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Employers - Be careful when dismissing an employee without a warning

Mr Barongo worked as a medical sales representative for Quintiles Commercial, a pharmaceutical company. During his employment, Mr Barongo failed to complete training sessions required as part of his role. One of these sessions included an online compulsory compliance course.

Despite having a clean disciplinary record throughout his employment, Mr Barongo’s failure to complete these courses was deemed to be a potential disciplinary matter and, following an investigation by the company, Mr Barongo was invited to a  disciplinary hearing. At this hearing, the disciplinary manager concluded that trust and confidence between the parties had broken down and determined that Mr Barongo should be dismissed for gross misconduct.

Mr Barongo appealed his dismissal. Following an appeal hearing, the appeal manager concluded that the misconduct finding should be downgraded to ‘serious misconduct’ rather than ‘gross misconduct'. However, he nevertheless upheld the finding from the disciplinary hearing that the mutual trust and confidence between Mr Barango and the company had broken down and decided to uphold the earlier decision to dismiss.

Mr Barongo brought proceedings in the Employment Tribunal (the ET) against the company. At the ET, it was considered that the categorisation of the conduct as serious instead of gross had significant implications. They felt that this meant that prior warnings were required in order to fairly dismiss. Because of his previously clean disciplinary record, Mr Barongo’s dismissal was therefore found to be unfair. The company subsequently appealed the decision to the Employment Appeal Tribunal (the EAT).

The EAT felt that the ET had failed to consider whether the dismissal was within the ‘band of reasonable responses’, the typical test for determining whether an employer’s decision to dismiss was fair. In its findings, the EAT felt that the ET had taken too narrow a view in finding that a dismissal would be unfair if the conduct in question fell short of gross misconduct in a scenario where no previous warnings had been given. As a result, the EAT believed that the ET’s findings limited the applicability of the reasonable responses test that such cases should be judged on. The EAT concluded that the ET had imposed its own view on the matter as a result and it should have looked at the case as a whole and decided whether the employer’s actions were reasonable given the facts of the case. As such, the EAT overturned the decision and remitted it to a new ET for consideration.

What does this mean for you or your business?

Whilst this case is a positive case for employers it should be applied with caution. The EAT confirmed it is reasonable to dismiss without warnings for ‘serious misconduct’, but that doesn’t mean that this is set in stone. Employers should remind themselves of the band of reasonable responses and apply a fair and proper process which should include an investigation meeting to reveal all of the relevant facts to the case.  You will also need to consider the size and resources of your business as this will be taken into account when reviewing if your decision to dismiss was reasonable.

What do you need to be doing now?

Companies should have a well drafted disciplinary policy providing clear guidance to the employer and employee as to the severity of actions and the scale of misconduct, if any. This will then provide a clearer view of the correct disciplinary action to take. If, at the end of the process, you find that an employee’s position is untenable, having followed your policies and a proper procedure (in line with the ACAS code), then the decision to dismiss is likely to be reasonable. When making any such decisions to dismiss, keep a clear paper trail so if it does end up in ET you have a record of your thought process.

Recommended Reading:

The link to the EAT case can be found HERE.


These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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