In Brito-Babapulle v Ealing Hospital NHS Trust the Employment Appeal Tribunal has held that mitigating circumstances should be considered in cases involving gross misconduct before deciding whether a decision to dismiss is fair.

The Employment Appeal Tribunal accepted that dismissal is almost inevitable in cases involving gross misconduct, but said that the tribunal should have considered the mitigating circumstances of the employee’s case because mitigating factors could make a decision to dismiss unreasonable, for example long service, the consequences of dismissal for the employee and having a previously unblemished record.

Employers should always be prepared to consider if there are any mitigating circumstances and take specific legal advice before dismissing an employee or taking disciplinary action short of dismissal.