Brito-Babapulle v Ealing Hospital NHS Trust
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LADY JUSTICE ARDEN
- LORD JUSTICE CHRISTOPHER CLARKE
- LORD JUSTICE BEAN
Areas of Law
- Employment Law
- Civil Procedure
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The appellant, employed by the Ealing Hospital NHS Trust as a consultant haematologist, was dismissed for conducting private practice during paid sick leave—a gross misconduct according to the Trust. The dismissal was upheld by an Employment Tribunal and later partially remitted by the Employment Appeal Tribunal to reconsider mitigating factors. The court confirmed that the dismissal fell within the range of reasonable responses, highlighting the seriousness of sick pay fraud.
Judgment
LORD JUSTICE BEAN:
The appellant was employed by the Ealing Hospital NHS Trust as a consultant haematologist. She had a second job seeing private patients one morning or one afternoon per week. The Ealing Hospital Trust were aware of this arrangement.
In March 2009 she began a period of paid sick leave from the Trust. She submitted a series of medical certificates to the Trust in the usual form stating that she was unfit for work, and eventually (in the case of the last certificates) that she could begin to return to work on a staged basis. But during the period while she was certified as unfit for work, she saw about 11 private patients on six days.
There was no express term of her contract of employment with the Trust prohibiting her from undertaking private practice work while on paid certificated sick leave, but Dr Lynn, the Medical Director of the Trust, had both written to her and told her orally in late 2007 that she should not carry out private practice work while on sick leave and that engaging in such work "could be construed as fraud". When a Disciplinary Panel was eventually convened the appellant told them she could not recall being told this nor receiving the letter, but she was disbelieved.
She did not discuss her plan to carry out some of her private patient work with either her line managers or with the Practitioner Health Programme or Occupational Health representatives of the Trust whom she saw from time to time during the period of sick leave. She did however mention the private work herself in an email to Dr Lynn of 13th May 2009. She wrote that she had tested herself out on three private patients the previous day. This was, it seems, the first the Trust knew of her having continued private work during the period of sick leave and they launched an investigation. Following the investigation they instituted disciplinary proceedings, of which more later.
Before the disciplinary proceedings began she had been sent two letters setting out what was to happen at the forthcoming hearing. Each of these letters stated that the allegation was potentially one of gross misconduct which could, if substantiated, lead to dismissal.
At the Panel hearing the appellant was represented by counsel. There was no dispute that she had indeed undertaken private work during the period of her sick leave. She told the Panel that she had thought at the time she was doing nothing wrong, but she now accepted that what she had done was indeed wrong. T