Can aggregated misconduct amount to a fair reason to dismiss without warning?

In the recent decision in Ham v Governing Body of Beardwood Humanities College, it was found that there could be a fair dismissal where separate acts of misconduct amounted to gross misconduct when looked at in the aggregate.

Ms Ham (the Claimant) was employed by Beardwood Humanities College. She was summarily dismissed in 2011 by reason of four separate acts of misconduct as follows:  failure to follow management requests; 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. The employer knew at the time that, when considered individually, the acts were not recognised as gross misconduct. But taken together, they believed them to amount to gross misconduct.

The 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.

The Claimant then appealed to the Employment Appeal Tribunal arguing that the employer had failed to provide her with warnings for any of the four acts of misconduct. The appeal was rejected. It was held that the 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 was that the Tribunal found that the employer had reasonably concluded that trust and confidence between them had been lost and a prior warning would have had no effect in having the Claimant adjust her behaviour and 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.