The Employment Appeal Tribunal (EAT) last week gave out a ruling showing that underneath all the practices and codes and assumptions which govern the conduct of HR matters, the law still prevails.
Despite it being generally considered, in cases of misconduct, that an employer can only dismiss without prior warnings where there has been a finding of gross misconduct, the EAT recently decided - in the case of Quintiles Commercial -v- Barongo - that this is not always so and that serious misconduct may also result in dismissal without warnings.
Mr Barongo was employed as a medical sales representative with Quintiles Commercial UK Ltd (Quintiles) - a pharmaceutical agency - from October 2012. He was the subject of disciplinary proceedings in respect of two acts of misconduct, failure to complete an online training course and failure to attend a compulsory training course. This took place in November 2015.
Prior to the incidents taking place, Mr Barongo was given a performance review plan and he ascertained that his reason for not completing the training courses was that he was concentrating on improving his performance.
The company refused to accept his explanation and dismissed him - on notice - for gross misconduct. Mr Barongo appealed, following which the company gave a mixed message by reducing the class of his actions from gross to serious misconduct, but they upheld the decision to dismiss on notice.
Having taken his employer to a tribunal, Mr Barongo’s dismissal was found to have been unfair. The tribunal stated that after Quantiles Commercial downgraded Mr Barongo’s misconduct from gross to serious, he should have received a warning instead of dismissal. They awarded him £30,078.16 in compensation.
Later, Quantiles Commercial - on appeal to EAT - was found to be within their rights in dismissing Mr Barongo, according to the law. Section 98(2) says that a dismissal is capable of being fair if it is for a reason which “relates to the conduct of the employee” which in this case it clearly did. Section 98(4)(a) says that whether the dismissal actually is fair depends on “whether in the circumstances…the employer acted reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee”.
The ruling of the EAT Judge Eady QC stated:
“The tribunal’s approach in this case was flawed: it unduly limited the potential range of reasonable responses by applying a general rule as to when dismissal might be fair in cases of conduct falling short of gross misconduct, when no such rule is laid down by section 98(4)”. Adding:
“Further, or alternatively, it fell into the substitution trap, imposing its own view as to the appropriate sanction rather than conducting an assessment of the respondent’s decision against the band of reasonable responses test.”
Judge Eady then added that it would not be appropriate for the EAT to reach its own view over that of the tribunal and remitted the case to be heard by a different employment tribunal.
