Fairly Dismissing When It’s Not Gross Misconduct.

By Andrew Knorpel, Partner and Head of the Employment team

A reason which “relates to the conduct of the employee” is one of the five potentially fair reasons for dismissal. If an employer can show that the employee’s conduct was the genuine reason for their dismissal, a fair dismissal will also require them to show that, in the circumstances (including the employer’s size and administrative resources), the employer acted reasonably in dismissing for that reason (the range of reasonable responses test). Case law has held that this will involve undertaking a fair investigation in reaching the decision to dismiss and then acting reasonably in treating the identified conduct as a sufficient reason for dismissal.

Disciplinary procedures will often state that “ordinary” and “serious” misconduct are likely to be penalised by first or final written warnings respectively. If an employee carries out further misconduct, warnings may be advanced with dismissal being a potentially appropriate penalty. In cases of “gross” misconduct, it may be appropriate to dismiss an employee summarily without notice or payment in lieu of notice. However, please note that there is no reference in the legislation to “gross misconduct” being required before an employer can fairly dismiss and most disciplinary procedures states that the employer may depart from or vary their procedure in appropriate circumstances.

In the recent case of Quintiles Commercial UK Ltd v Barongo, Mr Barongo failed to complete online compliance training by the required deadline and failed to attend a compulsory training course. He had previously been placed on a performance improvement plan and the manager who held the disciplinary hearing found that the required relationship of trust and confidence had been destroyed. Mr Barongo was summarily dismissed for gross misconduct, but this was downgraded to “serious” misconduct on appeal. However, the appeal did not reduce the sanction of dismissal.

Although an employment tribunal upheld Mr Barongo’s claim for unfair dismissal on the basis that it could never be fair to dismiss an employee in the absence of gross misconduct where no prior warnings were applicable, this was overturned by the EAT. The EAT held that although dismissals in such circumstances would often fall outside the band of reasonable responses, there was no strict rule in this regard. The entire circumstances of the case are always relevant when determining fairness and Mr Barongo’s case was sent back to a different tribunal to be re-heard.

Therefore, if an employer does choose to dismiss for misconduct (even if for gross misconduct), it is always advisable to give clear reasons for the decision and refer to all relevant circumstances (including any expired warnings or previous similar conduct for which a warning was not given). If dismissal is on the cards, specific mention should be made in both the disciplinary hearing and dismissal letters of the impact of the employee’s alleged conduct on the relationship of trust and confidence. This is not an allegation in its own right, but a factor to be considered when deciding on the appropriate sanction.

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