Brito-Babapulle v Ealing Hospital NHS Trust  EWCA Civ 1626
A dismissal is unfair under s98 of the Employment Rights Act 1995 unless it can be shown to be for one of five potentially fair reasons: conduct, capability, redundancy, illegality or some other substantial reason.
In order for a conduct dismissal to be potentially fair, it must fulfil the test in British Home Stores Ltd v Burchell  IRLR 379. This requires that, as at the time of dismissal, the employer can show it genuinely believed the employee to be guilty of the misconduct alleged, that it has reasonable grounds for that belief, and that at the time the belief was formed, it had carried out as much investigation as was reasonable in the circumstances.
In this case, the Court of Appeal considered whether the language (in this case, "fraud") attached to the employee's alleged misconduct should make a difference, and also laid out some principles on working one job whilst on sick pay from another.
The Claimant was a consultant haematologist who had a second job (with the consent of the Respondent) seeing private patients once a week. Her contract had no express term preventing her from seeing private patients whilst on sick leave, but she had been told by Dr Lynn of the Respondent in person and in writing in 2007 that she should not do so and that engaging in such work "could be seen as fraud".
For a period from March to May 2009, she was unfit for work at the Respondent but during this time she saw 11 private patients on 6 days. The Respondent launched an investigation which resulted in disciplinary proceedings. Before the disciplinary hearing, the Claimant was sent two letters setting out what was to happen and warning her that the allegation was one of potentially gross misconduct and, if proven, could result in her dismissal.
At the disciplinary hearing the Claimant admitted that she had undertaken private work whilst off sick, but that she thought she was doing nothing wrong (she said she did not recall Dr Lynn's warnings in 2007) at the time, although she now accepted that it was. The Respondent's Disciplinary Panel concluded that she had committed "fraud which could be considered as gross misconduct". The Panel noted that she said she did not recollect the letter, but considered this unlikely as the Claimant remembered the rest of the meeting at which it had been given to her. In addition, given her seniority and long service, the Panel concluded it was "entirely reasonable" to expect that private work whilst certified unfit was inappropriate.
The Claimant was dismissed. Her appeal was not upheld and she brought claims for unfair dismissal and disability discrimination, both of which were rejected by the Employment Tribunal.
The Employment Tribunal held the reason for the Claimant's dismissal was her conduct, and that the Respondent had a genuine belief that the misconduct had occurred, based upon reasonable grounds. Before coming to its decision, the Respondent had conducted as full an investigation as was reasonable in all the circumstances. Finally, the Tribunal found that "Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the claimant in these circumstances."
The EAT found there was no basis for interfering with the Tribunal's finding of gross misconduct; however, it found the Tribunal had made "a logical jump" from the finding of gross misconduct to the conclusion that the dismissal must inevitably fall within the range of reasonable responses which gave no room for considering whether mitigating factors would make dismissal unreasonable. The EAT remitted the case back to the same Tribunal to allow it to consider whether the gross misconduct justified dismissal in the light of all the mitigation available to the Claimant.
With regard to working whilst on sick pay from another job, the EAT noted with approval the Employment Tribunal's decision:
"The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. That is not, however, to say it is an inevitable conclusion.
We conclude here therefore, that it was not perverse of the Tribunal to make the finding it did as to misconduct and as to it being gross. The Tribunal had taken into account in so concluding the fact that the Claimant had had the instructions she did."
The Claimant appealed to the Court of Appeal. She claimed that, having been told in the letter informing her of disciplinary proceedings that she was accused of fraud, the employer needed to show the tribunal it had a genuine belief that her conduct amounted to fraud, reasonable grounds for that belief, and had carried out a reasonable investigation in the circumstances. The Court of Appeal held that whilst it was an elementary rule of natural justice that a person should know the case against them "and in particular must know whether or not the allegation is one of dishonesty", in this case it was clear of what the Claimant was accused. The charge and the evidence had been given to the Claimant before the hearing. The tribunal had properly applied the Burchell test to the Claimant's misconduct.
The Court of Appeal agreed with the EAT's judgment as to claiming sick pay whilst working elsewhere, noting that it would generally be grounds for dismissal. In Perry v Imperial College Healthcare (UKEAT/0473/10), a midwife with knee problems was signed off and received sick pay from one of her jobs as a community midwife (which required cycling and climbing stairs to visit patients) but continued to work her second job at a clinic. The tribunal in that case had found as fact that the midwife was not dishonest in failing to ask for permission before doing so. The Court of Appeal in this case did however comment that "When a decision of the Employment Appeal Tribunal remains unreported three years after being given, that is usually for good reason and the Perry case is no exception to the general rule. The decision, if I may say so, is correct, but turns on its facts…. The general principle is as set out by the EAT in the present case."
What to take away
In this case, the misconduct (working at a second job whilst off sick) was labelled fraud by the employer. Whether that was an appropriate label or not, the employee here was fully aware of the substance of the allegations against her so her dismissal was not unfair. The EAT and the Court of Appeal warned against using emotive words as a label rather than a description of alleged conduct.
Despite rare occasions where an employee may lawfully claim sick pay from one job whilst working another (for example, if an employee suffers back pain which prevents manual work but does not affect his or her ability to carry out more sedentary tasks), generally an employee who claims sick pay whilst working another job can expect to be dismissed. (Bear in mind that fit notes expressly cover the situation where an employee may not be able to do all aspects of their job but would be able to do some types of work.)
Although gross misconduct is serious, there may be circumstances where dismissal does not fall within the range of reasonable responses. Before dismissal, even in cases of serious misconduct, an employer should consider all the circumstances, including any arguments in mitigation the employee may put forward, to consider the most appropriate disciplinary sanction.
The case is now to return to the original Employment Tribunal, with the Court of Appeal commenting that it is now five years since the original dismissal and that the remitted hearing should be "hopefully brief" and "without further delay". It will be for that Tribunal to decide whether, in view of the Claimant's mitigation, dismissal fell within the range of reasonable responses.