It is often assumed, especially by employers that a finding of gross misconduct automatically means dismissal and moreover that such a dismissal would be fair.
A consultant working for the NHS in a hospital had been treating private patients while on sick leave. A disciplinary hearing found this to fraud and she was dismissed for gross misconduct. The Employment Tribunal (ET) dismissed her claim that the dismissal was unfair.
On appeal in Brito-Babapulle v Ealing Hospital NHS Trust [2013] UKEAT the Employment Appeal Tribunal (EAT) found that the ET was entitled to find that it was reasonable for the employer to reach a decision of guilty of gross misconduct. However it made a mistake in assuming that this inevitably meant that the dismissal was fair and within the ‘reasonable band’ of responses an employer could make in the circumstances.
The EAT found that the ET should have considered whether dismissal is a reasonable sanction having regard to the mitigating circumstances of the case. The case was send back to the ET to consider whether it was reasonable in all the circumstances to dismiss for gross misconduct.
The above illustrates a common mistake of Headteachers and Governors, who believe a finding of gross misconduct must be followed by dismissal. It is best explained by thinking of the decision as a two-part decision. First does the conduct constitute gross misconduct and secondly if it does would dismissal be reasonable taking into account all the circumstances including any mitigation.
NUT Area 3 