When can we dismiss for misconduct?

Rebecca Driffield and Phil Allen look at the lessons to be learned from recent cases involving alleged unfair dismissals.

Two recent decisions from the Employment Appeal Tribunal have tackled the issue of gross misconduct and considered whether summary dismissal on these grounds can be fair where no single act of very serious misconduct has taken place. The EAT has also, helpfully, given some advice on whether summary dismissal without prior warning can be fair in the absence of a clear-cut instance of gross misconduct.

Trivial breach or gross misconduct?

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust the EAT held that multiple acts of misconduct which alone did not amount to gross misconduct could, when viewed as a whole, be construed as gross misconduct.

Mr Mbubaegu was employed by the Trust as a consultant orthopaedic surgeon with 15 years' service and a previously clear conduct record. The Trust introduced a new system of reporting with which Mr Mbubaegu had consistently and repeatedly failed to comply. Many of the breaches were trivial and no single instance, when viewed in isolation, amounted to gross misconduct.

The EAT stated that "it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee". The EAT went on to say that it saw "no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way".

This shows that a series of lesser acts of misconduct, even those that are trivial, can be construed as gross misconduct when taken as a whole, in some circumstances. The EAT stated that the correct focus is on whether the employee has undermined the implied term of trust and confidence, through consistent and repeated failures, rather than whether any single act constituted gross misconduct.

Must warnings be given?

In Quintiles Commercial v Barongo, a case based on similar facts, the EAT approached the issue of gross misconduct from a slightly different angle. Here, the Claimant was employed by Quintiles as a medical sales representative. He failed to complete mandatory compliance and training courses, citing other work commitments as the reason for his repeated failures.

The Claimant was dismissed for gross misconduct but, on appeal, the charge was re-characterised as ‘serious misconduct’ with the dismissal being upheld in any event. The Claimant had no previous warnings on his record.

In the first instance, the Employment Tribunal held that the dismissal was unfair, stating that for ‘serious’ misconduct dismissals, that is those involving conduct that does not amount to gross misconduct, prior warnings must first be given to the employee. The fact that the employee did not have any previous warnings meant that he had entered the conduct procedure with a previously clean record.

The decision was appealed to the EAT who referred to the provisions which govern a fair dismissal in the Employment Rights Act, which provide that a dismissal is capable of being fair if it is for a reason which ‘relates to the conduct of the employee’. As such, it was held that, there was no rule to suggest that dismissing an employee for ‘serious’ misconduct without prior warnings would necessarily amount to an unfair dismissal. However 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.

The EAT stressed that each case needed to be reviewed on its own facts and an Employment Tribunal should not automatically assume that, because no previous warnings have been given to the employee, that the dismissal will 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 EAT referred the case back to a new Employment Tribunal to consider the issue afresh.

What does this mean for me?

In short, careful consideration should be given as to the classification and type of misconduct that has occurred. If the act could be construed as ‘serious’ but does not, on its own, amount to gross misconduct as an isolated incident, then a warning should usually be given to the employee. Obviously, whether an incident tips the balance into gross misconduct can often be a difficult judgment call and is to some extent subjective. Any examples of gross misconduct set out in your disciplinary policy will help frame this decision.

Any such warning should set out to the employee that the incident is considered to be serious misconduct and that a warning will be placed on their record. A reasonable time period should also be stipulated depending on the nature of the misconduct. The employee should also be warned that similar repeated failures or further acts of misconduct could lead to dismissal.

These cases do not fundamentally change the established principle that summary dismissal without prior warning will not usually be appropriate where an employee’s behaviour falls short of gross misconduct. It may be that they are the exception that proves the rule and it remains the case that dismissing for a first offence for anything other than gross misconduct is high risk. However, they do provide some basis for arguing that dismissal may still be fair even if you diverge from this usual practice, as long as the facts of the case justify a different approach. If you are dealing with a difficult disciplinary case and are unsure of how to proceed we would be happy to advise you.

Rebecca Driffield is a solicitor and Phil Allen is a partner in the Employment, Pensions and Immigration Team at Weightmans. Rebecca and Phil can be contacted by email This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it.respectively.