12 September 2013

Dismissal for gross misconduct inevitably reasonable

Dismissals on the basis of gross misconduct are by far and away the most prevalent types of dismissal that take place in UK employment law. The dismissal of an employee with the requisite qualifying service will be unfair unless an employer can demonstrate a potentially fair reason (such as conduct) and that in the relevant circumstances the employer also acted reasonably in treating that reason as sufficient enough to dismiss.

To establish a conduct dismissal an employer must show that at the time of the dismissal it believed the employee was guilty of the misconduct, that it had reasonable grounds for that belief and finally that it carried out as much investigation as was reasonable in the circumstances (the ‘Burchell Test').

Where these requirements are met in the affirmative, the law gives a fairly ‘airtight' case to the employer. The classic example is that of an employee being dismissed for theft, absent of any actual hard evidence that they did in fact commit the offence. Providing the above is met, the dismissal on the face of it can be fair.
Once the above conduct reason is established, a tribunal must decide whether the employer's decision to dismiss the employee for that reason fell within what is referred to as "the band of reasonable responses" open to a reasonable employer in the circumstances.

In considering the above does a finding for gross misconduct automatically mean that the dismissal will fall within the band of reasonable responses?

According to the recent Employment Appeals Tribunal (EAT) case of Brito-Babapulle v Ealing Hospital NHS Trust the answer is no, it does not. The tribunal must go on to consider whether dismissal is a reasonable sanction with regard to the mitigating circumstances of the particular case.

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

The EAT held that the original tribunal was entitled to conclude that it was reasonable for the Trust to find the claimant guilty of gross misconduct, however also found that it had made an error in assuming that it followed that this inevitably meant the dismissal would also fall within the band of reasonable responses.

The net result of the EAT's decision was that the case was remitted for a fresh tribunal to consider whether on the facts it was reasonable in all of the circumstances to dismiss the claimant for gross misconduct.

Conclusion
As always caution should be exercised by employers when seeking to dismiss an employee with qualifying service for the reason of gross misconduct. The fact that the Burchell Test is satisfied is not now always a ‘silver bullet' in heading off any future claim for unfair dismissal, the overall reasonableness of the decision on the facts must be taken into account also. It is best therefore to obtain a professional legal assessment of the particular facts before forging ahead with the decision to dismiss.