Gross misconduct: is dismissal always the right penalty?

Is dismissal the right decision?
Is dismissal the right decision?

Dismissal may not always be found to be a reasonable and fair decision, even where there is a finding of gross misconduct, as a recent case has reinforced. Lucy Morris, a solicitor in the employment team of law firm Blake Lapthorn, considers what an employer needs to take into account once it has found that an employee’s actions have amounted to gross misconduct.

The range of reasonable responses

An employee’s misconduct is a potentially fair reason for dismissal, but if an employer has concluded that misconduct has occurred, it then has to consider whether or not dismissal for that misconduct is a reasonable sanction. In such circumstances, the employer should ensure that it can demonstrate that it gave careful consideration to a number of factors before reaching its decision. This is because an employment tribunal will have to decide whether or not dismissal falls within a range of reasonable options available to an employer if the fairness of the decision is challenged.

In the case of Brito-Babapulle v Ealing Hospital NHS Trust, the employment tribunal had stated that “once gross misconduct is found, dismissal must always fall within the range of reasonable responses”. On appeal, the Employment Appeal Tribunal found that this was unsustainable, and dismissal will not always be a fair sanction for gross misconduct. For this reason the case was sent back to the tribunal for it to consider whether or not dismissal was a reasonable response in the particular circumstances.

The case is a useful reminder to employers that all situations should be considered on their own merits, no assumptions should be made, and the importance of considering any mitigating circumstances.

Mitigating circumstances

Looking at all of the circumstances will necessarily involve considering a range of matters, including:

  • the employee’s explanation of the conduct;
  • any mitigating circumstances advanced by the employee;
  • length of service;
  • previous disciplinary record;
  • the employee’s usual conduct/behaviour (for example, is the gross misconduct completely out of character?); and
  • consistency of treatment between employees.

However, less obvious factors might also affect the decision on whether or not it would be reasonable to dismiss – for example, the effect of dismissal on the particular employee – which was found to be potentially relevant in Brito-Babapulle.

In Brito-Babapulle it was argued that dismissal resulted in a real risk that the employee – who had a long, unblemished employment record – would be severely hindered in finding employment within the NHS, as a result of which her right to work in the UK might be affected. This was a factor relevant to this particular employee, but it is possible to foresee similar situations arising in other industries. This illustrates the need to look at every case on its merits both as to the conduct itself and then any mitigating factors, which may include the individual employee’s position.

Sanctions short of dismissal

Regardless of the level of misconduct, it is always necessary to consider whether a lesser sanction than dismissal would be more appropriate. For example, would a final written warning coupled with an additional training course deal with the problem satisfactorily?

Employers should be used to undertaking this type of exercise when dealing with all disciplinary issues – for example, when deciding whether to impose a warning or a final written warning. Businesses should also follow this procedure in cases of gross misconduct or they will be relying on an assumption that the above case demonstrates is unsustainable.

Documenting the decision

Having considered all the circumstances, the factors that were taken into account in reaching the decision to dismiss and the precise reasons for it should be clearly documented in notes and communicated in letters. There is little use in going through a comprehensive decision-making process if you are unable to substantiate it.


The Brito-Babapulle case has not changed the law, but it serves as a good reminder that dismissing for gross misconduct will not always be fair. This case is being referred to now by claimants in employment tribunal claims. In order to avoid coming unstuck when dealing with gross misconduct situations, employers must consider all of the circumstances of the case before deciding on an appropriate sanction, and must be able to demonstrate that they have done so.

This article was originally published on 7 March 2014. It was updated on 18 September 2015 by Susan Dennehy, employment law editor.

Lucy Morris

About Lucy Morris

Lucy Morris is a solicitor in the employment team of law firm Blake Lapthorn, which has offices in London, Southampton, Oxford and Portsmouth.
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