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26 October 2018 | Comment | Article by Louise Price

Can you dismiss fairly without giving prior warning?

The case of Quintiles Commercial UK Ltd v Barongo has given some limited scope to employers looking to fairly dismiss an employee for conduct short of gross misconduct where no prior warnings have been given.

The employee in this case was dismissed for failing to attend mandatory training courses. The company found that while it considered his conduct was serious, it was not gross misconduct.

The employee issued proceedings for unfair dismissal.

The employment tribunal initially found that as the company had determined that the conduct did not constitute gross misconduct, the employee’s dismissal without any prior warning must be unfair.

On appeal by the employee, the EAT found that a dismissal for conduct, other than gross misconduct, is not necessarily unfair if no prior warning has been given. Whether the decision to dismiss without a prior warning falls within the range of reasonable responses depends on the facts. The employment tribunal had therefore got it wrong in concluding that a decision to dismiss without a prior warning must automatically be unfair.

The case has now been remitted to a new tribunal.

Employers should treat this decision with a big note of caution before deciding to dismiss employees for conduct which falls short of gross misconduct where there are no prior warnings in place. Although this case highlights that this would not necessarily be automatically unfair, it is likely to be an uphill struggle to convince a tribunal that this action would fall within the range of reasonable responses.

For more information, please contact a member of our employment team.

Author bio

A highly specialised lawyer, Louise is a Partner and Head of Employment and HR services. Her expertise includes corporate support work, TUPE, pensions and employee benefits advice. She regularly advises private, public and third sector clients regarding large scale TUPE transfers of staff including drafting indemnities and warranties, advising on potential employment and pension liabilities, information and consultation obligations, and providing best value guidance.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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