MOrsel - Can an employee ever be fairly dismissed without warnings for conduct falling short of gross misconduct?

Possibly, said the UK Employment Appeals Tribunal in Quintiles Commercial v Barongo [UKEAT/0255/17/].

In this case, the Claimant was a medical sales representative who was dismissed on notice for failing to complete an online compliance training course by the deadline and for failing to attend a compulsory training course. Initially his conduct was found to amount to gross misconduct but, on his internal appeal, the Respondent accepted it was more properly to be categorised as serious misconduct. At first instance, the Employment Tribunal found the Claimant’s dismissal for this reason was unfair: it had been unreasonable to characterise his conduct as gross misconduct at the original dismissal decision and once it was recognised it was something less - serious misconduct - that meant a warning was the only reasonable response, dismissal was not. The Respondent appealed.

In both the UK and Guernsey, for a dismissal to be fair, there must be a fair reason (one of which is conduct), and consideration as to “whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.“

The Employment Appeals Tribunal allowed the appeal, finding that the Employment Tribunal had unduly limited the potential range of reasonable responses by the Respondent by applying a general rule that warnings must be provided in cases of conduct falling short of gross misconduct, when no such rule is laid down by the law. 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. The case has been remitted to be heard again by a new Employment Tribunal.

The key point is that there are no absolute rules as to what will constitute a reasonable process by an employer: whilst it continues to be the case that warnings should normally be provided where conduct falls short of gross misconduct, there may be particular circumstances where a process could potentially still be fair without such warnings.