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Does misconduct need to be ‘gross’ for a dismissal to be fair without warning?

The Employment Appeal Tribunal in the case of Quintile Commercials v Barango has held that misconduct does not have to be “gross” to make a dismissal without prior warnings fair.

Background

The Claimant failed to complete two training courses by the deadline set by his employer, Quintile Commercials (“the Company”). The Claimant did not deny that he had failed to complete the courses but said that he had prioritised other work instead.

The disciplinary chair did not accept the Claimant’s mitigation as sufficient and decided that the implied term of trust and confidence had been broken and that the Claimant should be dismissed for gross misconduct.

On appeal, it was found that the Claimant had committed ‘serious’ misconduct rather than ‘gross’ misconduct but that the term of trust and confidence had still been broken and the dismissal was upheld.

The Claimant brought a claim for unfair dismissal.

Decision

The Employment Tribunal upheld the unfair dismissal claim. It held that if the conduct was not “gross” an employee should not be dismissed without warning. The Claimant did not have any live warnings on his file.

The Company appealed and the Employment Appeal Tribunal (“EAT”) upheld the appeal.

The EAT referred to the Employment Rights Act 1996 which states that a dismissal can be fair if it “relates to the conduct of an employee”. The EAT noted that there is no requirement under the legislation for that conduct to be “gross misconduct”.

The EAT found that the tribunal had substituted its own view as to an appropriate sanction when it should have asked whether the Company had acted reasonably in all the circumstances and whether the decision was within the “band of reasonable responses”.

The claim was remitted to another tribunal for reconsideration.

Comment

Some employers may read from this case that they will be able to dismiss employees for misconduct which they would not deem as “gross” without prior warning. However, it is important to note that the EAT did not find the dismissal in this case to be fair, it only found that the dismissal was not necessarily unfair just because there were no previous warnings. The case will be heard again and the new tribunal will have to consider whether the decision to dismiss was “within the band of reasonable responses”. It would be a rare instance where an employer could safely dismiss an employee for misconduct that is not “gross” when no prior warnings are in place.

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