It is generally considered that in cases of misconduct, an employer can only dismiss without prior warnings where there has been a finding of gross misconduct. However, the Employment Appeal Tribunal (EAT) recently made a decision indicating that this is not necessarily so, and ‘serious’ misconduct may also result in dismissal without warning depending on the circumstances of the case.
Mr Barongo was employed by Quintiles Commercial UK in pharmaceutical sales between 1st October 2012 and 5th January 2016. He failed to complete online compliance training before the deadline and missed a compulsory training course in November 2015. Prior to these incidents, Mr Barongo had been placed on a performance review plan by Quintiles. Mr Barongo claimed that he had been concentrating on improving his performance and had prioritised other work commitments over training.
Quintiles began disciplinary proceedings against Mr Barongo and concluded that there had been a breakdown in trust and confidence and, resultantly, Mr Barongo was dismissed with notice for gross misconduct. On appeal, Quintiles re-categorised the misconduct as serious but upheld the original decision to dismiss.
Mr Barongo raised a claim in the Employment Tribunal (ET) for unfair dismissal. The ET upheld Mr Barongo’s claim on the basis that an employer should issue a warning for serious misconduct before considering dismissal. Quintiles appealed the decision to the EAT.
The EAT held that the ET had erred in finding that where the conduct in question cannot be categorised as gross misconduct, dismissal can only be considered if warnings have previously been issued.
The EAT began by highlighting that there is no distinction between gross misconduct and serious misconduct in legislation. Section 98(2)(b) of the Employment Rights Act 1996 states that a dismissal is capable of being fair if it ‘relates to the conduct of the employee’. Once a fair reason has been identified, such as conduct, Section 98(4) states that fairness of a dismissal depends on whether in the particular circumstances of the case, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably in treating the reason as an adequate reason to dismiss. Accordingly, there was no breach of the provisions by Quintiles for dismissing for serious misconduct.
The EAT acknowledged that “it may be in most cases an ET will find that a dismissal in such circumstances falls outside the band of reasonable responses, but it should be careful to simply assume so”. The ET had “unduly restricted its view of what was relevant, by adopting an impermissibly rigid view that, where the conduct in issue fell short of gross misconduct, dismissal could only be the appropriate sanction if there were other warnings in place”.
The EAT went on to assert that the ET had fallen “into the substitution trap, imposing its own view as to the appropriate sanction rather than conducting an assessment of the Respondent’s decision against the band of reasonable responses test”. The ET focused on the employee’s clean disciplinary record but should have considered the entire circumstances of this case, including the impact that his poor work record had on the Respondent’s decision making and the loss of trust and confidence in his ability to fulfil his duties. The ET should also have considered the ACAS Code of Practice and the employer’s disciplinary procedure.
The case has been remitted to a fresh ET for reconsideration and so the dismissal may well still be found to be unfair. While this case identifies potential scope for employers to dismiss without warnings for acts which do not amount to gross misconduct, general principles still apply to the effect that all the circumstances must be considered. Warnings are a fundamental element of procedural fairness in cases where alleged misconduct cannot be categorised as gross misconduct or otherwise so serious as to merit dismissal. The ACAS Code of Practice on Disciplinary and Grievance Procedures emphasises the importance of a “staged” process in such cases.
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