It is often assumed that, when dealing with misconduct, businesses should move through an escalating range of sanctions, finally arriving at dismissal only after a number of incidents. Similarly, it is often assumed that the only misconduct worthy of moving straight to dismissal is gross misconduct. However, the Employment Appeal Tribunal has recently confirmed that misconduct does not necessarily need to be labelled as “gross” in order to render a dismissal fair and, dependent on the particular facts, employers can leapfrog certain formal procedural measures (such as warnings) before dismissing, if an objective reasonable employer would have thought it reasonable in those circumstances to do the same.
The Claimant, Mr Barongo, was employed by Quintiles Commercial UK Ltd as a pharmaceutical sales representative and had an unblemished record. However, after he failed to complete and attend compulsory training, he was dismissed by Quintiles without any prior warnings for what the business considered to be two acts of gross misconduct. The Claimant appealed this decision, pleading mitigation for the fact that he been prioritising other work commitments in an attempt to improve his performance after having been placed on a Performance Review Plan. Quintiles rejected this argument on appeal and upheld its decision to dismiss the claimant on the basis that there had been an irretrievable breakdown of trust and confidence. However, Quintiles reduced the severity of the misconduct complained of from gross to merely serious.
Mr Barongo brought a claim for unfair dismissal. The Employment Tribunal at the first instance upheld his claim on the basis that the ultimate characterisation of Mr Barongo’s misconduct as serious rather than gross had significance. Moreover, the Tribunal held that leapfrogging formal disciplinary processes by failing to issue warnings and instead moving straight to the dismissal stage could only be fair in cases of gross misconduct.
The Employment Appeal Tribunal upheld Quintiles’ appeal on the basis that a literal reading of the law would hold that a dismissal is capable of being fair, irrespective of the label, as long as the dismissal “relates to the conduct of the employee”. Furthermore, as B’s dismissal was clearly attributable to his conduct, the question of fairness turns to whether in the circumstances the employer acted in the range of reasonable responses in dismissing the Claimant.
For this reason, the Employment Appeal Tribunal ordered for the case to be heard again by a fresh Tribunal, noting that the previous Tribunal should have undertaken a more in-depth factual analysis to comply with the statutory test rather than being “unduly fixated” on how the misconduct was classified and focusing on its own view of reasonableness instead of a reasonable employer’s.
This case acts as a reminder that a greater emphasis must be placed on fact finding when considering reasonableness. It is clear that employers are not bound to rigidly adhere to an escalating scale of sanctions, but can in fact start anywhere on the scale that they consider appropriate – provided that the sanction imposed remains in the range of reasonable responses.
However, employers should still be wary of relying on this decision. The Employment Appeal Tribunal did not make a finding that B’s dismissal was fair, nor did they rule that employers have a carte blanche to move to dismissal in every instance. Indeed, all the Appeal Tribunal has done is sent the case back to a new Tribunal, on the basis that the initial decision was made on an incorrect understanding of the law. As such, whether B’s dismissal was in fact unfair still remains to be seen.