Does gross misconduct always lead to a fair dismissal?

In the Brito-Babapulle v Ealing Hospital NHS Trust case, the employee was a hospital consultant who was found to have been treating private patients whilst on sick leave from her NHS post.

The NHS Trust instigated a disciplinary procedure, found the employee guilty of gross misconduct and dismissed her. The Claimant lost her unfair dismissal claim before an Employment Tribunal, who decided that dismissal was inevitable once the Claimant had been found guilty of gross misconduct. She appealed to the EAT.

The EAT decided that the finding of gross misconduct had been reasonable. However, they still wanted to see some assessment of whether this meant that dismissal was inevitable – in other words whether the employer could show that it was reasonable to dismiss the particular employee in this particular case. The EAT have sent the case back to the original Tribunal to assess that question.

What this means for you
This case is not saying that this dismissal was unfair – it is just that the question of the reasonableness of the sanction was not fully explored by the first Tribunal and needs to be looked at again.

The well established test in dismissal cases is whether dismissal is within “the band of reasonable responses” open to the employer. This case demonstrates there are two stages in the decision making process which must both be reasonable i.e. the employer’s finding of gross misconduct based on the facts/evidence and then the decision as to what sanction should be imposed. On the second point, the question of whether dismissal is a reasonable sanction should take into account all the circumstances including those of the particular employee (for example, whether there are mitigating factors). In terms of practical advice, the case demonstrates that an employer should, in explaining its decision at the time, remember to show that it has addressed its mind to both of these stages. For example, if it concludes that there are no mitigating circumstances then the dismissal letter should make this clear.

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