Rogers & Norton News

Gross misconduct and dismissal

Monday, September 16, 2013

Brito-Babapulle v Ealing Hospital NHS Trust

An employee guilty of gross misconduct is usually dismissed, and more often than not that’s the correct action for the employer to take. But dismissal shouldn’t be an automatic consequence; an employer should always look carefully at whether it would be a fair sanction.

That was the reminder issued by the Employment Appeal Tribunal (EAT) in Brito-Babapulle v Ealing Hospital NHS Trust. It wasn’t inevitable that a hospital consultant who had been treating private patients while on sick leave from the NHS would be dismissed, the EAT said. She may have been guilty of gross misconduct but was it reasonable to dismiss her in light of all the mitigating circumstances? An employment tribunal will now decide.