Can employers aggregate minor acts of misconduct to dismiss fairly without warning?

In the long-running case of Ham v The Governing Body of Beardwood Humanities College, UKEAT/0179/15/MC the Employment Appeal Tribunal (“EAT”) recently considered the issue of whether a series of relatively minor acts of misconduct can be “aggregated” to justify a fair dismissal without a prior warning.

Ms. Ham (the “Claimant”) was employed by Beardwood Humanities College.  She was summarily dismissed in 2011, by reason of four separate acts of misconduct: a failure to follow management requests; a failure to follow health and safety regulations; communicating in an “unreasonable and intimidating way”, both orally and in writing; and unreasonable and uncooperative behaviour with work colleagues. Her employer knew at the time that, when considered individually, the acts were not recognised as gross misconduct.  Taken together, it believed them to amount to gross misconduct.

The Employment Tribunal ultimately found that the dismissal of the Claimant was fair but that it fell at the “extreme end” of the band of reasonable responses that an employer may make in those circumstances.

The Claimant appealed to the EAT, arguing that her employer had failed to provide her with warnings for any of the four acts of misconduct.  Her appeal was rejected.  The EAT held that her employer had considered alternative options, but had concluded that summary dismissal was appropriate in the circumstances.

This case demonstrates that it can be fair to dismiss without prior formal warnings in the absence of gross misconduct but where there has been a series of acts of misconduct.  As always, it will depend on the facts of the particular case and a key factor for the Claimant in this one was that the Tribunal found that her employer had reasonably concluded that trust and confidence between them had been lost, and that a prior warning would have had no effect in the Claimant adjusting her behaviour to begin to co-operate.

Employers dismissing in these sorts of circumstances should do so with care and also consider the words of the Tribunal: it was at the “extreme end” of the range of reasonable responses.

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