Dismissal for gross misconduct – what is reasonable?

Under the Employment Rights Act 1996 (ERA), whether or not dismissal for a reason connected with an employee’s conduct is fair or unfair depends on whether, in the circumstances, the employer acted reasonably or unreasonably. The dismissal will be fair if the employee’s conduct is of a kind that justifies the dismissal of ‘an employee holding a position which the employee held’. The term ‘gross misconduct’ does not appear in the ERA, but in cases where an employee is summarily dismissed for conduct reasons, the misconduct must be serious enough to have resulted in the employment relationship breaking down absolutely, with a complete loss of trust and confidence.

In Beardwood Humanities College v Ham, the Employment Appeal Tribunal (EAT) held that, in cases where an employee is accused of more than one offence, the correct approach is not whether the acts of misconduct individually, or indeed cumulatively, amount to gross misconduct but rather whether the conduct in its totality amounts to a sufficient reason for dismissal.

Ms Ham was employed at Beardwood Humanities College from September 1994 until May 2011, when she was dismissed from her post as Director of Science with immediate effect for conduct reasons. A disciplinary hearing, held in her absence, had upheld four allegations made against her. Ms Ham appealed and a full hearing took place at which she and a trade union representative were present. Three of the allegations were made out, but the most important charge, relating to a child safeguarding incident, was only partly upheld. The appeal was dismissed.

Ms Ham brought a claim for unfair dismissal. The Employment Tribunal (ET) found that the primary reason for her dismissal was her conduct. Although the disciplinary panel had a ‘genuine and reasonable belief’ that she was guilty of the alleged misconduct, the original decision to dismiss her was unfair because it was reached in her absence. However, the appeal panel was properly constituted and had conducted a full rehearing of the issues rather than merely reviewing the original decision.

As regards the issue of fairness, the ET held that the allegations against Ms Ham did not ‘tally with the examples of gross misconduct’ as set out in the College’s disciplinary policy and it is not right for a reasonable employer to ‘gross up’ individual allegations of misconduct to ‘make them together constitute gross misconduct’.

The ET also took into account that Ms Ham had 17 years’ service without any adverse disciplinary findings against her and would anyway have been made redundant in August 2012 on the closure of the College. Added to that the finding of the appeal panel that the relationship between Ms Ham and her employer had not broken down completely, the ET found that the decision to dismiss her for gross misconduct did not fall within the band of reasonable responses open to her employer and was therefore unfair.

The College appealed against the ET’s decision.

The EAT held that the proper focus for the ET ought to have been the nature and quality of Ms Ham’s conduct in totality and its impact on the sustainability of the employment relationship. In addition, Ms Ham’s impending redundancy was an irrelevant factor as regards the reasonableness of the dismissal decision.

In conclusion, the EAT could not say that the ET’s conclusion on fairness was ‘plainly and unarguably right or wrong’ and could not therefore reverse or uphold its finding of unfair dismissal.

The case was remitted for reconsideration by the same ET in the light of the EAT’s judgment.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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