Does ‘misconduct’ need to be ‘gross’ to make a dismissal (without prior warnings) fair?
Does dismissal need to be ‘gross’ to make a dismissal fair?
No, held the Employment Appeal Tribunal (EAT) in Quintiles Commercial v Barongo.
In this case, the Claimant worked in pharmaceutical sales and found themselves dismissed on the grounds of misconduct after failing to complete compliance training and not attending a compulsory training course.
On appeal, the employer re-classed the dismissal as serious, yet, upheld the dismissal. The Employment Tribunal (ET) argued that the dismissal was unfair, maintaining that for serious misconduct dismissals prior warning should be applied.
The EAT upheld the employers appeal on the grounds that s90 (4) of the Employment Rights Act does not specify that dismissing an employee without prior warning for conduct that falls short of gross misconduct must be unfair. Although in most cases, such dismissals are outside the band of reasonable responses.
The ET approached this case with the firm view that where conduct fell short of gross misconduct, dismissal could only be viewed as appropriate is prior warnings were in place. The ET should have taken into consideration the entire circumstances of this case, including the ACAS Code of Practice and the employer’s disciplinary procedure. This case has been referred to a new ET for reconsideration.
When considering the fairness of a dismissal, tribunals have to determine whether the employer has acted reasonably or unreasonably in treating the reason given by the employer as an adequate reason to dismiss.
If an employee has committed an act of gross misconduct, then clearly there will be a sufficient reason to dismiss. But what exactly is viewed as gross misconduct?
Gross misconduct occurs when an employee has acted so badly that the employer/employee relationship is destroyed. In this event the employer merits the right of instant dismissal without notice or pay of notice.
It is recommended that employers give equip their employees with a clear indication of what type of behaviour will be considered as gross misconduct. Such provisions should be set out in the contract of employment or within the staff handbook. This then allows employers and employees to easily identify such behaviour in advance and will help determines later that you regard it as significant.
Examples of gross misconduct include, intoxication, theft, bullying or harassment, serious breaches of health and safety rules and fighting or physical abuse.
Depending on the nature of the organisation, employers may wish to detail other offences. Such as, accepting or offering bribes, misuse of confidential information or setting up a competing business.
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