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When can you dismiss for a ‘first offence’?

Posted
July 10, 2018
Employment Law

It’s widely accepted that, as a general rule, employers should avoid dismissing employees for a first disciplinary offence, unless the misconduct in question is of the most serious kind.  But can something less than ‘gross misconduct’ still justify dismissal?  The recent case of Quintiles Commercial v Barongo considered this question.

The facts

Mr B worked for Quintiles as a ‘medical sales rep’.  His employment began in October 2012 and came to an end in early 2016, when he was dismissed for two acts of alleged misconduct.  More specifically, he (i) failed to complete a necessary online training module and (ii) failed to attend a compulsory training course.  Mr B’s line manager conducted a disciplinary hearing by telephone, at which the employee admitted the misconduct.  However, Mr B claimed that he had been prioritising other work.  Nevertheless, his line manager concluded that Mr B’s conduct had broken the relationship of trust and confidence between him and the company and decided to dismiss him for 'gross misconduct'.

When his case was reconsidered on appeal, the company concluded that Mr B’s actions fell short of ‘gross misconduct’, but still amounted to ‘serious misconduct’.  The sanction of dismissal was upheld.

When Mr B brought an unfair dismissal claim against Quintiles, the question arose as to whether it was fair to dismiss an employee for a first offence, when the misconduct in question was ‘serious’, but not ‘gross’.

The decision

The Employment Tribunal initially concluded that the dismissal was unfair.  Given that Mr B had a clean disciplinary record, the ET found that a first offence of ‘serious misconduct’ could never justify a decision to dismiss.  However, when the case went to the Employment Appeal Tribunal, it found that the ET’s assumption that only ‘gross misconduct’ could justify dismissal for a first offence was wrong.  Instead, the ET should have considered the particular facts of the case and formed a view as to whether the decision to dismiss Mr B fell within the band of reasonable responses open to his employer.  The case has been sent back to the Employment Tribunal to be re-heard.

So what?

Admittedly, in most cases, it will still be unwise for employers to dismiss employees for a first offence, unless ‘gross misconduct’ is involved.  However, each case will turn on its own facts and we should always be careful about generalising.

If you are struggling with a difficult disciplinary matter and are wondering which potential sanctions are open to you, please get in touch.

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