Gross misconduct does not automatically justify dismissal

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A genuine belief of an employee's gross misconduct, based on reasonable grounds, following a reasonable investigation, is usually enough for most employers to conclude that dismissal is the appropriate sanction.

However, employers must show that they have directed their minds to all the circumstances, or they could face an Employment Tribunal (ET) deciding that dismissal was not within the range of reasonable responses, even where gross misconduct has been established.

The Employment Appeal Tribunal (EAT) recently (albeit reluctantly) sent a case back to the ET to reconsider this very point. Ms Brito-Babapulle was a consultant haematologist at Ealing NHS Hospital. She had intermittent health problems and was absent from work in 2009 for three months. During this time the hospital believed that she was continuing to see private patients whilst certified sick and receiving sick pay from her job with the NHS.

Although her contract allowed her to see private patients, she had been reminded twice in 2007 that she should not do this whilst certified sick from her job.

An NHS disciplinary panel found her guilty of gross misconduct. Ms Brito-Babapulle was summarily dismissed and brought a claim for unfair dismissal. The ET rejected Ms Brito-Babapulle's claim and stated in its decision that "once gross misconduct is found, dismissal must always fall within the range of reasonable responses...". On appeal, the EAT accepted Ms Brito-Babapulle's argument that this statement was not accurate in law.

The EAT therefore directed the ET to reconsider whether dismissal was within the range of reasonable responses in this particular case, in light of Ms Brito-Babapulle's long service, the consequences of dismissal and her having a previously unblemished record.

The ET's statement above was perhaps very unfortunate for the hospital, which appeared to have conducted the correct process, including its own consideration of mitigating circumstances. The lay members of the EAT emphasised that conduct of this nature would, in many cases, normally lead to dismissal. It may well be that the very serious consequences on Ms Brito-Babapulle's medical career of dismissal for gross misconduct by the NHS, which has almost a monopoly on the employment of doctors, may also have had a bearing on the decision. However, the EAT's ruling is a good reminder for employers that dismissal is not inevitable even where gross misconduct is proved and the sanction should be considered carefully in each case.