Label Attached to Misconduct Immaterial

Where an employer had dismissed an employee for gross misconduct described as fraud, it was not necessary for the employment tribunal to be satisfied that the employer genuinely believed the conduct amounted to fraud. The employer’s genuine and reasonable belief that the employee had committed the misconduct alleged was sufficient and the label attached to the misconduct was immaterial.

In Brito-Babapulle v Ealing Hospital NHS Trust a disciplinary panel found that B had worked in private practice whilst certified sick from the NHS and receiving sick pay. It considered this constituted fraud and she was summarily dismissed for gross misconduct. She claimed unfair dismissal but the employment tribunal found her dismissal fair.

On appeal to the Court of Appeal, B argued that she had been dismissed as a result of the hospital’s belief that her conduct amounted to fraud. In order to find her dismissal fair, the tribunal had to be satisfied that the employer had a genuine belief that her conduct amounted to fraud and reasonable grounds for that belief after a reasonable investigation. The tribunal had failed to address the reason for dismissal as fraud and so had failed to answer the relevant questions in the correct context.

The Court of Appeal agreed that it is an elementary rule of natural justice that an individual must know the case they have to meet and in particular must know whether or not the allegation is one of dishonesty. However, there had never been any doubt about the allegations against B. The nature of the charge and a full account of the evidence had been made clear to B in advance of the disciplinary hearing.

The tribunal had asked itself the correct questions and had concluded that B had been dismissed for working in private practice whilst on paid sick leave, that the hospital had a genuine belief that this misconduct had occurred and that it had reasonable grounds for that belief as a result of a reasonable investigation. Whether the label of fraud or dishonesty had been attached to the finding as well was immaterial.

Key to the decision in this case was the fact that the employer had clearly set out the alleged misconduct and the employee was in no doubt as to the charges she had to answer. The Court of Appeal cautioned against the use of emotive words such as fraud and recommended that employers simply describe the conduct for which an employee is being dismissed. Employers should bear this in mind when drafting dismissal letters. Sticking to the facts and avoiding labels reduces the risk of an employee being dismissed for a different reason than the one put to them in the disciplinary process.

The Court of Appeal also agreed with the general principle laid down by the EAT in this case that claiming sick pay whilst working elsewhere is generally regarded very seriously by employers and will almost inevitably lead to dismissal. However, employers do still need to take any mitigating factors into account before deciding on dismissal, otherwise dismissal may fall outside the range of reasonable responses.