Brito-Babapulle v Ealing Hospital NHS Trust

For unfair-dismissal purposes, the reason for dismissal is the employer’s set of operative facts or beliefs, rather than an emotive label such as fraud. A tribunal may find gross misconduct where an employee works privately while certified unfit for substantially similar work and receiving contractual sick pay.

However, a finding of gross misconduct does not inevitably make dismissal reasonable. Under section 98(4), the tribunal must independently assess the employer’s decision in the whole circumstances, including material personal mitigation such as long service, an unblemished record and the consequences of dismissal.

A consultant haematologist was dismissed after working for private patients while certified unfit for her NHS post and receiving contractual sick pay. The employer treated the conduct as gross misconduct and described it as capable of amounting to fraud.

The Employment Tribunal at Watford dismissed her claims for unfair dismissal and disability discrimination. It found that she was not disabled and, in any event, that there had been no discrimination. It upheld the dismissal as within the range of reasonable responses, stating that dismissal must always fall within that range once gross misconduct had been found.

On appeal, the claimant challenged the tribunal’s identification of the reason for dismissal, the employer’s grounds for treating the conduct as misconduct, and its approach to mitigation and fairness.

1. Appeal allowed in part. The Employment Appeal Tribunal rejected the challenges to the finding that the dismissal was for conduct. The relevant reason was the claimant’s working in private practice while certified sick and on paid leave from the Trust. The employer’s use of fraud was an emotive, lay label and did not alter the operative facts.

2. The Employment Tribunal was entitled to hold that the employer had reasonable grounds for finding misconduct. The claimant had accepted the essential conduct. The employer was entitled to rely on its conclusion that she had twice been instructed not to undertake it, and that an experienced doctor should have understood its impropriety.

3. The Employment Tribunal was also entitled to conclude that the conduct could amount to gross misconduct. The claimant had worked privately while presenting certificates that led to her being paid on the basis that she was unfit for similar NHS work. The finding was not perverse.

4. However, the tribunal misdirected itself by treating gross misconduct as necessarily decisive of fairness. The question under Employment Rights Act 1996, section 98(4), remained whether dismissal was within the range of reasonable responses in the whole circumstances. That assessment required the tribunal itself, rather than merely the employer, to consider potentially mitigating matters. These included long and unblemished service and the personal consequences of dismissal.

5. The error could not safely be treated as immaterial. The unfair-dismissal issue was remitted to the same Employment Tribunal, limited to deciding whether dismissal for the accepted gross misconduct was reasonable in the light of all available personal mitigation.

• Employment Appeal Tribunal: Appeal allowed in part. The finding of gross misconduct was upheld, but the unfair-dismissal issue was remitted to the same tribunal because it had treated gross misconduct as inevitably justifying dismissal.
• Employment Tribunal at Watford: By reasons delivered on 22 March 2011, dismissed the claims for unfair dismissal and disability discrimination.