Gross Misconduct doesn’t necessarily equal fair dismissal – why?

Posted on: July 19th, 2017

For many employers, the focus in disciplinary hearings is considering whether there is enough evidence to uphold the allegations of misconduct. A recent case provides a timely reminder that where allegations are upheld it is equally important to consider the appropriate sanctions and that consistency with other decisions.

The facts

The case was brought by Mr Jabbar, a bus driver, against West Midlands Travel Limited. After 37 years with his employer, Mr Jabbar was dismissed for gross misconduct for running a red traffic light. His employer relied on health and safety grounds, saying that they felt they couldn’t trust him not to repeat the offence. At first glance, this seems justified; however, Mr Jabbar succeeded in an unfair dismissal claim. He won as he was able to compare his experience to that of a younger colleague, who just two weeks later escaped with a final written warning for a very similar offence, even though his actions had caused injury to a passenger.

The case has proven to be a salutary warning to employers that gross misconduct doesn’t necessarily equal fair dismissal and, perhaps most importantly, consistency when dealing with employee issues is key.

Key points for employers

In addition to demonstrating that they followed the correct disciplinary process and had evidence to uphold the allegations, employers must also show that a disciplinary sanction falls within what’s called the “the range of reasonable responses” to be fair. This test does exactly what it says on the tin. Employers are not expected to make a perfect decision, just a reasonable one. Some organisations may take a harder line on certain offences than others because of the needs of their business.

It’s all too easy for employers to fall into the trap of automatically giving the same sanctions for certain offences without considering whether it’s the best thing to do. For example, gross misconduct equals dismissal each time. The law expects more than this and allows for the fact that employees are humans who make mistakes.  It also reminds employers that second chances aren’t always a bad thing.

It’s vital to consider all of the factors in a situation before making a decision. This includes the employee’s personal situation, the decision’s effect on the employee and their length of service and any other mitigating factors the employee raises.

In particular employers should consider:

  • Consistency:  When dealing with employee issues consistency is key. Failing to consider how others have been treated in similar situations leaves employers vulnerable to claims that dismissals were unfair and can open a real can of worms with discrimination arguments. That is not to say that you must always give the same sanction to every employee for the same situation – but where you award different sanctions you must be able to show that there were genuine differences, such as mitigating factors or previous disciplinary records.
  • Recording decisions: If you fail to prepare you prepare to fail. The case is a reminder to employers to keep an internal log of decisions that are made and to provide managers with training on how to run disciplinary processes to avoid falling into these pitfalls unintentionally.  Employers need to ensure that managers in different departments and sites are making decisions which are consistent with each other. Avoiding knee jerk reactions and looking at the bigger picture before confirming disciplinary outcomes all go a long way to helping protect the company from the effects of inconsistent decisions.
  • Discrimination issues: The other risk with inconsistency is that it gives employees a possible discrimination angle, as they often believe that this is the real reason that they were treated differently Mr Jabbar’s discrimination claim based on his race in this case failed. Helpfully for employers the case confirmed that just because a person has a protected characteristic doesn’t mean that actions taken against them are discriminatory. Employees must be able to show something more before the burden will shift to an employer to show that their actions were not discriminatory. However, even if successfully defended, these claims cost employers in terms of management time defending the claims.  These claims can be minimised by clear, consistent decisions, which demonstrate to the employee that a fair process has been followed.

Employers should regularly review their disciplinary policies to ensure that examples of gross misconduct and the sanctions they warrant remain valid and consistent. Investing time in training managers in dealing with disciplinary processes is always going to be time well spent.