A useful little reminder from the Employment Appeal Tribunal last week that underneath all the practices and codes and assumptions which govern our conduct of HR matters, there is still The Law.

Hands up, for example, all those who thought that a conduct dismissal without prior warning would only be fair where it was gross misconduct?   Indeed so, and so did the Employment Tribunal in Quintiles Commercial -v- Barongo. Mr Barongo was dismissed for gross misconduct following failures to complete two compulsory training courses in scarcely a fortnight. Quintiles’ messaging over the dismissal was a little mixed – while it said it was gross misconduct, it also gave Barongo notice. Moreover, the appeal manager accepted that his admitted misconduct was not gross at all, merely “serious”, but still upheld the dismissal.

The Tribunal thought that Quintiles’ concession was correct and that Barongo’s admitted misconduct was less serious than the things listed in the part of the disciplinary procedure which dealt with summary dismissal.   It said that as soon as Quintiles dismissed Barongo without prior warning for what it then accepted was not gross misconduct, it was doomed. It was only gross misconduct which would allow a fair dismissal in those circumstances.   Indeed, Quintiles’ own disciplinary procedure said expressly that as a rule, misconduct falling short of gross “does not warrant dismissal on the first occasion…[but] repeated instances of general misconduct in conjunction with a valid warning can however result in dismissal“.

Sounds quite sensible, yes?, but that is not what The Law says.   So far as unfair dismissal is concerned, this sits in section 98 Employment Rights Act.   Section 98(2) says that a dismissal is capable of being fair if it is for a reason which “relates to the conduct of the employee” which in this case it clearly did. Section 98(4)(a) says then that whether the dismissal actually is fair depends on “whether in the circumstances…the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee”.

So no reference there to misconduct having to be gross as opposed to serious, as a result of which the Tribunal’s statement that a dismissal for something short of gross misconduct would necessarily be unfair if not preceded by warnings was an error of law. In addition, the Tribunal was found to have faulted Quintiles for not doing what it would have done, while strictly the test is whether the Company had done anything which no reasonable employer would have done.

As a result of these errors, the EAT sent the whole shooting-match back down for a new ET to have another go at applying the right tests. The question for us now is whether that new ET is going to come up with any different conclusion. I suspect not. Here’s why:

• If you include a list of circumstances warranting summary dismissal in your disciplinary procedure, even a non-exhaustive one, you are still setting expectations for employees and disciplinary managers as to the sort of thing which will justify that approach. The ET is entitled to take the view that a given act of misconduct is not in that league, especially given the statement that lesser misconduct will usually only justify a dismissal “in conjunction with a valid warning“, meaning that the section 98(4) test is not met.

• There is no indication in the EAT’s decision that Barongo was given any sort of rocket after he missed the first training course. If that is right, then how could it be fair to dismiss for two more or less identical incidents when the first went completely unremarked upon?

• Allowing employees to be dismissed fairly without a prior warning for something short of gross misconduct would undermine decades of case law and good employment relations practice. It would encourage employers to describe even minor misconduct as “serious”, knowing full well that they no longer had to get to “gross” to justify an immediate dismissal.   The Acas Code describes gross misconduct as acts that are so serious in themselves, or have such serious consequences, that they may call for a dismissal for a first offence. However, if Barongo’s dismissal is now found fair, we would also have to get into what is meant by “serious”, as distinct both from gross at the top end and less grave adjectives below it.

• At the moment, the point where you can dispense with warnings is broadly the same as the point where you can dismiss without notice or pay in lieu. Nice and clear. If Quintiles wins, however, the Tribunal would create a sort of hybrid dismissal where no warning was necessary but you still had to pay notice. From the clarity point of view, it is hard to see this as an attractive outcome.