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Does misconduct have to be "gross" to make a dismissal fair?

31st July 2018

Employers generally know that when an employee commits gross-misconduct, that a dismissal as a consequence of that gross misconduct will usually be fair. In general, an employer will be entitled to dismiss without notice and without notice pay if the employee has committed gross misconduct. However, the employer should still go through a fair process in leading up to the decision to dismiss the employee, even if the allegation against the employee may amount to gross-misconduct.

One issue that does cause some employers (and employees) confusion is whether it can be fair to dismiss an employee for misconduct that falls short of being gross misconduct.

A recent decision of the Employment Appeals Tribunal (the EAT) helps to clarify this area of law, and confirms that it can be fair to dismiss an employee for misconduct that falls short of gross misconduct.

The basic starting point in the legislation is the Employment Rights Act 1996. The Act lists the “potentially fair” reasons for dismissal, and in that list refers to a reason which “relates to the conduct of the employee.” The EAT noted in the case of Quintiles Commercial UK Ltd v Barongo that in a wrongful dismissal case (ie a case on the contractual rights over termination of the employment) whether the misconduct is “gross” or not, is crucial. In cases of unfair dismissal, the dismissal is not necessarily unfair if the conduct of the employee had been categorised as something short of gross misconduct. The dismissal could still be capable of being fair simply if it is a reason relating to the conduct of the employee.

This case concerned an individual who worked as a medical sales representative. He had been subjected to disciplinary proceedings over two matters. The first matter was the failure to attend an online training course by a set date. The second allegation related to the failure to attend a compulsory training course on a set date. The employee had defended his action in the disciplinary hearing stating that he had prioritised other work commitments on both occasions. He had said that he had not intentionally failed to engage in the training. The employee was already on a performance improvement plan at the time that the two allegations arose. The employee accepted that his behaviour in failing to attend the two training sessions did amount to misconduct, but did not accept that they amounted to gross- misconduct.

The employer took disciplinary action in regard to the two allegations. The manager that held the disciplinary hearing concluded that the conduct of the employee broke the trust and confidence they required, and that the employee should be dismissed on notice, for gross-misconduct. The individual appealed against the decision to dismiss him. The appeal was heard by a director of the company. The director concluded that the individual had been guilty of serious misconduct, but not gross misconduct. However, the director went on to conclude that the behaviour of the employee had resulted in a breakdown of trust and confidence and so upheld the decision to dismiss.

The individual brought a claim of unfair dismissal against his former employer.

The Employment Tribunal concluded that the dismissal had been unfair, because once it was decided in the appeal that the conduct was serious misconduct rather than gross-misconduct, then it concluded that the response should have been to issue a warning rather than to dismiss the individual.

At the appeal in the EAT it was noted that the Employment Tribunal took too rigid an approach in concluding that where the conduct was not “gross” misconduct that it would only be appropriate to issue the employee a warning. The EAT noted that the legislation does not prescribe that rigid approach in unfair dismissal cases. It was noted that the legislation does not state that absent any previous, existing, disciplinary warnings a dismissal for conduct short of gross misconduct must be unfair.

The test in unfair dismissal cases is whether the decision to dismiss because of the employee’s conduct falls within “a reasonable range of responses.” Sometimes an allegation of serious misconduct, which is still short of gross misconduct may still come within the “range of reasonable responses.”

This case highlights the fact that employers can often find themselves confused over the terminology associated with disciplinary procedures and allegations. While it is important for employers to have a list of examples of behaviour that it may regard as “serious” misconduct, and as “gross” misconduct, it must still be prepared to consider the whole circumstances in reaching a decision on the outcome of the disciplinary process. The case does not indicate that any level of misconduct will justify a dismissal and amount to a fair dismissal, but it does indicate that the whole circumstances should be considered when reaching a decision on the appropriately sanction to impose.

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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