It is often the case that clients ask whether misconduct has to be a “gross misconduct” to make a dismissal fair.
In a recent case of the Employment Appeal Tribunal, it held that misconduct does not have to be gross to make a dismissal without prior warning fair. Obviously, each individual case will revolve around its peculiar facts. In this case, Mr. Barongo, an employee of a pharmaceutical company, failed to complete a compliance training programme and was dismissed for gross misconduct. He had received no prior warnings. He appealed and the employer re-classified the misconduct as serious but still upheld the dismissal.
Initially, the Employment Tribunal held that the dismissal was unfair because a gross misconduct dismissal requires prior warnings.
However, the Employment Appeal Tribunal disagreed and stated that there was no rule that dismissing an employee (without prior warnings) for conduct, that is less than gross misconduct,must be unfair. The Employment Tribunal was criticised for taking a very restricted view that where conduct fell short of gross misconduct dismissals it could only be appropriate to dismiss on this basis if other warnings were in place. Essentially, the Employment Tribunal should have considered the entire circumstances of the case before coming to its decision.
The lessons for employers are clear. It can be possible to dismiss on grounds of misconduct where the situation is so serious as to warrant dismissal. However, we would, of course, urge caution in taking legal advice before taking this step to avoid your particular case becoming of interest to the Employment Appeal Tribunal.