In relation to a recent EAT decision, below Petar Starcevic discusses misconduct, gross misconduct and dismissals.
The recent decision in the EAT of Choudhury J (President) in Hope v BMA UKEATPA/0003/21/JOJ is a timely reminder that the concept of “gross misconduct” is a common law contractual concept. Its relevance is to claims for wrongful dismissal where the issue is whether the employee was in repudiatory breach of the contract of employment by his gross misconduct and thereby entitling the employer to terminate without notice. The issue is decided by all the evidence available at the ET hearing and the burden of proof is upon the employer, who alleges repudiatory breach.
Contrast this with s.98(2)(b) ERA, which only refers to the “conduct” of the employee as a potentially fair reason for the dismissal, not gross misconduct. The fairness or otherwise of the dismissal depends on whether in the circumstances, including the size and administrative resources of the employer, the employer acted reasonably in treating it as a sufficient reason for dismissal. Of course this is determined according to the guidance in Burchell by reference to the information known and the steps taken at the time of the dismissal. Although lawyers often use “gross misconduct” as shorthand for conduct for which summarily dismissal would ordinarily fall into the band of reasonable responses of a reasonable employer, that is not the test and there is no requirement for the ET to find or characterise the conduct relied as gross misconduct.
As Choudhury J explained, it is conceivable that gross misconduct in the contractual sense could be established, in particular by reference to stipulations in the contract as to what is regarded as gross misconduct, but it remains open to the ET to consider whether the employer acted reasonably or unreasonably in treating it as a sufficient reason to dismiss for the purposes of unfair dismissal (see para.32). If a dismissal can be unfair even if gross misconduct is established, surely a dismissal could be fair even if gross misconduct in the contractual sense is not established? Whether the conduct is gross misconduct in the contractual sense or not is just one of the circumstances the ET takes into account under s.98. Hope itself was a case in which it was not alleged and neither did the ET find that the claimant had committed gross misconduct in the contractual sense and did not characterise the alleged conduct as gross misconduct. The employer relied upon the claimant’s conduct in relation to numerous grievances raised by him which were considered to be frivolous and vexatious and failure to comply with reasonable and lawful instructions to attend a grievance meeting.
The case is a reminder to practitioners to have in mind the differing concepts of contractual gross misconduct and conduct relied upon when applying the statutory test under s.98.