05 June 2018
In Scots employment law, an employee with over 2 year’s service (with significant exceptions and additions) has the right to claim unfair dismissal when dismissed. An employer can argue that the dismissal is fair. In order to do so the employer needs to show that the reason for the dismissal was one of the 5 potentially fair reasons, comprising conduct, capability, redundancy, breach of a statutory enactment or some other substantial reason.
Once the employer has shown that the reason for the dismissal is one of the potentially fair reasons, the Tribunal must then consider whether the employer acted fairly and reasonably in all of the circumstances.
In misconduct cases the question is often whether the misconduct was of sufficient seriousness to justify dismissal. In this regard “gross misconduct” is often a term used to describe conduct that permits an employer to dismiss an employee summarily (ie without notice) – conduct so severe to justify dismissal without further warnings etc.
In the recent case of Quintiles Commercial v Barongo the Employment Tribunal had to consider whether it was fair to dismiss an employee who had committed misconduct that fell short of gross misconduct.
The Claimant in this case worked in pharmaceutical sales. After failing to complete compliance training and missing a compulsory training course, the Claimant was dismissed with notice for what it termed “gross misconduct”. The Claimant appealed against the dismissal. The appeal was partially successful since the employer decided that the misconduct was “serious” (but not “gross”). Nevertheless the appeal panel decided that dismissal was an appropriate sanction and upheld the dismissal.
The Claimant claimed that the dismissal was unfair. The Employment Tribunal considered the matter and agreed that the dismissal was unfair. The Tribunal reasoned that for “serious” misconduct dismissals, a reasonable employer would have issued warnings etc before dismissing.
The Respondent appealed to the Employment Appeal Tribunal which looked at the statutory test in this area and noted that there was no rule that dismissing an employee without prior warnings for conduct that is less than gross misconduct must be unfair. It was wrong of the Tribunal to say that simply because the conduct was “serious” (and not “gross”) rendered the dismissal unfair.
The Employment Appeal Tribunal noted that it may well be unfair in the particular circumstances to dismiss an employee who has committed serious misconduct, where there were no live warnings etc, but the conduct and full factual matrix would need to be examined. The Employment Tribunal would need to decide whether no reasonable employer in the particular circumstances would have dismissed. The ACAS Code of Practice and the employer’s procedure in this area would all be relevant considerations.
The Employment Appeal Tribunal therefore allowed the appeal and remitted the case to another Employment Tribunal to reconsider the facts and to consider whether dismissal was fair in all of the circumstances.
There is therefore no rigid rule that dismissal for something less than “gross misconduct” would be unfair. The statute recognises that dismissal for “misconduct” is potentially fair. Ultimately it is for the Tribunal to assess the reason for the dismissal as against the factual background in determining whether the employer acted reasonably in all the circumstances.
Ensuring a fair procedure is adopted when managing misconduct is key in this area. BTO’s recent seminar on Managing Disciplinary Issues in the Workplace considered the legal and factual issues together with practical tips in this area. Speak to one of the BTO Employment Lawyers if you would like training in this area or help in managing the thorny issues that can arise. Failing to prepare is preparing to fail!
The full judgment can be read here.
To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.