Can you dismiss an employee without any prior warning for serious misconduct?

Year Published: 2018

Most employers and HR professionals will generally follow a rule that in order to dismiss an employee without prior warning, the conduct of the employee will need to constitute gross misconduct. However, in the latest Employment Appeal Tribunal (EAT) case Quintiles Commercial UK Ltd (QCUK) v Barongo, the EAT decided the tribunal was too quick to assume that dismissal without prior warning for serious misconduct could not be fair. Leaving employers questioning whether you can dismiss an employee without any prior warning for serious misconduct and a very grey answer of maybe.

What’s happened in this case?

Warren Moores, Employment Law & HR Solicitor at SAS Daniels

Warren Moores, Employment Law & HR Solicitor

B, a Sales Representative, was under performance management but aside from this, he was invited to a disciplinary hearing regarding alleged misconduct for a failure to complete: (1) a compulsory training course and (2) an online compliance course by the deadline. He admitted his failures but, in his defence, said he had prioritised other work commitments.

Despite his apology and explanation, the disciplining officer decided the trust and confidence with the employee had been destroyed and therefore dismissed the employee with notice for gross misconduct. On appeal, the company decided it was serious misconduct, not gross misconduct, but upheld the dismissal on notice.

The EAT decided the dismissal was potentially fair despite no prior warnings even though it was not gross misconduct. The EAT stated the law does not stipulate that a failure to give prior warnings for something less than gross misconduct must be unfair. Tribunals must apply the test of looking at whether the dismissal fell within a “band of reasonable responses” open to an employer. This involves looking at all the circumstances including the fact that QCUK Ltd believed trust and confidence had broken down and the background of current performance issues. The EAT found that the tribunal had not done this. 

What does this mean for employers when dismissing employees for serious misconduct?

We need to wait and see the final decision, as the case has been sent back to another tribunal to reconsider. Whatever the outcome, it is likely that it will be limited to the particular facts of this case but nonetheless, this is a useful case for employers regarding cases involving misconduct which, whilst not gross misconduct, may be deemed exceptionally serious and consequently warrant dismissal.

For advice on dismissing an employee without prior warning for serious misconduct, please contact Warren Moores or Stephen Foster in our Employment Law & HR team on 0161 475 1225.

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