Rather like my recent blog on constructive dismissal, it is always helpful when their judgy-nesses have another look at your bread-and-butter employment law topics – in this case, ‘what type of conduct justifies a fair dismissal’? Two cases recently published have looked at this exact point.
Two gross misconduct cases
The first was Mbubaegbu v Homerton University Hospital, which was a case that concerned a senior surgeon in a London hospital. Following some serious dysfunction within the department that Dr M worked in, new protocols and procedures to be followed by all surgeons were established and it was made clear that they would be monitored to ensure compliance. All the surgeons in Dr M’s team were audited and found to be lacking in some aspects of following the protocols. However, Dr M was the only surgeon to be dismissed for gross misconduct as a result. He challenged the fairness of the dismissal on the grounds that the small breaches of protocol identified by his employer could not be ‘totted up’ to amount to gross misconduct. He also challenged why he had been singled out for dismissal.
The second was Quintiles Commercial v Borgongo. Mr B worked in pharmaceutical sales. After failing to complete compliance training and missing a compulsory training course, he was dismissed with notice for ‘gross misconduct’. At the internal appeal, the employer re-categorised the misconduct as ‘serious misconduct’, but nonetheless upheld the dismissal. While Dr M in the above case lost his claim for unfair dismissal, Mr B won his claim, as the ET found that he should not have been dismissed for serious misconduct but rather should have been given a final written warning. Appeals were launched by the losing parties in each case in the Employment Appeal Tribunal (EAT).
With Dr M’s EAT appeal, the EAT had little difficulty agreeing with the ET that trust and confidence had been undermined by Dr M’s conduct even though there no one act of ‘gross misconduct’, but rather just a pattern of non-compliant behaviour from Dr M which led to increased risks for patients. The EAT noted that “it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee“. Further, it saw “no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way”.
For Mr B, the EAT went right back to basics and reminded itself that the actual legislation (section 98 Employment Rights Act for you boffins out there, you know who you are!) relating to unfair dismissal refers only to ‘a reason that relates to the conduct’ and says nothing about ‘gross misconduct’. Also there is no rule that says that dismissing an employee without prior warnings for conduct that is less than gross misconduct must always be judged to be unfair – this view is a ‘gloss’ that has been placed over the legislation by various cases over the years. The EAT found that the ET had taken an overly rigid view that, where conduct fell short of gross misconduct, dismissal could only be appropriate if other warnings were in place. The EAT felt that the ET should have considered the entire circumstances of the case, including the ACAS code of practice and the employer’s disciplinary procedure; but instead it had fallen into the trap of deciding what it would have done, had it been the employer in that case. The case has been sent back for another ET to look at, although I imagine it will settle long before that.
These two cases on misconduct dismissals remind us of several things.
First, employers do still enjoy a wide discretion in terms of what can justify a fair dismissal and the ‘band of reasonable responses’ holds strong for now. Just because another employer in the same situation might not have dismissed the employee does not render the dismissal unfair.
Secondly, both cases involved strong compliance issues: Dr M and patient safety; Mr B and compulsory training as regards the company’s pharmaceutical products. So, if something is important to you as a business, make sure your employees know about it and know the sanctions they face if they step out of line.
I think all of us would recognise characters like Dr M and Mr B. Dr M was a highly experienced surgeon with a clean record: however, he clearly didn’t agree with the new protocols imposed and flouted them in small ways of a long period of time. Mr B knew he had to do the training, but found lots of reasons not to do it and ignored very reasonable management instructions.
It is comforting that, in these types of common scenarios, employers are still able to safely say ‘enough is enough’.
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