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Why dismissing an employee for gross misconduct may not always be a ‘reasonable response’

Employers will generally be regarded as acting reasonably when dismissing an employee for gross misconduct. This article considers the recent decision in the Employment Appeal Tribunal of Brito-Babapulle v Ealing Hospital NHS Trust [2013] and summarises points for employers to bear in mind when contemplating dismissal.  In the above case, the EAT found that it was an error of law for an Employment Tribunal to conclude that dismissing an employee for gross misconduct automatically meant that dismissal was within the range of reasonable responses.

Dismissing an employee

In order for a dismissal to be fair, the reason for dismissal must be one of the five potentially fair reasons specified in the Employments Rights Act 1996. One of those reasons is conduct; it is for the employer to show that it dismissed for that reason. The law in misconduct cases has been settled since the case of British Home Stores Ltd v Burchell [1978].

For a dismissal on the grounds of conduct to be fair, the employer must:

•    At the time of dismissal, hold a genuine belief that the employee was guilty of the misconduct alleged;
•    Have reasonable grounds for that belief; and
•    Have carried out as much investigation as was reasonable in the circumstances.


If the Employment Tribunal accepts that the employer genuinely believed the employee to be guilty of the misconduct and that the other two requirements are met, it will go on to consider whether the employer’s decision to dismiss falls within the range of reasonable responses that a reasonable employer in those circumstances might have adopted.  The tribunal is bound to consider the particular circumstances of each case.

Sick leave

Ms Brito-Babapulle was employed as a consultant haematologist at Ealing Hospital. Her contract permitted her to hold private sessions with patients. She was absent from work through ill health from 13 March to 8 June 2009. During her sick leave, Ms Brito-Babapulle continued to see patients privately, despite having been informed on two occasions in 2007 not to do so.

Gross misconduct

Ealing Hospital found that Ms Brito-Babapulle’s working in private practice while certified sick and receiving sick pay amounted to gross misconduct, and summarily dismissed her. She then brought a claim at the Employment Tribunal for unfair dismissal.

The Employment Tribunal dismissed Ms Brito-Babapulle’s claim, finding that Ealing Hospital had undertaken a reasonable investigation and genuinely believed on reasonable grounds that she was guilty of gross misconduct.  The tribunal held that once gross misconduct is found, dismissal must always fall within the range of reasonable responses.

Ms Brito-Babapulle appealed the decision, arguing that in jumping straight from a finding of gross misconduct to a conclusion that dismissal was within the range of reasonable responses, the Employment Tribunal had failed to give any consideration to mitigating factors, such as the length of her exemplary service.

Employment Appeal Tribunal

The EAT found that the Employment Tribunal was entitled to conclude that it was reasonable for Ealing Hospital to find that Ms Brito-Babapulle was guilty of gross misconduct but had erred in assuming that the dismissal was within the range of reasonable responses without taking into account mitigating factors.

The case was thus remitted back to the Employment Tribunal for proper consideration of that point.

Guidance for Employers

In this case, the Employment Tribunal erred in assuming that, once dismissal for gross misconduct is found, dismissal must then always fall within the range of reasonable responses.  Such a mistake could also easily be made by employers.

The ACAS Guide: Discipline and Grievances at Work reflects the EAT’s finding that to dismiss for gross misconduct is not necessarily a reasonable response. It is thus imperative that employers consult the guide when considering dismissing an employee for gross misconduct and give due consideration to mitigating factors before making the decision.

In every case, it is important to inform the employee of the allegations against them, invite them to a meeting to discuss those allegations, allow them to be accompanied by a suitable companion and consider the employee’s reply before reaching a decision.  The right of appeal should also be given where the employee is dismissed.

For more information or to discuss how the issues in this article might affect your business, contact us on 0117 904 6000.

Posted on Oct 24th, 2013 by Lyons Davidson