Serious misconduct

The law states that a dismissal can be fair if it is for a reason which “relates to the conduct of the employee”. In Quintiles Commercial UK Ltd v Barongo, the Employment Appeal Tribunal (EAT) held that, as there is no legal requirement for the dismissal to amount to “gross misconduct”, the dismissal could still be fair if the misconduct was only deemed to be “serious”.

Basic facts

Mr Barongo, a medical sales representative, was placed on a performance improvement programme in October 2015. Shortly afterwards he failed to complete a compliance online training course by the requisite deadline and two weeks later, failed to attend a compulsory training course

After a disciplinary hearing in which Mr Barongo explained he had not deliberately failed to do the training but had prioritised other work commitments, his line manager decided that he should be dismissed on notice, for gross misconduct on the basis that trust and confidence between them had been destroyed.

On appeal, it was decided that he had been guilty of serious rather than gross misconduct, but as the director hearing the appeal also thought that trust and confidence had broken down, he upheld the decision to dismiss.

Mr Barongo claimed unfair dismissal.

Tribunal decision

The tribunal held that the dismissal was unfair on the basis that “serious” as opposed to “gross” misconduct only warranted a warning. Dismissal was therefore not a reasonable response, particularly as Mr Barongo had previously enjoyed an unblemished record.

It also pointed out that initial characterisation of the two training issues as misconduct by the line manager was contrary to the company’s disciplinary policy and indicated that he had taken other issues into account, such as Mr Barongo’s performance.

The tribunal agreed, however, that Mr Barongo had contributed to his dismissal by virtue of his unprofessional behaviour and therefore reduced his compensation by one-third.

The employer appealed, arguing that under section 98(2)(b) of the Employment Rights Act 1996 (ERA), a dismissal is fair if it is for a reason which “relates to the conduct of the employee”. It pointed out that the reference to conduct was in general terms and did not stipulate a requirement that it must amount to gross misconduct. Instead, tribunals were required, under section 98(4) ERA, to simply focus on the particular circumstances of the case. 

EAT decision

The EAT upheld the company’s appeal on the basis that the tribunal had adopted an “impermissibly rigid” approach by assuming as a general rule that a finding of conduct short of gross misconduct meant dismissal for a first offence was automatically unfair. Section 98(4) ERA, however, said no such thing. By adopting this approach, the tribunal had failed to ask the question it was required to ask – namely, whether, in these particular circumstances, the decision to dismiss Mr Barongo was fair.

In addition, the EAT said the tribunal had fallen into the substitution trap. In other words, it had imposed its own view about the appropriate sanction that the company should have imposed rather than conducting an assessment of the company’s decision against the band of reasonable responses test. The EAT therefore upheld the appeal and remitted the matter to a new tribunal.