Do Not Assume Dismissal for Gross Misconduct is Always Fair

Dismissal of an employee for gross misconduct after a reasonable investigation does not necessarily fall within the band of reasonable responses meaning the dismissal is fair.

In Brito-Babapulle v Ealing Hospital NHS Trust, B was employed as a hospital consultant and her contract allowed her to see private patients. Whilst off sick she continued to see private patients, despite having been warned twice previously that she should not do so. After a disciplinary investigation she was dismissed for gross misconduct and claimed unfair dismissal.

The tribunal dismissed her claim, finding that the employer had undertaken a reasonable investigation and genuinely believed on reasonable grounds that she was guilty of the misconduct identified. It went on to consider whether dismissal fell within the band of reasonable responses and concluded that once gross misconduct is found, dismissal must always fall within the band of reasonable responses. B appealed.

The EAT allowed the appeal and remitted the case to the same tribunal to consider whether dismissal for gross misconduct fell within the range of reasonable responses. Jumping from a finding of gross misconduct to the proposition that dismissal must inevitably fall within the band of reasonable responses gave no room for considering whether mitigating factors might make dismissal unreasonable. In assessing fairness, a tribunal should not only take account of the nature of the misconduct but also the employee’s long service, the consequences of dismissal and any previously unblemished record.

This case acts as a reminder that employers should not assume that once they have found an employee guilty of gross misconduct, having a carried out a reasonable investigation, they are always entitled to dismiss. It is still necessary to show that the decision to dismiss falls within the band of reasonable responses. There may be mitigating factors which make dismissal unreasonable and employers should always consider matters such as long service and a previous clean disciplinary record in deciding whether dismissal is the appropriate sanction.