international employment law firm alliance L&E Global
United Kingdom

UK: “Pattern of behaviour” can amount to gross misconduct

The NHS Trust took disciplinary proceedings against Mr Mbubaegbu, a consultant orthopaedic surgeon, in relation to 17 separate allegations following investigations to tackle dysfunctional behaviour within his department. He was dismissed for gross misconduct and subsequently brought claims, including for unfair dismissal.

The EAT rejected Mr Mbubaegbu’s argument that nothing he had done amounted to gross misconduct, and that the Trust could not rely on a “pattern of conduct” as amounting to gross misconduct. It said a series of acts demonstrating a pattern of conduct may be sufficiently serious as to undermine the relationship of trust and confidence.

The EAT found that some of Mr Mbubaegbu’s acts were grossly careless and negligent, amounting to a pattern and repeated process of unsafe behaviour which led to an increased risk to patients. The relationship of trust and confidence was undermined by that pattern of conduct, and the Trust did not believe Mr Mbubaegbu could change his behaviour and avoid the risk of recurrence of his misconduct. It did not matter that there was not a particular act that on its own amounted to gross misconduct.

If employers intend to rely on an employee’s pattern of conduct to justify summary dismissal, where there is not a single act that constitutes gross misconduct, they must be clear about the grounds they are relying on in their decision to dismiss the employee and that they have considered lesser sanctions but have good reason to believe the employee’s behaviour is unlikely to change. Employers must also ensure they follow a fair procedure.
Mbubaegbu v Homerton University Hospital NHS Foundation Trust