The EAT has confirmed, in the case of Brito-Babapulle v Ealing Hospital NHS Trust, that a Tribunal fell into error when it held that dismissal would always be within the band of reasonable responses in cases of gross misconduct.  Whilst dismissal was almost always inevitable in cases of gross misconduct, the Tribunal failed to recognise that, in some cases, certain mitigating factors may mean that dismissal is not reasonable.

The Claimant was employed by the NHS as a consultant haematologist.  Under the terms of her contract with the NHS, she was allowed to hold sessions with private patients outside her employment.  The Claimant suffered from ill health and was absent on sick leave from 13 March – 8 June 2009, and was in receipt of sick pay during this time.  Ealing Hospital believed she continued to see private patients during this time, despite having been notified in the past that she should not do this whilst signed off sick.  Following a disciplinary process, the Hospital concluded that the Claimant was guilty of gross misconduct for working in private practice whilst in receipt of sick pay, and she was dismissed.

The Tribunal was satisfied that the Hospital had undertaken a reasonable investigation and had reasonable grounds for its belief that the Claimant was guilty of gross misconduct.  It went on to conclude that “once gross misconduct is found, dismissal must always fall within the range of reasonable responses”, and so held that the dismissal was fair.

The EAT have overturned this decision, noting that jumping automatically from a finding of gross misconduct to a conclusion that dismissal was reasonable leaves no room for considering whether, though the misconduct was gross and dismissal almost inevitable, mitigating factors might mean that dismissal was not reasonable.  The lay members of the EAT in particular were keen to stress that, in their experience, claiming sick pay whilst working elsewhere would almost inevitably result in dismissal.  However, in assessing the employer's conduct and the question of fairness, the Tribunal should have had regard to whether, for example, long service, the consequences of dismissal and having a previously unblemished record might render dismissal not reasonable in all of the circumstances.  The case has been remitted back to the same Tribunal to consider these issues.

Impact for Employers

  • This case is a useful reminder that when an employee is found to be guilty of gross misconduct, dismissal should not always necessarily automatically follow.  A dismissal must be reasonable in all of the circumstances of the case, and this involves consideration of factors such as length of service, previous disciplinary history, the consequences of the misconduct and any explanation the employee may put forward for the conduct in question.
  • Whilst dismissal will often be inevitable in cases of gross misconduct, employers should ensure they are considering all relevant circumstances prior to making their decision, to ensure they have considered whether dismissal is reasonable in all of the circumstances.