Bulletins | June 8, 2018

Gross misconduct dismissals – the range of reasonableness

This week’s bulletin looks at two interesting decisions from the Employment Appeal Tribunal (EAT) in relation to misconduct dismissals where the employee has a clean disciplinary record.

Quintiles Commercial UK Ltd v Barongo

In this case, the EAT considered whether or not it is permissible for an employer to dismiss an employee with a clean disciplinary record for “serious” misconduct, as opposed to gross misconduct.

Mr Barongo was disciplined for two acts of misconduct (failure to complete and attend compulsory training courses). He had no prior warnings.  Following the disciplinary hearing, the employer decided that Mr Barongo should be dismissed for gross misconduct. When he appealed that decision, one of the directors of the employer decided that Mr Barongo’s actions did not amount to gross misconduct, but were “serious” misconduct and that therefore Mr Barongo should still be dismissed (with notice).  Mr Barongo brought a claim of unfair dismissal.

Although he won in the Employment Tribunal, the EAT decided that a dismissal can be fair provided it is for a reason relating to the employee’s conduct.  The EAT looked at the legal test for reasonableness of dismissals, which is “whether in the circumstances…the employer acted reasonably or unreasonably in treating [the reason] as a sufficient reason for dismissing the employee”.  It decided that there is no particular rule that says that dismissing an employee without prior warnings for conduct that falls short of gross misconduct should always be found to be unfair without a proper analysis of the facts of the case.

The EAT acknowledged that in most cases a Tribunal may find that such a dismissal would fall outside ‘the range of reasonable responses’, it found that the Tribunal had imposed too rigid a view and limited the potential range of reasonable responses by applying a general rule. The Tribunal should have instead taken into consideration all the circumstances of the case and not substituted its view for that of the employer.

Mbubaegbu v Homerton University Hospital NHS Foundation Trust

In this case dealing with similar themes, the EAT held that gross misconduct can be a cumulative series of acts rather than one particular act.

Mr Mbubaegbu, a consultant orthopaedic surgeon, was found to have failed to comply in a number of respects with a new set of rules introduced into his department. Following disciplinary proceedings, Mr Mbubaegbu was summarily dismissed for gross misconduct.  He had no previous warnings. Mr Mbubaegbu brought proceedings for unfair dismissal, wrongful dismissal and race discrimination, which were dismissed by the Tribunal.

On appeal, the EAT agreed with the Tribunal that there could be circumstances in which a series of acts – each of them not serious enough to constitute gross misconduct – could justify a dismissal without notice because the pattern of behaviour could be serious enough to have undermined the employer’s trust and confidence in its employee.

Interestingly, the EAT allowed Mr Mbubaegbu’s appeal in relation to wrongful dismissal and highlighted the different legal tests for wrongful and unfair dismissal.

When considering unfair dismissal, a Tribunal’s job is to determine whether or not the dismissal fell within the range of reasonable responses.  However, when considering wrongful dismissal, a much more detailed analysis of the facts is required and a Tribunal must make its own findings as to whether the Claimant had acted in fundamental breach of contract which justified dismissal without notice.  In this case, the EAT was not persuaded that this test was met and remitted the case back to the Tribunal.


We are sure that many readers would have agreed with the Employment Tribunal’s original decision that Mr Barongo’s dismissal was unfair, since his conduct fell short of gross misconduct and he had a clean disciplinary record.  Likewise, many may have thought that at least one act of gross misconduct was required to justify a dismissal without notice.

These cases are therefore helpful reminders to employers that, sometimes, it may well be fair to dismiss in these circumstances.  Clearly, every case should be judged on its own facts and it is key to consider the impact on trust and confidence.  If this has been destroyed by the employee’s act, or series of acts, even if none amount to gross misconduct, it may be fair to proceed straight to dismissal.

Employers should:

  • Give careful consideration as to whether an employee’s actions amount to misconduct or gross misconduct. Consider whether it is necessary to categorise any type of misconduct as “serious”. Misconduct and gross misconduct are usually adequate on their own;
  • Ensure that a fair dismissal procedure is followed, in line with both the ACAS code of practice and their own procedures;
  • Always think about whether a decision to dismiss is in the “band of reasonable responses”; and
  • Remember that the reasonableness of any dismissal will be considered with reference to the employer’s size and resources and so more is expected of bigger/more sophisticated organisations.