You’re fired! – minor misconduct accumulation or just acting on managerial gut feeling?

Long gone are the days when your boss could, completely out of the
blue, walk up to your desk and shout ‘You’re fired!’…or are they?

The
Employment Appeal Tribunal (‘EAT’) recently considered the issue
whether a series of relatively minor acts of misconduct can be
“aggregated” to justify a fair dismissal without any prior warning.

This
was the culmination of a long-running claim by Ms Ham who was summarily
dismissed from Beardwood Humanities College in 2011 because of “failing
to attend meetings, behaving rudely and intransigently”. In isolation,
which is often the case, neither of the incidents amounted to gross
misconduct.

The Employment Tribunal (‘ET’) disagreed with the
College’s approach and found that they had “totted up” individual acts
of minor misconduct to justify summary dismissal for gross misconduct.
Upon appeal the EAT was not convinced and concluded that the ET had
adopted the wrong approach. It was not whether the individual acts of
misconduct cumulatively amounted to gross misconduct, but whether the
conduct “in its totality” provided sufficient reason for dismissal and
sent the case back to the ET for reconsideration. On its second
consideration the ET agreed that it was fair to dismiss, albeit on the
harsher end of the band of reasonable responses available to the
College.

Ms Ham was not brow beaten, she appealed to the EAT and
argued that the ET was wrong the second time around by not considering
whether she had been given any warnings about her conduct. However, the
EAT was not persuaded. It held that the College and the ET had properly
considered alternatives to dismissal. The College had also considered
issuing warnings but the circumstances was such that it concluded that
it would have been inappropriate. The EAT decided that, on the
particular facts before them, dismissal without any warning was not
outside the scope of a reasonable employer’s decision to dismiss.

Does
this mean that, even in the absence of gross misconduct, it can be fair
to dismiss without any prior warnings, as long as there has been a
series of acts of minor misconduct?  Yes and no. Before you put on your
best Sir Alan Sugar impression and march through the office, pointing
fingers, and shouting “You’re fired!” take a moment to consider that the
fairness of such a sacking will depend very much on the facts of each
particular case.  The key factor in Ms Ham’s case was that the College
had reasonably concluded that trust and confidence had been lost and a
sanction, such as a quiet word or verbal or written warning, would have
had no effect in having Ms Ham co-operate and modify her behaviour.

So, trust your managerial gut feeling? Yes, but with caution and not forgetting the EAT’s avuncular advice: the decision, as fair and within the band of reasonable responses as it may be, it was “at the extreme end of the range” and, last but not least, remembering the importance of having a disciplinary policy and following proper procedures and processes.