Louise Gibson, Associate, Fladgate LLP (firstname.lastname@example.org)
In this briefing we look at two recent Employment Appeal Tribunal (EAT) decisions relevant to dismissal: In the first, Quintiles Commercial UK Ltd v Barongo, the EAT considered whether an Employment Tribunal had been correct in deciding that a dismissal for a first offence of misconduct had been automatically unfair where the conduct in question had been serious, but not “gross”, misconduct; Afzal v East London Pizza Ltd T/A Dominos Pizza, on the other hand, addressed the crucial question of whether the ACAS Code of Practice on Disciplinary and Grievance Procedures has wider application to dismissals for some other substantial reason.
Mr Barongo (B) had failed to attend two compulsory training courses in November 2015, citing the need to prioritise his existing work commitments. His manager nevertheless considered that trust and confidence had been destroyed and dismissed B with notice for gross misconduct.
Following an appeal heard by a director of Quintiles (Q), the director took the view that B had been guilty of “serious” rather than “gross” misconduct. However, he also found that trust and confidence had broken down and so upheld the decision to dismiss B.
B brought a claim for unfair dismissal and his complaint was upheld by the Employment Tribunal. The Tribunal’s view was, essentially, that Q’s acknowledgement that the conduct was not “gross” misconduct, in circumstances where B had no prior disciplinary warnings on file, meant that the dismissal was unfair. Q appealed to the EAT.
The EAT overturned the Tribunal’s decision. It reinforced that the correct test is to decide whether the dismissal was for a potentially fair reason (such as misconduct) before moving on to consider whether the employer’s decision to dismiss for that reason fell within the band of reasonable responses for an employer. The Tribunal had fallen into error by finding that the dismissal had been automatically unfair in circumstances where there had been no earlier warnings, and the conduct itself had not been sufficiently serious to amount to gross misconduct. No such principle of law exists.
It is clear that the Tribunal had committed an error of law. That said, it is difficult to conceive of conduct which could justify a dismissal without warning but yet fall short of gross misconduct. To fall within the reasonable range of responses, an employer is likely to need to show that exceptional circumstances applied (e.g. a genuine deterioration of the employment relationship arising from breach of trust and confidence) and that its own disciplinary policy supported taking this step.
Mr Afzal (A) had been working for his employer (ELP) for nearly seven years under a visa which was set to expire on 12 August 2016. He was however eligible for residency and could continue working during the application process, provided that he applied for residency before the expiry of the current visa on 12 August 2016.
ELP acted appropriately by warning A that he needed to provide evidence of his in-time application and advised him to do so before 11 August to avoid last minute problems. Ignoring the advice, A sent a copy of his application to his line manager at 4.28 p.m. on 12 August by email. Unfortunately his line manager could not open the attachments. Concerned by the risk of criminal and civil penalties, ELP sent a notice of dismissal to A the same day. No procedure was followed and no right of appeal provided.
A ultimately produced evidence of his in-time application and right to work and ELP offered to “rehire” him. However, ELP would not offer continuity of employment or any back pay. As a result A brought a claim of unfair dismissal against ELP.
The Tribunal rejected his claim and found that ELP had been justified in dismissing A on 12 August as a result of its genuine belief that it was prohibited by law from employing him. The Tribunal considered that it was not necessary to offer a right of appeal since there was “nothing to appeal about”.
The EAT agreed with the Tribunal’s finding that ELP had been justified in dismissing A. However, it disagreed that there was “nothing to appeal about”. ELP’s genuinely held belief had been wrong and A would have been able to demonstrate this during an appeal process in a number of ways (e.g. by producing sufficient evidence or by ELP accepting the word of his solicitor, as it had done for another employee). The failure to offer an appeal was, in the circumstances of this case, inconsistent with a fair dismissal procedure. The case was remitted to the same Tribunal to determine whether or not the decision to dismiss in this case was within the range of reasonable responses for an employer.
This case shows that, even where the initial decision to dismiss was reasonable, the dismissal process may itself render the dismissal unfair, if there was no right of appeal. Key to this case was the fact that the employer’s genuine and reasonably held belief at the time of dismissal proved to be wrong and this would have been obvious during any appeal.
The EAT emphasised that it is best practice to offer a right of appeal even in circumstances where the ACAS Code of Practice does not apply.
An appeal stage provides an opportunity for employers to unearth potential claims and deal with them at an early stage, as well as providing an opportunity to rectify mistakes and to consider a hasty decision “rather more calmly”.