There are two particularly interesting cases that I would like to draw your attention to this month. One considers the dismissal of an employee with a clean disciplinary record for a series of misconduct issues, none of which constituted gross misconduct. The other considers whether an employer who dismisses an employee for misconduct, unaware their actions are related to their disability, are liable for discrimination.
The first case, Mr Mbubaegbu v Homerton University Hospital NHS Foundation Trust, is an employment tribunal decision. Mr Mbubaegbu commenced employment with the Trust in 1999 and was a consultant orthopaedic surgeon until his employment terminated on 22 February 2016 for gross misconduct.
There had been some personality clashes between surgeons within the Trauma and Orthopaedic team and, as such, the Department Rules and Responsibilities (DRR) were implemented, outlining rules and reporting requirements. It was made clear that compliance would be monitored and if no improvement was seen then more formal action would be necessary. In early 2014, an investigation was conducted into compliance and failures were identified in respect of five surgeons – including Mr Mbubaegbu.
Four findings were made against Mr Mbubaegbu and a colleague, five findings were made against a third colleague, six against a fourth colleague and seven findings against a fifth colleague. Disciplinary proceedings took place against three of the five surgeons (those with five or more allegations against them). One received a final written warning, one received a first written warning and the other resigned. Further investigation took place in respect of Mr Mbubaegbu and the remaining colleague.
It took eight months for this investigation to be concluded, during which time Mr Mbubaegbu continued to work for the Trust. Disciplinary action was commenced against Mr Mbubaegbu in respect of the four incidents raised in the initial investigation and a further thirteen incidents in the second investigation. At the date of the disciplinary there had been no reported incidents in the previous 16 months. However, the decision was made to terminate his employment and his subsequent appeal was unsuccessful.
An investigation was also conducted by the General Medical Council (GMC) who concluded that there was no evidence to support a finding of impaired fitness to practice and, as such, no action was taken.
Mr Mbubaegbu pursued claims for unfair dismissal, wrongful dismissal and discrimination on grounds of race. These were dismissed by the Employment Tribunal. He applied to the Employment Appeal Tribunal for the decision to be reconsidered in light of the GMC’s decision that there was no evidence to support his conduct which was likely to result in impaired fitness to practice.
The EAT dismissed his appeals for unfair dismissal and race discrimination. With regard to the unfair dismissal claim it held that Mr Mbubaegbu had shown a pattern of conduct which raised concerns over patient safety and, as such, the decision to dismiss fell within the range of reasonable responses. This was despite acknowledging that no single act amounted to gross misconduct.
This case demonstrates that it is possible to dismiss an employee where there are a series of acts of misconduct. However, caution must be taken, and it is essential the that focus should be on whether the employee’s actions have undermined the relationship of trust and confidence. In this case the tribunal found that the employer’s belief was that Mr Mbubaegbu was not capable of change and improvement was unlikely.
The second case is City of York Council v Grosset, which is a Court of Appeal decision. Mr Grosset was employed as a teacher and Head of English at a school operated by the City of York Council. He suffered cystic fibrosis, which his employer was aware of, and it was accepted that his condition constituted a disability. In order to manage his condition, he had to spend up to three hours a day undertaking physical exercise to clear his lungs. Following a change of head teacher, his condition worsened due to an increased workload and the additional stress involved.
During this time, Mr Grosset led two lessons with 15 and 16-year olds, in which he showed an 18-rated film, Halloween. Mr Grosset was subsequently suspended. He argued that showing the film was a momentary error of judgment caused by the stress he was under. His employer did not accept this and dismissed him for gross misconduct.
Mr Grosset brought claims for unfair dismissal and disability discrimination. His claim for unfair dismissal was not successful but the employment tribunal concluded he had suffered discrimination arising from disability. Whilst there was no evidence at the time of dismissal to suggest a link between the misconduct and Mr Grosset’s disability, subsequent medical evidence at the tribunal hearing supported the existence of a link.
The Council appealed the decision but the Employment Appeal Tribunal (EAT) concluded that Mr Grosset’s disability had resulted in the act of misconduct and he had been treated unfavourably, i.e. dismissed, as a result. It further added that it was not necessary for the Council to know that there was a link between the disability and the misconduct. Under the claim for discrimination arising from disability, it was only relevant for the Council to have knowledge of the employee’s disability.
The Council appealed the EAT’s decision to the Court of Appeal which concluded that, in a claim for discrimination arising from disability, an employer does not have to know the conduct (or other thing) that causes it to treat an employee unfavourably (in this case dismissal) results from the disability. The Council’s appeal was dismissed.
This case potentially has huge ramifications for employers. Even when an employer is unaware of a link between the disability and conduct, which causes them to treat an employee unfavourably, they may still be liable for discrimination arising from disability. It is recommended that employers seek medical advice when considering the dismissal of an employee with a disability even if they don’t know of a link between the disability and the conduct. It is also recommended that employers consider whether they can objectively justify the unfavourable treatment, in order to defend a claim.
