A recent employment tribunal case shows how employers can get dismissals for gross misconduct wrong.

In Langton v Buckinghamshire Fire and Rescue, an experienced firefighter was dismissed immediately after making a comment described as misogynistic. He said that a woman he rescued looked “haggard for her age.”

The tribunal decided that the dismissal was unfair.

The legal test for a fair dismissal

When an employer dismisses someone for misconduct, they must follow a 3-step test from the case BHS v Burchell. The employer must:

1. Genuinely believe the employee committed misconduct
2. Have reasonable grounds for that belief
3. Carry out a reasonable investigation

Even if these are met, the dismissal must still fall within a ‘band of reasonable responses’ – meaning it is a decision a reasonable employer could make in the same situation.

Employers must also show that a fair process was followed

What the employer did wrong

In this case, the employer made several key mistakes:

1. Relying on an expired warning

They used a “Note for File” from five years earlier.
Their own policy said this should be ignored after six months.

2. Misusing performance records

They treated Personal Development Plans (PDPs) as evidence of misconduct.
However, PDPs are not disciplinary records—and one even described the employee as a high performer.

3. Confusing performance issues with misconduct

They relied on past competence concerns as if they were misconduct, which was incorrect.

These errors made the dismissal unfair, even though the comment itself was inappropriate.

A partial win for the employer

Despite the unfair dismissal finding, the tribunal said that dismissing the employee for the comment alone could have been reasonable.

This was because:

• The employer carried out a thorough investigation
• There was strong evidence about the impact of the comment

Compensation reduced

Because the tribunal agreed that misconduct did occur, it reduced the employee’s compensation by 65%.

This follows the principle of contributory fault – the idea that the employee’s own actions helped cause their dismissal.

Key takeaway

Even where misconduct is serious, a dismissal can still be unfair if:

• old or irrelevant evidence is used
• evidence is misinterpreted
• a fair process is not followed

Employers must get both the decision and the process right.

About Jon Dunkley

Jon Dunkley is a Partner at Wollens and heads up the firm’s Regulatory Department. Based at our North Devon office, Jon is a highly experienced solicitor with a broad commercial and regulatory practice, supporting businesses, professionals and senior employees across a wide range of legal issues.

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