Is it fair to dismiss for action which falls short of gross misconduct?

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, 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 priorities 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:

When can social media posts be used as evidence? – A Snoopy character study

Charlie BrownSocial media. Oh my. We all know the usual story of an employee getting ‘caught out’ by a social media post. But, in reality, social media is a complicated beast and never quite as straightforward as it appears. Can an employer normally rely on social media posts? Probably. Can it always rely on incriminating social media posts? No!

Before we get into it fully, it’s important to consider that even defining ‘social media’ is tricky nowadays. Raise your hands if you think you’re pretty au faux with social media websites? Good, good. So you’ve heard of all of the following: Facebook, WhatsApp, Tumblr, LINE, Telegram, Foursquare and Snapfish. I thought not… (Bonus point if you actually did!)

Now, we all know the standard tale. An employee posts something anti-employer on their social media or posts something that proves dishonest conduct and the employer then pulls out their social media policy, invites the employee to a Disciplinary hearing and a formal sanction (up to and including dismissal) is given. But, in reality, a lot depends on how that information comes to light.

Taking into account prior warnings when dismissing

The Employment Appeal Tribunal (EAT) decision in Bandara v British Broadcasting Corporation provides a reminder of the need to be careful when considering prior warnings in the context of deciding to dismiss someone. Mr Bandara worked as a senior producer for the BBC, having commenced employment as a producer in July 1995. He worked within the…

Anti-abuse charity employee awarded £90,000 for “calculated and premeditated” harassment

Roshni is the Urdu word for “light”. In June 2002 millionaire Ali Khan founded the charity of that name which is based in Glasgow. Its stated objectives are: “The advancement of education; the advancement of citizenship or community development; the relief of those in need by reason of age, ill health, disability, financial hardship or…

insufficient investigation made dismissal unfair

Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the Employment Appeal Tribunal in Stuart v London City Airport. Mr Stuart was one of 430 ground services employees at London City Airport who was dismissed for gross misconduct. It was alleged that he had gone to a duty…