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When is it fair to dismiss over conduct that was not gross-misconduct?

30th November 2010

A recent decision of the Employment Appeals Tribunal serves as a reminder to employers to ensure that they understand the practical implications of the difference between gross-misconduct and other misconduct when deciding if it is fair to dismiss an employee.

In the case of Weston Recovery Services v Fisher the Employment Appeals Tribunal considered the circumstances where it would be fair to dismiss an employee for misconduct that did not amount to gross-misconduct. Most employers know that they can terminate employment without notice where the employee committed gross-misconduct. However, where there was not gross misconduct the employer should give the employee notice (or at least a payment in lieu of notice).

The case illustrates a common misunderstanding over the rules of dismissal and the differences between “wrongful” dismissal and “unfair” dismissal.

The case concerned an employee that took a vehicle on a fishing holiday to France (with the permission of his employer) but returned it in an unsafe condition. A disciplinary hearing was held, and the employee was dismissed for “gross-misconduct”. The Employment Tribunal that heard the case concluded, on hearing the evidence, that the conduct in question did not amount to gross misconduct, but had amounted to serious misconduct. At the same time however, the Employment Tribunal found that the decision to dismiss the employee fell “within the range of reasonable responses” to the known facts. This is the test that applies to unfair dismissal cases, which has been used by the Tribunals for decades, following the case of British Homes Stores v Burchell. However, the claim presented at the Employment Tribunal was not only of unfair dismissal. There was also a complaint of wrongful dismissal. Essentially wrongful dismissal involves a different approach to the analysis of the misconduct and the decision to dismiss. In a nutshell the Employment Tribunal is entitled to consider objectively if the alleged misconduct was gross-misconduct or not. If it did not amount to gross-misconduct then the employer in terminating the employment must give the employee the contractual notice due to him. A finding of Gross misconduct will result in the employer not having to give notice (or notice pay).

The Employment Tribunal reached the conclusion that it felt the conduct was not such as to amount to gross misconduct, but was serious misconduct. As there was a claim for wrongful dismissal the ex-employee was entitled to notice pay on the basis that the behaviour was found not to amount to gross- misconduct. However the unfair dismissal claim failed as all the employer has to show is that there was some misconduct, it carried out a reasonable investigation, and fair process, and that the decision to dismiss then fell in the “range of reasonable responses”.

This may seem rather confusing for employers. However, it makes clear the fact that the Employment Tribunal will not always agree with an employer in labelling certain conduct as “gross-misconduct”, and that this distinction could still leave an employer vulnerable to paying notice pay to the employee concerned. Types, or examples, of gross-misconduct should be listed in a disciplinary policy, so that both employer and employees can determine if a particular conduct is or is not likely to amount to gross-misconduct. The case also illustrates that employers need to look carefully at the details of the claims that any former employee presents to the Employment Tribunal, and the distinction between the different types of claims.  

 If you need any further advice and help on the issues raised in this article please do not hesitate to contact us

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