Brito-Babapulle v Ealing Hospital NHS Trust

In an unfair-dismissal case involving alleged misconduct, the tribunal must examine the substance of the employer’s reason and apply the Burchell questions, including whether dismissal fell within the range of reasonable responses. Gross misconduct does not make dismissal automatically fair; mitigation remains relevant. Where the disciplinary material clearly alleges that an employee worked elsewhere while on paid certificated sick leave, references to fraud or dishonesty may be treated as labels for that conduct. Minor differences in wording do not require a separate fraud analysis. Natural justice requires a sufficiently precise charge, particularly where dishonesty is alleged. That requirement is met where the correspondence, hearing notices and evidence give the employee a full understanding of the case.

A consultant haematologist employed by an NHS Trust undertook private practice while certified unfit for her NHS post and receiving paid sick leave. The Trust’s disciplinary panel found gross misconduct and dismissed her, and an internal appeal upheld the decision.

The Employment Tribunal rejected her unfair-dismissal claim, finding a genuine belief in misconduct, reasonable grounds, and a reasonable investigation. The Employment Appeal Tribunal upheld the misconduct finding but remitted whether dismissal was justified after mitigation was considered. The claimant appealed to the Court of Appeal, arguing that the Trust had dismissed her for fraud without properly framing or investigating that allegation and that no contractual term identified the conduct as gross misconduct. The central issue was whether the tribunal had addressed the substance of the charge and applied the correct unfair-dismissal principles.

1. Appeal dismissed. Bean LJ gave the judgment, with which Christopher Clarke LJ and Arden LJ agreed. The Court found no error of law in the Employment Tribunal’s decision, apart from the issue already remitted by the Employment Appeal Tribunal.
2. Nature of the disciplinary charge. Natural justice requires an employee to know the case to be met, including whether dishonesty is alleged. The general principles discussed in Hotson v Wisbech Conservative Club [1984] IRLR 422 and Strouthos v London Underground Limited [2004] IRLR 636 did not require the appeal to succeed. The charge was sufficiently clear when the prior correspondence, disciplinary notices and evidence were read together. The tribunal was entitled to focus on the substance of the alleged conduct rather than minor differences between references to fraud or dishonesty.
3. The appellant and her counsel knew that the allegation concerned private practice during certificated sick leave. The tribunal therefore did not need to conduct a separate fraud analysis. The finding of gross misconduct was supported by the prior instruction, the appellant’s experience and her admission that signing the certificates would have been untruthful. The absence of an express contractual term identifying the conduct as gross misconduct did not prevent that finding on these facts.
4. Gross misconduct and sanction. The Court agreed with the Employment Appeal Tribunal that gross misconduct does not make dismissal inevitable. Employers generally treat claiming sick pay while working elsewhere as extremely serious, but mitigation must still be considered when deciding whether dismissal falls within the range of reasonable responses. That issue remained for the remitted tribunal hearing, which should proceed without further delay.

• Court of Appeal (Civil Division) — In [2014] EWCA Civ 1626, dismissed the claimant’s appeal and left the remitted issue of whether the gross misconduct justified dismissal to the Employment Tribunal.
• Employment Appeal Tribunal — upheld the finding of gross misconduct but allowed the appeal to the extent of remitting whether dismissal was justified in light of the claimant’s mitigation. Its citation was not stated in the judgment.
• Employment Tribunal — rejected the claims for unfair dismissal and disability discrimination. The discrimination finding was not appealed.