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Dismissal for Misconduct Short of Gross Misconduct Was Not Unfair

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

Is it automatically unfair to dismiss an employee whose misconduct falls short of being gross misconduct? In a guideline decision, the Employment Appeal Tribunal (EAT) has answered that question with a resounding ‘no’ (Quintiles Commercial UK Limited v Barongo).

The case concerned a salesman who was employed by an agency to sell drugs for a pharmaceutical company. He admitted misconduct after failing to engage with the company’s training programmes. He explained that he had prioritised other work commitments at a time when his performance was under review.

He was dismissed on notice after a disciplinary panel found him guilty of gross misconduct. Following an appeal hearing, however, it was found that his misconduct had been serious, rather than gross. The decision to dismiss him was nevertheless upheld after the appeal panel concluded that the relationship of trust and confidence between employer and employee had irretrievably broken down.

An Employment Tribunal (ET) subsequently upheld his unfair dismissal claim on the basis that the finding that his misconduct was serious, rather than gross, meant that he should only have been issued with a written warning. As his disciplinary record was otherwise unblemished, dismissal had not been an option.

In upholding the employer’s challenge to that ruling, the EAT noted that, under Section 98(2)(b) of the Employment Rights Act 1996 (ERA), a dismissal is capable of being fair if it is for a reason that relates to the conduct of an employee. The reference to conduct is in general terms, and there is no requirement that it must amount to gross misconduct.

The ET had fallen into error in moving automatically from the employer’s conclusion that the man was guilty of misconduct falling short of gross misconduct to a finding that dismissal for a first offence was necessarily unfair. In adopting an unduly restrictive interpretation of the ERA, the ET had failed to consider whether the man’s dismissal fell within the band of reasonable responses open to the employer.

The case was sent back to a differently constituted ET for fresh consideration.

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