Settlement Agreements and Gross Misconduct.

In Brito-Babapulle v Ealing Hospital NHS Trust EAT

The Employment Appeal Tribunal (EAT) highlighted, that even when an employer believes there to be gross misconduct, dismissal may not always be within the range of reasonable responses, as mitigating factors may mean that dismissal was not in fact, reasonable.

This case involved Ms Brito-Babapulle who was employed as a haematologist by the NHS. The claimant’s employment contract permitted her to have private patients, which she did.

In 2009 the claimant was absent for work for 4 months due to an intermittent health problem. During this time she received full contractual sick pay, but continued to work for her private patients in her usual way. The hospital had warned the claimant on two occasions prior to 2009, that if she was certified sick, she could not work for her private patients.

On discovering that the claimant had been working for her private patients on the third occasion, the hospital’s disciplinary panel concluded that such actions amounted to gross misconduct dismissed the claimant. On appeal, the decision was upheld. The claimant brought a claim for unfair dismissal.

The tribunal decision

At first instance the employment tribunal dismissed the claim ruling “once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for the tribunal to substitute any sanctions that might have been imposed”.


On appeal the claimant argued that by concluding that dismissal was always a reasonable response to gross misconduct, the tribunal failed to consider her mitigating factors, which included her exemplary record of service, the length of her service and the circumstances that surrounded her dismissal.

The EAT agreed with the claimant, providing “in assessing the employer’s conduct and the question of fairness, the tribunal would want to have regard to not just the nature of the misconduct but also the length of service and the previously unblemished employee record”. As the tribunal failed to do this, the EAT allowed the appeal and remitted the case back to the tribunal for consideration of the mitigating factors attributable to the claimant. digg stumbleupon buzzup BlinkList mixx myspace linkedin facebook google yahoo