• Robert Spicer

Gross Misconduct

Gross misconduct

Reasonable response

Case Brito-Babapulle v Ealing Hospital NHS Trust (2013) Morning Star, September 27, EAT

Facts B was a consultant haematologist employed by E. Her contract allowed her to treat private patients. From March until June 2009 she was on sick leave. She received full pay from E but continued to treat private patients. E stated that she had been told not to treat private patients while she was on sick leave. B stated that she could not remember this. E did not believe her and summarily dismissed her for gross misconduct on the basis that her conduct amounted to fraud. The ET dismissed her complaint of unfair dismissal. It stated that E did believe that she was guilty of misconduct, had reasonable grounds for that belief and had carried out a full and thorough investigation. It did not accept B’s evidence. Once gross misconduct was found, dismissal must always fall within the range of reasonable responses. B appealed on the ground that the ET had failed to take into account mitigating factors, for example her previously unblemished record, the fact that her career would be blighted by her dismissal and that it would inevitably result in her deportation.

Decision 1. There was no logical jump from gross misconduct to the proposition that dismissal must inevitably fall within the range of reasonable responses, because this did not allow for mitigating factors which might mean that the dismissal was not reasonable.

2. Tribunals must assess whether an employer’s behaviour was reasonable or unreasonable having regard to the reason for the dismissal. It was the whole of the circumstances which it must consider with regard to equity and the substantial merits of the case. This general assessment necessarily includes a consideration of those matters which might mitigate.

3. The case would be remitted to the same tribunal to consider whether it was reasonable in all the circumstances to dismiss B.

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