Labour & European Law Review Weekly Issue 338 26 September 2013
In cases of gross misconduct, tribunals must look at whether the employer believed the employee was guilty, had reasonable grounds for that belief and carried out a reasonable investigation before dismissing them. In Brito-Babapulle v Ealing Hospital NHS Trust, the Employment Appeal Tribunal (EAT) held that the tribunal was wrong to hold that “once gross misconduct is found, dismissal must always fall within the range of reasonable responses”.
Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital who worked under a contract that allowed her to treat private patients. During a period of certificated sick leave from March to June 2009, she received full pay from Ealing Hospital but continued to see her private patients.
However, Ealing Hospital argued that she had been told both orally and in writing in 2007 that, if she was on certificated sick leave, she should not treat her private patients. Ms Brito-Babapulle said she could not remember being told this, nor could she remember the letter. The hospital did not believe her and decided she was guilty of gross misconduct. It dismissed her without considering any alternatives on the ground that her behaviour constituted fraud.
She claimed unfair dismissal.
The tribunal found that the employer did believe she was guilty of misconduct, that the Trust had reasonable grounds for that belief and had carried out a full and thorough investigation.
It did not accept Ms Brito-Babapulle’s evidence that she could not recall being told not to treat private patients while off sick, nor that she did not remember receiving a letter confirming that instruction.
On the facts known to the Trust at the time, the tribunal concluded that the dismissal fell within the range of reasonable responses, adding that “Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances."
Ms Brito-Babapulle appealed, arguing that the tribunal had failed to take into account mitigating factors, such as her previously unblemished record, the fact that her career would be blighted by the dismissal and that it would inevitably lead to her deportation.
The EAT found that the tribunal was entitled to find that Ms Brito-Babapulle’s behaviour constituted gross misconduct. However, it did not agree that there was a “logical jump from gross misconduct to the proposition that dismissal must then inevitably fall within the range of reasonable responses” as this did not allow for mitigating factors which might mean that the dismissal was not reasonable.
The EAT made clear that tribunals must assess whether the employer's behaviour was reasonable or unreasonable “having regard to the reason for dismissal. It is the whole of the circumstances that it must consider with regard to equity and the substantial merits of the case. But this general assessment necessarily includes a consideration of those matters that might mitigate”.
It therefore remitted the case to the same tribunal to consider whether it was reasonable in all the circumstances to dismiss Ms Brito-Babapulle.