M was a consultant orthopaedic surgeon at the Trust. He was subject to disciplinary proceedings following an investigation regarding a number of consultants in order to tackle dysfunctional behaviour within M’s department.

Following a disciplinary hearing, M was dismissed for gross misconduct. Whilst other consultants were subject to the investigation, M was the only consultant to be dismissed.

M brought claims for unfair dismissal, wrongful dismissal, race discrimination and victimisation, all of which the Employment Tribunal (ET) dismissed. The ET found that M had not committed any single act of gross misconduct that would have entitled the Trust to dismiss him summarily. However, the Trust relied on a pattern of conduct giving rise to patient safety as a sufficient reason to dismiss him. The ET found that this was within the range of reasonable responses open to the Trust and therefore M’s dismissal was fair.

M appealed to the EAT.

EAT decision

The EAT dismissed M’s appeal against the findings regarding unfair dismissal and race discrimination. In relation to the unfair dismissal claim, the EAT agreed with the ET’s findings that the Trust had been entitled to rely on a pattern of conduct undermining the duty of trust and confidence and thus amounting to gross misconduct. That may be so even if the employer is unable to point to any particular act and identify that alone as amounting to gross misconduct.

In relation to the discrimination claim, M argued that the ET had taken a “fragmentary” approach, looking at the allegations individually rather than cumulatively. The EAT disagreed, however, finding that the ET had not erred in its approach and had recognised the need to consider the issues in the round. 

The EAT did, however, hold that the ET’s reasons were inadequate in finding that M had not been wrongfully dismissed. In its reasoning the ET did not make the necessary findings of fact to establish that there had been a repudiatory breach of contract by M and accordingly the finding of wrongful dismissal could not be upheld. The case was therefore remitted to the original ET to consider this claim.

What to take away

This judgment is a useful one for employers as it confirms that a pattern of conduct on the part of an employee can justify summary dismissal, even where there has not been one single act that constitutes gross misconduct. Employers should take care, however, to make expressly clear the ground or grounds on which they are relying upon when deciding to dismiss, particularly where the misconduct is not clear cut, and ensure that a fair procedure is followed to avoid the risk of a successful unfair dismissal claim.

For further information on how this issue might affect your organisation, please contact Rachel Luddem, Bridget Prosser or Andrew Uttley.