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Merlin House, 1 Langstone Business Park

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For more than 10 years we have provided companies of all sizes and in a variety of sectors with uncomplicated, innovative and affordable human resources advice and on-site support ensuring that your people are an asset to your company and not a liability.


With the National Minimum Wage (NMW) now almost fifteen years old, and with another increase pending on 1st April 2017 HMRC have issued a list of the most elaborate excuses they've been given by employers for not paying the appropriate rates:

Gross Misconduct Doesn't Automatically Mean Summary Dismissal

Alan Kitto

Our last update looked at a recent High Court judgement (Agoreyo v London Borough of Lambeth) where the suspension of an employee had been found to be a fundamental breach of contract. This decision is a stark reminder to employers that they should only suspend employees where absolutely necessary and then only after alternatives to suspension have been properly considered and ruled out.

The Agoreyo v London Borough of Lambeth judgement bares some similarities with a 2013 Employment Appeal Tribunal (EAT) decision addressing the question of whether a finding of gross misconduct means that summary dismissal (or even dismissal) automatically falls within the range of reasonable responses.

The short answer to this question is 'no' according to Brito-Babapulle v Ealing Hospital NHS Trust and this case has highlighted the importance for employers to consider all mitigating factors and alternative sanctions before reaching a decision to dismiss.

In this case, a consultant haematologist for Ealing Hospital was dismissed by the NHS for claiming sick pay but then undertaking private work whilst she was off work sick. The tribunal found that the dismissal was fair.

On appeal to the EAT, the tribunal was criticised for stating that once gross misconduct is found, dismissal must always fall within the range of reasonable responses. On the contrary, the EAT clarified that a finding of gross misconduct does not automatically mean that dismissal is justified. Before deciding to dismiss, a disciplinary hearing must consider whether there are mitigating factors, such as long service,  a clean disciplinary record and/or the consequences of dismissal on the employee's career. They should also consider whether alternative sanctions are more appropriate.

It is worth noting however that the EAT made clear that claiming sick pay whilst working elsewhere is generally regarded very seriously by employers and as such, had the employer properly considered alternatives the outcome of this case may have been different.

This case is n important reminder for dismissing managers that it is essential to consider all mitigating factors and alternative sanctions. If dismissal is still considered to be the appropriate sanction, the disciplinary hearer should explain and record why it was appropriate. 

The Agoreyo v London Borough of Lambeth and the Brito-Babapulle v Ealing Hospital NHS Trust cases dispel two myths that still exist within most employers namely that it's fine and normal to suspend an employee providing the letter of suspension states that suspension is a neutral act and that employees found guilty of gross misconduct will automatically be dismissed.

We always urge our clients to seek our advice on any disciplinary matter but especially when suspension is a consideration or dismissal is a possible outcome. Please get in touch for more information or advice on a specific issue.