In this case, the EAT held that an employee who had left work part way through her shift and failed to inform management of this by telephone had not committed an act of gross misconduct. The employment tribunal's conclusion that she had done was perverse and its decision to reduce the employee's unfair dismissal compensation by 100% therefore could not stand.
Facts
Ms Kisheva was employed by Secure Frontline Services Ltd (Frontline) as a door supervisor. On 29 January 2022, Ms Kisheva left work part way through her shift following an argument with a colleague. She informed her team leader that she was leaving, and arranged for a text message to be sent to Frontline's central management. She also sent an email later that evening explaining her actions. However, she did not contact central management by telephone.
On 1 February 2022, Frontline summarily dismissed Ms Kisheva for gross misconduct, communicating its decision by email. The disciplinary investigation was limited to obtaining written statements about the incident from Ms Kisheva's team leader and the colleague with whom Ms Kisheva had argued.
An employment tribunal held that Ms Kisheva's dismissal was procedurally unfair, commenting that Frontline's handling of the disciplinary process had been "shockingly perfunctory", particularly in light of Ms Kisheva's 13 years of unblemished service. The tribunal also criticised Frontline's failure to refer in the dismissal decision to Ms Kisheva's right of appeal.
However, the tribunal considered that Frontline had been entitled to dismiss Ms Kisheva summarily for gross misconduct - namely her decision to leave work part way through her shift without informing central management by telephone. It therefore decided to reduce both Ms Kisheva's basic award and her compensatory award by 100%.
The EAT upheld Ms Kisheva's appeal, holding that the tribunal's conclusion that Ms Kisheva's conduct amounted to gross misconduct was perverse. Frontline's code of conduct required staff not to leave work without authorisation and stated that this could possibly incur disciplinary action. However, it did not include leaving work without authorisation in its examples of gross misconduct, or in its list of so-called instant dismissal offences (which included taking drugs and illegal activities). The requirement to telephone management was not mentioned in the code of conduct at all, and had only been communicated to staff orally in training.
The EAT sent the case back to another tribunal for reconsideration of the appropriate remedy, on the basis that Ms Kisheva's dismissal was unfair and Frontline was not entitled to have treated her behaviour as gross misconduct.
What does this mean for employers?
Under the Employment Rights Act 2025, from 1 January 2027 the right to unfair dismissal protection will apply to all employees with at least six months' continuous service, and the cap on unfair dismissal compensation will be removed. These changes materially increase the risk for employers of failing to handle alleged misconduct properly. This case therefore provides a timely reminder to employers:
- To ensure that their codes of conduct and disciplinary policies clearly identify the types of conduct that will be treated as gross misconduct. Policies often state that lists of such conduct are not exhaustive. However, particularly where such lists appear comprehensive, it may be difficult for an employer to argue that conduct which is neither listed nor readily comparable to any listed conduct can fairly be treated as gross misconduct.
- Of the importance of conducting a reasonable investigation before dismissing or disciplining an employee for alleged misconduct, and of following their own disciplinary procedures. Here, the "shockingly perfunctory" investigation and failure to offer made a finding of unfair dismissal inevitable.
