The next step

To the EAT's ruling in the case mentioned in the article

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Dismissal with notice

[Letter]

Several acts of misconduct: is that gross?

One thing after another

Let’s suppose that you have an employee who routinely tests your patience. One month there’s poor timekeeping; the next they’ve made some minor procedural errors, then it’s too much time spent on their mobile phone making personal calls. Whilst they may not have committed serious acts of misconduct, when you add everything together, they’re a pain. So in this scenario could you simply add everything together and call it gross misconduct - with a view to dismissing the employee?

EAT ruling

This was considered by the Employment Appeal Tribunal (EAT) in Governing Body of Beardwood Humanities College v Ham 2014 . Ham (H) had been employed as head of science since September 1994. For years she had an unblemished record but in 2009 was accused of committing four separate misconduct offences. Following an investigation and disciplinary hearing it was decided that H had committed all of the offences and she was dismissed with immediate effect.

Unfair dismissal claim

After her internal appeal failed H claimed unfair dismissal. The tribunal found that: (1) the employer’s allegations did not tally with the examples of gross misconduct given in its disciplinary policy (they ought to have done; (2)  taken individually, none of the offences constituted gross misconduct; and (3) the employer had been wrong to “gross up” the four separate allegations and make them constitute gross misconduct when put together.

An unhappy employer

At this point H was awarded £78,600. However, the employer appealed to the EAT on the basis that the tribunal should have examined the “nature and quality” of H’s conduct in totality and its “impact on the sustainability of the employment relationship”. The EAT agreed, stating that the question was not whether the acts of misconduct, either individually or cumulatively, amounted to gross misconduct, it was whether H’s overall conduct was a sufficient reason to dismiss. The case will now go back to the tribunal which will re-test the fairness of her dismissal.

Tip 1. Regardless of that outcome, the EAT’s ruling in this case confirms that you can’t automatically add together several incidents and accuse the employee of gross misconduct. In order to summarily dismiss them for a series of problems, you would need to show how their overall behaviour and attitude had negatively and severely impacted on the employment contract. Even where that’s possible, you’ll still have to take any mitigating circumstances into account, e.g. an unblemished record, before making a final decision.

Tip 2. That said, if the employee had a previous but live final written warning on their personnel file for misconduct and a similar instance arose, you could dismiss them “with notice” on the grounds of that further misconduct (see The next step ). That’s why you should never let poor conduct or unacceptable behaviour slide.

For the EAT’s ruling in this case and a free dismissal with notice letter, visit http://tipsandadvice-personnel.co.uk/download (PS 16.11.04).