Does ‘misconduct’ need to be ‘gross’ to make a dismissal (without prior warnings) fair?
No, held the Employment Appeal Tribunal (EAT) in Quintiles Commercial v Barongo.
The Claimant worked in pharmaceutical sales. After failing to complete compliance training and missing a compulsory training course, the Claimant was dismissed with notice for ‘gross misconduct’.
On appeal, the employer re-categorised the misconduct as ‘serious’, but nonetheless upheld the dismissal. The Employment Tribunal held that the dismissal was unfair, holding that for ‘serious’ misconduct dismissals, prior warnings are to apply.
The EAT upheld the employer’s appeal. Under Section 98 (4) of the Employment Rights Act, there was no rule that dismissing an employee without prior warnings for conduct that is less than gross misconduct must be unfair, although in most cases such dismissals are outside the band of reasonable responses.
The ET took a rigid view that where conduct fell short of gross misconduct, dismissal could only be appropriate if other warnings were in place. The ET should have considered the entire circumstances of the case, including the ACAS code and the employer’s disciplinary procedure; it had substituted its view for that of the employer. The case was remitted to a new ET for reconsideration.