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Label attached to misconduct dismissal is immaterial
In Brito-Babapulle v Ealing Hospital NHS Trust, the Court of Appeal (CA) considered whether the Employment Tribunal (ET) had made the correct decision in finding that an employee had been dismissed for misconduct, where the employer's emotive dismissal letter had labelled the employee's conduct as fraudulent.
Ms Brito-Babapulle was a consultant at Ealing Hospital and was found to have continued to see private patients whilst being signed off sick and receiving sick pay from the NHS. As a result, Ms Brito-Babapulle was summarily dismissed. In its dismissal letter the Hospital stated that the "allegation constituted fraud which could be considered as gross misconduct". Ms Brito-Babapulle brought a claim for unfair dismissal.
The ET dismissed the claim. Ms Brito-Babapulle appealed to the Employment Appeal Tribunal (EAT), which held that the ET had erred in finding that dismissal for gross misconduct must always fall within the range of reasonable responses. Mitigating factors must also be considered.
Ms Brito-Babapulle appealed to the CA on a different ground, claiming that she had been dismissed as a result of the Hospital's belief that her conduct amounted to fraud and therefore the tribunal failed to address the reason for dismissal being fraud and consequently failed to address the relevant questions in the right context. The CA dismissed this appeal and found that the nature of the allegation and the evidence had been made clear to Ms Brito-Babapulle in advance of the disciplinary hearing. The fact that the Hospital had described her conduct as amounting to 'fraud', did not mean that the tribunal had to be satisfied that the employer had a genuine belief that the misconduct was indeed fraud. The fact that the Hospital had used emotive language in its dismissal letter with a label of 'fraud' was 'immaterial'.
The case highlights the importance of thinking carefully about allegations and making the exact allegations clear to employees as well as providing all evidence prior to any disciplinary hearing. The EAT and CA in this case referred to the dangers of using emotive labels for alleged misconduct. Using such labels may risk provoking a reaction from employees causing them to proceed with litigation which they may not otherwise have pursued.