Gross Misconduct and a Fair Dismissal

Will an act of gross misconduct always lead to a “fair” dismissal?  Not necessarily said the EAT in Brito-Babapulle –v- Ealing Hospital NHS Trust.

Ms Brito-Babapulle was a consultant with the Ealing Hospital NHS Trust.  In addition, she also conducted sessions with private patients.  Ms Brito-Babapulle was absent from work on sick leave between March and June 2009.  During this time, her employer became aware that she was continuing to see private patients, contrary to instructions issued to her in 2007 not to do so.  Disciplinary proceedings were convened Ms Brito-Babapulle admitted that she was working in private practice whilst on sick leave.  The disciplinary panel concluded that this amounted to gross misconduct and Ms Bito-Babapulle was summarily dismissed.  She raised a claim of unfair dismissal but the Employment Tribunal (ET) dismissed her claim.  The ET found that the employer had conducted a reasonable investigation and formed a genuine belief based on that investigation that the employee had committed an act of gross misconduct.  The ET concluded that when an act of gross misconduct was established, dismissal always fell within the range of reasonable responses which an employer may take.

However, Ms Brito-Babapulle appealed and the Employment Appeal Tribunal (EAT) disagreed with the ET’s final conclusion.  The EAT stated that although dismissal may be almost inevitable following a finding of gross misconduct, the employer must still consider all mitigating factors such as the employee’s length of service; the effects of dismissal and the employee’s unblemished disciplinary record.  The EAT returned the case to the ET to consider whether dismissal fell within the range of reasonable responses open to the employer in the circumstances.

Employers are reminded that when attempting to establish a “fair” dismissal, they must (1) have a fair reason for the dismissal; (2) follow a reasonable process in reaching the decision to dismiss; and (3) dismissal must be within the range of reasonable responses available to them.

For more information please contact Nicola Gray or Martin Sinclair or call on 01224 632 464