Brito-Babapulle v Ealing Hospital NHS Trust: EAT 14 Jun 2013

UNFAIR DISMISSAL – Reasonableness of dismissal
A consultant had both private and NHS patients. Whilst certificated sick and receiving sick pay from her NHS employers she worked for her private patients. She was dismissed for doing so, the employer thinking this could be described as fraud. An Employment Tribunal dismissed her claim that her dismissal was unfair. Her appeal on the ground that the employer could not properly regard the conduct as fraud, or had no reasonable basis for doing so, was dismissed on those grounds. The Claimant was dismissed for what she had done – labels such as fraud were emotive but uninformative of the essential facts – and the ET and employer entitled to regard it as gross misconduct. However, the ET went straight from a conclusion that there was gross misconduct to a decision that dismissal for that reason was inevitably within the band of reasonable responses. It did not ask whether the employer’s decision was nonetheless unfair as being unreasonable in the light of all the personal mitigation available to the Claimant, since it appeared to think that the conclusion that there was gross misconduct inevitably answered the question of fairness. The EAT was persuaded, if reluctantly, that the matter should be remitted for the ET to decide if it was reasonable (in all the circumstances) within s.98(4) Employment Rights Act 1996 to dismiss this Claimant for the gross misconduct found.

Langstaff P
[2013] UKEAT 0358 – 12 – 1406
Employment Rights Act 1996 98(4)
England and Wales

Employment, Discrimination

Updated: 19 November 2021; Ref: scu.515067