Seawell Ltd v Ceva Freight UK Ltd and Eddie Stobart Ltd v Moreman , the EAT agreed with the tribunal that the Claimant's assignment to this activity had been a conscious decision of her employer and was not a matter of "happenstance".
Does a finding of gross misconduct make dismissal automatically fair?
17 September 2013
In the case of Brito-Babapulle v Ealing Hospital NHS Trust the court’s decision confirms that a finding of gross misconduct will not inevitably make dismissal a reasonable response and therefore fair.
Pinsent Masons takes a look at this case in detail and explains what the outcome means for employers.
Background A dismissal will be deemed fair if the employer can show that the reason (or principal reason) for the dismissal was one of five potentially fair reasons, and the tribunal finds that the employer acted reasonably in all the circumstances in treating that reason as a sufficient reason for dismissal. One of the statutory five potentially fair reasons for dismissal is conduct, and the term “gross misconduct” is applied to the most serious types of misconduct, such as theft or violence, which are likely to warrant summary dismissal. To establish that a dismissal on the grounds of conduct was fair, the employer must be able to show that at the time of dismissal it believed the employee to be guilty of the misconduct alleged; that it had reasonable grounds for that belief; and that in forming that belief it had carried out as much investigation as was reasonable in the circumstances. Once the employer has established the reason for the dismissal, the tribunal must decide whether the employer's decision to dismiss the employee for that reason fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted. Brito-Babapulle v Ealing Hospital NHS Trust Ms Brito-Babapulle (B) worked as a consultant for Ealing Hospital NHS Trust (the Trust) under a contract that permitted her to have private patients as well as NHS patients. Whilst certificated sick and receiving sick pay from her NHS employer she worked with her private patients. She was summarily dismissed for doing so. B brought a claim for unfair dismissal which the ET dismissed. The ET found that the Trust had undertaken a reasonable investigation and genuinely believed on reasonable grounds that B was guilty of the gross misconduct identified. The ET then concluded that "once gross misconduct is found, dismissal must always fall within the range of reasonable responses" and that the dismissal was therefore fair. B appealed to the EAT. Decision The EAT upheld B's appeal. The ET had been wrong to jump from a finding of gross misconduct to a conclusion that the dismissal was reasonable and therefore fair. The ET should have considered whether, though the misconduct was gross and dismissal almost inevitable, mitigating factors might mean that dismissal was not, in fact, reasonable. The ET should have considered whether factors such as long service, the consequences of dismissal and having a previously unblemished record may be relevant to the question of fairness. The EAT therefore remitted the case back to tribunal to consider this point. In a recent case, the EAT considered the issue of whether a finding of gross misconduct makes a dismissal for that reason inevitably reasonable and fair - and held that it does not.
What does this mean for employers?
CIPP Policy News Journal
16/04/2014, Page 113 of 519
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