Can “totting-up” of minor misconduct amount to Gross Misconduct

In cases of unfair dismissal, if the Employment Tribunal (ET) accepts that the employee’s dismissal took place for one of the potentially fair reasons for dismissal and a fair procedure was followed, the test becomes whether or not the employer’s decision to dismiss falls within the range of reasonable responses open to a reasonable employer. It is important to note that the ET must take an objective view as to the reasonableness of an employer’s actions in the circumstances.

In The Governing Body of Beardwood Humanities College v Ham, which tackled the thorny issue of whether a series of relatively minor acts of employee misconduct can cumulatively add up to gross misconduct, the Employment Appeal Tribunal (EAT) has directed a reconsideration of a senior teacher’s unfair dismissal claim.

The college science teacher was dismissed after 17 years of service after she was found to have committed three acts of misconduct. An ET subsequently found that her dismissal was unfair and awarded her £68,400 in damages.

The ET reached its decision on the basis that none of the three acts could, by itself, be viewed as gross misconduct. The employer had not been entitled to ‘gross up’ the individual acts to make them together constitute gross misconduct. The dismissal therefore did not fall within the band of reasonable responses open to the employer.

In upholding the employer’s appeal against the ET’s decision, the EAT found that the ET had erred in its approach to the case. The issue was not whether the individual acts of misconduct cumulatively amounted to gross misconduct but whether the conduct in its totality provided a sufficient reason for dismissal.

The ET had also wrongly taken into account the ‘simply irrelevant’ fact that the teacher was shortly due to be made redundant in any event due to the college’s impending closure. In the light of the EAT’s ruling, the matter was remitted to the same ET for reconsideration.