Latest in Employment Law>Articles>Do we still need to consider alternatives to dismissal in disciplinary proceedings involving allegations of gross misconduct?
Do we still need to consider alternatives to dismissal in disciplinary proceedings involving allegations of gross misconduct?
Published on: 04/05/2021
Issues Covered: Dismissal Discipline
Article Authors The main content of this article was provided by the following authors.
Chris Fullerton
Chris Fullerton

Do we still need to consider alternatives to dismissal in disciplinary proceedings involving allegations of gross misconduct?

Employers should be mindful of their obligation to consider all the circumstances and other options to dismissal (such as final warning or demotion, where the contract allows for this), as a tribunal can still find that dismissal was outside the band of reasonable responses, even where there has been a finding of gross misconduct.

In Brito-Babapulle v Ealing Hospital NHS Trust [2014] EWCA Civ 1626, the EAT held that a tribunal had erred when it held that dismissal would always fall within the range of reasonable responses in cases of gross misconduct. Although dismissal may be "almost inevitable" once there has been a finding of gross misconduct, the EAT held that there may be mitigating factors which suggest that dismissal is not in fact a reasonable response. This might include, for example, whether the employee has a long unblemished record, and the consequences of the dismissal for the employee.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 04/05/2021