9 February 2015: Gross Misconduct Employers can dismiss summarily for gross misconduct, but have to carry out a reasonable investigation and a fair procedure before doing so.
In the case Brito-Bapapulle v Ealing Hospital NHS Trust (Court of Appeal), reported this week, it was held that dismissal for gross misconduct was fair irrespective of the label given for that misconduct. Hospital consultant Dr B took sick leave from Ealing Hospital but continued seeing private patients. By so doing she breached the hospital’s policies. She was dismissed for gross misconduct for fraud.
Dr B argued that the dismissal was unfair because the tribunal should have a genuine belief that her conduct amounted to ‘fraud’. The Court of Appeal rejected that argument, stating that whether a label of fraud or dishonesty was attached to the gross misconduct reason was immaterial.
It is always sensible for employers to list out as many examples of gross misconduct as appropriate in their disciplinary policy, including (in this case) a doctor doing privately paid work while signed off sick from the hospital.
Employers should be careful about attaching labels to the reason to dismiss where there is difficulty in proving that reason. In this case, it may have been hard to prove fraud. However on the facts Dr B was clearly guilty of gross misconduct. Even if she had been successful, Dr B’s compensatory award probably would have been reduced due to her contribution to her own dismissal, possibly up to 100%.
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