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Gross misconduct and mitigating circumstances

View profile for Kate Fretten
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In order for an employer to fairly dismiss an employee with the requisite 2 years’ service requirement, not only do they have to have a fair reason to dismiss, for example conduct, capability or redundancy, but they also have to show that the dismissal is within the band of reasonable responses, i.e. that another reasonable employer could have come to the same decision in the circumstances. The Employment Appeal Tribunal (“EAT”) has decided in Brito-Babapulle v Ealing Hospital NHS Trust that a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses for an employer.

The EAT said that the tribunal must go on to assess whether the dismissal is a reasonable sanction having regard to the mitigating circumstances of the case. In this case the Claimant, a hospital consultant, had been treating private patients while on sick leave from the NHS, and for this reason the NHS dismissed her for gross misconduct. The Claimant appealed against the tribunal’s decision that her dismissal was fair.

Kate Fretten in the Employment team says, “The EAT found that the tribunal was entitled to conclude that it was reasonable for the employer to find the Claimant guilty of gross misconduct, but had erred in assuming that this inevitably meant that dismissal was within the band of reasonable responses.” The case was remitted for the tribunal to consider whether it was reasonable in all of the circumstances to dismiss the Claimant for this gross misconduct.

For a free initial meeting please call 01202 499255 and Kate or Paul will be happy to discuss any questions you may have.