Employers may find themselves in the position where they have an employee who behaves badly by committing a number of acts of misconduct, but none of these are enough to amount to ‘gross misconduct’. Gross misconduct is action that is so serious it entitles an employer to dismiss an employee without notice or pay in lieu of notice. Examples of gross misconduct can be theft or violence during employment. The question for an employer in such a situation is, can the acts of misconduct be ‘grossed up’ to justify a dismissal without notice?
A recent Employment Appeal Tribunal (EAT) decision in the case of Beardwood Humanities College v Ham (2014) examined this type of situation.
Ms Ham was employed by Beardwood Humanities College as head of science. Her conduct was questioned, and there were allegations of four acts of misconduct made against her. The college carried out an investigation, and a disciplinary hearing was held. Ms Ham was not present at the disciplinary hearing. The outcome of the disciplinary hearing was that it was decided that she had committed all four acts of misconduct. Ms Ham was dismissed with immediate effect.
Ms Ham appealed against the decision which resulted in three of the four charges being upheld. The most important charge, relating to a safeguarding incident, was only partly upheld. Ms Ham’s appeal against her dismissal was unsuccessful. Ms Ham brought a claim in the Employment Tribunal for unfair dismissal.
The Employment Tribunal found that the four allegations of gross misconduct did not tally with the examples contained in the College’s disciplinary policy, and taken individually did not constitute gross misconduct. Fundamentally, it held that it was wrong for an employer to ‘gross up’ separate allegations of misconduct. Therefore, it was decided that the decision to dismiss Ms Ham was unfair.
The College appealed to the Employment Appeal Tribunal on the basis that the Employment Tribunal should have focused on the whole of Ms Ham’s conduct and the impact of that conduct on the employment relationship. The EAT agreed that the Employment Tribunal had erred in its judgement. The question the Employment Tribunal should have examined was not whether the individual acts of misconduct identified by the appeal panel could be ‘grossed up’, but whether Ms Ham’s conduct overall was a sufficient reason for dismissing her. The case was remitted for re-hearing in the Employment Tribunal on the reasonableness of the dismissal.
This EAT decision confirms that the test in such situations is whether it was within the range of reasonable responses for an employer to dismiss in the circumstances. Therefore, it can be possible to dismiss fairly for acts of misconduct which fall short of ‘gross misconduct’. However, we would highly recommend that advice is sought in regard to situations such as these.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).