Ms Brito-Babapulle was employed by Ealing Hospital as a consultant heamatologist. She was dismissed for gross misconduct in 2009 for holding sessions with private patients while being off sick on full pay. Although she was allowed to do private work, she had previously been advised that she should not carry out such work while on sick leave.

Her dismissal letter confirmed the view of the disciplinary panel that the allegation constituted fraud but the tribunal found that she was actually dismissed for doing private work during her sick leave.

The Court of Appeal heard Ms Brito-Babapulle’s appeal from the EAT in which she said that the tribunal should have addressed ‘fraud’ as the reason for dismissal. The Court of Appeal agreed with the EAT’s finding that, while there is a danger in using ‘fraud’ incorrectly as a label for misconduct, the true charge and relevant evidence had been made clear prior to the disciplinary hearing.

The Court also agreed with the EAT that claiming sick pay while working would almost inevitably lead to dismissal.

The case reminds employers to ensure that disciplinary allegations and evidence against an employee are clearly set out and to consider mitigation if appropriate.