Serious misconduct can result in dismissal without warning

In Quintiles Commercial UK Ltd v Barongo, it was established that Mr Barongo, the claimant, was dismissed, on notice, for concerns over his recent conduct. Originally, this was seen to fall under ‘gross misconduct’, however, on his internal appeal, Quintiles acknowledged it was more properly defined as ‘serious misconduct’.

The Employment Appeal Tribunal’s decision

The Employment Appeal Tribunal (EAT) stated that the employment tribunal made a mistake in assuming that a dismissal without warning for ‘serious misconduct’, could not be fair. Such a dismissal is not automatically unfair if the reasons for dismissal fall short of being defined as gross misconduct. It can be a fair dismissal if it is for a reason relating to the employee’s conduct for the purpose of S.98(2) of the Employment Rights Act 1996.

Quintiles Commercial UK Ltd employed Mr Barongo as a medical sales representative on 1 October 2012. Disciplinary action took place due to the following acts of misconduct:

• Failing to complete an online compliance training course by the deadline of 3 November 2015; and
• failing to attend a compulsory training course on 19 November 2015.

The claimant offered as mitigation that whilst these reasons amounted to misconduct, he had prioritised other work commitments. During the disciplinary hearing, the relevant manager at Quintiles did not accept that Mr Barongo’s mitigation was sufficient, proceeding with the dismissal under gross misconduct.

Mr Barongo then had his case heard by one of the company’s directors, who concluded that he was instead only guilty of serious misconduct, however, the dismissal remained upheld. Consequently, Mr Barongo brought forward a claim of unfair dismissal.

Findings

The tribunal found that as the nature of Mr Barongo’s misconduct leaned towards ‘serious’, as opposed to ‘gross’ misconduct, this was of enough significance to uphold his claim. In their understanding, as the misconduct was ‘serious’, a warning should instead have been applied, rendering the dismissal unfair. Following this decision, Quintiles Commercial UK Ltd appealed to the EAT.

The EAT stated that the tribunal’s criteria should have relied upon S.98 ERA, subsection (2), which provides that a dismissal is capable of being fair if it is for a reason which ‘relates to the conduct of the employee’. Therefore, if the categorisation of the employee’s behaviour falls short of gross misconduct, dismissal is still capable of being fair, providing the dismissal is due to the employee’s conduct, meaning the approach of the original unfair dismissal tribunal was flawed.

Summary and Best Practice

Quintiles Commercial UK Ltd evidently discovered a flaw in the original decision of the Employment Tribunal. However, a company may encounter repercussions when trying to prove that it’s decision to dismiss lay within the band of reasonable responses when the case is heard again.

In most circumstances, any actions conducted by an employee short of gross misconduct will result in a warning as opposed to a dismissal, but the facts of every case will be key.

If certain actions are viewed to be severe by an employer (for example failing to undertake mandatory training) then it may be astute to include those actions in the disciplinary policy as possible acts of gross misconduct.

Contact

If you require assistance with any of the matters discussed above, you can contact Susan Mayall on 0161 785 3500 at your earliest convenience.

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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