Gross Misconduct ‘Down Graded’ to Serious Misconduct

You might decide that it is fair to dismiss an employee, whereas another employer might give a disciplinary warning for the same offence. This does not necessarily mean that one of you is wrong. It is accepted that different employers will come to different conclusions at times, and both conclusions can be fair if they are within the ‘range of reasonable responses’. The Employment Tribunal cannot substitute their view of what they would have done when assessing if something is an unfair dismissal. Rather, they have to decide if what you did was reasonable.

In Quintiles Commercial v Barongo [2018] the employee was a medical sales representative. He failed to complete two training courses – one was compliance training, and the other was compulsory company training. The employer dismissed him, concluding that not completing the training led to a poor work record and a breach of the employer’s trust and confidence that he could do the job effectively. He appealed, and the situation was ‘down graded’ from gross misconduct to serious misconduct, but it was still concluded that dismissal was fair.

The Employment Tribunal found that this was unfair dismissal given that the employer had concluded, on appeal, that the situation was not gross misconduct. However, the Employment Appeal Tribunal disagreed. It is not correct that a dismissal without disciplinary warnings will always be fair if the situation is not gross misconduct. There is a requirement to look at all the circumstances of the situation.

3 Tips when Handling Dismissal Without Disciplinary Warnings

It will be usual to have given disciplinary warnings prior to dismissal unless the situation amounts to gross misconduct. However, you should remember the following:

  1. When dismissing be clear about the reason. Has the employee done something, or not done something, which is sufficiently bad for it to be concluded that s/he is not meeting the contractual requirements?
  2. Has a similar situation occurred before? You must be consistent, so check what punishment has been given for similar situations.
  3. Is it reasonable? Can you argue that dismissal is a reasonable response to what has happened, or is it unduly harsh? If you have any doubt it is better to give a disciplinary warning than to rush to dismiss.