Two recent cases have considered the question as to whether or not it is reasonable for an employer to dismiss an employee simply on the grounds that there has been gross misconduct. Will dismissal in such circumstances be regarded as automatically within band of reasonable responses on the path of any employer? In the case of Brito-Babapulle v Ealing hospital NHS trust UK EAT/0358/12 the EAT overturned the decision of the tribunal which had found that the dismissal was fair on the grounds that it had not considered all of the circumstance of the case in respect of that particular employee and with regard to any potential mitigating facts (such as long service, previously exemplary record and the consequences of dismissal).
In that case the claimant (a hospital consultant) had been treating private patients even though she was on sick leave from the NHS despite having been warned previously that if certified sick she could not continue to work in private practice (in a similar role).
Whilst the EAT found that the nature of the misconduct had been sufficiently serious that it was entitled to be considered “gross misconduct” and therefore a potentially fair reason for summary dismissal. It stated that tribunals and employers must still go on to consider whether in the circumstances of the case there are any mitigating factors which may mean that dismissal is not reasonable in the particular circumstances of that case. This was sent back for the tribunal to consider whether dismissal was within the band of reasonable responses open to the hospital once regard was had to the personal mitigating circumstances of the claimant.
Similar principles were discussed in the case of Carmelli Bakeries v Benali where the employee had admitted gross misconduct in that he had been using none-kosher jam at a strictly kosher bakery.
Both the tribunal and EAT found that the employer’s decision to dismiss the individual was substantially influenced by that fact that they regarded him as a “problem employee” in that he had previously submitted a grievance and discrimination claim and had made a number of requests for reasonable adjustments in relation to his disability. It was found that as a result of this the employer closed their eyes to the other surrounding circumstance (for example the employee’s long standing clean disciplinary record) which might have led them to take a different view.
Conclusion
Even if there is no doubt that an employee’s misconduct is so serious that it would amount to gross misconduct within the context of the employment contract, these cases show that it is nevertheless important for the employer to demonstrate that they have considered all other circumstances of the case before making their decision as to whether or not that gross misconduct should lead to dismissal.