In most cases it will be unfair for an employer to dismiss an employee for misconduct without any prior formal warnings unless the employee has committed an act of gross misconduct.
The Employment Appeal Tribunal (EAT) recently considered a case where an orthopaedic surgeon with an unblemished disciplinary record had been dismissed summarily for gross misconduct for a series of breaches of the employer’s rules, none of which, on their own, amounted to an act of gross misconduct.
The EAT held that it was not necessary for there to be a single act of gross misconduct for a summary dismissal to be fair. It concluded that a series of acts demonstrating a pattern of conduct, could be sufficiently serious to undermine the trust and confidence between the employer and employee even where there is no single act of gross misconduct.
On the facts of case, the EAT was of the view that the relationship of trust and confidence had been undermined. In reaching this conclusion it noted that the employer’s disciplinary panel considered that some of the employee’s actions amounted to a pattern of behaviour which resulted in increased risks to patients. Furthermore, the disciplinary panel had no confidence that the employee would change his behaviour even if he was given a final warning instead of being dismissed.
While this case does demonstrate that there may be circumstances where a series of acts of misconduct taken together could amount to gross misconduct, employers should be wary of dismissing employees where there are no prior warnings. Each case will turn on its own specific facts and it is prudent for employers to seek proper legal advice if there is any doubt.
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