An employer is entitled to terminate the employment contract without notice or pay in lieu of notice where there is an act or omission by the employee which amounts to gross misconduct (known as “summary dismissal”) . The crucial question for the employer before carrying out any dismissal will be whether the employee’s actions were so serious as to amount to gross misconduct? A summary dismissal in response to conduct which is not actually gross misconduct will entitle the employee to claim wrongful dismissal and, if they have the necessary qualifying service, unfair dismissal.

Background

It is unusual but, not impossible, for an employee to be dismissed summarily at a first disciplinary hearing. Generally the misconduct will not be so serious as to justify that or, there will be persuasive mitigating factors which mean a written warning or dismissal with notice are more appropriate sanctions.

The Acas Code recommends that employees should be given one chance to improve before a final written warning is given but, it acknowledges that an employer may dismiss fairly for gross misconduct where no previous warnings have been given (see paras 19 & 23).

Conduct which undermines the employment relationship the so called, “trust and confidence” between employer and employee can amount to gross misconduct.

Latest EAT decision 

The EAT has confirmed a decision by an employment tribunal that a hospital fairly dismissed a consultant following a series of acts of misconduct, even though no single act was serious enough to amount to gross misconduct by itself and the doctor had an unblemished disciplinary record before that point.

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust the EAT accepted that the relationship between parties the been fatally damaged and that the hospital had lost confidence that the doctor would change his behaviour in the future. Therefore a final written warning would not have been appropriate given the pattern of unsafe behaviour which was uncovered in its investigation; this increased patient risks and demonstrated a wilful approach by the individual.

Wrongful dismissal claim to be re-considered

Although the EAT upheld the tribunal’s decision that the dismissal was not unfair, it remitted the case back to the same tribunal to consider further the claim of wrongful dismissal. The test for wrongful dismissal is different to that for unfair dismissal as it involves the tribunal making its own assessment about whether the claimant was guilty of a serious breach of contract so as to justify summary dismissal. The tribunal had not done so in this case finding merely that there has been some breaches of contract by the individual but, failing to rule on whether these were repudiatory breaches amounting to gross misconduct.

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