The claimant, a medical sales representative, was dismissed on notice for two acts of misconduct, namely, failing to complete an online compulsory training exercise and failing to attend a compulsory training course. At the disciplinary hearing the claimant argued there were certain mitigating circumstances, however, the respondent did not consider these sufficient and concluded the implied duty of trust and confidence had been broken, upholding the decision to dismiss.

An appeal of the disciplinary outcome was heard by one of the company directors. He considered the claimant guilty of serious misconduct as opposed to gross misconduct but agreed there had been a breakdown in trust and confidence, approving the decision to dismiss. The claimant subsequently brought a claim for unfair dismissal.

The relevant legislative provision was s.98 (2) (b) of the Employment Rights Act 1996, which provides that a dismissal is capable of being fair if it is for a reason which “relates to the conduct of the employee” (the equivalent legislation in NI is Article130 (2) (b) Employment Rights (Northern Ireland) Order 1996). This reference to conduct is in general terms, in that there is no requirement that the conduct amounts to gross misconduct, it is capable of being a fair dismissal provided it relates to the employee’s conduct.

The tribunal was of the view that when misconduct is characterised as ‘serious’ rather than ‘gross’, warnings are to apply. The claimant had no previous live warnings on his file and came to the disciplinary hearing with a clean record. The tribunal held the characterisation of the misconduct as serious meant that the failure to issue a warning rendered the dismissal unfair. The respondent then appealed to the EAT.

Allowing the appeal, the EAT concluded under s98 that a dismissal is not rendered automatically unfair if the conduct is categorised as something less than gross misconduct. It confirmed it is capable of being a fair dismissal provided it is for a reason relating to the employee’s conduct. The EAT held the tribunal’s finding was flawed and remitted the matter to a freshly constituted tribunal.

“[The tribunal] unduly limited the potential range of reasonable responses by applying a general rule as to when dismissal might be fair in cases of conduct falling short of gross misconduct, when no such rule is laid down by section 98(4). Further, or alternatively, it fell into the substitution trap, imposing its own view as to the appropriate sanction rather than conducting an assessment of the respondent’s decision against the band of reasonable responses test.”
www.bailii.org/uk/cases/UKEAT/2018/0255_17_1603.html

Readers may wish to cross reference this case with the recent Supreme Court case of Reilly v Sandwell Metropolitan Borough Council [2018] UKSC 16 in which Lady Hale and Lord Wilson questioned whether the Burchell test remains the correct test to apply in dismissal cases where misconduct is alleged. The long established Burchell test states an employer does not need to have conclusive proof of any misconduct, only a genuine and reasonable belief and must have conducted a reasonable investigation in order to uphold that belief. The Burchell approach affords employers latitude since they benefit from the “range of reasonable responses” and any modification to the test would almost certainly be to the disadvantage of employers. This case and the case of Mbubaegbu v Homerton University Hospitals NHS Foundation Trust (concerning a series of conduct issues with no single act of misconduct) suggest a challenge to the Burchell approach is being accepted incrementally.