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Summary dismissal deemed fair despite no single act of gross misconduct

In a recent case, the Employment Tribunal decided that a hospital trust fairly dismissed a consultant orthopaedic surgeon with a previously clean disciplinary record as a result of a number of issues of misconduct, where no single issue amounted to gross misconduct.

The facts

Mr M was a consultant orthopaedic surgeon for 15 years until he was dismissed for gross misconduct. Prior to the disciplinary proceedings that led to his dismissal, Mr M had an unblemished disciplinary record with no previous warnings. 

During his employment new Department Rules and Responsibilities (the DRR) were introduced and consultants were informed that their compliance with the DRR would be monitored. An investigation was subsequently carried out by an external HR consultant. The investigation found that there had been non-compliance with the DRR by Mr M.

Disciplinary proceedings against him were postponed pending further investigation. An investigation into 22 further charges against Mr M was carried out. During the investigation Mr M was not suspended and continued to practice.

Mr M was summarily dismissed for gross misconduct and his appeal was not upheld.

The majority of the appeal panel accepted that the disciplinary panel reasonably believed that Mr M could not be relied upon to change his behaviour in the future and the decision to dismiss was within the range of reasonable responses.

Following an investigation, the General Medical Council decided that no action should be taken against Mr M.

The Tribunal considered that he had been fairly dismissed and Mr M appealed to the Employment Appeal Tribunal (EAT).

The EAT upheld the decision of the Tribunal on the basis that a “series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee” could mean that a summary dismissal was fair.

This case illustrates that a series of acts of misconduct can, taken together, amount to gross misconduct in some circumstances. However, employers should always exercise caution before reaching a decision to dismiss an employee with no prior warnings where there is no clear act of gross misconduct.

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