Does gross misconduct always justify dismissal?
In the case Brito-Babapulle v Ealing Hospital NHS Trust the EAT had to decide whether a tribunal was right to decide a dismissal was ‘automatically’ reasonable because the employee had committed an act of gross misconduct.
Facts
This case concerned an NHS consultant. She was permitted to see private patients, some of whom she treated during a lengthy period of paid sick leave. She accepted that what she had done was wrong, but had not thought it improper at the time, even though she had previously been warned not to see private patients while off sick. The disciplinary panel thought her actions constituted fraud and dismissed her for gross misconduct. The panel did not give much weight to her argument that she did not really know that what she was doing was wrong. She had had previous warnings and with 20 years’ experience in the health service, the panel thought she ought to have known better.
Tribunal
The employment tribunal dismissed Brito-Babapulle’s unfair dismissal claim holding that “once gross misconduct is found, dismissal must always fall within the range of reasonable responses”. The tribunal said it was not its role to substitute any sanctions it might have imposed in the circumstances. Brito-Babapulle appealed, arguing gross misconduct does not automatically mean dismissal is reasonable.
EAT
The Employment Appeal Tribunal upheld her appeal. There was no doubt that her actions constituted gross misconduct. Claiming sick pay while working elsewhere is generally regarded as a serious misdemeanour by employers. That is not to say, however, that dismissal is the inevitable conclusion. The tribunal holding that dismissal must be within the band of reasonable responses for gross misconduct was plainly an error of law, as no such ‘unforgiving principle’ exists. Since the tribunal thought this, it did not go on to question whether the employer's decision was unreasonable in the light of all the personal mitigation put forward by Brito-Babapulle. The case was, therefore, remitted to the tribunal to decide if dismissal was reasonable in all the circumstances.
Comment
Gross misconduct is unacceptable behaviour which is so serious it repudiates the employment contract, entitling the employer to dismiss an employee with immediate effect. The tribunal may reach the same conclusion when it applies the law properly in this case, but it is a useful reminder that while normally, gross misconduct will make an employee liable to summary dismissal, reasonableness demands that it is not always automatically the case. As the EAT stated, it is not an “inevitable conclusion”.
When deciding what form of disciplinary action to take, the Acas guidance on ‘Discipline and grievance at work’ says that employers should consider:
- the employee’s awareness of the rules and the likely penalty for breaking them
- the sanctions previously imposed in similar cases
- the employee’s disciplinary record, including current warnings, general work record, work experience, position and length of service
- any special circumstances (mitigation) which might make it appropriate to adjust the severity of the penalty (this includes being able to do so without jeapordising the right to dismiss).
Ultimately, employers should ask whether the proposed penalty is reasonable in all the circumstances – in other words, does the punishment really fit the crime? Take, for example, a situation where a disabled employee with an exemplary record is repeatedly taunted about his mental impairment. He asks the abuser to stop; the abuser shoves him in the back by as he tries to walk away; he shoves the abuser back who then falls to the ground. That is physical assault, which comes within the category of gross misconduct. But would any reasonable employer really consider dismissal to be within the range of reasonable responses in such circumstances?
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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