Mbubaegbu v Homerton University Hospital NHS Foundation Trust

An employer may reasonably dismiss for a first disciplinary offence where a series of acts, viewed cumulatively, has undermined trust and confidence and supports a reasonable belief that unsafe conduct will recur. No single act need independently amount to gross misconduct.

That conclusion does not determine wrongful dismissal. The tribunal must make its own findings as to whether the employee committed a repudiatory breach sufficient to justify summary dismissal.

In discrimination claims, an appellate court should read the tribunal's reasons as a whole when assessing whether it considered evidential matters cumulatively. A later regulatory decision will rarely justify reopening an employment judgment unless it is likely materially to affect the outcome.

The claimant, a Black African consultant orthopaedic surgeon, was dismissed for gross misconduct following findings concerning compliance with departmental procedures, audit responsibilities and patient-safety-related incidents. He brought claims for unfair dismissal, wrongful dismissal and direct race discrimination.

The East London Employment Tribunal dismissed all claims. Its finding that dismissal was fair was by majority; it unanimously rejected wrongful dismissal and discrimination. It later refused reconsideration after the GMC closed its investigation without action.

The claimant appealed the merits judgment and the reconsideration decision. The central issues included whether a pattern of conduct could justify dismissal at a first disciplinary hearing, whether the tribunal had made findings sufficient for wrongful dismissal, its approach to discrimination evidence, and the significance of the GMC determination.

1. Appeal allowed in part. The appeal against dismissal of the wrongful dismissal claim succeeded. That issue was remitted to the same Employment Tribunal. The unfair dismissal, race discrimination, comparator and reconsideration grounds were dismissed.
2. A series of acts may, in appropriate circumstances, be sufficiently serious to undermine the employment relationship's trust and confidence. The employer need not identify one act which alone amounts to gross misconduct. The label “gross misconduct” is not determinative. The tribunal was entitled to uphold as reasonable a dismissal based on a pattern of conduct raising patient-safety concerns, combined with the claimant's inconsistent responses and a reasonable belief that improvement could not be relied upon. The fact that this was a first disciplinary hearing did not make dismissal unfair.
3. Wrongful dismissal required a different inquiry. Applying Boardman v Nugent Care Society [2013] ICR 927, the Tribunal had to make its own findings of fact and decide whether the breach was sufficiently serious to justify summary termination. Its findings identified particular contractual breaches but did not determine whether they were repudiatory. The unanimous conclusion was also difficult to reconcile with the minority view that important allegations were trivial. The conclusion that dismissal was not wrongful could not stand.
4. The Tribunal's discrimination reasons, fairly read as a whole, did not show an impermissibly fragmented approach. Its extensive primary findings and its conclusions on the remaining allegations showed that it had considered whether the evidential material cumulatively justified an inference, and whether the employer had supplied non-discriminatory explanations.
5. The GMC's later decision was unlikely materially to influence the result. It addressed a different question and did not materially engage with the employer's concern about the claimant's pattern of conduct, compliance with safety policies and future reliability. Finality and prompt resolution mean that reconsideration following a regulator's decision will be rare. On remission, however, the GMC findings could be adduced insofar as relevant to the Tribunal's own repudiatory-breach determination.

• Employment Appeal Tribunal: Allowed the appeal only in respect of wrongful dismissal and remitted that issue to the same Employment Tribunal.
• East London Employment Tribunal: Dismissed the claims for unfair dismissal, wrongful dismissal and direct race discrimination. It later refused reconsideration following the GMC determination.