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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626 (29 October 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1626.html Cite as: [2014] EWCA Civ 1626 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(Langstaff J (President), Mr B Beynon, Mr S Yeboah)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE CHRISTOPHER CLARKE
LORD JUSTICE BEAN
____________________
FINELLA BRITO-BABAPULLE | Appellant/Claimant | |
-v- | ||
EALING HOSPITAL NHS TRUST | Respondent/Defendant |
____________________
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MISS JANE MCNEILL QC (instructed by Messrs Capsticks) appeared on behalf of the Respondent
____________________
Crown Copyright ©
LORD JUSTICE BEAN:
"The Panel felt that this allegation constituted fraud which could be considered as gross misconduct and therefore turn to consider the mitigation presented by you and on your behalf.
The Panel heard evidence that you had previously been advised verbally and subsequently confirmed in writing by Dr Lynn, Medical Director not to undertake private work whilst medically certified. Whilst your submission was that you did not recollect receiving such a letter, given your recollections of the rest of the meeting which were reflected in the letter the Panel felt this unlikely.
Even if you had not received such advice previously the Panel felt that given your seniority and long service in the NHS it was entirely reasonable to expect you to recognise that working privately whilst medically certified was entirely inappropriate."
The claimant was informed of her right of an internal appeal. She exercised that right. There was a subsequent appeal hearing at which the decision to dismiss was upheld.
"... this is a difficult question for us. We of course accept that we are testing the respondent's response within a range of reasonable decisions and must not substitute our own view. On the facts decided by and known by the respondent at the time we take the view that this dismissal did fall within the range of reasonable responses. The respondent was entitled to find that the claimant's actions amounted to gross misconduct. We bear in mind the not unreasonable findings that the claimant had been told in 2007 about this very same conduct, that she was a very experienced doctor who had knowledge of sick certificates and had herself decided not to sign the reverse of those sick certificates as she had indeed been working. Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses."
"The lay members of this Tribunal would emphasise that in the employment world claiming sick pay whilst working elsewhere is in general regarded very seriously by employers. In their experience any substantiated case almost inevitably will lead to dismissal, not least because if it did not, the employer might find it difficult to distinguish on any proper basis between the cases of other employees doing the same. That is not, however, to say that it is an inevitable conclusion.
We conclude here, therefore, that it was not perverse of the Tribunal to make the finding it did as to misconduct and as to it being gross. The Tribunal had taken into account in so concluding the fact that the Claimant had had the instructions she did."
"Clearly the Respondent dismissed the Appellant on the basis that it believed the Appellant's conduct to amount to fraud. Therefore the Employment Tribunal had to satisfy itself in considering the fairness of the dismissal, whether there was:
(i) a genuine belief that the Appellant's conduct amounted to fraud.
(ii) reasonable grounds to base the belief that the Appellant's conduct amounted to fraud.
(iii) reasonable investigation into the Appellant's conduct amounting to fraud.
Since the Employment Tribunal did not address the reason for dismissal being fraud, it failed to answer the relevant question in the correct context. It wrongly categorised the Appellant's conduct into general misconduct (sic) and then addressed the relevant questions. Even then, the Employment Tribunal did not appreciate that there was no contractual term that allowed the Appellant to know that her conduct amounted to gross misconduct."
Underhill LJ refused permission to appeal on the papers. He wrote:
"The Employment Tribunal found that the reason for the Applicant's dismissal was that she had done private work while certificated and on sick leave; and it applied the 'Burchell test' to that reason and not to a dismissal for 'fraud'. I believe that that finding was plainly open to it notwithstanding the use of the word 'fraud' in the dismissal letter. That was a label for the actual conduct alleged and found. I accept that it may not have been a good label (I suspect it has its origin somewhere in the written disciplinary procedures), but the Employment Tribunal was rightly concerned with the substance of the misconduct."
He also referred to the second ground of appeal as to the absence of an express contractual term, specifying that the relevant conduct would amount to gross misconduct, and wrote that he could see nothing in that.
"The Chairman and Vice-Chairman went to have a word with Mrs Hotson. They asked her if she had any explanation for the shortages that had occurred in cash takings or in stock or in both. She told them that she could not think of any explanation at all. They thereupon summarily dismissed her."
Mrs Hotson's solicitors requested a statement of the grounds for dismissal but received no reply. She filed a tribunal claim. The club entered their notice of appearance giving grounds of opposition which said nothing about dishonesty. The fact that suspected dishonesty was the true ground for dismissal only emerged during the cross-examination of the vice-chairman. The ratio of the case is set out in the headnote:
"Suspected dishonesty is a grave and serious ground for dismissal which should be stated at the outset by the employer or not stated at all. Although the authorities on the employer's duty to state the grounds of dismissal have the effect that an employer is not tied to the label he happens to put on the particular facts relied on, where the original reason given for dismissal is lack of capability, the substitution or addition of suspected dishonesty as a reason, even though precisely the same facts may be relied upon by the employer, goes beyond a mere change of label. It is too serious and too significant to be given such innocuous character."
Miss Mallick also cited to similar effect Strouthos v London Underground Limited, a decision of this court reported at [2004] IRLR 636. It is unnecessary to go into the facts which are quite complicated. This court in setting aside a decision of the EAT and restoring a decision of an employment tribunal held that:
"An employee should only be found guilty of the offence with which he has been charged. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited."
"if you are certificated as being unfit to work in your NHS post at Ealing Hospital and then if you engage in work in a similar nature elsewhere then that could be construed as fraud."
"We went straight into the issue of my having worked in private practice during my period of certificated sick leave which Janet Ballard had already told me which (sic) construed to be fraud.
You stated that you had already pointed out that this is the case in a letter that you had sent to me.
Unfortunately, I have no recollection of that letter..."
In a memorandum written later in 2009, after the claimant had been interviewed, the investigating officer, Mr Harchowal, wrote:
"I am concerned that despite being informed on two separate occasions in receiving written confirmation that Dr Brito should not undertake any work whilst medically certified as unfit and Dr Lynn further advising that this could be misconstrued as fraud, Dr Brito deliberately chose to undertake private practice whilst certified as unfit to work."
This series of documents leads up to the finding of the Panel that what was alleged, which they found proved, constituted fraud which could be gross misconduct. I do not think that it is fair to the writers of these letters, even of the letter of dismissal, to hold a microscope to them to the extent of finding differences, as Miss Mallick urged us to do, between "could be construed as fraud" "could be misconstrued as fraud" and "constituted fraud". I would agree with the observations of Langstaff J, President, giving the decision of the Employment Appeal Tribunal in this case where he said:
"There is a danger, as it seems to us, in using an emotive word such as fraud or dishonesty as a label rather than as a description of the conduct for which was a dismissal. However, if there is an allegation of fraud or dishonesty, it is a serious allegation and it deserves to be approached with commensurate care and seriousness."