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Specifying unacceptable conduct
[ch 2: pages 13-14]The Acas Code says that, except in cases of gross misconduct, nobody should be dismissed for a first incident of misconduct. Here is an example:
Mr Kefil worked for 14 years as a warehouse stock control manager. He had received no formal disciplinary warnings, but he had been given an informal warning about his management style. Nine months later, a group of workers sent a joint complaint letter about him and another manager to his employer. It accused him of an authoritarian management style and of threatening workers with the sack if they didn’t do as he said. After a disciplinary hearing, he was dismissed. The EAT said the dismissal was unfair. Kefil should have been given at least one formal warning explaining that continuing the conduct would lead to dismissal, as well as an offer of training to help correct his management style. The lack of these basic steps placed the dismissal beyond the band of reasonable responses of an employer. It was unfair.
JJ Food Services Limited v Kefil [2013] UKEAT 0320/12/1202
Disciplinary rules should distinguish clearly between ordinary misconduct, which will usually result in a warning (sometimes combined with another sanction) and gross misconduct.
The rules should spell out what conduct amounts to gross misconduct capable of resulting in summary dismissal (i.e. dismissal without notice or notice pay). Here are two good examples:
Mr Lock was dismissed for gross misconduct after he asked a child who did not have enough money to pay an excess fare to leave a train, resulting in the child being left unaccompanied at an unfamiliar station. The employer said this was a breach of the rules on excess fares. However, there was no rule that this type of error was gross misconduct and this was Lock’s first offence. The EAT held that the fact that Lock had never been told that the breach of the rule could amount to gross misconduct made the dismissal unfair.
Lock v Cardiff Railway Co [1998] IRLR 358
www.bailii.org/uk/cases/UKEAT/1998/1022_97_2303.html
Trusthouse Forte’s disciplinary procedure classified smoking in the non-smoking area as an act of minor misconduct, but it also put up a notice stating that smoking in the non-smoking area was gross misconduct. Mr Adonis’s dismissal for smoking in the non-smoking area was unfair. Even though he knew it was against the rules, he thought it would result only in a warning, rather than dismissal.
Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382
Usually, the employer lists the offences regarded as ordinary misconduct and gross misconduct. However, it does not follow that just because conduct does not appear on the list, it can never result in disciplinary action. Equally, just because an offence is listed as a serious disciplinary matter, it does not follow that severe disciplinary action will always be justified. Each case depends on its own facts.