Dismissing employee without previous warning for ‘serious misconduct’ could potentially be fair (Quintiles Commercial UK Ltd v Barongo, EAT)

In Quintiles Commercial UK Ltd v Barongo [2018] UKEAT 0255_17_1603 the Employment Appeal Tribunal (“EAT”) held that an employment tribunal erred in holding that a dismissal without warning for ‘serious’ misconduct (as distinct from ‘gross’ misconduct) could not be fair – a dismissal is capable of being a fair dismissal provided it is for a reason relating to the relevant employee’s conduct.

The factual background of Quintiles Commercial UK Ltd v Barongo

Mr Barongo commenced employment with Quintiles Commercial UK Ltd (“Quintiles”) on 1 October 2012, selling products for Astra Zeneca. On 5 January 2016 Mr Barongo was dismissed with one months’ notice for two acts of misconduct: firstly, failing to complete Astra Zeneca’s compliance online training course by the relevant deadline; and, secondly, failing to attend Astra Zeneca’s compulsory training course. Mr Barongo accepted these allegations but, in mitigation, argued that he had been dealing with other matters and had not intentionally missed the training.

The original dismissing officer held that his conduct constituted ‘gross misconduct’ and stated that he believed that trust and confidence between employer and employee had been destroyed. Mr Barongo appealed and, on appeal, the director dealing with the appeal decided that it was more proper to characterise his conduct as ‘serious misconduct’ but that Mr Barongo should still be dismissed.

Mr Barongo brought a claim in the Employment Tribunal for unfair dismissal.

The decision of the Employment Tribunal

The Employment Tribunal held that Mr Barongo’s dismissal had been unfair as, given that his conduct had been classified as ‘serious misconduct’, not ‘gross misconduct’, he should have been given warnings prior to being dismissed; the failure to give him warnings rendered his dismissal unfair (the Tribunal noted that he had no previous live warnings on his file). The Tribunal held, however, that Mr Barongo had been unprofessional and guilty of serious misconduct – it therefore reduced his compensation by one third to account for his contributory conduct.

Quintiles appealed the decision of the Employment Tribunal.

The decision of the Employment Appeal Tribunal

The EAT upheld Quintile’s appeal, deciding that the Employment Tribunal had strayed from applying the touchstone of section 98(2) Employment Rights Act 1996 – that a dismissal was capable of being fair if it was for a reason which related to ‘the conduct of the employee’. The EAT held that even if the misconduct falls short of constituting ‘gross misconduct’ it is capable of being a fair dismissal if it relates to the employee’s conduct.

Further, the EAT held that the test of reasonableness under section 98(4) Employment Rights Act 1996 does not lay down any rule that, absent allegations of gross misconduct, a dismissal for misconduct will be unfair if there were no previous disciplinary warnings – it may be that a Tribunal would find that such a dismissal was outside of the range of reasonable responses, but this is not an automatic finding and will depend upon the particular facts and context of the matter.

The EAT remitted the case to the Employment Tribunal.

Our solicitors’ comments on Quintiles Commercial UK Ltd v Barongo

Chris Hadrill, a specialist employment solicitor at Redmans, commented on the case: “This case is a reminder that it can potentially be dangerous to argue in the Tribunal that a dismissed employee’s was not so serious as to warrant dismissal.”

The transcript of the EAT’s decision in Quintiles Commercial UK Ltd v Barongo can be found here.