Inadvertent Misconduct and Summary Dismissal

In the case of Robert Bates Wrekin Landscapes Ltd v Knight, the issue of whether or not  inadvertent misconduct would always justify summary dismissal has come under the spotlight.

In this case, Mr Knight’s contract of employment contained an exhaustive list of circumstances in which he could be summarily dismissed. Part of the EAT’s considerations were whether or not the employee’s inadvertent breach of an express contractual clause, that set out behaviour that the company considered to be gross misconduct, justified summary dismissal.

Background

Mr Knight was employed as a gardener at Robert Bates Wrekin Landscapes Ltd. As part of his work, he was based on a Ministry of Defence (MOD site), where all of the company’s employees were aware of a site rule book. This site rule book contained a rule which prohibited the removal of any property without a “property pass.”

As part off the exhaustive list mentioned above, the following examples were included as situations where the company could dismiss without notice:

• Theft of the employer’s or customer’s property
• Breach of the security rule which prohibited the removal of property without the “property pass.”

The allegation was that Mr Knight had breached MOD protocol by stealing and removing goods from the customer’s site. He had also failed to comply with the site rule book highlighted above. After having received a ‘tip-off,’ a bag of bolts had been subsequently found on the dashboard of Mr Knight’s van. Mr Knight denied that he had stolen the bolts explaining that he had found them on site and forgotten to hand them in.

This explanation was rejected, and after an investigation Mr Knight was summarily dismissed. Mr Knight then brought a claim of wrongful and unfair dismissal against the company.

Original Tribunal Decision

At employment tribunal, it was found that Mr Knight was not guilty of theft. Nonetheless he was, however found guilty of failing to comply with the site rulebook. The tribunal had therefore accepted the argument that Mr Knight had not intentionally stolen the bag of bolts, but had simply forgotten to hand them in. This was found to be error, and not a fundamental breach of the employment law contract thus challenging the decision to summarily dismiss without notice.

One of the primary issues considered, was not whether Mr Knight had actuallly breached the requirements, but whether or not the breach was so serious and deliberate that it should justify immediate dismissal.

The findings were that whilst Mr Knight’s dismissal may have been substantively fair, he had been procedurally unfairly dismissed and succeeded with his claim of wrongful dismissal.

Appeal

The Employer appealed the decision at EAT. They argued that the alleged conduct had been expressly written into the terms of his contract as significant enough to dismiss without notice. Therefore, they felt they were entitled to summarily dismiss.

The employer also argued that the employment tribunal had been wrong to read the provision requiring Mr Knight’s breach to be deliberate, as these words were not in the contract. Therefore, the EAT had to consider whether or not these termination provisions applied to any breach of the contract, however minor or inadvertent.
Their findings were that the word ‘misconduct,’ did not necessarily mean any misconduct, but misconduct so seriously in breach of the contract that the employer would not be bound to continue the employment.  They therefore decided that as there had been no evidence of gross negligence or deliberate contravention of the rule book, Mr Knight was entitled to receive notice of dismissal.

Conclusion

It is important to remember that just because there may be an express clause in the contract allowing the employer to dismiss without notice; this is not necessarily enough to summarily dismiss on the grounds of gross misconduct. There  have been previous rulings that confirm that no matter what the employment contract says, if it is not grossly negligent or deliberate, an employer may not decide that an employee’s actions may be tantamount to gross misconduct.

That is not to say that express terms are not useful and can indeed help strengthen a case. Nonetheless; it is important that contracts are drafted with care, as on it’s own an express term may not be enough to satisfy a tribunal that a decision was justified. From a practical perspective, it is useful to remember that an employer must have evidence that the employee’s conduct was indeed wilful or deliberate or tantamount to gross negligence. Context is key, and it will be incumbent on the employer to investigate and review how serious the offence is in each particular case. Further, when hearing a case of potential gross misconduct, dismissal should not be the automatic decision. It is important that when considering a reasonable range of responses; that any mitigating factors are taken into account.

It is important to remember that to constitute “gross misconduct” the misconduct in question must be sufficiently serious as to break down the mutual trust and confidence between the employer and the employee. This means, that it must amount to a repudiatory breach. As always, this would be a question of fact in each case.