The Court of Appeal gave judgment in a medical misconduct case shortly before Christmas.

Summary

In Brito-Babapulle –v- Ealing Hospitals NHS Trust [2014] EWCA Civ 1626, the Court of Appeal considered whether an Employment Tribunal had erred in finding that a dismissal had been for misconduct where the employer had attached an emotive label to the conduct in its dismissal letter.

Facts

Ms Brito-Babapulle (B) was employed as a consultant haematologist at Ealing Hospitals NHS Trust. Her contract permitted her to hold sessions with private patients. She suffered from intermittent ill-health and was off work between 13 March and 8 June 2009. The Trust believed she had continued to see private patients during her absence, despite having been notified twice in 2007 that she should not do so if off sick. Following an investigation, the Trust commenced disciplinary proceedings and told B that the allegation was potentially one of gross misconduct, which could, if substantiated, lead to dismissal.

The disciplinary panel found that she had worked in private practice while certified sick from the NHS and receiving sick pay and that this “constituted fraud which could be considered gross misconduct”.  B was summarily dismissed and brought a claim of unfair dismissal.

The Employment Tribunal decision

An Employment Tribunal (ET) dismissed the claim.  It held the Trust had undertaken a reasonable investigation and, as a result, genuinely believed on reasonable grounds that B was guilty of the gross misconduct identified. It further held that dismissal fell within the range of reasonable responses.

The claimant’s grounds of appeal

B appealed to the Employment Appeal Tribunal (EAT) on two grounds:

  1. the Trust  could not properly regard the conduct as fraud, or had no reasonable basis for doing so; and
  2. the ET went straight from a conclusion that there was gross misconduct to a decision that dismissal for that reason was inevitably within the band of reasonable responses. It did not ask whether the Trust’s decision was nonetheless unfair as being unreasonable in the light of all the personal mitigation available to the claimant.

The EAT decision

The EAT dismissed the first ground of appeal but allowed the second ground of appeal. It found the ET made a jump in holding that dismissal inevitably followed a finding of gross misconduct. The matter was remitted to the same ET to consider mitigation and whether B’s dismissal for the gross misconduct identified fell within the range of reasonable responses.

B appealed to the Court of Appeal.

The Court of Appeal decision

The Court of Appeal dismissed B’s appeal. The court agreed that it was “an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet and in particular must know whether or not the allegation is one of dishonesty”. However, there had never been any doubt of the allegations against B. 

There were dangers in using an emotive word, such as fraud, as a label rather than a description.  However, the allegation had been that B had undertaken private practice whilst on paid sick leave, and earlier communications had stated that that was potentially gross misconduct. The witness statements had given a full account of the evidence of the case against B. Whether labels of fraud or dishonesty were attached was immaterial.

Comment

On the facts there had never been any doubt about the allegations in this case. However, it illustrates the dangers of attaching overly ‘emotive’ labels to alleged misconduct. Employers must always ensure that the employee knows the case they have to meet and where they can these should be cross-referenced to the employer’s disciplinary code.

This case also reiterates the importance of taking into account mitigation and other relevant circumstances where a finding of gross misconduct is made when determining sanction. Summary dismissal does not automatically follow.