Can a dismissal for misconduct without prior warning be reasonable when multiple issues arise, none of which are, by themselves, gross misconduct?
Yes, held the EAT in Mbubaegbu v Homerton University Hospital.
The Claimant was a consultant surgeon, of black African origin. The Hospital had introduced internal reporting procedures designed to address a dysfunctional working environment. The Claimant was dismissed for multiple alleged breaches, despite an unblemished career. His 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.
The tribunal accepted that trust and confidence had been undermined by the employee's conduct. The EAT 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 erred 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 EAT 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".
Thanks to Ed McFarlane of Deminos HR for preparing this case summary
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