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Gross or Serious Misconduct

Does it matter how an employer describes misconduct when assessing the fairness of a dismissal?

The case of Good Quintiles Commercial UK Ltd v Barongo [2018] UKEAT 0255/17/1603 involved a pharmaceutical salesman who was dismissed for failing to complete compulsory training courses. The dismissing officer described this failure as gross misconduct and dismissed the salesman. During an internal appeal, the appeals officer re-categorised the misconduct as 'serious' rather than ‘gross’ misconduct, but nonetheless upheld the decision to dismiss. The Employment Tribunal at first instance held that the dismissal was unfair, finding in essence that 'serious' misconduct was of less severity than gross misconduct and that warnings should have been issued before dismissal for serious misconduct could be justified. The Employment Appeal Tribunal upheld the employer's appeal against that finding. The correct test under Section 98 (4) Employment Rights Act was simply whether the decision to dismiss was outside the band of reasonable responses. If the decision fell within the band of reasonable responses then it was a fair decision irrespective of the label attached to the conduct by the employer.

Employers should be aware however of the importance of their own disciplinary procedure since they may find themselves bound by the categorisation of any offence set out under any contractual policy.

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