Gross misconduct and mitigating circumstances

Thanks to Rosa Dickinson of St Philips Chambers for preparing this case summary

Does a finding of gross misconduct automatically mean that dismissal is within the band of reasonable responses?

No, according to the EAT in Brito-Babapulle v Ealing Hospital NHS Trust. The tribunal must go on to assess whether dismissal is a reasonable sanction having regard to the mitigating circumstances of the case.

The Claimant (a hospital consultant) had been treating private patients while on sick leave from the NHS, and for this reason the NHS dismissed her for gross misconduct. The Claimant appealed against the tribunal's decision that her dismissal was fair.

The EAT found that the the tribunal was entitled to conclude that it was reasonable for the employer to find the Claimant guilty of gross misconduct, but had erred in assuming that this inevitably meant that dismissal was within the band of reasonable responses. The case was remitted for the tribunal to consider whether it was reasonable in all of the circumstances to dismiss the Claimant for this gross misconduct.