Does a finding of gross misconduct automatically mean that dismissal falls within the range of reasonable responses? The recent EAT case of Brito-Babapulle v Ealing Hospital NHS TrustUKEAT/0358/12/BA has confirmed that the answer to this question is no. This case has highlighted the importance of considering all mitigating factors and alternative sanctions before reaching a decision to dismiss.

In this case, a consultant haematologist for Ealing Hospital was dismissed by the NHS for claiming sick pay but then undertaking private work whilst she was off work sick. The tribunal found that the dismissal was fair.

On appeal to the EAT, the tribunal was criticised for stating that once gross misconduct is found, dismissal must always fall within the range of reasonable responses. On the contrary, the EAT clarified that a finding of gross misconduct does not automatically mean that dismissal is justified. Before deciding to dismiss, disciplinary hearers must consider whether there are mitigating factors, such as long service; a clean disciplinary record; and/or the consequences of dismissal on someone’s career. They should also consider whether alternative sanctions are more appropriate.

In Brito-Babapulle, the tribunal had failed to assess whether the employer had considered these factors and the case was returned to the same tribunal for reconsideration.

It is worth noting that the EAT made clear that claiming sick pay whilst working elsewhere is generally regarded very seriously by employers.

This case is a useful reminder for dismissing managers that it is important to consider all mitigating factors and alternative sanctions. If dismissal is still considered to be the appropriate sanction, the disciplinary hearer should explain and record why it was appropriate.

Users of Workbox, the employment team’s online HR site, can access detailed information on managing the disciplinary process, along with a template policy and letters for each stage of the process in the Misconduct section.

Employment Law

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Employment Law