Dismissal can be fair even if misconduct is not “gross”

A recent decision from the Employment Appeal Tribunal explains why in some circumstances it can be fair to dismiss for misconduct even if it did not involve a fundamental breach of contract (ie “gross” misconduct).

In this case the employment tribunal had dismissed Mr Hope’s claim for unfair dismissal against the British Medical Association. He had been dismissed because he had raised a number of grievances which he would neither withdraw nor pursue. The BMA considered the grievances were vexatious and that this amounted to gross misconduct. Mr Hope was dismissed with a payment in lieu of notice.

On appeal Mr Hope argued that the tribunal had failed to make a ruling on whether his conduct had in fact amounted to gross misconduct. The EAT dismissed the appeal, essentially because such a determination was not necessary to resolve the unfair dismissal claim.

The EAT quoted from a number of earlier cases which explain the distinction between an unfair dismissal (ie one that fails to satisfy the requirements for a fair dismissal set out in the Employment Rights Act) and a wrongful dismissal (ie a dismissal without giving the required contractual notice, which is only lawful if there has been gross misconduct by the employee).

One way of making the distinction is that the fairness of a dismissal is about what the employer reasonably believes happened, whereas to assess a wrongful dismissal claim the court must look at what actually happened. Clearly these questions are closely related in misconduct cases, but neither question is determinative of the other.

As the EAT explained in an earlier decision:

It may be more usual that a dismissal is held fair where there is something that might be described as gross misconduct contractually, and as such within the terms of the employer's disciplinary procedure (especially if that is contractual) it would be held unfair. It may be unusual that a dismissal is held unfair where there is no gross misconduct. But in neither case is the presence or absence of gross misconduct, as such, determinative.

It follows that employers can dismiss fairly for misconduct even it is not defined as such in the disciplinary procedure, as appears to have happened in this case. Conversely, defining something as gross misconduct in the procedure will not guarantee that it will be held to be fair to dismiss for misconduct which satisfies that definition. In all cases the tribunal will focus on the reasonableness of the employer’s decision to dismiss in the particular circumstances of the case.

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