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Posted 28 August 2018
by Joanna Parry

Dismissal for Misconduct – When is Enough, Enough?

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Two recent cases before the Employment Appeal Tribunal (EAT) have highlighted the difficulties employers face when dismissing an employee for a series of acts of misconduct where there is no single act of gross misconduct. Where there is a series of acts of misconduct but no prior warning, is this enough to dismiss?

The Law

Misconduct is a potentially fair reason for dismissal. In determining whether a dismissal for misconduct is fair, the employment tribunal will consider whether the employer acted reasonably in all the circumstances. Case law has established that a misconduct dismissal will only be fair if, at the time of the dismissal, the employer:

  • believed the employee to be guilty of misconduct;
  • had reasonable grounds for that belief; and
  • at the time it held that belief, it had carried out a reasonable investigation.

Further, the employment tribunal will decide whether the employer’s decision to dismiss fell within the range of reasonable responses that a reasonable employer in those circumstances and in that business might have adopted.

Gross misconduct is misconduct so serious as to justify summary dismissal of an employee. In considering whether an act of misconduct amounts to a gross misconduct the employment tribunal will consider both the character of the conduct and whether it was reasonable for the employer to regard that conduct as gross misconduct on the facts of the case.

Misconduct v gross misconduct

In the recent case of Mbubaegbu v Homerton University Hospital NHS Foundation Trust the EAT held that multiple acts of misconduct, which individually did not amount to gross misconduct could, when viewed as a whole, be construed as gross misconduct even where no prior warnings had been given.

Mr Mbubaegbu, a consultant orthopaedic surgeon, was employed by Homerton University Hospital NHS Foundation Trust (the Trust) for 15 years until he was dismissed for gross misconduct. Prior to the disciplinary proceedings that led to his dismissal, Mr Mbubaegbu had an unblemished disciplinary record with no previous warnings. The Trust introduced a new system of reporting with which Mr Mbubaegbu had consistently failed to comply. Many of the breaches were trivial and no single instance, when viewed in isolation, amounted to gross misconduct. Mr Mbubaegbu was dismissed for gross misconduct and brought a claim for unfair dismissal (amongst other things).

The EAT held that the dismissal was fair and noted that it was not necessary for there to be one particular act that amounted to gross misconduct. Here, the disciplinary panel that dismissed Mr Mbubaegbu had considered some of his actions to be grossly careless and negligent, amounting to a pattern of unsafe behaviour which led to an increased risk to patients. Further, the panel had a real concern that a final written warning would not be sufficient because Mr Mbubaegbu’s actions showed that he was willful in his approach. The EAT held that those findings clearly demonstrated that there were special circumstances here and that relationship of trust and confidence was undermined.

Warnings

In the similar case of Quintiles Commercial UK Ltd v Barongo, the EAT held that a dismissal without warning is not automatically unfair where the conduct properly falls to be categorised as something less than gross misconduct.

Mr Barongo failed to attend mandatory training courses and was subjected to disciplinary proceedings. Mr Barongo explained that his failures were not intentional and had resulted from him prioritising other work commitments. This was not accepted by the dismissing manager who concluded that the employer’s trust and confidence in Mr Barongo had been destroyed. On appeal, the decision to dismiss was upheld, but the appeal outcome was that Mr Barongo’s conduct, while serious, was not gross misconduct. Mr Barongo issued proceedings for unfair dismissal.

The EAT recognised that in most cases summary dismissal would be outside the band of reasonable responses for instances of ‘serious’ misconduct that did not amount to gross misconduct. However, it held that that a dismissal for conduct, other than gross misconduct, is not necessarily unfair if no prior warning has been given. Whether the decision to dismiss without a prior warning falls within the range of reasonable responses depends on the facts. Here, the EAT held that the initial decision by the employment tribunal was incorrect because the tribunal had automatically concluded that a decision to dismiss without a prior warning must be unfair. The key question is whether summary dismissal is within the band of reasonable responses, taking into account the circumstances of the case. The case was remitted to a new employment tribunal to consider the issue again.

What does this mean for you?

It is important to note that each case of unfair dismissal is determined on the individual facts. Whilst these decisions appear on the face of it to be helpful to employers, they are fact specific, and it remains the case that dismissing an employee for a first offence that does not amount to a gross misconduct is high risk. In practice, an employer may find it difficult to persuade an employment tribunal that a dismissal without prior warning for misconduct, other than gross misconduct, falls within the range of reasonable responses unless you are able to point to special circumstances.

Tozers Top Tips

  • Ensure your disciplinary policy contains specific examples of acts that you consider amount to a gross misconduct;
  • Consider carefully the classification and type of misconduct that has occurred and ensure the wording is consistent throughout disciplinary proceedings;
  • If an act of misconduct could be construed as ‘serious’ but does not on its own amount to gross misconduct this should be clearly stated, and a formal warning should usually be given to the employee (unless there are mitigating circumstances);
  • If the employee is issued with a warning, they should be warned that similar repeated failures or further acts of misconduct could lead to dismissal;
  • When dealing with an act of misconduct informally, consider whether this should actually be dealt with formally, especially if there is a history of minor misconduct. This may put you in a stronger position to deal with any further problems.

For further advice contact our specialist team of employment solicitors on 01392 207020 or e-mail employment@tozers.co.uk.

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About the author

Joanna Parry

Solicitor

Solicitor within the employment and litigation team