If there are no prior live warnings to rely on, can an employee be fairly dismissed for misconduct?
Yes, held the EAT in Quintiles Commercial v Barongo
The Claimant failed to complete necessary training and missed a compulsory training course and were subsequently dismissed for this. The employer categorised the misconduct as ‘gross misconduct’ although dismissed the employee on notice. On appeal, the employer upheld the dismissal albeit recategorised the gross misconduct to lesser serious misconduct . The Employment Tribunal held that the dismissal was unfair, holding that for ‘serious’ misconduct dismissals, prior warnings must be relied on.
The EAT upheld the employer’s appeal. It confirmed that there was no rule that dismissing an employee without prior warnings for conduct that is less than gross misconduct must be unfair.
The case supports the position that in some situations dismissal for conduct which falls short of gross misconduct and where there are no previous warnings to rely on could fall within the band of reasonable responses of a reasonable employer. However, an employer should still exercise caution in progressing in this way and adhere to the ACAS Code and their own disciplinary procedure when considering dismissal in circumstances where the misconduct may be less than gross misconduct.