Case Review: Brito-Babapulle v Ealing Hospital NHS Trust

Dismissal will not always be in the range of reasonable responses to a gross misconduct offence, the Employment Appeal Tribunal has found. Albeit reluctantly, it found that a Tribunal should have assessed whether personal mitigating circumstances of the claimant who had been dismissed for fraud had made the gross misconduct dismissal unfair.

Brito was a consultant haematologist located at Ealing Hospital, but her contract was with the NHS which permitted her to carry out work for patients on a private basis. She had some health problems and these caused her to be on sick leave from March 2009 to June 2009 during which absence she received full contractual sick pay. The Hospital became suspicious that Brito was still working with her private patients during this period of sick leave and began disciplinary proceedings with her.

The Hospital found that their suspicions were substantiated. The Hospital asserted that they had told Brito on two previous occasions that such activity was not permitted. Brito accepted that what she had done was wrong, but claimed that she could not remember two previous instances when this issue had been mentioned. The actions were deemed to be gross misconduct by the Hospital. Although Brito put forward mitigating circumstances, the Hospital did not have high regard for them and considered that, due to the fact that she had already been told twice that such activity was not permitted, she should have known better. She was dismissed for gross misconduct.

The tribunal had to decide whether the sanction by the Hospital fell within the range of reasonable responses. It found that it did, confirming “Once gross misconduct is found, dismissal must always fall within the range of reasonable responses…” and therefore dismissed the unfair dismissal claim.

The EAT subsequently found that the Tribunal was entitled to find that the Brito’s actions amounted to an act of gross misconduct. However, it did have some difficulty with the Tribunal’s assertion that it is inevitable that dismissal will always be reasonable with a gross misconduct finding. The EAT considered that that automatic jump from one to the other leaves no room for determining whether there are any mitigating factors which may make a dismissal unreasonable. It further stated “It is the whole of the circumstances that [the Tribunal] must consider with regard to the equity and substantial merits of the case. But this general assessment necessarily includes a consideration of those matters that might mitigate.” Although the Hospital had considered mitigating factors in its decision to dismiss, the Tribunal had not and this was an error of direction. The appeal on this point was allowed and the claim was remitted to Tribunal to make this determination.