firedThe recent decision of Quintiles Commercial UK Ltd v Barongo addresses the question of whether a dismissal of an employee for a first offence which does not rise to the level of gross misconduct is necessarily an unfair dismissal.

The ACAS Code of Practice explains that misconduct at work can be three types: minor misconduct, serious misconduct, and gross misconduct. Gross misconduct is explained as:

Some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence.

By implication the ACAS Code therefore suggest that serious or minor misconduct is not “so serious in [itself]” that dismissal without notice for a first offence is appropriate. The recent decision in Quintiles Commercial UK Ltd v Barongo potentially casts that view into doubt.

Mr Barongo worked for a pharmaceutical company and his employer had two pieces of mandatory training he was obligated to undertake, he did not complete either. Mr Barongo did not dispute that this was misconduct but that he had been under pressure at the time.  A disciplinary hearing was convened and the decision was that Mr Barongo’s misconduct amounted to gross misconduct and he was at that time dismissed.

The claimant appealed the disciplinary warning and the appeal manager determined that the claimant’s misconduct was best descried as serious rather than gross misconduct. However, the appeal manager made a decision that the employer’s trust and confidence in the claimant had broken down and so upheld the dismissal anyway.

As an aside one interesting aspect of the case is that there was no issue of some other substantial reason (trust and confidence) being the reason for dismissal rather than conduct itself. Presumably the immediate context of disciplinary hearing and an earlier misconduct finding (thankfully) tied the Respondent’s hands in terms of their legal case.

The Employment Tribunal made a finding that

once the misconduct is characterised as serious and not gross, it means that warnings are to apply.  This Claimant had no previous live warnings on his file.  That meant he came as someone with a clean record into this disciplinary hearing.  If the Respondent had believed and reasonably so that his misconduct had been gross, then that could furnish a reason for not applying warnings.  However, the characterisation of the misconduct as serious on appeal means that the failure to issue a warning renders the dismissal unfair.  Serious misconduct would have entitled any sort of warning including a final written warning but the express rejection of gross misconduct renders this dismissal unfair.

The ET further identified that in such a situation the dismissal was necessarily unfair:

the misconduct was not reasonably characterised as gross rather than serious; and indeed, the Respondent on appeal characterising it as serious rather than gross means that a warning was the only reasonable response, and dismissal was outside it, within the terms of the Respondent’s policy and general unfair dismissal law, the Claimant having a clean record.

Therefore, the central decision which was subject to appeal was whether revoking the dismissal was “the only reasonable response.” On my reading the ET’s decision is entirely consistent with the ACAS Code.

The Appeal Tribunal, in a short judgement, upheld the employer’s appeal. Noting that section 98(2) of the Employment Rights Act 1996 set out that a dismissal may be fair where it “relates to the conduct of the employee” without any reference to whether that conduct is gross misconduct. Whether a dismissal is reasonable is determined by the conditions in section 98(4) of the 1996 Act and there is no rule that a failure to issue a warning before dismissing an employee for serious or minor misconduct is necessarily unfair.

The Appeal judgement criticised the  original decision for failing to explain why the decision was unfair and found this was most likely because the ET simply assumed that a dismissal for a first offence of serious misconduct must necessarily be unfair.

I would be surprised if the outcome of the remitted hearing is not that the dismissal was unfair and that is surely the right outcome.

The Quintiles decision is a good reminder that ‘common sense’ experience of industrial relations that the ET was meant to embody is not synonymous with the development of unfair dismissal law and there has been a parting of the ways.

In terms of its development the decision is I think legally correct based on the current state of the law but it is I think a sign of the horrible effect the band of reasonable responses test – which is the lens through which section 98 of the 1996 Act must be viewed by employment tribunals – has on workplace justice and in impeding judges from making genuinely fair decisions on the material facts of a case. What should be an obvious decision, that dismissing someone for a minor first offence is unfair is cast into doubt. What is worse is that employers will know that it will only be a minority of dismissed worker who will pursue a complaint and even those that do will be able to be dissuaded from continuing to the end by reliance on band of reasonable response shenanigans.