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Peter Olszewski
Peter Olszewski,
Can an employee be dismissed for misconduct which is serious, but not gross?
12 July 2018

In June 2018 the Employment Appeal Tribunal (EAT) in Quintiles Commercial UK Limited v Mr A Barongo UKEAT/0255/17/JOJ was asked to consider whether an employee could be fairly dismissed for conduct which was serious, but not gross.

The facts of the case:

  • Mr Barongo (Mr B) was dismissed with notice as he had failed to attend two training sessions.
  • Quintiles appointed Mr B’s line manager to conduct the disciplinary hearing.  The line manager held that the failure to attend the training sessions amounted to a case of gross misconduct and dismissed Mr B with notice.
  • Mr B appealed against the decision to dismiss him.  The appeal held Mr B’s actions amounted to ‘serious’ as opposed to ‘gross misconduct’ but the appeal officer upheld the decision to dismiss Mr B on notice.
  • Mr B brought an unfair dismissal claim in the employment tribunal (ET).  The ET found that Mr B had been unfairly dismissed.  The finding was on the basis Mr B had a clean disciplinary record and that as the conduct had been downgraded to serious misconduct the employers reasonable response should have been to issue a warning rather than dismiss him. 
  • Quintiles appealed to the EAT who upheld their appeal.

The EAT noted that the Employment Rights Act 1996 (the Act) states a dismissal may be fair if it is for a reason which ‘relates to the conduct of the employee’. 

The employer must then show it acted reasonably in all of the circumstances when responding to the employee’s conduct.  The EAT noted that the Act does not prevent an employer from dismissing an employee for a first offence which is anything other than gross misconduct.

The EAT held that the ET failed to apply the correct test, that being whether the decision to dismiss was within the range of reasonable responses available to Quintiles and, instead, it unduly fixated on the precise label given to Mr B’s misconduct, losing sight of the statutory test. 

The EAT also held that it was not for the ET to judge Quintiles’ decision to dismiss against what it - the ET - would have done.  Instead it should have assessed what had occurred in terms of the range of reasonable responses of the reasonable employer in those circumstances: did the Respondent’s conduct and decisions fall outside that range?

The case has now been referred back to a new ET panel so the correct test can be applied.

The EAT has therefore confirmed that the Act does allow an employer to dismiss for conduct which falls short of gross misconduct, though the EAT warned that that dismissal for misconduct other than gross misconduct without warnings in most cases will fall outside the band of reasonable responses available to an employer.

Where does this leave employers?

The EAT’s decision does not open the door to dismissing for a first offence for minor matters.  If an employer is considering dismissal for a first offence it should consider the circumstances very carefully and in the light of its own disciplinary policy and the ACAS Guidance.  What the decision tells us is that if a label is applied to conduct, the label is by itself not important.  Of utmost importance is the actual nature of the conduct, does it justify dismissal applying the well worn tests adopted by the ET; if it does then dismissal will be fair.

Now that Tribunal decisions are published it will be interesting to learn what view the Tribunal take of the conduct in question.

If you would like to discuss any issues relating to unfair dismissal, please contact Peter Olszewski [email protected]

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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