Failing to complete online training was fair grounds for dismissal

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EAT overturns ‘fundamentally flawed’ approach of initial unfair dismissal ruling

A pharmaceutical agency was within its rights to dismiss an employee who failed to complete two training courses, the Employment Appeal Tribunal (EAT) has found.

The court overturned a  a “fundamentally flawed” employment tribunal ruling that the decision amounted to unfair dismissal of employee Mr A Barongo.

Barongo was employed by Quintiles Commercial UK as a medical sales representative between 1 October 2012 and 5 January 2016, when he was dismissed on notice for two acts of misconduct: failing to complete an online compliance course required to work with client Astra Zeneca, and later failing to complete a compulsory ‘pioneer’ training course.

Barongo did not deny failing to attend the training, and accepted his actions amounted to misconduct, but contended that he had been prioritising other work commitments instead. Quintiles Commercial instigated a disciplinary hearing against him, and concluded that the trust and confidence of the organisation had been destroyed, dismissing him on notice for gross misconduct, which was later downgraded to serious misconduct.

Barongo took his employer to a tribunal, which ruled that his dismissal had been unfair. It found that Quintiles Commercial had been wrong to initially characterise his conduct as gross misconduct, and that once this had been downgraded he should have been given a warning instead of being dismissed.

However, in focusing too much on the nature of Barongo’s misconduct, the tribunal lost sight of the statutory test for unfair dismissal, which establishes whether or not the decision of the employer fell within the band of reasonable responses, the EAT found.

“By focusing only on the claimant’s clean disciplinary record, the tribunal had failed to consider other relevant matters, including the impact that his poor work record had on the respondent’s decision-making and, more generally, the loss of trust and confidence in his ability to undertake his role to the required standards,” the ruling said.

The tribunal upheld the employer’s appeal that the decision to dismiss Barongo had fallen within the band of reasonable responses. While the correct categorisation of conduct as gross or serious is important when dismissing an employee under section 98 of the Employment Rights Act, it does not mean a dismissal automatically becomes unfair if the conduct is less serious than a gross offence.

“The band of reasonable responses requires a tribunal to consider whether in those particular circumstances, taking into account the employer’s size and administrative resources, it acted reasonably or unreasonably in treating the employee’s conduct as a sufficient reason for dismissing the employee,” Barry Stanton, head of employment law at Boyes Turner, told People Management.

“A tribunal is asked to consider what a reasonable employer might do in those circumstances. There will not necessarily be a single answer and there may well be a range of possible answers to the question of whether dismissal was or was not fair.”

Although Quintiles Commercial had raised concerns that it could no longer trust Barongo to do his job properly, the tribunal failed to ask whether this was relevant to determining the sanction. Instead, it took a view that in the absence of previous warnings it would be wrong to dismiss an employee for any conduct that fell short of gross misconduct.

“The tribunal’s approach in this case was flawed: it unduly limited the potential range of reasonable responses by applying a general rule as to when dismissal might be fair in cases of conduct falling short of gross misconduct, when no such rule is laid down by section 98(4),” Judge Eady QC said, describing the “fundamentally flawed” approach of the tribunal.

“Further, or alternatively, it fell into the substitution trap, imposing its own view as to the appropriate sanction rather than conducting an assessment of the respondent’s decision against the band of reasonable responses test.”

However, she added that it would not be appropriate for the EAT to reach its own view over that of the tribunal, and recommended that the case be remitted to a different employment tribunal. The initial tribunal ruling found that the respondent should pay £30,078.16 in compensation.

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