Misconduct can be a tricky dismissal

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When an employee’s bad behaviour goes too far and becomes a problem for the business, managers and owners tend to feel justified in dismissing for misconduct. However, even straightforward cases can lead to a tribunal

by Claire McKee – Claire McKee is an associate in the employment and labour team at Dentons. Since April 2015 Claire has acted as assistant editor and research assistant on the 3rd Edition of Employment Tribunal Practice in Scotland (Simon and Taggart)(claire.mckee@dentons.com)

What are the rules governing dismissal for misconduct?

The reasonableness of a dismissal for misconduct depends on the fairness, or otherwise, of the investigation into the alleged misconduct; and also whether the allegations are considered to be sufficient reason for dismissal.

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A longstanding principle of employment law is that a misconduct dismissal will only be fair if, at the time of the dismissal, the employer believed the employee to be guilty of misconduct; it had reasonable grounds for that belief; and, at the time it held that belief, it had carried out a reasonable investigation.

What recent cases have gone to the Employment Tribunal?

In recent months, two misconduct cases have considered whether ‘serious’ rather than ‘gross’ misconduct, or a series of smaller acts of misconduct, can warrant dismissal.

In Quintiles Commercial UK Ltd v. Barongo, the employee was subjected to disciplinary proceedings for two acts of misconduct: failing to complete an online compliance training course by a particular deadline; and failing to attend a compulsory training course.

Although the employee was undergoing a performance improvement plan, he had received no previous warnings. The employee’s reasons for failing to take part in both training courses were not accepted and he was dismissed for gross misconduct.

In the first instance, the employee was successful in persuading an ET that he had been unfairly dismissed, but that was overturned on appeal.

While the disciplinary appeal chair had been prepared to accept that the misconduct was ‘serious’ rather than ‘gross’, the dismissal still stood. The Employment Appeal Tribunal (EAT) found that the dismissal was not rendered automatically unfair simply because the conduct had been labelled something less than gross misconduct. It was capable of being a fair dismissal, as it was for a reason relating to the employee’s conduct.

What about a series of infringements?

In the second recent ET case – Mbubaegbu v. Homerton University Hospital NHS Foundation Trust – a consultant orthopaedic surgeon with an untarnished 15-year disciplinary record faced serious allegations of breaching “Department Rules and Responsibilities”.

During the investigation into these initial allegations, the Trust uncovered a further 22 allegations of misconduct, and the surgeon was dismissed for gross misconduct.

In a majority decision, the ET found that the dismissal was fair as the employee could not be relied upon to change his behaviour in the future, and the decision to dismiss was within the range of reasonable responses open to the Trust.

On appeal, the EAT held that “there is no authority to suggest that there must be a single act amounting to gross misconduct before summary dismissal would be justifiable”.

The EAT confirmed that employers can rely on a series of acts to justify termination of employment, even when none would, by themselves, justify summary dismissal.

What are the potential pitfalls for retail employers?

Although the recent cases confirm that employment legislation does not differentiate between the varying degrees of misconduct, it is clear that employers should proceed with some caution before reaching a decision to dismiss an employee with no prior warnings, especially where there is no distinct act of gross misconduct. Such cases will hinge on the detail and the Tribunal’s decision will be a finely balanced one.

Do you have a business, property or legal question or issue that you would like to know more about?

Contact Scottish Grocer and we’ll put it to an expert. Call Matthew Lynas on 0141 567 6074 or email matthew.lynas@peeblesmedia.com.