Unfair Dismissal and the Form of Misconduct

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In Quintiles Commercial v Barongo the Employment Appeal Tribunal (EAT) held that misconduct does not have to be ‘gross’ for a dismissal without prior warnings to be fair.

In this case the Claimant, Mr Barongo, was dismissed for ‘gross misconduct’ after failing to complete two compulsory training courses by the deadline given by the Respondent. He appealed the decision and the misconduct was re-categorised as ‘serious’ rather than ‘gross’, however the decision to dismiss was upheld. This was because the director holding the appeal still found that the trust and confidence between the employer and employee had been destroyed.

The Claimant made a claim for unfair dismissal at the Employment Tribunal (ET) which upheld his claim. The ET held that there was a difference between ‘serious’ and ‘gross’ misconduct and dismissing for anything less than gross misconduct would be unfair if no prior warnings had been given before dismissal. The Claimant’s ‘serious’ misconduct was short of gross misconduct and as he received no prior warnings the dismissal was unfair.

The Respondent appealed to the EAT and it was allowed. The EAT referred to s. 98(4)

of the Employment Rights Act 1996 (ERA) and found that there was nothing in the legislation which indicated that conduct should amount to gross misconduct for dismissal without prior warnings to be fair. In making its decision the ET had taken an ‘impermissibly rigid view’ that if conduct does not amount to ‘gross’ misconduct there must be appropriate warnings beforehand, and in doing so it had not approached the question of fairness sufficiently. The ET should have taken into account whether dismissal was a reasonable sanction for the employer to impose in the entire circumstances of the case, referring to the ACAS Code, any disciplinary procedure of the employer and to the loss of trust and confidence in his ability to carry out his role to the standard required.

The case was remitted to a new ET to be considered again.

Employers beware! On the face of it, this case appears to support an argument allowing for employers to dismiss for an offence short of ‘gross’ misconduct with no prior warnings. However, the EAT only decided that it was not necessarily unfair rather than ruling that dismissal was fair. There are unlikely to be many circumstances where dismissal is considered a reasonable response without prior warning and indeed on reconsideration by a new ET it may be decided that dismissal with no prior warning for failing to complete training was not a reasonable response for the employer to take.

Written by
Edward Aston
25th July 2018