In the case of Quintiles v Barongo the Employment Appeal Tribunal (EAT) has held that 'serious misconduct’, not just ‘gross misconduct',can justify a dismissal without prior warning. The EAT criticised the original employment tribunal for a rigid application of the Acas Code. It said the employment tribunal had wrongly decided that where there is only ‘serious’ misconduct, there must be prior warnings before a dismissal can take place, even if that dismissal is on notice. The tribunal was incorrect to say that such a dismissal can only take place where there is gross misconduct. The EAT said the employment tribunal failed to look at the case as a whole in order to determine whether the dismissal fell ‘within the range of reasonable responses’. Instead it had acted as if it were the employer and had mistakenly set down what it felt the sanction should have been.
Do not rely upon this case. It is generous to the employer. The Acas Guidance, which expands upon the Acas Code, strongly suggests that a dismissal which is not for gross misconduct should only be on notice following prior warnings. It is always possible for an employer to dismiss without prior warnings and still pay notice, but it still has to be safest to ensure the misconduct is ‘gross misconduct'.
One other interesting point from this case is that a disciplinary hearing conducted by telephone was held not to be best practice but was not unfair. If you are going to do this, make sure you have a good reason, for example fitting in a disciplining manager based away from the workplace with an employee who is trying to delay things.
