Unfair Dismissal: A dismissal without prior warning can be fair even if the misconduct is "serious" rather than "gross"

Published 8 junio 2018

The facts

Mr Barongo was employed by Quintiles Commercial UK Ltd. He was accused of failing to complete two compulsory training courses by the deadline set by Quintiles. He did not deny that he had committed this misconduct. However, in mitigation, he said that he had not intentionally failed to engage with the training, but had prioritised other work commitments. He had been on a Performance Improvement Plan, and this had not been a good time for him. The chair of the disciplinary hearing did not consider the mitigating factors put forward by Mr Barongo to be sufficient: he concluded that trust and confidence had been destroyed, and decided that Mr Barongo should be dismissed, on notice, for gross misconduct. Mr Barongo appealed, and the director holding the appeal decided that Mr Barongo had been guilty of serious rather than gross misconduct. However, the director also thought that trust and confidence had broken down, and upheld the decision to dismiss.

Mr Barongo claimed that he had been unfairly dismissed. The tribunal upheld his claim. It considered that the characterisation of his misconduct as "serious" rather than "gross" had significant implications: if the conduct was not "gross", an employee should not be dismissed without warning, and Mr Barongo did not have any live warnings on his file. According to the tribunal, Quintiles could have issued any kind of warning, including a final written warning, but its failure to issue a warning meant that the dismissal was unfair.

The tribunal also considered that the initial characterisation of the misconduct as being "gross" misconduct was not consistent with Quintiles' disciplinary policy, and that issues relating to his performance had been taken into account in the decision to dismiss, rather than just the charges of misconduct that had been raised against him.

Quintiles appealed to the EAT who allowed their appeal. The EAT referred to the wording of the Employment Rights Act 1996, the legislation which sets out the law on unfair dismissal. The legislation states that a dismissal is capable of being fair if it is for a reason which "relates to the conduct of the employee". There is no requirement in the legislation that the conduct amounts to gross misconduct. The tribunal had, Quintiles argued, moved automatically from the conclusion at the internal appeal that Mr Barongo was guilty of conduct falling short of gross misconduct to a finding that dismissal for a first offence was necessarily unfair. Instead, the tribunal should have asked whether Quintiles had acted reasonably in all the circumstances in dismissing Mr Barongo for the misconduct. In focussing on Mr Barongo's clean disciplinary record, and being "unduly fixated" on the precise label given to the misconduct, the tribunal had lost sight of the statutory test for unfair dismissal, and had failed to consider other relevant matters, including the impact that his poor work record had on the decision making and the loss of trust and confidence in Mr Barongo's ability to undertake his role to the required standards.

It held that a dismissal is not rendered automatically unfair if the conduct properly does not amount to gross misconduct: a dismissal is capable of being fair provided that it is for a reason relating to the employee's conduct. The tribunal had not properly considered, as it should have done, whether the dismissal was within the range of reasonable responses, because it had restricted its view of what was relevant by adopting an "impermissibly rigid view" that where conduct falls short of gross misconduct, dismissal can only be appropriate where there are other warnings in place. The EAT also considered that the tribunal had imposed its own view as to the appropriate sanction rather than assessing the employer's decision against the band of reasonable responses test, as it should have done.

The case was remitted to a new tribunal to be heard again.

What does this mean for employers?

This case opens the door for arguments that employers can dismiss for a first offence even where misconduct is not so bad as to constitute "gross" misconduct and there are no prior warnings. However, employers wishing to rely on this case should tread with caution, bearing in mind that the EAT did not decide that the dismissal was fair, just that it was not necessarily unfair. A fresh tribunal, considering all the circumstances, may well decide that dismissal without warning for failing to complete online training is not within the range of reasonable responses. It is hard to think of many circumstances where dismissal for "serious" misconduct, without prior warning, will be within the range of reasonable responses.

Quintiles Commercial UK Limited v Mr A Barongo UKEAT/0155/17/JOJ