March 06 2000
Employers, generally, are aware that if they wish to dismiss an employee for one act of misconduct, it is necessary to demonstrate that the action amounted to gross misconduct. Employers are sometimes frustrated to find that there is no legal definition of 'gross misconduct' setting out precisely what matters do and do not constitute sufficient misconduct to justify summary dismissal. As the Employment Arbitration Tribunal recently confirmed in Graham Group plc v Bishop, for a single act to justify dismissal, it must as a general rule be serious, wilful and obvious. However, the Court of Appeal in a recent case has confirmed that an employer can define in the contract what is meant by the term 'gross misconduct'. In this way the employer can protect itself by having properly drafted contractual documentation.
Mr Uzoamaka was employed by a charity dealing with conciliation and mediation between neighbours in the London Borough of Newham. His contract of employment incorporated a disciplinary procedure. This set out a non-exhaustive list of offences to be treated as gross misconduct, including "placing in jeopardy the project's purpose or behaviour which could bring the project into disrepute".
The project did not offer family mediation services. However, having made it clear that he was doing so in a personal capacity, Uzoamaka offered assistance in a dispute between a mother and daughter. In the course of mediating between the two, he was alone on two occasions with the daughter at his home. Uzoamaka was suspended following a written complaint from Social Services that he had been 'recklessly unprofessional'. Having followed their disciplinary procedures, the charity proceeded to dismiss him summarily. Uzoamaka claimed wrongful dismissal. Both the County Court and the Court of Appeal were satisfied that regardless of Uzoamaka's motives in attempting to settle the dispute in question, his conduct could have brought the project into disrepute. Therefore the charity was entitled to terminate his employment summarily.
Judging by the facts given in the law report this case seems harsh. That is precisely the point. Implicitly the Court of Appeal accepted that the best judges of what amounted to gross misconduct were the parties themselves. If the parties agreed that certain conduct would amount to a serious breach of the contract when the contract was entered into, then the parties should be held to that definition.
This means that employers should consider carefully the sort of behaviour that could amount to gross misconduct when establishing the contract of employment. If there is particular behaviour that might not strike an outsider as particularly serious but would be of significance to the employer, the employer should include it in a list of offences that would justify summary dismissal. For example, in Wheatley v Control Techniques plc the employee's contract allowed for summary dismissal for conduct materially adverse to the employer's interests. This was wider than gross misconduct. When the employee put himself in a position where the employer had to choose between him and new management, he was summarily dismissed. The EAT recently decided that the employer was not in breach of contract.
This approach raises two further questions. First, the employer cannot define all breaches of contract, regardless of their seriousness, as justifying gross misconduct. If an employer were to try and include such a clause in the contract, the courts would find that it was ineffective. If the employee has qualified for the right to claim unfair dismissal, it would also be necessary for the employer to show that the dismissal was a fair one. Given the increased compensatory limits for unfair dismissal claims, employers should always take into account the individual circumstances of the dismissal, even if the conduct falls within the type of conduct listed as gross misconduct.
Second, employers should consider where any illustration of gross misconduct offences should be placed. Employers should avoid having contractual disciplinary procedures, since this may create significant additional difficulties on the termination of employment of an employee (see the February 2000 update War and Peace). Employers may also feel reluctant to have a list of potential offences contained in the contract of employment, since this may look hostile. However, if the employer includes the list of gross misconduct matters in the non-contractual disciplinary procedure, such a list may have less force, being merely guidance rather than part of the contract.
Either way, a list of actions which amount to gross misconduct must state that the list is not intended to be exhaustive. Employees can find new and surprising ways of misbehaving and an employer would find it difficult to try to define all possible types of misconduct. Having said that employers can draw encouragement from the Uzoamaka and Wheatley decisions to support dismissals that, at first sight, might have seemed difficult to justify to a dispassionate observer.
For further information on this topic please contact Nicholas Robertson at Rowe & Maw by telephone (+44 20 7248 4282) or by fax (+44 20 7248 2009) or by e-mail (firstname.lastname@example.org). The Rowe & Maw web site can be accessed at www.roweandmaw.co.uk.
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