Court of Appeal
Dr Brito-Bapapulle (“B”) was a consultant haematologist employed by Ealing NHS Trust (“The Trust”). Her contract of employment entitled her to work in a private clinic for one day a week, on which day B was not required to work for the Trust.
During a period of paid sick leave from her employment with the trust, B had continued her private work. B was consequently informed by the Trust’s Medical Director both orally and by letter that such conduct was impermissible and could be construed as fraud.
Subsequently, in 2007 B commenced a further period of sick leave during which she saw 11 private patients over six days. B presented MED3 forms to the Trust, and thereby received contractual sick pay, but did not sign the back of the forms which required her to declare that she had not been working (for the purposes of statutory sick pay scheme).
Upon discovery of her private work the Trust suspended B; at the suspension meeting B was reminded of the earlier warning and the concern that her actions were fraudulent. The Trust conducted a disciplinary investigation relating to B’s admitted action of working in private practice whilst on sick leave. The investigation letter stated that such conduct could be “’misconstrued’ [sic] as fraud.” The same error was repeated in the investigation report.
B was required to attend a disciplinary hearing; the invitation letter identified the allegation as “undertaking private practice during a period when certified as medically unfit,” stated that the allegation was potentially gross misconduct and enclosed the witness statements and investigation report relied upon by the Trust. The letter did not refer to fraud at all (whether in the pure criminal sense, or in the lesser more generalised sense of ‘dishonesty.’)
B was represented at the disciplinary hearing by a barrister. The disciplinary panel disbelieved B's evidence that she could not remember having been told not to undertake private practice whilst on sick leave, found the medical evidence that she was too ill to have recognised that her actions were wrong to be inconclusive, and concluded that her actions constituted gross misconduct and that she should be dismissed. There was no discussion of fraud in either sense. However, the dismissal letter stated that the allegation “constituted fraud which could be considered as gross misconduct” and later stated that, given B’s seniority, it was entirely reasonable to have expected her to know that her conduct was inappropriate.
B brought a claim for unfair dismissal and, at the employment tribunal, admitted that she had not signed the back of the medical certificates that she had provided to the Trust as she realised that that would have been untruthful as she had continued to work.
The Tribunal rejected her claim on the basis that the Trust had had reasonable grounds for its belief that misconduct had occurred, and had undertaken as full an investigation as was reasonable. It held that dismissal was within the band of reasonable responses open to the Trust which had been entitled to find gross misconduct where B had been told not to undertake private practice whilst on sick leave, was an experienced practitioner and had decided not to sign the reverse of the certificates.
In the Court of Appeal, B argued that the reason for the dismissal clearly identified in the dismissal letter was fraudulent conduct, and the tribunal had failed to consider (a) what the fraud was (b) whether the trust had had reasonable grounds for a genuine belief in fraudulent conduct, and (c) whether dismissal for that reason was fair, given that C had not faced an allegation of fraud.
The Court of Appeal Held:
It was an elementary rule of natural justice that a party should know the case that she has to meet, and whether there were allegations of dishonesty. However, there was no doubt in what had been alleged against B; the conduct was clearly identified. The medical director's original letter had stated that working elsewhere whilst being on sick leave could be construed as fraud, as had the investigation report and the dismissal letter. It was not fair to hold a microscope to the terms used, namely "construed", "misconstrued" and "constituted". There were dangers in using an emotive word, such as fraud, as a label rather than a description. However, the allegation had been that B had undertaken private practice whilst on sick leave, and the communications had stated that that was potentially gross misconduct. The witness statements had given a full account of the evidence of the case against her. Having found that B had been told that such conduct was impermissible, the panel had been entitled to find gross misconduct. Whether labels of fraud or dishonesty were attached was immaterial and the tribunal had not suggested that the wording of the letter had any significance when deciding whether the trust's decision fell within the band of reasonable responses. Once B had made her admission as to the signing of the certificates, the tribunal's finding had been inevitable.
The decision is noteworthy given the Court of Appeal’s willingness to adopt a very pragmatic and broad approach to disciplinary allegations and the terms used in dismissal letters.
Whilst a tribunal has long been entitled look behind the terms or labels used by the employer to determine the ‘set of facts’ or conduct in a conduct case which was the cause of the dismissal, the Court of Appeal’s willingness to adopt that approach notwithstanding the significant impact of the ostensible finding of “fraud” on B’s ability to practice in her given field in the NHS (given her status as a consultant) is worthy of note. It may, therefore, indicate a departure from the requirement to conduct a very thorough and detailed disciplinary process where the disciplinary allegations were likely to be career ending (as in A v B  IRLR 405).
The decision also suggests that the strict focus on the precise wording of disciplinary allegations (such as in Strouthos v London Underground Ltd  EWCA Civ 402) may, depending on the facts of the case, be unnecessary and potentially misguided. Rather, the Court of Appeal’s reasoning appears to be that if the allegation as to the conduct complained of is sufficiently intelligible, and that it could reasonable be regarded as gross misconduct, it will not matter precisely what adjective or label (whether fraud or dishonesty) is used to describe it.
 (see Abernethey Mott & ors  ICR 323, CA and Vodafone Ltd v Nicholson  UKEAT/0605/12/SM)
Jane McNeill QC, Andrew Midgley, NHS Trust, Dr F Brito-Babapulle, Ealing Hospital, Employment, Court of Appeal
William Meade (Senior Clerk)