The ACAS Code of Practice on Disciplinary and Grievance Procedures supports the practice of employers giving warnings for misconduct which falls short of gross misconduct prior to dismissal. However, just because an employer calls it “gross misconduct” does not mean a dismissal without warnings will be fair. Similarly, just because an employer calls it “serious misconduct” which falls short of gross misconduct does not mean that a dismissal without warnings will always be unfair. So found the Employment Appeal Tribunal (“EAT”) in the recent case of Quintiles Commercial UK v Barongo (UKEAT/0255/17/JOJ).
Although this was the decision of the EAT on the facts of this particular case, the ruling should come with an employer (financial) health warning because it does not give employers carte blanche to dismiss employees who commit serious misconduct without warnings. Proper consideration of the decision reveals that the EAT was concerned that the original Employment Tribunal which heard the case had simply assumed that a conduct dismissal for something less than gross misconduct was unfair if there had been no previous warnings. However this is not what the relevant section of the Employment Rights Act 1998 (s98(4)) states. It may be that in most cases it will be unfair because when you consider all the relevant circumstances the lack of previous warnings means that the decision to dismiss falls outside the band of reasonable responses – the point is that it not automatically unfair and you cannot just assume that it is unfair.
The reason for the caution therefore is that employers should not misunderstand any headline which results from this case. It is not always unfair, but it normally is. The ACAS Code clearly supports the practice of warnings. If that were not enough in the above EAT case the Judge stressed that when dealing with a dismissal for conduct which does not amount to gross misconduct without having given warnings first then “in most cases a tribunal will find that a dismissal in such circumstances falls outside the band of reasonable response” and is unfair.