When deciding unfair dismissal cases, an Employment Tribunal must consider whether dismissal falls within the range of reasonable responses that a reasonable employer might have adopted in those circumstances. In Britobabapulle v Ealing Hospital NHS Trust, the EAT has considered whether a Tribunal was wrong to conclude that dismissal for gross misconduct inevitably falls within the range of reasonable responses.
Ms Britobabapulle was a consultant with both private and NHS patients. Whilst certificated sick and receiving full NHS sick pay, she worked for her private patients. Ealing Hospital considered that this amounted to fraud and dismissed her for gross misconduct. Ms Britobabapulle's appeal was unsuccessful and she brought a claim for unfair dismissal.
The Employment Tribunal concluded that the employee's behaviour was gross misconduct and that her dismissal was fair. Its judgment stated that "Once gross misconduct is found, dismissal must always fall within the range of reasonable responses..." Ms Britobabapulle appealed to the EAT, arguing that even if there had been gross misconduct, it did not necessarily follow that the dismissal would fall within the range of reasonable responses. The EAT agreed with her argument, holding that a Tribunal's task is to assess whether the dismissal is reasonable and to consider all the circumstances of the case including any mitigating factors. Here, the Tribunal had failed to ask whether the decision to dismiss Ms Britobabapulle was fair in the light of factors such as her long service and previously unblemished record. The EAT therefore sent the case back to the same Tribunal to consider if it was reasonable in all the circumstances to dismiss her for gross misconduct.
This case is a reminder that Tribunals considering unfair dismissal cases will take into account not only the nature of an employee's misconduct but also any mitigating factors. This means that disciplinary panels should not assume that a dismissal will be fair even if it is for obvious or admitted gross misconduct. All relevant circumstances should be considered, for example, the employee's length of service and previous disciplinary record, whether there was any provocation and the consequences of dismissal.
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