Does gross misconduct always give rise to a fair dismissal?

19 Sep 2013

In Brito-Babapulle v Ealing Hospital NHS Trust the Claimant was employed as a consultant haematologist at Ealing Hospital.  Her contract permitted her to hold sessions with private patients. 

The Claimant suffered from ill health and was off work on full pay for 3 months in 2009.  The Hospital's investigation found that the Claimant had continued to see private patients during her sickness.

A disciplinary panel considered the allegations against the Claimant, namely, working in private practice whilst certified sick.  They also considered that the Claimant had been told in 2007, both orally and in writing, that she should not work in private practice while certificated as sick from the NHS and receiving sick pay.  The disciplinary panel held that the allegations were substantiated and, in line with NHS internal policies, amounted to gross misconduct.  The Claimant was dismissed and she subsequently brought a claim for unfair dismissal.

The Employment Tribunal held that the Hospital had undertaken a reasonable investigation and genuinely believed that the Claimant was guilty of the gross misconduct identified.  The Tribunal stated that when considering whether the dismissal fell within the range of reasonable responses available to the Hospital, that dismissal must always fall within the range of reasonable responses once gross misconduct was found. The Claimant's claim was dismissed.

The Claimant appealed to the Employment Appeal Tribunal (EAT), arguing that the Tribunal had failed to consider whether dismissal fell within the range of reasonable responses.  The Claimant claimed that the Tribunal had jumped straight from the finding of gross misconduct to a conclusion that the dismissal was within the range of reasonable responses.

The EAT has ruled that, although the trust was entitled to regard the Claimant's actions as gross misconduct, the original Tribunal was wrong to decide that her dismissal was fair without taking account of mitigation such as the employee's long service, the consequences of dismissal for the employee and any previous unblemished record. 

With some reluctance, the EAT sent the case back to the same Tribunal to consider the question of whether dismissal for gross misconduct fell within the range of reasonable responses available to the Hospital.

Our view:

In relation to unfair dismissal claims, it is well established that a Tribunal must decide whether an employer's decision to dismiss an employee fell within the range of reasonable responses that a reasonable employer, in those circumstances and in that business, might have adopted.  In considering whether or not the employer's actions fell within the range of reasonable responses, a Tribunal must not substitute its own view for that of the employer.

This case acts as an important reminder to employers that in circumstances where they find an employee has committed an act of gross misconduct, they must give consideration to whether dismissal is an appropriate sanction.