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Does misconduct need to be ‘gross’ to make a dismissal fair?

Napthens - June 22nd 2018

Where an employee is dismissed with notice for ‘serious’ misconduct is this fair or does the misconduct have to be ‘gross’ to justify dismissal?

According to the Employment Appeals Tribunal (EAT) in Quintiles Commercial v Barongo, dismissal with notice for serious misconduct is potentially fair.

The Facts

Mr Barongo worked in pharmaceutical sales and, as part of his role, he was required to undertake training. The issue at hand stemmed from an online compliance training course and a compulsory pioneer training course, which he failed to attend and complete. He attributed his failure to complete these courses to being busy with other matters and had instead prioritised these other commitments. However, he acknowledged that his failure to attend was misconduct.

As a result of this misconduct, Mr Barongo was invited to a disciplinary hearing. The employer chose to hold the disciplinary hearing over the phone which was not prohibited by their own disciplinary policy or the ACAS Code of Practice. His line manager concluded that trust and confidence had been destroyed and as such he should be dismissed for gross misconduct but with notice.

Mr Barongo appealed and this was heard by one of the company’s directors. The appeal officer held that Mr Barongo had been guilty of serious misconduct, as opposed to gross misconduct. However, it was still found that trust and confidence had broken down and his dismissal with notice stood.

The EAT found that there was no rule against dismissing an employee without prior warning for conduct that is less than gross misconduct. The question is whether the dismissal fell within the band of reasonable responses available to the employer in making the decision. However, it should be noted that this is very fact specific and in most circumstances dismissal would fall outside of the band of reasonable responses for anything short of gross misconduct.

Best Practice

Whilst this case does highlight that employers can technically dismiss employees for serious misconduct such a scenario would be very fact-specific and it is inadvisable to take a broad brush approach.

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