It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct.

However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct.

Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca’s compliance training course by the deadline of 3 November 2015 and, second, for failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other matters. He said that he had not intentionally failed to engage with the training but he had chosen to prioritise other matters. This had been at a time when he was on a performance improvement plan.

There was a disciplinary hearing conducted with his line manager which took place by telephone. As the EAT pointed out, conducting the hearing by phone might not have been best practice but it was not in itself unfair. His line manager concluded that the duty of trust and confidence which ought to exist between employer and employee had been broken and, as a result, Mr Barongo was dismissed on notice, for gross misconduct.

He appealed against the decision and the appeal was heard by one of the employer’s directors, Mr Athey, who took the view that there had been a breach of the duty of trust and confidence, but that it amounted to serious rather than gross misconduct.

Mr Barongo submitted a claim of unfair dismissal to the Employment Tribunal. The Tribunal took the view that the downgrading of the misconduct from gross to serious was highly significant:

“Once the misconduct is characterised as serious and not gross, it means that warnings are to apply. This Claimant had no previous live warnings on his file. That meant he came as someone with a clean record into this disciplinary hearing. If the Respondent had believed and reasonably so that his misconduct had been gross, then that could furnish a reason for not applying warnings. However, the characterisation of the misconduct as serious on appeal means that the failure to issue a warning renders the dismissal unfair. Serious misconduct would have entitled any sort of warning including a final written warning but the express rejection of gross misconduct renders this dismissal unfair. …”

Further:

“…the misconduct was not reasonably characterised as gross rather than serious; and indeed, the Respondent on appeal characterising it as serious rather than gross means that a warning was the only reasonable response, and dismissal was outside it, within the terms of the Respondent’s policy and general unfair dismissal law, the Claimant having a clean record.”

As a result:

“The particular issue in the case is whether dismissal was a sanction open to a reasonable employer. As soon as the appeal officer, rightly in my judgment, characterised the matter as serious misconduct and expressly not as gross misconduct, the Respondent could only reasonably be in warnings territory given that the Claimant had a clean disciplinary record. This was so under its own policy and under the general law of unfair dismissal.”

That said, the Tribunal felt the Mr Barongo’s conduct had contributed to his dismissal. As a result it ordered that his compensation should be reduced by one-third.

The employer appealed against the judgment.

The EAT began, undoubtedly correctly, by pointing out that there is no distinction between gross misconduct and other types of misconduct in the relevant legislation. Section 98(2)(b) of the Employment Rights Act 1996 states that a dismissal is capable of being fair if it “relates to the conduct of the employee”. There is no classification of that conduct. Rather, section 98(4) provides that an employment should focus on the particular circumstances of the case. Therefore there was no breach of the relevant provisions of the Act merely by dismissing for serious misconduct.

On the other hand, the ACAS Code of Practice, to which employers and tribunals must have regard, does identify gross misconduct as conduct so serious in itself, or having such serious consequences, as to justify summary dismissal for a first offence. However, in this case, the dismissal was not summary but on notice. As often happens in cases resulting in successful appeal, the Tribunal had fallen into the trap of focusing on what it considered was a reasonable sanction rather than whether the sanction applied fell outside the range of reasonable responses available to the employer.

The EAT acknowledged that, in most cases, a dismissal without prior warnings for something less than gross misconduct will probably fall outside the band of reasonable responses available to a employer. However, there is no rule in the legislation which says that this will always be the case. The Employment Tribunal had “unduly restricted its view of what was relevant, by adopting an impermissibly rigid view that, where the conduct in issue fell short of gross misconduct, dismissal could only be the appropriate sanction if there were other warnings in place”.

Her Honour Judge Eady QC summarised her decision as follows:

“…in my judgment the ET’s approach in this case was flawed: it unduly limited the potential range of reasonable responses by applying a general rule as to when dismissal might be fair in cases of conduct falling short of gross misconduct, when no such rule is laid down by section 98(4). Further, or alternatively, it fell into the substitution trap, imposing its own view as to the appropriate sanction rather than conducting an assessment of the Respondent’s decision against the band of reasonable responses test. In either event, the conclusion is rendered unsafe and the appeal must be allowed.”

As a result the matter was remitted for further consideration by a differently constituted employment tribunal.

I should emphasise that this is an unusual case and should in no way be seen as a green light for employers to routinely dismiss employees without prior warnings for conduct which is seen as falling short of gross misconduct. As ever, if you are contemplating the dismissal of an employee you should contact us for advice before taking any disciplinary steps, with a view to avoiding potentially expensive and time-consuming consequences.

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