Back in 2013 the EAT issued the the important decision in Brito-babapulle v Ealing Hospital NHS Trust [2013] UKEAT 0358_12_1406 which that found that the Employment Tribunal’s finding that “[o]nce gross misconduct is found, dismissal must always fall within the range of reasonable responses” was an error of law. Specifically, “the Tribunal misdirected itself as to whether it was simply sufficient to identify whether the conduct taken into consideration without regard to mitigation justified dismissal and by assuming, wrongly that to label conduct gross misconduct answered that question when it did not.”

However, the appeal in Brito-bapulle was on two points. In addition to the question of mitigation, which the EAT upheld there was also an appeal on whether a finding of fraud was open to the Respondent since the investigation had only alleged dishonesty. That appeal was lost and, on that ground, the claimant appealed to the Court of Appeal and judgement was delivered last month in Brito-Babapulle v Ealing Hospitals NHS Trust [2014] EWCA Civ 1626.

The Court of Appeal accepted it “is of course an elementary rule of natural justice and disciplinary proceedings that the individual concerned must know the case she has to meet” but, worryingly, did not seem to be concerned that a subsequent change of ‘label’ affected the case. Therefore, what was an alleged act of dishonesty had morphed in the dismissal letter to an act of fraud. Although not affirming the Respondent’s conduct it found a change of label to one which an employee had not been warned was being considered did not render a dismissal unfair.

That seems to be a regrettable finding – even if the basic narrative remains the same an allegation of dishonesty is one thing but an allegation of fraud – with its attendant implications of criminal conduct – seems another altogether. LJ Bean and fellow judges unfortunately found that such ambiguous terms and plain misrepresentation in what was a serious disciplinary process is ‘fair’.