Is it ever fair to dismiss for conduct that is not gross misconduct if the employee is not on a previous warning?
Yes, according to a recent decision of the Employment Appeal Tribunal (EAT) which overturned a tribunal decision that a dismissal for misconduct falling short of gross misconduct, without a previous warning, is necessarily unfair.
The Claimant in that case was a sales representative who was dismissed after a disciplinary hearing which concluded that he was guilty of gross misconduct when he failed to complete compliance training and missed a further compulsory training course.
The Claimant appealed and the employer agreed to downgrade the misconduct to serious rather than gross but it confirmed the decision to dismiss.
An employment tribunal upheld the Claimant’s claim for unfair dismissal on the basis of its finding that in the absence of previous warnings it is wrong to dismiss an employee for conduct that falls short of gross misconduct.
Allowing the employer’s appeal against the finding of unfair dismissal, the EAT said that the tribunal was wrong to take a rigid view based on the absence of prior warnings and it should instead have asked whether the dismissal satisfied the statutory test for unfair dismissal, that is, whether the employer’s decision to dismiss fell within the range of responses of a reasonable employer to the misconduct. That test does not include a rule that, in the absence of earlier disciplinary warnings, a dismissal must be unfair if the conduct is less serious than gross misconduct.
This case is very much an exception to the general rule that an employee should be given a warning before being dismissed for conduct that falls short of gross misconduct. This is what is required from the Acas Code of Practice, and even the EAT in this case acknowledged that misconduct dismissals without previous warnings are likely in many circumstances to fall outside the range of reasonable responses thus making them unfair.
(Quintiles Commercial UK v Barongo)