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.