It may seem an obvious reply. Surely gross misconduct, once established, has destroyed the employment relationship at such a fundamental level that it cannot realistically continue.
The question was considered by the Employment Appeal Tribunal in Brito-Babapulle v Ealing Hospital NHS Trust. Ms Brito-Babapulle was a consultant haematologist at Ealing Hospital. Pursuant to the terms of her contract she was entitled to have a session of private patients in addition to her NHS patients. She commenced a period of sickness absence on 13 March 2009 which, apart from one day, continued until 8 June 2009. Her employer suspected that she was continuing to see private patients while she was certified unfit to work and in receipt of full contractual sick pay. Disciplinary proceedings were commenced accordingly.
Ms Brito-Babapulle accepted during the disciplinary proceedings that what she had done was wrong although she maintained that she did not think so at the time of the wrongdoing. She had received two prior notifications that if certificated sick she should not work in private practice. She claimed not to recall the notifications but her evidence on this point was rejected both in the disciplinary proceedings and the subsequent tribunal. It was concluded in the disciplinary proceedings that there had been gross misconduct. Alternatives to dismissal were not seriously considered in light of the breach of trust. Taking into account her experience she should have known better. She appealed against her dismissal and the appeal was not upheld.
The Tribunal which followed considered whether dismissal was justified:
On the facts decided by and known by the Respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The Respondent was entitled to find that the Claimant’s actions amounted to gross misconduct. We bear in mind the not unreasonable findings that the Claimant had been told in 2007 about this very same conduct; that she was a very experienced doctor who had knowledge of sick certificates and had herself decided not to sign the reverse of those sick certificates as she had indeed been working. Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses.
The Tribunal claim failed and on appeal to the Employment Appeal Tribunal Mr Justice Langstaff agreed with the Tribunal that Ms Brito-Babapulle’s conduct constituted gross misconduct. She had twice been given a lawful instruction by her employer not to do what she went on to do. She submitted certificates that purported to show that she was unwell. THis conduct could be characterised in a lay sense as fraud. He then went on to consider whether the Tribunal was right when it stated that dismissal must always fall within the range of reasonable responses in cases of gross misconduct. He described it as “an unforgiving principle”. In particular it effectively excludes consideration of mitigating factors.
In doing so the Tribunal had made an error of direction to itself.
It is the Tribunal’s task to assess whether the employer’s behaviour is reasonable or unreasonable having regard to the reason for dismissal. It is the whole of the circumstances that it must consider with regard to equity and the substantial merits of the case. But this general assessment necessarily includes a consideration of those matters that might mitigate.
Mitigating factors that might have been taken into account included long service, the consequences of dismissal and having a previously unblemished record. Since there was no evidence that they had been considered the matter had to be remitted to the Tribunal.
The important message for employers is that proper consideration of mitigation must happen before making a decision to dismiss, even in what appear to be the most clear cut cases. It should be documented and the letter of dismissal should make clear that this has taken place.