The EAT in Brito-Babapulle v Ealing Hospital NHS Trust UKEAT/0358/12 has confirmed that an employment tribunal’s finding that gross misconduct does not mean that dismissal will automatically be within the band of reasonable responses. The EAT found that the approach of the ET missed out essential considerations upon fairness - whether dismissal was reasonable in the particular circumstances of the case for that particular employee, with regard to any potential mitigating factors applicable to that individual.
Ealing Hospital had dismissed Ms Brito-Babapulle who, when on sick leave from her NHS employers, had continued to work for her private patients. Although permitted by her contract of employment to have private patients in addition to her NHS role, she had however been warned previously that if certified sick she could not continue to work in private practice. The nature of her employment as a consultant haematologist for the NHS and her work as a haematologist in private practice were the same; so continuing to work for the latter while claiming sick pay from the NHS, was considered to be fraud and gross misconduct by Ealing Hospital.
The EAT in on appeal, held that Ealing Hospital had established that the reason for dismissal had been the potentially fair reason of misconduct, by showing that it had:
- a genuine belief that Ms Brito-Babapulle was guilty of the misconduct,
- had based that belief upon reasonable grounds,
- and had formed its belief after having conducted a reasonable investigation.
The nature of the misconduct had also been sufficiently serious so that it was entitled to consider it to be ‘gross misconduct’; the most serious type of misconduct of a kind (typically including theft, dishonesty, violence at work) so as to potentially justify summary dismissal, even for a single offence.
However, the EAT issued a reminder that a finding of gross misconduct does not inevitably mean that dismissal will be justified as a reasonable response. Tribunals and employers must still go on to consider whether in the circumstances of the case there are any mitigating factors (such as long service, previous exemplary record and the consequences of dismissal) which may mean that dismissal is not reasonable. The case was sent back for the ET to consider whether dismissal was within the band of reasonable responses open to Ealing Hospital, when regard is had to the personal mitigating circumstances of Ms Brito-Babapulle.