I am in the middle of a disciplinary process with an employee for a gross misconduct issue and he has asked me to look at mitigating factors. The investigation has already found that there has been a breach of policy, which falls within our definition of gross misconduct. Surely this means dismissal should be automatic? How do I handle it?

Sharon McArdle writes:

The employer should always consider any mitigating factors that are put forward by the employee in these circumstances. It is important that all three aspects of a fair dismissal are covered, when considering dismissal on grounds of conduct. These are:-

• Ensure there is a fair reason for dismissal;
• Ensure a fair procedure has been followed (including compliance with statutory dismissal and disciplinary procedures);
• Ensure that the decision to dismiss falls within a band of reasonable responses. This includes ensuring that a thorough investigation has taken place and that any mitigating circumstances have been taken into account.

In the case of Brito-Babapulle v Ealing Hospital NHS Trust UK EAT, an employee who was a hospital consultant had continued to perform work at a private hospital while on paid sick leave from her NHS job, despite having been told on two previous occasions that this was not allowed.

The EAT found that the Tribunal hearing the case had rightly characterised the Claimant’s actions as gross misconduct however it remitted the matter because the Tribunal had wrongly jumped from a finding of gross misconduct to the conclusion that the dismissal must necessarily be fair, without considering whether it fell within the band of reasonable responses. The EAT stated that, even in gross misconduct cases, there may be mitigating factors which suggests that dismissal is not reasonable. This might include whether the employee has a long unblemished record, and the consequences of the dismissal for the employee.

In Perry v Imperial College Healthcare NHS Trust UK EAT, the Claimant worked as a community midwife of Imperial, an NHS Trust. Her job involved cycling to patients homes and sometimes climbing stairs in high rise buildings. Due to a knee condition, she was signed off work and received statutory and contractual sick pay. However, she carried on with a second job for a different NHS Trust, which was desk based and therefore not affected by her knee condition.

The second job was carried out on one evening a week and did not overlap the hours she would otherwise have been working for Imperial. Imperial knew about the second job but had not specifically consented to or been informed about her second job carrying on while she was on sick leave. The EAT held that Imperial had been wrong to characterise the Claimant’s conduct in claiming sick pay as fraud and held that her dismissal was unfair.

These cases underline the importance of following each stage of the disciplinary process in a thorough manner. Even where a thorough investigation has been carried out and correct procedures have been followed at all times, a dismissal may still be unfair if it is found to be outside the band of reasonable responses. This could be the case if the employer cannot demonstrate that it has taken into account mitigating factors put forward by the employee.