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Fact that employee was guilty of gross misconduct did not mean dismissal was inevitably fair

Posted by TonyBrownEmploymentSolicitor on August 26, 2013

Gross misconduct is a single act of misconduct that is sufficiently serious to justify the employee’s immediate dismissal. But does a finding of gross misconduct on the part of the employee dispense with the need for the tribunal to consider whether dismissal was a reasonable sanction?

Not according to this latest ruling of the EAT. Even where the employer reasonably decides that the employee was guilty of gross misconduct, the tribunal must go on to assess whether dismissal was a reasonable sanction having regard to the mitigating circumstances of the case.

In the case in question, the Claimant was a hospital consultant who continued to work for her private patients while certificated sick and receiving sick pay from the NHS. Her employer regarded this as equivalent to fraud and dismissed the Claimant.

The Claimant argued before the employment tribunal that the employer could not properly regard her conduct as fraud. The tribunal rejected this and went on to rule that the fact that the Claimant was guilty of gross misconduct inevitably meant that the employer’s decision to dismiss was within the band of reasonable responses. The tribunal therefore dismissed the Claimant’s claim for unfair dismissal.

The EAT said that 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 tribunal did not consider whether the employer's decision was nonetheless unfair as being unreasonable in the light of the personal mitigation available to the Claimant. The EAT allowed the Claimant’s appeal on that ground.

Comment

Gross misconduct is a single act of misconduct that is sufficiently serious to justify the employee’s immediate dismissal. However, as this case shows, the tribunal must still assess whether an employer's decision to dismiss is reasonable or unreasonable having regard to the reason for dismissal. The tribunal must consider all the circumstances with regard to equity and the substantial merits of the case. This assessment necessarily includes a consideration of those matters that might argue against dismissal.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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