Quintiles Commercial UK Ltd v Barongo

A dismissal for conduct falling short of gross misconduct is not automatically unfair merely because it is a first offence and the employee has no live warnings. Under section 98(4) of the Employment Rights Act 1996, the tribunal must decide whether dismissal fell outside the range of reasonable responses in the particular circumstances.

The tribunal must assess the whole dismissal process, including any appeal, and may consider the employer’s disciplinary policy and relevant surrounding circumstances. It must not treat its own view of the appropriate sanction as decisive or impose a rigid rule that limits the range of reasonable responses.

The claimant, a medical sales representative, was dismissed on notice after failing to complete compulsory compliance training and failing to attend compulsory pioneer training. The dismissing manager treated the conduct as gross misconduct. On an internal appeal, the employer reclassified it as serious misconduct but upheld dismissal because trust and confidence had broken down.

The Reading Employment Tribunal upheld the claimant’s unfair-dismissal complaint. It held that, because the conduct was serious rather than gross misconduct and the claimant had no live warnings, a warning was the only reasonable response. It reduced compensation by one-third for contributory conduct.

The employer appealed. The central issue was whether the Tribunal had wrongly treated dismissal for a first instance of non-gross misconduct as necessarily unfair and thereby substituted its own view of sanction.

1. Appeal allowed. The Employment Tribunal’s unfair-dismissal decision was unsafe. It applied an impermissibly rigid proposition that, where misconduct was less than gross misconduct and there were no previous warnings, dismissal could not fairly be imposed.

2. Under section 98(2) of the Employment Rights Act 1996, conduct falling short of gross misconduct may constitute a potentially fair reason for dismissal. The distinction between gross and serious misconduct may be crucial to a wrongful-dismissal claim involving summary dismissal. It does not, however, make a conduct dismissal automatically unfair for the purposes of section 98.

3. The issue under section 98(4) was whether the employer reasonably treated the established conduct as sufficient reason for dismissal, in accordance with equity and the substantial merits of the case. The burden on that question was neutral. The Tribunal had to consider the entire dismissal process, including the appeal, and decide whether the employer’s decisions fell outside the range of reasonable responses in the particular circumstances.

4. The employer’s disciplinary policy was relevant but not determinative. The Tribunal did not demonstrate that it had assessed the policy’s provision for exceptional circumstances, or the employer’s concerns about trust, confidence and the claimant’s performance background, as part of the relevant factual matrix. It instead stated what it considered the reasonable sanction, indicating an error of substitution.

5. The EAT could not itself determine fairness under section 98(4). The case was remitted for a fresh hearing before a different Employment Tribunal. The original Tribunal’s approach had been fundamentally flawed, and a different Tribunal was likely to be able to list the matter sooner.

• Employment Appeal Tribunal — allowed the employer’s appeal and remitted the unfair-dismissal complaint for a fresh hearing before a different Employment Tribunal.
• Employment Tribunal, Reading — upheld the claimant’s unfair-dismissal complaint and reduced compensation by one-third for contributory conduct.