In the case of Quintiles Commercial UK Limited v Barongo, the Employment Appeal Tribunal (EAT) was asked to determine:-
(1) Whether the Employment Tribunal had made an error in distinguishing serious misconduct from gross misconduct, when Section 98(2)(b) of the Employment Rights Act 1996 purely directs that a dismissal of an employee may be fair if it relates to the employee’s conduct, and
(2) Secondly, whether the Employment Tribunal had made a further error in substituting its view that a warning for serious misconduct was a more appropriate penalty than dismissal.
The EAT agreed with the employer’s case that the Employment Tribunal had erred in its findings and had, by association, failed to apply Section 98(4) of the Employment Rights Act 1996 correctly in neglecting to address all of the circumstances that had led to the dismissal of the employee. In particular, the tribunal had focused on the employee’s otherwise clean disciplinary record without addressing other relevant matters, such as the employee’s poor work record, the employer’s loss of trust and confidence in the employee’s ability to perform his work to the required standards and the provisions of the ACAS Code of Conduct. This was despite the fact that, when the employee had appealed his disciplinary in respect of the employer’s decision to dismiss him with notice, the colleague who had heard that appeal had downgraded his alleged gross misconduct to serious misconduct, which the Employment Tribunal had specified should only have merited a warning.
In the context of the facts of the case and the findings of the original Employment Tribunal, Her Honour Judge Eady QC in providing the judgment of the EAT held that “it is hard to avoid the conclusion that [the Employment Tribunal]* proceeded upon an assumption that, once the misconduct was characterised as serious and not gross, this was not a case where the [employer]* could fairly dismiss”. This was in the context of the tribunal’s failure to correctly apply the test set out in Section 98(4) that, to be fair, a dismissal must be within the reasonable range of responses open to an employer when making its decision.
Her Honour Judge Eady QC also held that, either in addition to or instead of this, the Employment Tribunal had fallen “into the substitution trap, imposing its own view as to the appropriate sanction [to be applied against the employee’s conduct]* rather than conducting an assessment of the [employer’s]* decision [to dismiss]* against the band of reasonable responses test” set out in Section 98(4).
In light of her findings, the judge remitted the case to a fresh Employment Tribunal owing to the “fundamentally flawed approach” of the original Employment Tribunal that had heard the case.
Reviewing this case is a good reminder of the general principle that, in cases of unfair dismissal, the Employment Tribunal must not fold to the temptation of substituting its own decision for that of an employer. Its focus is primarily on determining whether a dismissal was reasonable in all the circumstances.
Specifically in relation to the employer’s decision to downgrade the finding of gross misconduct to one of serious misconduct, this case also highlights a key message for employers that, although the entire process of conducting a disciplinary and any resulting appeal is important, employers should be certain to familiarise themselves with their own policies and procedures before engaging in the process itself.
*Our emphasis added
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