Does misconduct have to be 'gross'?

13 July 2018

Can an employer reasonably dismiss for serious rather than gross misconduct, even if there have been no prior warnings?

Theoretically yes, said the Employment Appeal Tribunal this month.

Mr Barongo was dismissed from Quintiles Commercial, with notice, for failing to attend two training sessions. The dismissing officer said it was gross misconduct. On appeal, the appeals officer said it was serious rather than gross misconduct but upheld dismissal on notice. Mr Barongo brought an unfair dismissal claim. The employment tribunal found he had been unfairly dismissed. Mr Barongo had a clean disciplinary record. Once the conduct had been downgraded to serious misconduct, the only fair outcome was a warning rather than dismissal. The employer appealed.

The Employment Appeal Tribunal agreed with the employer. The Employment Rights Act 1996 says a dismissal may be fair if it is for a reason which 'relates to the conduct of the employee'. Then the employer must show it acted reasonably in all the circumstances. The Act does not say that you cannot be dismissed as a first offence for anything less than gross misconduct. The tribunal failed to apply the correct test - whether the decision to dismiss was within the range of reasonable responses.

The case will now go to a new tribunal panel so that the correct test can be applied. They may still find the decision fell outside the range of reasonable responses. The judge warned that dismissal for serious misconduct without warnings will fall outside the band of reasonable responses in most cases. Employers should be wary when dismissing for anything less than gross misconduct if an employee has no warnings on file.

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