Background B was dismissed with notice for two acts of misconduct. The first was for failing to complete an on-line training course. The second was for failing to attend a compulsory training course. B admitted the offences but tried to offer an explanation as to why he was unable to undertake the training. The disciplinary hearing took place by telephone (the EAT later noting that whilst this wasn’t best practice it didn’t necessarily make the hearing unfair) with the result that B was dismissed with notice for gross misconduct – the employer concluding that trust and confidence had broken down. On appeal the employer decided that B had been guilty of “serious” misconduct rather than “gross” misconduct. Despite this recategorisation the decision to dismiss was upheld. The Employment Tribunal Hearing The Tribunal found that because the severity of B’s conduct had been downgraded to “serious misconduct” rather than “gross misconduct,” it meat B was entitled to formal warnings before he was dismissed. As a result, the Tribunal found B's dismissal was unfair. The Employment Appeal Tribunal (“EAT”) As the EAT pointed out, the Tribunal’s principal error was to automatically conclude that the dismissal must have been unfair once the employer had moved from gross misconduct to serious misconduct. So in essence the Tribunal was saying that any conduct dismissal short of gross misconduct would be unfair without appropriate warnings. Under s.98(2) Employment Rights Act 1996 (“ERA”) a dismissal is capable of being fair if it relates to the conduct of the employee, and the EAT noted that this didn't mean the conduct had to be characterised as “gross” misconduct. In a case like this, however, what is more pertinent would be the assessment as to whether the dismissal was fair for the purposes of s.98(4) ERA - i.e. the reasonableness of the decision to dismiss. Because the EAT felt the Tribunal had fallen into substitution the appeal was allowed and remitted back to a new Tribunal for a re-hearing. Conclusion References were made in EAT proceedings to the ACAS Code which suggests that acts of gross misconduct will be those acts which are so serious in themselves, or have such serious consequences, that it may allow for a dismissal for a first offence. There is an inference, therefore, that “serious misconduct” is something less serious, and therefore not capable of dismissal for a first offence. This was not something which was considered by the Tribunal. The employer’s disciplinary policy had also included a provision whereby conduct falling short of gross misconduct might still result in a dismissal where there were exceptional circumstances. Whilst this evidence was put before the Tribunal the EAT was unable to determine whether the Tribunal had this in mind. It's unusual to see disciplinary policies prescribing “serious misconduct” as an entirely separate category which also provides for dismissal for a first offence. However, that is not to say it can't be done provided there is clear drafting. See E-News November 2010 for another example of a serious misconduct dismissal, and the Court of Appeal decision in Graham v. Secretary of State for Work and Pensions [http://www.bailii.org/ew/cases/EWCA/Civ/2012/903.html2012] EWCA Civ 903. Footnote – is there a difference between Serious and Gross Misconduct? The answer is yes provided the disciplinary procedure clearly sets out both what serious misconduct is and the types of offences which fall under this category. As highlighted above, however, the ACAS Code does not contemplate a category of dismissals falling under serious misconduct and, so by including serious misconduct dismissals, it is arguably at odds with the approach taken by the ACAS Code. It is also worth noting that most employers (and lawyers) would probably talk about serious misconduct in the context of it actually being gross misconduct – in other words no distinction is normally made. The writer’s view is that providing for categories of serious misconduct in disciplinary policies - whilst superficially attractive, will probably create more problems. Most employers should have a good sense of whether an offence amounts to gross misconduct and, where the employer is unsure, most will probably err on the side of caution and use final written warnings instead.