. He had been employed for 15 years and had a clean disciplinary record prior to the disciplinary proceedings that led to his dismissal.

Allegations came to light that Mr Mbubaegbu was not following the department’s rules and regulations, and these were investigated by an external HR consultant. Further investigations were then carried out which gave rise to further allegations. In total, the investigations brought to light 22 allegations.

It was decided that disciplinary action would be taken in respect of 17 of the allegations, and following the disciplinary process, Mr Mbubaegbu was summarily dismissed even though not on the allegations on their own amounted to gross misconduct.

The EAT stated as follows:

“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 particular 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”.

So what can we take from this? Well, the decision illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. However, you should always tread carefully here and take advice in respect of the particular facts the same decision is unlikely to be reached in every case.

If you require any further information, you can contact a member of our Employment & HR Team on 01332 340 211.

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