Dismissal for gross misconduct: still a question of fairness

Brito-Babapulle v Ealing Hospital NHS Trust

In Brito-Babapulle v Ealing Hospital NHS Trust, the Claimant appealed against the ET’s decision that her dismissal for gross misconduct was fair. The EAT decided whether the employer had considered the range of reasonable responses available to it before dismissing the employee. The EAT found that in failing to do so, the employer acted unfairly.

The Claimant was a Consultant Haematologist with Ealing Hospital NHS Trust. Her contract allowed her to hold sessions with private patients. The Claimant had health problems and took long-term sickness absence from March to June 2009. The Trust identified that whilst certificated sick and in receipt of contractual sick pay the Claimant was treating her private patients. This was despite having been notified twice in 2007 that if certificated sick she should not be doing any work. An investigation was undertaken and a disciplinary process in which the allegations were upheld and the Claimant’s conduct was determined to amount to gross misconduct and she was summarily dismissed.

The Claimant brought an unfair dismissal claim in the Employment Tribunal (ET).

Relevant Law

In concluding whether a dismissal is fair ETs will give consideration to the relevant statutory provisions and well-known case law. Specifically, ETs will consider whether:

  • the employer can show that the reason for the dismissal was a potentially fair reason; and
  • in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason to dismiss.

To establish that a dismissal on the grounds of conduct an employer must be able to show that:

  • at the time of dismissal, it believed the employee to be guilty of the misconduct;
  • at the time of dismissal, it had reasonable grounds for that belief; and
  • it formed the belief having carried out as much investigation as was reasonable.

So an employer has to establish the reason for the dismissal (conduct in this case) and the ET must then decide whether the decision to dismiss for that reason fell within the range of reasonable responses for a reasonable employer in those circumstances and in that business.

ET decision

The ET dismissed the claim and found that the Trust had dismissed after undertaking a reasonable investigation and, as a result, genuinely believing that the Claimant was guilty of gross misconduct. The ET then considered whether the dismissal fell within the band of reasonable and concluding that:

“Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses”.

The Claimant appealed. The crux of the Claimant’s appeal to the Employment Appeal Tribunal (EAT) was whether the ET had acted unreasonably by concluding that as her conduct was labelled as gross misconduct it automatically meant dismissal was in the band of reasonable responses without first considering all of the relevant mitigation factors.

EAT decision

The EAT allowed the appeal and the case was remitted back to the ET to assess whether the dismissal fell in the band of reasonable responses.

The EAT accepted that claiming sick pay whilst working elsewhere would generally be regarded very seriously and if substantiated would be likely to result in dismissal. However the EAT did not accept that it was correct to jump straight from determining conduct constituted gross misconduct to concluding that dismissal must inevitably fall within the range of reasonable responses. The EAT found that the ET had failed to give any consideration to possible mitigating factors such as the Claimant’s length service, the consequences of her dismissal from the NHS and an unblemished record.

Practical points

This decision highlights the importance of employers acting fairly even in cases of gross misconduct. Employers must therefore resist from acting in haste and be able to demonstrate that consideration has been given to the range of reasonable responses available to it. In doing so, it is not enough for employers to only consider the nature of the conduct.