A recent decision of the Court of Appeal has considered whether the decision of an employer to dismiss for misconduct was within the range of reasonable responses available to the employer. In so doing the Court considers the definitions of 'gross' misconduct and 'serious' misconduct contained in the employer's policies.

The employee in Jobcentre Plus v Graham had 30 years' exemplary service in a Job Centre. Three colleagues complained that the employee had assisted a friend of her daughter’s, S, to find work in breach of procedures. The employer commenced disciplinary proceedings, during which the employer moved the employee to a position in another office, rather than suspending her. During its investigation the employer found that the employee had committed the following acts of misconduct:

  • was an 'acquaintance' of S and had accessed his records after becoming an acquaintance;
  • dealt with job search interviews on S's behalf;
  • breached the security of official premises by taking S into the staff canteen;
  • left her smartcard unattended whilst S used her computer.

In the employer's policies it set out examples of 'serious' misconduct including deliberate unauthorised access to information and lending or borrowing a computer. The penalty was stated to be a final written warning or a written warning if mitigation could be produced. 'Gross' misconduct was described as 'acts which result in a serious breach of contractual terms and which destroy the employment contract between the business and the individual and makes any further working relationship and trust impossible, including repeated serious misconduct'.

Examples of gross misconduct given included persistent unauthorised access to or use of information. The normal penalty was stated to be dismissal (with or without notice) which could be reduced to a final written warning if mitigation was accepted.

The employer dismissed the employee without notice for gross misconduct. The employee claimed unfair dismissal. She was successful before the employment tribunal but the employer's appeal was upheld. The employee appealed to the Court of Appeal.

The Court of Appeal identified the three stages necessary once it had been established that the potentially fair reason for dismissal was conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of and, thirdly, did the employer have reasonable grounds for that belief.

In this case the answer to the first two questions was 'yes'. It was on the answer to the third question that the employer came unstuck. Evidence put before the tribunal showed that the employer could not point to a definition of 'acquaintance' and could not actually pin point when the employee had become an acquaintance of S. The employer could not therefore show that she had accessed the records of an acquaintance. There were no reasonable grounds for believing that the employee was guilty of the first alleged act of misconduct.

As to the remaining three grounds of misconduct relied on, the Court went on to find that the evidence also showed that the employee had carried out only one job search for S and he could have carried it out himself on a public computer. In addition, the incident concerning leaving her smartcard in the computer was one occasion only and for a very short period of time and should be characterised as 'serious' misconduct. The employee admitted the allegation about the canteen but on the employer's own policies this was not even categorised as 'serious' misconduct let alone 'gross' misconduct.

The Court of Appeal held that the employment tribunal had correctly concluded that the employer's belief that the employee's conduct amounted to 'gross' misconduct was not based on reasonable grounds. Therefore the decision to dismiss her summarily was outside the bounds of the reasonable steps that the employer could take and her dismissal was unfair.

The employment tribunal had been right to say that allowing the employee to continue to work with access to the computer system, rather than suspending her, did not sit well with the allegation of gross misconduct. The tribunal were entitled to take that into account when assessing whether the employer really did think, reasonably, that its trust and confidence in the employee had been so destroyed that she could no longer remain in employment.

Action points

The Court of Appeal indicate that failing to suspend an employee who is facing allegations of gross misconduct may prejudice a later unfair dismissal case. However, employers should not automatically suspend an employee accused of gross misconduct. In fact, in another recent Court of Appeal case, Crawford v Suffolk Mental Health Partnership, Lord Justice Elias criticised the standard practice of suspending employees whilst allegations are investigated.

In Lord Justice Elias' view the employer must be able to show that it has given some consideration to the issue of whether to suspend. He warns that suspension may belittle and demoralise an employee and even if an employee is cleared they may find that suspicions linger because the suspension adds credence to the charges. He adds that if suspension is a 'knee jerk reaction' to charges of misconduct then the employer may be in breach of the implied duty of trust and confidence towards the employee.

Employers considering suspension should:

  • make it clear that it is not considered disciplinary action in itself;
  • keep clear records of any suspension decision;
  • keep any suspensions as short as possible; and
  • review suspensions regularly.