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Can employers ‘gross up’ an employee’s bad behaviour for dismissal purposes?

Where an employer has several concerns about an employee’s conduct, there is the temptation to combine the incidents to justify disciplinary action for ‘gross misconduct’. However the question that employers should ask themselves is whether the sanction of dismissal is fair in the circumstance, particularly where dismissal is without notice or payment in lieu of notice.

This was recently examined by the Employment Appeal Tribunal (EAT) in the case of Beardwood v Ham.In this case, a school teacher, Ham, was accused and dismissed for gross misconduct due to four conduct offences the most serious of which related to safeguarding issues. However at the appeal stage the issue relating to safeguarding, was only partially upheld but the original sanction remained.

When dealing with the issue of fairness, the tribunal found that the four allegations of gross misconduct did not tally with the examples of gross misconduct set out in the school’s disciplinary procedure. In essence, taken individually, the allegations did not constitute gross misconduct. They concluded that it was wrong for the employer to ‘gross up’ the separate allegations in order for them to constitute ‘gross misconduct’ and therefore the dismissal was unfair as it did not fall within the ‘band of reasonable responses’.

On appeal to the EAT, the school argued that the tribunal should have focused on the whole of Ham’s conduct and the impact that it had on the employment relationship. The EAT concluded that the question was not  whether the singular acts of misconduct identified by the appeal panel, either singularly or collectively amounted to gross misconduct. It was whether Ham’s conduct overall was a sufficient reason for dismissing her. The case was remitted for a re-hearing on the reasonableness of the dismissal.

Conclusion

The moral of the story for employers is, prior to dismissing an employee for ‘gross misconduct’ the most important question to ask is, whether the sanction is reasonable. Though caution must always be exercised if the conduct itself falls short of amounting to ‘gross misconduct’ as defined by internal policies.

If you have an issue relating to disciplinary proceedings, please do not hesitate to contact me for a free consultation on 0113 350 4030 or at samira.cakali@scesolicitors.co.uk


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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