15 June 2018
The recent EAT decision of Quintiles Commercial v Barongo held that even in the absence of any prior warnings, a dismissal for misconduct is not necessarily unfair where the conduct is labelled ‘serious misconduct’ rather than ‘gross misconduct’. The Tribunals need to consider the circumstances as a whole when assessing the decision to dismiss.
In Barongo the Claimant worked in pharmaceutical sales. He failed to complete compliance training and then missed a further compulsory training course. The Claimant was dismissed with notice for ‘gross misconduct’ at a disciplinary hearing, but in his internal appeal the conduct was re-categorised as ‘serious misconduct’ but the decision to dismiss was upheld.
The EAT, overturning the ET decision, held that there is no legal principle requiring prior warnings for ‘serious misconduct’ to be given before dismissal. The ET should have not taken a rigid view based on the absence of prior warnings and instead looked at the entire circumstances of the case (including the Acas Code and any internal disciplinary policies) as a whole. The case has been remitted to a new ET for reconsideration.
This decision needs to be taken with caution. It does not open the floodgates for employers to dismiss without warnings for any conduct where it does not meet the threshold of gross misconduct. While the EAT decision acknowledges that ‘serious misconduct’ dismissals without warnings are likely in many circumstances to fall outside the band of reasonable responses (thus rendering them unfair), this is always dependent on the context of the misconduct, procedure used and any internal policies. Well drafted disciplinary policies may therefore help justify an employer’s decision and will be useful evidence in any subsequent tribunal proceedings.