In Quintiles Commercial UK Ltd v Barongo, the Claimant was dismissed on notice for two acts of misconduct as he failed to complete a compliance online training course and failed to attend a compulsory training course. The Respondent took the view that the Claimant’s conduct amounted to gross misconduct initially and dismissed him on notice. While it reduced its finding to serious misconduct on appeal, the Respondent upheld the decision to dismiss, believing that dismissal remained within the range of reasonable responses.

The Claimant brought a claim of unfair dismissal arguing that he should have been issued with a written warning and not dismissed, given that his conduct did not amount to gross misconduct.

The Employment Tribunal agreed with the Claimant, holding that the dismissal was unfair. The Respondent appealed to the Employment Appeal Tribunal (EAT).

The EAT ruled that the Employment Tribunal had erred in its decision. The EAT held that a dismissal is capable of being fair if it is for a reason which “relates to the conduct of the employee”. The reference to conduct is in general terms; there is no requirement that it must amount to gross misconduct.

This decision therefore highlights that a dismissal without warning for serious misconduct, which is categorised as something less than gross misconduct, can still be fair.

This case is the second of its kind in recent weeks. In Mbubaegbu v Homerton University Hospital, the EAT held that it was within the range of reasonable responses for the employer to dismiss the Claimant, who had no prior warning on his record, for various breaches of internal rules and procedures. This was so, despite the fact that none of the breaches in themselves amounted to gross misconduct.

Despite these two cases, it is important that employers act with caution and take advice if contemplating dismissing for cumulative misconduct or single acts that fall short of gross misconduct.

Please contact us if you would like more information about the issues raised in this article or any other aspect of employment law at 029 2034 5511 or employment@berrysmith.com

Michael Shutt – Solicitor, Employment & HR