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Gross misconduct – is dismissal always fair?
In Brito – Babapalle v Ealing Hospital NHS Trust, the EAT considered whether dismissals for gross misconduct would always fall within the range of reasonable responses available to the employer under section 98(4) of the ERA. The Tribunal had stated that where employees were dismissed for proven gross misconduct, this would always fall within the range of reasonable responses; but the EAT held that this did not consider mitigating circumstances such as the employee’s long service, any previous unblemished record, and the consequences of dismissal.
This decision emphasises the fact that employers must look, not just at the seriousness of the acts which constitute gross misconduct but also other factors which may militate against automatically dismissing just because gross misconduct is found. Alternative sanctions such as a final written warning should also be considered before dismissal is decided upon, as this should always be a last resort.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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