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Dismissing for gross misconduct: lessons from Langton v Buckinghamshire Fire and Rescue
Adrian Fryer
A recent Employment tribunal judgment provides a good case study for employers of what not to do when dismissing an employee for gross misconduct. In Langton v Buckinghamshire Fire and Rescue, Mr Langton, an experienced firefighter, was summarily dismissed for gross misconduct after making a “misogynistic” comment saying a woman he rescued looked ‘haggard for her age’. The employment tribunal found that the dismissal was unfair.
The legal test for a fair misconduct dismissal
The 3-stage legal test for fairness when looking at misconduct dismissals was set out in the classic case of Bhs v Burchell. The employer must:
- hold a reasonable belief
- based on a reasonable investigation
- that the employee has committed an act of misconduct.
Where the employer dismisses for that misconduct, the decision to dismiss must fall within the ‘band of reasonable responses’ which an employer might have in the circumstances.
The employer must show both substantive fairness (i.e. that an act of misconduct has, on the balance of probabilities, been committed and that it justifies dismissal) and procedural fairness (that a fair process is followed in investigating and hearing the allegation).
What the employer got wrong
In Langton, the employer made certain key errors which turned what could have been a fair dismissal into an unfair one:
- The employer took account of an expired ‘warning’. The employer wrongly took account of a “Note for File” about the employee which was five years old. It should have been disregarded, under the employer’s policy, after six months.
- The employer acted unreasonably in characterising Personal Development Plans as evidence of prior misconduct. Employers need to be careful not to try and ‘mould’ evidence to their case. The PDPs did not disclose misconduct – in fact one rated him a ‘high performer’.
- The employer wrongly relied on prior competence issues as evidence of previous misconduct.
Every cloud has a silver lining
Despite finding the dismissal unfair, the tribunal did find that the decision to dismiss (if it had been for the misogynistic comment alone) would have fallen within the ‘band of reasonable responses’. The employer was helped here by their thorough investigation into this incident, which included strong evidence from those present as to the impact of the employee’s comments.
As the tribunal was able to conclude that an act of misconduct had taken place – it ordered that the level of compensation due to Mr Langton should be reduced by 65%. This is in line with the compensatory principle of contributory fault: Mr Langton, by his conduct, contributed significantly to the decision to dismiss him.