Gross misconduct – To dismiss or not to dismiss? That is the question…

Year Published: 2013

A recent case in the employment appeal tribunal has confirmed that it is not always reasonable to dismiss an employee who is found guilty of gross misconduct.


Employers have at their disposal a range of reasonable responses to manage the misconduct or capability of their employees, which may span from an informal warning all the way to summary dismissal. In order to provide a standard of reasonableness for employers to be measured by, the ’band of reasonable responses’ approach was formulated. The tribunal must therefore ask whether the employer’s actions fell within this band of reasonable responses which were open to the employer.

In the case of Brito-Babapulle v Ealing Hospitals NHS Trust UK, the employment appeal tribunal ruled that by virtue of finding the employee guilty of gross misconduct, dismissal should not automatically follow and will not always be considered to fall within the band of reasonable responses.

In this case the claimant was a Consultant Haematologist at ‘the trust’. Whilst certified as unfit for work and receiving sick pay from her NHS employers she undertook work for her private patients. In her contract of employment she was permitted to have private patients for a session. Between March and June she suffered health problems and was certified as unfit for work.

It came to the attention of the trust that whilst unfit for work she was treating private patients and as a result the trust felt that she should be disciplined for doing so. During the disciplinary process she admitted to the allegations and accept her wrong doing, however stated that she did not consider her actions at the time. The trust provided evidence of the claimant being told in 2007 that she should not undertake work for private patients whilst unfit for NHS work, however she denied receipt of this correspondence.

The disciplinary panel concluded that she was guilty of gross misconduct and as a result chose to dismiss her. Alternatives to dismissal were not considered seriously as the trust believed she had breached their trust. The tribunal agreed with the trust and stated that as she had been found guilty of gross misconduct that dismissal must always fall within the band of reasonable responses.

On appeal, the EAT found that the tribunal was misdirected and confirmed that a finding of gross misconduct will not always render a dismissal fair. They confirmed that the trust failed to take into account any mitigating circumstances such as the claimant’s medical condition, the intensity of the work she was undertaking, her length of service, her previous clean disciplinary record and the implications involved in being dismissed from the NHS.

This case has been sent back to the tribunal for them to reconsider their decision.

How does this affect employers?

Employers must be mindful that merely by finding an employee guilty of gross misconduct, this will not automatically make their dismissal fair. Hence, they cannot proceed to an employment tribunal and expect to be successful. Employers must be mindful of the mitigating factors surrounding each case and carefully consider them before making any decision to dismiss the employee.

We recommend that when delivering the decision to dismiss, the employer should also confirm in writing to the employee that they have taken into consideration such mitigating factors, including a list of what these factors were and why they have been disregarded in favour of gross misconduct dismissal. Employers should always consider the alternatives to dismissal and issue warnings where appropriate.

For further information on gross misconduct or any employment and HR issues, contact  our employment team.

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