Emotive labelling of misconduct - Immaterial whether employer genuinely believed conduct was fraudulent

In the case of  Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626, the Court of Appeal has upheld a tribunal's finding that a doctor was dismissed for misconduct, namely working in private practice whilst on paid sick leave from her employer. The fact that the employer had described this as amounting to fraud in its dismissal letter did not mean that the tribunal had to be satisfied that the employer had a genuine belief that the misconduct amounted to fraud. The alleged misconduct had been made clear to the employee before the disciplinary hearing and, in the circumstances, the label attached to it was immaterial.

Interestingly, the case also deals with the issue of whether a finding of gross misconduct means that dismissal is always within the band of reasonable responses.  In this case, it was held that moving straight from a finding of gross misconduct to the proposition that dismissal must inevitably fall within the range of reasonable responses gave no room for considering whether, though the misconduct was gross and dismissal almost inevitable, mitigating factors might mean that dismissal was not reasonable.

When assessing an employer's conduct and the question of fairness, a tribunal should not only take into account the nature of the misconduct but also, insofar as they are separate from it, the employee's long service, the consequences of dismissal and any previously unblemished record.  Therefore, the two issues of gross misconduct and a warning rather than dismissal do not necessary have to be mutually exclusive.

Posted on 01/07/2015 by Ortolan

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