Does 'misconduct' need to be 'gross' to make a dismissal fair (without prior warnings)?
A recent case in the Employment Appeal Tribunal looked at this question. The case was Quintiles Commercial v Barongo.
The Claimant, Mr Barongo, worked in pharmaceutical sales. After failing to complete compliance training and missing a compulsory training course, he was dismissed with notice for 'gross misconduct'.
On appeal, the employer, Quintiles Commercial UK Ltd, re-categorised the misconduct as 'serious', but nonetheless upheld the dismissal.
The Employment Tribunal held that the dismissal was unfair, holding that for 'serious' misconduct dismissals, prior warnings are to apply.
Warnings before dismissal
Kate Fretten, a Partner in our Employment Team, says “With the exception of some serious or any gross misconduct, most instances of dismissal will be preceded by previous warnings. Typical descriptions could be a verbal, written, then final warning, or first, second, and final warning.”
Dismissing an employee without prior warnings
In this case, the Employment Appeal Tribunal upheld the employer's appeal.
Under Section 98 (4) of the Employment Rights Act, there was no rule that dismissing an employee without prior warnings for conduct that is less than gross misconduct must be unfair. However, in most cases, such dismissals are outside the band of reasonable responses.
The Employment Tribunal took a rigid view that where conduct fell short of gross misconduct, dismissal could only be appropriate if other warnings were in place.
The Employment Tribunal should have considered the entire circumstances of the case, including the Acas code and the employer's disciplinary procedure. It had substituted its view for that of the employer. The case has been remitted to a new Employment Tribunal for reconsideration.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.