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A gross dismissal?

We explore whether misconduct needs to be ‘gross’ to justify dismissal.

In a recent case the Employment Appeal Tribunal (EAT) held that ‘misconduct’ does not need to be ‘gross’ in order to justify dismissal without a prior formal warning.

The case concerned Mr Barongo, a medical sales representative employed by Quintiles. He was dismissed for two acts of misconduct. First, failing to complete an online compliance training course by the necessary deadline of 3 November 2015, and second, for failing to attend a compulsory pioneer training course on 19 November 2015. Mr Barongo, who had been placed on a performance improvement plan a few months prior to these incidents, admitted that they amounted to misconduct but appealed the decision to terminate his employment.

On appeal the manager hearing the appeal re-categorised the misconduct from ‘gross’ to ‘serious’ but still upheld the decision to dismiss him which resulted in Mr Barongo bringing a claim at the tribunal. The Tribunal found that he had been unfairly dismissed. Quintiles appealed the decision.

The EAT allowed the appeal deciding that the Tribunal was incorrect to find that dismissal can only take place where there is gross misconduct. Categorising the conduct as something less than “gross misconduct” does not render the dismissal automatically unfair. The legislation simply states a dismissal can potentially be fair if it relates to an employee’s conduct, whether that dismissal is fair depends on whether the employer acted reasonably in deciding to dismiss in response to the conduct. The Tribunal had failed to assess the case as a whole in order to determine whether the dismissal was ‘within the range of reasonable responses’ and instead wrongly set out a sanction that they felt was appropriate.

Employers should approach this case with caution, it does not mean that an employer can dismiss for acts which do not amount to gross misconduct, it just means that doing so is not automatically unfair. The EAT itself pointed out that a dismissal in similar circumstances may well fall outside the band of reasonable responses and indeed the case has been remitted to the Tribunal so it may still be decided that Quintiles did unfairly dismiss Mr Barongo. The ACAS Code of Practice on Disciplinary and Grievance Procedures strongly recommends that dismissals for misconduct that fall short of gross misconduct should be on notice following prior formal warning.