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Laura Johnson – Trainee Solicitor – Discusses Brito-Babapulle v Ealing Hospital NHS Trust Case

In the recent case of Brito-Babapulle v Ealing Hospital NHS Trust, the Employment Appeal Tribunal (EAT) decided that if an employee has committed an act of gross misconduct, it does not automatically mean that dismissal is within the band of reasonable responses.

The Claimant was a consultant for both private and NHS patients. Whilst the Claimant was on certified sick leave and receiving sick pay from the NHS employer, she worked for her private patients. Her NHS employer decided that this was an act of gross misconduct and she was consequently dismissed. The Employment Tribunal decided the dismissal was fair.

Upon appeal, the EAT found that the Tribunal was entitled to conclude that it was reasonable for the employer to find the Claimant guilty of gross misconduct, but the Tribunal had been wrong to assume that that the act of gross misconduct inevitably meant that dismissal was within the band of reasonable responses. The case was remitted for the Tribunal to consider whether it was in fact reasonable in all of the circumstances to dismiss the Claimant for this particular act of gross misconduct.

This case is a good reminder and warning that employers must ensure that they consider what a reasonable sanction is having regard for all the circumstances of the case. It is not always appropriate to automatically dismiss an employee if they have committed an act of gross misconduct and an employer should take steps to consider all possible responses.

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