Is a dismissal for gross misconduct always within the band of reasonable responses?

Ms F Brito-Babapulle v Ealing Hospital NHS Trust [UKEAT/03584/12]

When an employment tribunal is considering the fairness of an employer’s decision to dismiss an employee for gross misconduct it needs to decide whether the employer’s decision to dismiss falls within the range of reasonable responses.

In this case the Employment Appeal Tribunal (‘EAT’) had to decide whether the employment tribunal had erred in deciding that a dismissal for gross misconduct must inevitably fall within the range of reasonable responses.

Ms Brito-Babapulle (‘Ms B-B’) was employed as a consultant haematologist at the Ealing NHS hospital (‘the Hospital’). The contract under which Ms B-B worked permitted her to have private patients as well as her NHS patients.

Ms B-B suffered intermittent health problems which caused her to be off work for a period of approximately three months. During her period of sickness Ms B-B received her full contractual sick pay.

Ms B-B had been told previously that, while off sick, she should not work in private practice.  Despite this previous instruction she continued to see her private patients during her period of sickness.

The Hospital took disciplinary proceedings against Ms B-B. The disciplinary panel concluded that Ms B-B had seen her private patients whilst signed off work sick and that this amounted to gross misconduct. The disciplinary panel did not seriously consider alternatives to dismissal because it considered the matter as one of breach of trust.

The panel dismissed Ms B-B for gross misconduct after considering her mitigation.

Ms B-B appealed against the decision to dismiss.  She was unsuccessful in her appeal.

Ms B-B brought a claim for unfair dismissal in the employment tribunal. The employment tribunal found that it was reasonable for the Hospital to have concluded that the misconduct amounted to gross misconduct. The employment tribunal then went on to say ‘once gross misconduct is found, dismissal must always fall within the range of reasonable responses…’ On this basis the employment tribunal decided that the decision to dismiss was fair.

Ms B-B appealed to the EAT. One of the questions she asked the EAT to consider was whether or not the employment tribunal had erred in concluding that ‘once gross misconduct is found, dismissal must always fall within the range of reasonable responses…’

The EAT held that it is the employment tribunal’s task to assess whether the employer’s behaviour is reasonable or unreasonable having regard to the reason for the dismissal. As part of the assessment the employment tribunal must consider any mitigation. For that reason the employment tribunal had erred in finding that a dismissal for gross misconduct will always fall within the range of reasonable responses.

This case highlights the need for a disciplinary panel to have a systematic approach to misconduct dismissals. The panel should:

1. decide whether it reasonably and honestly believes that the employee has committed the alleged act of misconduct. It should form this belief based on reasonable grounds following a reasonable investigation.
2. decide whether or not the misconduct amounts to gross misconduct.
3. consider mitigation; and then
4. decide what sanction it feels is appropriate in the circumstances.

An employer should only dismiss once it has completed each of the above steps.  If any step is missed out then a dismissal may be deemed to be unfair. A disciplinary panel should not fall into the trap of assuming that a decision to dismiss will always be fair just because the employee has committed an act of gross misconduct.