Does first offence misconduct need to be ‘gross’ to justify dismissal?

27 Jun 2018 By Keith Williams

Misconduct employers consider ‘serious’ but not ‘gross’ can be enough to warrant dismissal without earlier warnings. Keith Williams reports in light of a recent EAT ruling

In Quintiles Commercial v Barongo, Mr Barongo worked in pharmaceutical sales. He had a previous history of poor performance, but a clean disciplinary record. In November 2015, he failed to complete two key training courses, and in January 2016 the decision was taken to dismiss him, on notice, for gross misconduct.

He appealed against that decision, and the appeal manager accepted that the misconduct was not gross, although it was serious. However, the manager upheld the dismissal on the basis that trust and confidence had broken down.

Barongo brought a claim of unfair dismissal in the employment tribunal (ET) and was successful. The ET concluded that if the misconduct was only serious rather than gross, “a warning was the only reasonable response”. That being so, a failure to issue warnings before the dismissal made the dismissal unfair.

The employer appealed to the Employment Appeal Tribunal (EAT), which rejected the ET’s decision. The EAT found that the ET had become fixated on the label of ‘gross misconduct’ as being the only justification for dismissal without warnings and, once it had done so, had decided the dismissal could not be fair. The ET lost sight of the legal test it should have applied, and did not consider the wider context of the dismissal in deciding whether it was fair.

The EAT highlighted the following:

The relevant legislation (section 98 of the Employment Rights Act 1996) does not refer to ‘gross misconduct’, but rather to “conduct of the employee [which] in the circumstances… the employer acted reasonably… in treating… as sufficient reason for dismissing the employee”. It was accepted by both parties that the reason for dismissal was conduct. That being so, the dismissal might be fair – it was then up to the ET to apply the correct test, based on all the circumstances and the ‘range of reasonable responses’ open to an employer in those circumstances, which it did not do.

The employer’s own disciplinary procedure allowed, in exceptional circumstances, for dismissals without warning in cases of misconduct that were less than gross misconduct and this, again, was not considered by the ET, because it had already closed its mind to the possibility of the dismissal being fair.

The EAT did not say that Barongo’s dismissal was fair. Rather, it confirmed that a dismissal can be fair where the first misconduct offence is not ‘gross’, provided all the circumstances justify dismissal. It remains a risky proposition to dismiss an employee for a first offence where the misconduct is not obviously of the most serious kind, and this decision should not be seen as legitimising dismissals for more minor acts of misconduct.

The Acas code on discipline and grievances explicitly refers to gross misconduct as being an act so serious that it may justify dismissal for a first offence. While the ET in Barongo’s case didn’t make direct reference to this, any prudent employer will want to be able to demonstrate that its disciplinary process has complied with the code.

Employers should be ready for a fight if they decide to proceed with a dismissal in circumstances where the misconduct is less than gross. Although the dismissal may be found fair, employers should continue to exercise caution in dismissals where the seriousness of the misconduct is in question. 

Keith Williams is a partner at Greenwoods GRM

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