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Will gross misconduct always justify dismissal?

31st August 2013
A recent decision of the Employment Appeals Tribunal has given clarification to employers on the steps that they must take in deciding whether or not to dismiss an employee that has committed gross misconduct.

Most employers know that gross misconduct by an employee will entitle the employer to dismiss the employee woithout notice or pay in lieu of notice. Frequently the issue that causes argument is whether or not the conduct referred to actually amounted to gross misconduct or not.

In the case of Brito-Babapulle v Ealing Hospital NHS Trust the Employment Appeals Tribunal (the EAT) confirmed that a finding of gross misconduct does not automatically mean that a resulting dismissal will fall within the "band of reasonable responses"- which is required in order to show that the dismissal was fair. The EAT ruled that if the employer finds that the employee committed gross misconduct the employer must still go on to assess whether dismissal is a reaonable sanction , having regards to the mitigating circumstances of the case. 

In this case the Claimant, a hospital consultant had been treating private patients while on paid sick leave from the NHS. The employer rejected an internal appeal against dismissal. The EAT ruled that the Employment Tribunal was entitled to conclude that the employer acted reasonably in concluding that the claimant was guitly of gross misconduct, but had erred in assuming that the dismissal was therefore automatically within a reasonable band of responses.

The practical implication is that employers must remeber to consider the relevant circumstances, and any mitigating factors, which might include a previously good employment record, and the particular circumstances of the alleged gross misconduct. This does not mean that gross misconduct will nto justify a dismissal, but the employer should still consider all the circumstances and any mitigating factors before deciding to dismiss the employee over the gross misconduct.

If you need assistance on the issues raised in this article do not hesitate to contact Hallett Employment Law Services Ltd.  
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