Dismissal for gross misconduct - will it always be fair?
Friday 25th October 2013
Employers often fall into the trap of automatically assuming that dismissal is always fair following a finding of gross misconduct. The case of Brito-Babapulle v Ealing Hospital NHS Trust is a stark reminder for employers to be wary of falling into this trap.
In this case an NHS consultant was signed off work sick but whilst off work continued to see her private clients. The NHS found out and dismissed for gross misconduct. The Employment tribunal deemed the dismissal fair and it was appealed to the employment appeals tribunal ("EAT").
The EAT agreed that the employee was guilty of misconduct and that it amounted to gross misconduct. However they went on to say that the tribunal had failed to consider whether dismissal fell within the band of reasonable responses. It remitted this question back to the tribunal and pointed out that the tribunal needed to consider the employees:
Previous length of service
Previous unblemished disciplinary record
Impact a finding of gross misconduct on career
It is always advisable for employers to set out this reasoning in writing in any decision to dismiss. Not only will it be helpful to a judge in a tribunal claim but also to anyone advising the dismissed employee whether it was fair or not to prevent a claim being brought.
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