Grossly unfair? Dismissal for gross misconduct is not always fair

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Posted in:HR and Employment|November 11, 2013 | Join the mailing list

When an employee has committed an act of gross misconduct, is it always fair to dismiss them? The answer is no, as explained by the Employment Appeal Tribunal (“EAT”) recently in the case of Brito-Babapulle v Ealing Hospital NHS

Ms Brito-Babapulle was a consultant, employed by the NHS Trust, who was also permitted under her employment contract to do private patient work. While certified as sick and therefore absent from her NHS work (and in receipt of full sick pay), Ms Brito-Babapulle
undertook some paid private work. This was despite having been warned on two previous occasions by the NHS Trust that she was not permitted to do this while she was certified as sick. The Trust carried out an investigation and disciplinary hearing procedure
and dismissed Ms Brito-Babapulle. After an internal appeal was not upheld, Ms Brito-Babapulle brought a claim in the Employment Tribunal alleging unfair dismissal.

The Tribunal found that the first part of the test for a fair dismissal was met: the hospital had a genuine belief that Ms Brito-Babapulle was guilty of gross misconduct, which was held on reasonable grounds and after reasonable investigation. So, the Tribunal
moved on to the second part of the test for unfair dismissal: did the employer act reasonably, in all the circumstances, in treating that reason (misconduct) as sufficient to dismiss the employee? This requires the Tribunal to determine whether, in the factual
circumstances of the particular case, dismissal was within the “band of reasonable responses” that was open to the employer, in which case the dismissal would be fair. The Tribunal held that, once gross misconduct was established in the first part of the test,
it would always be within the band of reasonable responses for an employer to dismiss and therefore the dismissal of Ms Brito-Babapulle was fair. The Tribunal did not consider any of the mitigating factors put forward by Ms Brito-Babapulle when deciding whether
or not her dismissal was justified.

However, on appeal the EAT said that although the Tribunal was entitled to find that Ms Brito-Babapulle was guilty of gross misconduct, it was wrong to say that “once gross misconduct is found, dismissal must always fall within the band of reasonable responses”.
The EAT said that the Tribunal must consider the effect of mitigating factors when determining whether dismissal was justified in the circumstances. In this case, the main mitigating factors put forward by Ms Brito-Babapulle were long service, unblemished
by misconduct, and the fact that dismissal from the NHS has a serious detrimental effect on someone’s career, and the EAT stated that these factors should have been considered.

It must be remembered that the EAT did not find that the dismissal was unfair. The Tribunal must now go back and consider whether or not dismissal fell within the band of reasonable responses, having taken into account the mitigating factors.

Nigel Crebbin, Employment Partner at Berg commented that: “this case is an important reminder to employers that a finding of gross misconduct will not automatically make dismissal fair. In any disciplinary process, including one involving gross misconduct,
decision makers must carefully consider the effect that mitigating factors (such as long service, work record, experience and position) have on the question of whether it is fair to dismiss the employee”.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Nigel Crebbin of the Berg Employment Team on
0161 833 9211 or email him at

Follow us at Twitter: @Berg_HR

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice
should be obtained before taking, or refraining from taking, any action as a result of this article.

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