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25 September 2013

Dismissal not automatic sanction for gross misconduct

In this case, the Employment Appeal Tribunal (EAT) has stated that a finding of gross misconduct as a result of a reasonable investigation and belief, cannot automatically justify dismissal. Robert Hickford reports.


B was employed by Ealing Hospital as a consultant haematologist.  Under her NHS contract, she was also allowed to see private patients.  She had previously been notified that she could not continue to see private patients whilst on sick leave.  During a further period of absence, an investigation by the hospital confirmed their suspicion that she was seeing private patients.  B was subsequently dismissed on grounds of gross misconduct.

B brought a claim for unfair dismissal. The tribunal was satisfied that, following a reasonable investigation by the hospital, the finding of gross misconduct was reasonable in the circumstances.  However, the tribunal then went further to say that, when a finding of gross misconduct is made, dismissal of the employee will always be appropriate.

B appealed, claiming that the failure of the hospital to consider any mitigating factors should have been taken into account by the tribunal.


The EAT upheld B’s appeal, finding that the tribunal had failed to give proper consideration to the mitigating factors in this case.  The EAT clarified that whilst a dismissal due to a finding of gross misconduct is nearly always reasonable, there can be factors that the employer should at least consider before immediately deciding to dismiss. Specifically in B’s case, the EAT considered factors such as B’s long service, and her previously unblemished record to be relevant.

The EAT stressed however, that ordinarily claiming sick pay whilst working elsewhere was very serious and would typically result in dismissal.  This is subject to the proviso that an employee with two jobs might be medically unfit for one, but still capable of doing the other. The EAT also clarified that the mitigating factors in this case would not necessarily be enough to avoid dismissal.  The EAT simply objected to the tribunal’s comment that “once gross misconduct is found, dismissal must always fall within the range of reasonable responses”.

The case was remitted to be reconsidered by the original tribunal.


This case demonstrates that employers should not presume that dismissal following a finding of gross misconduct, however well supported by the evidence, will be automatically fair.  It is important to make sure all mitigating factors have been considered before imposing the sanction of dismissal, as this will help to ensure that the dismissal is fair.

A link to the judgment can be found here