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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Brito -babapulle v Ealing Hospital NHS Trust (Disability Discrimination : Disability) [2013] UKEAT 0358_12_1406 (14 June 2013) URL: https://www.bailii.org/uk/cases/UKEAT/2013/0358_12_1406.html Cite as: [2013] UKEAT 0358_12_1406, [2013] IRLR 854, [2013] UKEAT 358_12_1406 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
MR B BEYNON
MR S YEBOAH
APPELLANT | |
![]() ![]() ![]() ![]() ![]() ![]() ![]() | RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS NABILA MALLICK (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme) |
For the Respondent | MR ANDREW MIDGLEY (of Counsel) Instructed by: Capsticks Solicitors LLP 1 St George's Road Wimbledon London SW19 4DR |
SUMMARY
DISABILITY DISCRIMINATION – Disability
UNFAIR DISMISSAL – Reasonableness of dismissal
A consultant had both private and NHS
patients. Whilst certificated sick and receiving sick pay from her
NHS
employers she worked for her private patients. She was dismissed for doing so, the employer thinking this could be described as fraud. An Employment Tribunal dismissed her claim that her dismissal was unfair. Her appeal on the ground that the employer could not properly regard the conduct as fraud, or had no reasonable basis for doing so, was dismissed on those grounds. The Claimant was dismissed for what she had done – labels such as fraud were emotive but uninformative of the essential facts – and the ET and employer entitled to regard it as gross misconduct. However, the ET went straight from a conclusion that there was gross misconduct to a decision that dismissal for that reason was inevitably within the band of reasonable responses. It did not ask whether the employer's decision was nonetheless unfair as being unreasonable in the light of all the personal mitigation available to the Claimant, since it appeared to think that the conclusion that there was gross misconduct inevitably answered the question of fairness. The EAT was persuaded, if reluctantly, that the matter should be remitted for the ET to decide if it was reasonable (in all the circumstances) within s.98(4) Employment Rights Act 1996 to dismiss this Claimant for the gross misconduct found.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
The facts
"[…] working in private practice whilst certificated and on paid sick leave for her employers, the Respondent."
"We are bound to answer Yes to that question as she accepted that she had carried out the private work."
"It is a full and through investigation carried out by an independent person who interviewed those people who appeared to be relevant. Within the investigation the investigating officer gave the Claimant a chance to give herversions
of events. We can find nothing within that investigation that was unreasonable."
"On the facts decided by and known by the Respondent at the time we take theview
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 reference to signing the reverse of the sick certificates was a reference to an answer given by the Claimant to the Tribunal to effect that she did not do so because to do so she thought would certify that she had not been working and that to claim that on the back of the certificate would amount to fraud.
"By the time it came before the appellate body the following matters were, or should have been, plain: first, the Appellant was permitted to take second employment whilst working for the Respondent; second, she was under no obligation to inform them that she was so doing; third, the hours of the two employments were mutually exclusive, that is to say her hours of work atEaling
did not overlap with the hours in employment with Respondent; fourth, it was permissible for the Appellant to be off sick from work for the Respondent whilst, at the same time, being fit to continue her work with
Ealing
and continuing to do so; fifth, in the circumstance which, by then, must have been apparent to the Respondent, there was no question of the Appellant having obtained statutory sick pay from the Respondent for hours during which she was working for
Ealing
and, therefore, there was no basis for any contention that they had suffered any loss; sixth, they were entitled to
view
her failure to ask for permission to continue to work for
Ealing
as a breach of her contractual obligation; seventh, they were entitled to form the
view
that she was not acting in good faith in asserting her belief that she was not required to ask for permission."
"[…] if you are certificated as being unfit to work in yourNHS
post at
Ealing
![]()
Hospital
and then if you engage in work in a similar nature elsewhere then that could be construed as fraud. You will also need to notify any other employer that you were on certificated sick leave."
"Once gross misconduct is found, dismissal must always fall within the range of reasonable responses […]"
"[…] certainly be fraud if the Claimant were capable of work for theNHS
and failed to disclose that fact."
He plainly thought that it would not necessarily be perverse to call the conduct fraud.
Consequence