HM Insights

How bad does conduct have to be when dismissing an employee without prior warning?

If an employee doesn't commit gross misconduct, has a clean disciplinary and had not received any prior warnings from his employer, is a dismissal likely to be unfair? Not necessarily, held the EAT in the recent case of Quintiles Commercial UK Ltd v Barongo (UKEAT/0255/17/JOJ).

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The facts

The claimant, Mr Barongo, was employed as a pharmaceutical sales representative. In early 2016, whilst on a performance improvement plan, he failed to complete an online compliance training module and did not attend a compulsory training course. A disciplinary hearing was held and the respondent found that their trust and confidence in the employee was lost. The claimant was dismissed with notice.

Mr Barongo did not deny that he failed to attend the training and accepted that these actions amounted to misconduct, but contested the categorisation of this as "gross" misconduct. In explanation he contended that he had been prioritising other work commitments. On an internal appeal the employer re-categorised the misconduct as "serious" but upheld the dismissal nonetheless.

The law

Dismissing for conduct reasons is, of course, potentially fair, but it is one of the most disputed categories of unfair dismissal before the Employment Tribunals. Generally, dismissal for a one-off isolated incident of misconduct will rarely be considered fair, unless the incident is sufficiently serious to justify dismissal for a first offence. More commonly, dismissal for misconduct will be considered a reasonable sanction if the employee has committed earlier acts of misconduct and has been warned that further misconduct may result in dismissal. A pattern of behaviour, or of failing to learn from past mistakes, can also justify dismissal.

The Tribunal will also look to ascertain if the employer's actions in dismissing someone fall within the band of reasonable responses which would be expected of a reasonable employer in the circumstances.

The decision

Mr Barongo persuaded the Employment Tribunal that his dismissal was unfair because the misconduct was ultimately held by the employer to be "serious" as opposed to "gross" misconduct and so to dismiss without any prior warning made the dismissal unfair. When the misconduct was downgraded from gross to serious on appeal, the dismissal should have been overturned and a warning of some nature issued instead. In reaching this view, the ET considered the respondent's own disciplinary policy which stated that conduct falling short of gross misconduct will only result in a dismissal in exceptional circumstances. The Respondent appealed to the EAT.

The EAT allowed the appeal, stating that there is no rule which states that dismissing an employee without prior warnings for conduct less serious than gross misconduct will always be unfair. The ET were wrong in taking the rigid view that where conduct fell short of gross misconduct, dismissal could only be appropriate if other warnings were first in place.

Importantly, the EAT held that the ET had placed too much importance on defining the nature of the claimant's misconduct ("gross" or "serious") and in doing so had lost sight of the statutory test for unfair dismissal, namely whether or not the decision fell within the band of reasonable responses. The EAT said that whilst the correct categorisation of conduct as "gross" or "serious" is important when dismissing an employee for conduct reasons, the fairness or otherwise of any resulting dismissal does not depend entirely on this classification.

Comment and implications

There are many sources of guidance for employers and most offer useful assistance as a starting point when faced with taking decisions in internal processes. However, employers need to be vigilant and not rely on general statements in substitution for taking specialist advice.

There are many nuances and the devil is always in the detail when weighing up whether or not to take a disciplinary decision, whether to impose a warning or a decision to dismiss.

Get in touch

Please contact one of the employment law team if you would like to discuss how we can assist you in relation to employment tribunals.