In cases of gross misconduct, tribunals must address a series of questions, known as the Burchell test. In Brito-Babapulle v Ealing Hospital NHS Trust, the Court of Appeal held that it was irrelevant whether the tribunal addressed itself to the issue of whether the conduct amounted to fraud specifically, as opposed to gross misconduct.

Basic facts

Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital who had a second job treating 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.

Although there was nothing in her contract prohibiting her from undertaking private practice work on sick leave, 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.

Tribunal and EAT decision

Having asked itself the questions derived from the decision in British Home Stores v Burchell, the tribunal found that the Trust did believe she was guilty of misconduct, that it had reasonable grounds for that belief and had carried out a full and thorough investigation. 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."

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 a finding of 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. It therefore allowed the appeal to the extent of remitting the issue to the same employment tribunal so that it could consider whether the gross misconduct had justified dismissal in the light of all the mitigation that was available to Ms Brito-Babapulle.

She appealed on the basis that the tribunal should have considered whether her conduct amounted to fraud, as opposed to gross misconduct.

Decision of Court of Appeal

The Court of Appeal agreed that it was an elementary rule of natural justice and disciplinary proceedings that people must know the case they have to meet and whether or not the allegation is one of dishonesty.

However, it held that there was no doubt in this case about what was being alleged against Ms Brito-Babapulle. The series of documents leading up to the finding of the disciplinary panel made clear that the allegation against her was one of fraud that, if proven, could amount to gross misconduct and result in her dismissal.

Having decided that it did not believe she had forgotten being told not to undertake private practice while on sick leave, the panel were entitled to find that the conduct amounted to gross misconduct. It was irrelevant whether the (admittedly emotive) label of fraud or dishonesty was also attached to that decision.