Emilie Bennetts and Katie Ellis: A fair gross misconduct dismissal – what is the test?

Luis Suarez’s bite during a World Cup game against Italy earned him a nine match and four month ban from football as well as a fine, although of course he is not employed by FIFA. What would have been the likely consequences if he had been in a traditional employment relationship? Assault or violence are likely to be viewed by many employers as gross misconduct, the most serious form of misconduct allowing the employer to dismiss without prior warnings or notice. This article looks at the concept of gross misconduct, and what an employer needs to consider to carry out a gross misconduct dismissal fairly.

In the run up to this year’s World Cup, Ray Lambert, the father of England Striker Rickie Lambert, was allegedly dismissed on the spot from his job of 10 years at a Matalan distribution centre for breaking a panel of glass on a company drinks machine. Mr Lambert stated that he accidently broke the panel while trying to retrieve the drink he had bought, which had got stuck. A spokeswoman for Matalan asserted that he was dismissed following an act of gross misconduct involving a “substantial amount of damage” to company property and that Matalan “has conducted this dismissal in accordance with the company’s disciplinary policy”.

What is the legal test which an employer has to satisfy in order for a gross misconduct dismissal to be fair?

Misconduct is one of the five potentially fair reasons for dismissing an employee. In order to determine if the dismissal is fair, the employer must show that the dismissal was both procedurally and substantively fair. An Employment Tribunal will assess whether in the circumstances (including the size and administrative resources of the employer’s business) the employer acted reasonably or unreasonably in treating the misconduct as a sufficient reason for dismissing the employee.

The leading case on gross misconduct dismissals is British Home Stores Ltd v Burchell [1978] IRLR 379, which set out a three stage test, commonly known as the Burchell test. The Tribunal will also consider whether the ACAS Code of Practice on Disciplinary and Grievance Procedures was followed by the employer in effecting the dismissal.

The Burchell test

In this case, Ms Burchell was dismissed for being involved in a number of dishonest purchases relating to staff purchases.  In determining the fairness of the dismissal, the Employment Appeal Tribunal ruled that it is not relevant if the employee is actually guilty of the misconduct or not.

Regardless of actual guilt, the dismissal will be fair if at the time of the dismissal the employer:

• believed the employee to be guilty of the misconduct;
• had reasonable grounds for believing that the employee was guilty of that misconduct; and
• at the stage at which it formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

In cases involving theft, dishonesty or fraud which are disputed by the employee, it is not for the Tribunal to decide whether the employee was actually guilty of the misconduct; it must only determine whether the employer believed and had reasonable grounds for believing, that the employee was guilty of the misconduct at the time, including whether it carried our a reasonable investigation before it formed that belief.

The band of reasonable responses

Once this has been established, the Tribunal will then assess objectively if the subsequent decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer could adopt. This may involve the employer acting consistently, and considering the employee’s previous disciplinary record or any mitigating factors they may raise. Regarding the case of Mr Lambert, Matalan will be seeking to establish that his actions in breaking the glass on the drinks machine were serious enough to warrant summary dismissal and that another reasonable retailer would also have summarily dismissed him in the same circumstances.

The ACAS Code

The ACAS Code explains that “some acts, termed gross misconduct, are so serious in themselves or have such serious consequences that they may call for dismissal without notice for a first offence. But a fair disciplinary process should always be followed, before dismissing for gross misconduct.” Therefore unless the misconduct is so severe that it requires instant dismissal without following any procedure (such as, where there is the threat of immediate danger to life or severe harm to the business) even gross misconduct cases should be dealt with in the normal way, although the employer may wish to consider suspending the employee on full pay during the investigation if they believe their presence in the workplace could cause harm.

The Code sets out the steps an employer must normally follow before dismissing for misconduct or gross misconduct:

• carry out an investigation to establish the facts of the case;
• notify the employee in writing of the problem;
• hold a meeting with the employee to discuss the problem;
• allow the employee to be accompanied at the meeting;
• decide on appropriate action;
• inform the employee in writing of the action; and
• provide the employee with an opportunity to appeal the decision.

Disciplinary policy

It is important for an employer to have a well written disciplinary policy as it may be able to rely on this in carrying out its investigation. The ACAS Code explains that an employer’s disciplinary policy should give examples of acts which the employer regards as acts of gross misconduct. These should be non-exhaustive and will vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination. It is very likely that biting in the workplace can lead an employer to dismiss fairly for gross misconduct, provided it follows a proper procedure!

Emilie Bennetts and Katie Ellis, Charles Russell LLP