Winckworth Sherwood

UK 200 2013 position: 94

Dismissal for gross misconduct is not automatically reasonable

In what might seem at first glance a wholly counterintuitive judgment, the Employment Appeal Tribunal (EAT) has held in Brito-Babapulle v Ealing Hospital NHS Trust UKEAT/0358/12 that where an employer has found an employee to have committed gross misconduct, it is not automatically reasonable to dismiss that employee. Mitigating factors might mean that dismissal was not reasonable.

A dismissal of a qualifying employee will be unfair unless the employer is able to show that the dismissal was for a potentially fair reason (which includes misconduct) and that in all the circumstances the employer acted reasonably in treating that reason as a sufficient reason for dismissal. Section 98(4)(b) of the Employment Rights Act 1996 also requires that the fairness of a dismissal ‘shall be determined in accordance with equity and the substantial merits of the case’.

Ms Brito-Babapulle was employed as a consultant haematologist at Ealing Hospital. She had both private and NHS patients and, while certified sick in respect of her NHS duties from 13 March to 8 June 2009, she continued to treat private patients. She had been warned twice in 2007 in relation to the same kind of misconduct…

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