'Conduct' dismissal for failure to meet expectations of the job

Burdis v Dorset County Council

A ‘conduct’ dismissal can encompass serious neglect, omission or carelessness - here a failure to meet the role’s requirements.

The five potentially fair statutory reasons for dismissal are: a reason relating to the capability or qualifications of the employee; a reason which relates to the conduct of the employee; the redundancy of the employee; a statutory bar to employing the employee; or some other substantial reason (SOSR).

Background

Mr Burdis, a long-standing employee of Dorset County Council (DCC), was Director of the Dorset Waste Partnership (DWP). When problems arose, external bodies raised criticisms of the DWP’s financial management and ultimately disciplinary proceedings against Mr Burdis ensued, culminating in his dismissal for gross misconduct.

On his claim of unfair dismissal, Mr Burdis complained that he had been held accountable for events that were not the result of misconduct on his part; his dismissal could not be for a reason relating to his conduct. The tribunal dismissed his claim, holding that Mr Burdis had been dismissed for his failure to implement proper management systems and that this had led to £1.5m of inappropriate hiring costs.

Mr Burdis appealed, arguing that the tribunal had failed to determine the reason for his dismissal, and alternatively, to the extent it had assumed the reason was conduct, that was impermissible given that this was really a case akin to ‘ministerial responsibility’ and, therefore, a SOSR or capability dismissal.

EAT decision

The appeal was dismissed.

Although critical of the tribunal for not first identifying the reason for dismissal, the EAT rejected the argument of Mr Burdis that the tribunal had failed to correctly identify the reason for his dismissal or that it should have been for SOSR which gave rise to different considerations when determining fairness and reasonableness. The tribunal had considered the Burchell test and by implication it clearly believed this to be a conduct case.

The tribunal found that Mr Burdis had neglected a fundamental part of his job in terms of ensuring appropriate controls and monitoring processes and procedures were in place. It had found that he had prioritised changes to service delivery at the expense of ensuring appropriate checks and balances were in place and so the tribunal was entitled to find that the dismissal was for conduct because of his gross negligence, which in turn gave rise to personal culpability on the part of Mr Burdis. In doing so the tribunal did not err in concluding that misconduct was not limited to wilful misconduct, but could also encompass serious neglect, omission or carelessness. Mr Burdis was employed in a senior leadership role. As such, the tribunal permissibly accepted that his failure to ensure there were effective financial frameworks in place and his failure to establish proper monitoring systems were matters that gave rise to personal culpability on his part. The failings in question related to his conduct in terms of his personal failure to meet the requirements of his role.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0084_18_0308.html

Comment

It is for an employer to show the reason for dismissal and a tribunal isn’t bound to accept the reason given by the employer where it believes that reason to be ‘manufactured’ by the employer to disguise the true reason for dismissal. Sometimes it will simply be an error on the part of the employer, attributing the wrong reason, as the boundaries between conduct/capability/redundancy and SOSR can often be blurred, and this will not necessarily be fatal, but an employer should, after taking legal advice, consider arguing it in the alternative at tribunal.

This case also shows that tribunals are prepared to accept that those in senior positions will be held much more accountable in terms of failures and builds on other recent cases which have agreed that gross negligence can justify summary dismissal.