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Two (or even one) wrong(s) don’t make a right (to dismiss for Gross Misconduct)

It would seem reasonable to think that dismissal inevitably falls within the band of reasonable responses in a case of gross misconduct. However, the recent case of Brito-Babapulle v Ealing Hospital NHS Trust highlights that this approach may be an error as it would fail to give due consideration to any mitigating factors.

In the above case, the employee was a consultant haematologist who was dismissed for undertaking work for private patients at a time when she was certified sick and receiving sick pay from her NHS employers. The Tribunal found that once gross misconduct had been established, dismissal must always fall within the range of reasonable responses.

The employee’s appeal to the Employment Appeal Tribunal ("EAT") was based on the fact that the Tribunal should not have jumped straight from gross misconduct to a finding that dismissal was automatically fair as this failed to give consideration to any mitigating factors, such as length of service, previous good record and the consequences of any dismissal from the NHS. The EAT agreed with the employee’s arguments and so sent the claim back to the Tribunal to reconsider whether it was reasonable in all the circumstances to dismiss her for gross misconduct.

The lesson to learn from this case is to ensure that when considering the appropriate penalty for gross misconduct, you give thought to any mitigating factors and document in your decision letter exactly what has been take into account when deciding the appropriate disciplinary sanction.


These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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Jaime Gay

Chartered Legal Executive


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