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Can you dismiss an employee for misconduct, without classifying it as “gross misconduct”?
Normally you cannot fairly dismiss an employee for misconduct (when not classified as gross misconduct) without there being current prior written warnings on file. However, in a recent Employment Appeal Tribunal case it seems that this is possible in theory…

The case involved Mr Barongo who was dismissed from Quintiles Commercial, with notice, because he failed to attend two important 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 then brought an unfair dismissal claim and the Employment Tribunal concluded that he had been unfairly dismissed. It found that Mr Barongo had a clean disciplinary record and said that 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 overturned the decision and agreed with the employer. It seems that 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'. In such circumstances the employer must show it acted reasonably. The Act does not say that you cannot be dismissed as a first offence for anything less than gross misconduct. The EAT said that the original tribunal had failed to apply the correct test. i.e. whether the decision to dismiss was within the range of reasonable responses. Normally employers follow the Acas guide, which indicates that it is normally good practice only to dismiss for misconduct when there are already warnings in place.

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, so we will need to see what happens.

However, be warned: this is not a licence for employers to start dismissing employees for serious, but not gross misconduct. The EAT judge cautioned that in most cases dismissal for serious misconduct without warnings will fall outside the band of reasonable responses. Employers should therefore be wary when dismissing for anything less than gross misconduct if an employee has no warnings on file. If you need further advice on this, please get in touch.
Posted on 30 Jul 2018


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