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The EAT has held that a tribunal erred when it stated that dismissal would always fall within the range of reasonable responses in cases of gross misconduct. Moving straight from a finding of gross misconduct to the proposition that dismissal must fall within the range of reasonable responses gave no room for considering whether, though the misconduct was gross and dismissal almost inevitable, mitigating factors might mean that dismissal was not reasonable.
When assessing an employer's conduct and the question of fairness, a tribunal should not only take into account the nature of the misconduct but also, insofar as they are separate from it, the employee's long service, the consequences of dismissal and any previously unblemished record. (Brito-Babapulle v Ealing Hospital NHS Trust UKEAT/0358/12.)