Here we round-up two recent decisions considering sanctions for gross misconduct. In the first case, Ham v Governing Body of Beardwood Humanities College, the EAT upheld a finding of fair dismissal where the employer aggregated a series of acts of misconduct (which did not individually constitute gross misconduct) and considered they amounted to gross misconduct when taken together. In the second case, Wells v Countrywide Estate Agents t/a Hetheringtons, the EAT held that an employee had not been constructively dismissed in circumstances where the employer had demoted him for committing acts of gross misconduct.

Separate acts of misconduct amounted to gross misconduct when looked at in aggregate (Ham v Governing Body of Beardwood Humanities College)

Ms Ham (the Claimant) was employed by Beardwood Humanities College (the Respondent), until her summary dismissal in 2011. She was dismissed by reason of misconduct, with the Respondent citing four primary examples: (i) failure to follow management requests; (ii) failure to follow health and safety regulations; (iii) communicating in an "unreasonable and intimidating way", both orally and in writing; and (iv) unreasonable and uncooperative behaviour with work colleagues. The Respondent recognised at the time that, individually, these acts were mere misconduct. However, together, they considered them to constitute gross misconduct.

The Employment Tribunal found that the decision to dismiss was unfair, on the basis that the aggregation of the offences was unreasonable. However, the Respondent's appeal to the EAT was successful, and the case was remitted to the Tribunal for reconsideration. The Tribunal then accepted that the decision to dismiss was fair, but that it fell at the "extreme end" of the band of reasonable responses.

The Claimant then appealed to the EAT, arguing primarily that the Respondent had failed to issue her with a warning for any of the four incidents of misconduct. The EAT rejected the Claimant's appeal. It found that the Respondent had considered alternative options, but had concluded that summary dismissal was appropriate in the circumstances. In any event, the Claimant had not made any submissions regarding alternative options before the original Tribunal.

No constructive unfair dismissal because of demotion for gross misconduct (Wells v Countrywide Estate Agents t/a Hetheringtons)

Mr Wells (the Claimant) was employed as a Branch Manager by Hetheringtons, a national chain of estate agents (the Respondent). The Respondent was subject to regulations requiring estate agents to conduct money laundering checks. The Respondent had its own policies in place in this respect.

In a meeting with the Respondent's Operations Director, the Claimant indicated that he considered compliance with the money laundering regulations was unimportant. These comments triggered an investigation and it was revealed the Claimant's branch was failing to comply with the regulations. As a result, disciplinary proceedings were commenced against the Claimant and two colleagues. The Claimant admitted that he had failed to complete appropriate documents and that he was ultimately responsible for the branch's poor compliance record. The disciplinary officer decided these breaches amounted to gross misconduct and dismissed the Claimant.

The Claimant appealed. During the appeal process, the Claimant submitted that he considered dismissal to be a harsh penalty and that appropriate sanctions would be a written warning and a demotion. Taking into account the Claimant's length of service and employment history, the Respondent decided to subsititute the dismissal decision with the lesser sanctions of a final written warning and a demotion. However, the Claimant then decided he was not prepared to accept the demotion. He resigned and claimed he had been constructively dismissed and that the dismissal was wrongful and unfair.

The Employment Tribunal held that although the proposed demotion may have involved a breach of contract by the Respondent, that breach was not so serious that it gave rise to a constructive dismissal. Incidentally, the Tribunal also noted that the Respondent's initial investigation and decision to dismiss were fair.

The EAT dismissed the Claimant's appeal noting that his case was "doomed to fail" once it had been found that he had committed an act of gross misconduct and that the investigation and original dismissal decision were fair. This meant that the reason for the dismissal – albeit a constructive dismissal – was the Claimant's gross misconduct. The matter has been properly investigated and the dismissal was in the range of reasonable responses. It could not be said that the demotion was so "brutal" as to override the Claimant's original acts of gross misconduct. Nor could it be said that demotion was somehow a harsher penalty than dismissal. In other words, if the original decision to dismiss was fair, then the demotion decision was fair.

Comment

The decision in Ham demonstrates that several individual acts of misconduct (themselves falling short of gross misconduct) may be considered gross misconduct, when viewed in their totality. However, any such aggregation should be handled with care. Both the Tribunal and the EAT were careful to point out that the decision to dismiss in this case was at the very limit of the band of reasonable responses.

The decision in Wells demonstrates that where gross misconduct is present and a fair procedure has been followed, then it will be difficult to challenge the ultimate decision on sanction. In such circumstances, dismissal will usually be a fair sanction. Therefore, the imposition of any lesser penalty should also be fair. In this case, the employer did not have an express right to demote the employee, however, this was not enough to support a constructive dismissal claim.

When dealing with gross misconduct situations, you should maintain up-to-date records of any acts of misconduct, especially in the case of any individuals committing varied acts of misconduct. Further, ensure that a fair investigation and displinary process is followed, and that consideration is given to other appropriate sanctions before dismissal. Where you have given warnings in the past (yet the misconduct continues) then any dismissal will likely be pulled away from the "extreme end" of the band of reasonable responses.

Ham v Governing Body of Beardwood Humanities College

Wells v Countrywide Estate Agents t/a Hetheringtons