In the long-running case of Ham v The Governing Body of Beardwood Humanities College, the Employment Appeal Tribunal (EAT) recently considered the issue of whether a series of relatively minor acts of misconduct can be “aggregated” to justify a fair dismissal without a prior warning.

Ms Ham was employed by the College, latterly as a Director of Science. She was summarily dismissed in 2011 based on various grounds including “failing to attend meetings, behaving rudely and intransigently.” The College did not regard any of the incidents in isolation as amounting to gross misconduct.

The Tribunal found the dismissal to be unfair because the College had unreasonably “totted up” individual acts of misconduct to justify a finding of gross misconduct. The College successfully appealed. In upholding the appeal, the EAT concluded that the Tribunal had adopted the wrong approach. The issue was not whether the individual acts of misconduct cumulatively amounted to gross misconduct but whether the conduct “in its totality” provided a sufficient reason for dismissal. The case then returned to the original Tribunal to reconsider. The Tribunal accepted that the decision to dismiss was fair as it fell within the band of reasonable responses (just!), though at the harsher end of the scale.

It was now Ms Ham's turn to appeal to the EAT. Ms Ham argued that the Tribunal had taken the wrong approach by failing to consider whether it was reasonable to dismiss without having first issued her with any disciplinary warnings.

The EAT dismissed her appeal. It found that alternatives to dismissal had been properly considered by both the College and the Tribunal. The College had considered issuing warnings but concluded a dismissal was appropriate in the circumstances. Furthermore, the issue of lack of disciplinary warnings had not been relied on at the original Tribunal. The EAT decided that a dismissal without first giving a warning was not outside the scope of a reasonable employer’s decision to dismiss in these particular circumstances.

The band of reasonable responses

When considering an unfair dismissal claim, the Tribunal first considers whether the claimant was dismissed for a potentially fair reason (in this case "conduct") after an appropriate procedure. The Tribunal then turns to the question of whether or not the employer’s decision falls within the range or “band of responses” that a reasonable employer would have taken.

It is important to note that the Tribunal must not substitute its own view of what sanction ought to have been imposed. Instead, it must consider if the disciplinary decision actually taken by the employer in response to the conduct was within the band of reasonable responses for an employer of that type in that sector. If it is “within the band” it is a fair dismissal (even if the Tribunal themselves consider that they would not have taken such a decision).

Summary dismissal can only follow an act of gross misconduct. While this case shows that there can be a “totting up” of disciplinary warnings in relation to acts of misconduct that can support a fair dismissal that cannot justify a summary or instant dismissal.

The "extreme end" of the band of reasonable responses

The case demonstrates that, even in the absence of gross misconduct, it can be fair to dismiss without prior formal warnings but where there has been a series of acts of misconduct.

As always, this depends very much on the facts of the particular case and a key factor here was that the ET found that the employer had reasonably concluded that trust and confidence had been lost and a sanction, such as a warning, would have had no effect in having Ms Ham co-operate and modify her behaviour.

Employers dismissing in these circumstances should do so with caution remembering the words of the EAT that the decision, while fair and within the band of reasonable responses open to employers, was “at the extreme end of the range.”