• Robert Spicer

Unfair dismissal: gross misconduct: pattern of conduct

UNFAIR DISMISSAL

Pattern of conduct

Case Mbubaegbu v Homerton University Hospital NHS Foundation Trust UKEAT/0218/17/JOJ

Facts M, a black African consultant orthopaedic surgeon, was dismissed for gross misconduct. This followed an investigation into compliance issues in relation to rules and reporting requirements and patient safety. M brought claims of unfair dismissal, wrongful dismissal and race discrimination. The ET dismissed the claims. It ruled that the dismissal was fair, that there had been a breach of contract by M and no wrongful dismissal, and there were no grounds for race discrimination. M appealed to the EAT.

Decision 1. The appeal was dismissed.

  1. The employer’s reliance on a pattern of conduct giving rise to concerns about patient safety as a sufficient reason to dismiss was within the range of reasonable responses. There was no authority stating that there must be single act of gross misconduct to justify dismissal.

  2. The employer believed that M was incapable of change. Not providing an opportunity to improve did not make the dismissal unfair.

  3. The decision in relation to wrongful dismissal had been wrong because the ET had not made the necessary findings of fact to establish a repudiatory breach of conduct by M.

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