Unfair dismissal: Label attached to gross misconduct dismissal was immaterial

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Unfair dismissal: Label attached to gross misconduct dismissal was immaterial

Published 6 January 2015

In this case the Court of Appeal considered whether an employee had been fairly dismissed when her employer labelled her misconduct as fraud in its dismissal letter.


Ms Brito-Babapulle was employed as a consultant haematologist at Ealing Hospital (the Hospital). Her contract of employment permitted her to see private patients. She suffered from intermittent ill-health and was off work between 13 March and 8 June 2009. The Hospital believed that she had continued to see private patients during her absence, despite having been notified twice in 2007 that she should not do so if off sick. Following an investigation, the Hospital instituted disciplinary proceedings and told Ms Brito-Babapulle that the allegation was potentially one of gross misconduct, which could, if substantiated, lead to dismissal. The disciplinary panel found that she had worked in private practice while certificated sick from the NHS, and receiving sick pay and that this "constituted fraud which could be considered as gross misconduct". Ms Brito-Babapulle was summarily dismissed and brought an unfair dismissal claim.

An employment tribunal dismissed the claim. It held that the Hospital had undertaken a reasonable investigation and, as a result, genuinely believed on reasonable grounds that Ms Brito-Babapulle was guilty of the gross misconduct identified. The tribunal held that dismissal fell within the range of reasonable responses. In coming to this conclusion it stated that "Once gross misconduct is found, dismissal must always fall within the range of reasonable responses."

Ms Brito-Babapulle appealed to the EAT, arguing the tribunal had failed to identify whether her conduct amounted to fraud, and that in jumping straight from identifying gross misconduct to holding that dismissal was within the range of reasonable responses, the tribunal had failed to consider mitigating factors, such as the length of exemplary service and the consequences of dismissal from the NHS. The EAT dismissed the first ground of appeal, but allowed the second on the basis that the tribunal had not considered whether the gross misconduct had justified the dismissal in the light of the mitigation available to Ms Brito-Babapulle.

Ms Brito-Babapulle appealed to the Court of Appeal, in respect of the fraud issue, who dismissed her appeal. The Court of Appeal found that while it is an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet and, in particular, must know whether or not the allegation is one of dishonesty, there had never been any doubt about the allegations against Ms Brito-Babapulle. In this case, the nature of the charge and a full account of the evidence had been made clear to Ms Brito-Babapulle in advance of the disciplinary hearing.

The tribunal had applied the right test and concluded that Ms Brito-Babapulle had been dismissed for working in private practice while on paid sick leave, that the Hospital had a genuine belief that this misconduct had occurred, and that it had reasonable grounds for that belief as the result of as full an investigation as was reasonable in all the circumstances. Whether the label of fraud or dishonesty had been attached to the finding as well was immaterial. The Court of Appeal also endorsed the EAT's view that claiming sick pay while working elsewhere is regarded very seriously by employers, and if substantiated will almost inevitably lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same.

What this means for employers

This case is a reminder that a finding of gross misconduct does not automatically make it reasonable to dismiss. Employers must remember to consider any mitigation relevant to the individual and other relevant circumstances before dismissing, even for gross misconduct. This should be documented in the outcome letter so that the employee is aware of what has been considered. The case is also useful as it suggests that, while there may be cases that turn on their particular facts, the general principle is that where an employee claims sick pay from one job while working in another, their dismissal will almost inevitably be fair provided, as stated above, any mitigation is considered.

Brito-Babapulle v Ealing Hospital NHS Trust


Khurram Shamsee

Khurram Shamsee

London - Walbrook

+44 (0)20 7894 6566

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