In the case of Brito-Babapulle v Ealing Hospital NHS Trust, the Employment Appeal Tribunal has held that a tribunal erred when it stated that dismissal would always fall within the range of reasonable responses in cases of gross misconduct. 

The Claimant in this case was employed as a consultant haematologist at Ealing Hospital and, as part of her contract, she was permitted to hold sessions with private patients. During her period of sickness absence the hospital believed that she had continued to see private patients and so a disciplinary panel made a finding of gross misconduct and she was summarily dismissed. 

The Tribunal, at first instance, dismissed the claim finding that a reasonable investigation had been carried out and the Claimant was dismissed based on a genuine belief that the hospital had reasonable grounds. However, the Employment Appeal Tribunal held that the sanction of dismissal does not necessarily follow an act of gross misconduct in all cases. Consideration must be given to mitigating factors which might mean that dismissal was not reasonable. In such circumstances, a Tribunal should not only take into account the nature of the misconduct but also factors such as the employee's long service, the consequences of dismissal and any previously unblemished record.