The EAT case of Miss A Perry v Imperial College Healthcare NHS Trust is a reminder that the reasonableness of dismissal is judged at the time of appeal rather than the time of dismissal.

In this case it was found that the conduct established at appeal was completely different to that upon which the decision to dismiss was based and on that basis no reasonable employer would have dismissed Miss Perry.

Miss Perry was dismissed for gross misconduct.  This was for continuing to work for a second employer during a period of sick leave.  This was upheld at appeal despite, by that stage, there being ample evidence that the Trust knew Miss Perry was working for a second employer, medical evidence that her illness did impact on her work for the Trust but not on her work for the second employer, the hours of work not overlapping and her not being paid sick pay for any periods worked with the second employer.  As such, the decision to dismiss should have been overturned.

Interestingly this case also included an allegation of procedural impropriety in that one or both of the lay members fell asleep during the hearing.  The EAT found that, in light of their main decision, they did not have to reach any conclusions as to whether that ground was a good one or not. ZZZZZzzzzzz …………..