Rachael Lloyd
Posted on 23 Mar 2015

The double dismissal: can historic misconduct trump redundancy?

Unfair Dismissal – Employee's Admissions

CRO Ports London Ltd v Wiltshire [UKEAT/0344/14]

Background

Under the Employment Rights Act 1996, once an employer has shown a potentially fair reason for dismissal, the question of whether a dismissal is fair or unfair is determined by the Employment Tribunal considering whether the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and the equity and substantial merits of the case. In misconduct dismissals, it has been held that a dismissal will only be fair if, at the time of dismissal, the employer believed the employee to be guilty of misconduct, it had reasonable grounds for believing the employee was guilty of that misconduct and, at the time it formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.

Facts

The Claimant, a supervisor at CRO Ports London Ltd ('CRO'), was called to deal with a problem lifting a container.  Although a manager had suggested he go and obtain a 'heavy duty twist lock' to deal with the problem, when the Claimant arrived on site, the problem was being dealt with what he considered to be the usual way, by using a small piece of wood.  The Claimant gave the go ahead for the crane driver to lift the container but, when it was about 20 feet off the ground, it fell from the crane. The container was badly damaged and, had it fallen on anyone, could have caused a fatality.

The Claimant was suspended. He appreciated the seriousness of the incident but, given that the practice he had followed had been condoned by CRO for a long time, and his long unblemished service, he believed he would be reprimanded and not dismissed. As a result, he took full responsibility, accepting that he had previously supervised similar practice despite knowing it was dangerous and in breach of health and safety rules. He did make the point that CRO had effectively sanctioned the practice and he had implemented it due to time pressure.

At the disciplinary hearing, the Claimant admitted that his error was a dangerous act. The disciplinary officer found that, as the Claimant had admitted and condoned the practice, and had failed to report or stop it, he had no option but to summarily dismiss him for gross misconduct. The Claimant appealed, referring to the previous custom and practice and that there were no express safety procedures in place dealing with the issue. His appeal was rejected.

The Claimant made claims of unfair and wrongful dismissal in the Employment Tribunal.

The first instance Employment Tribunal upheld the claims. It found that the CRO had not undertaken a reasonable investigation because it should have identified the considerable pressure that workers were under, realised that what had been done was in response to pressure of work and purely for CRO's benefit and taken into account the absence of any specific health and safety advice.

The Tribunal found that, whilst the Claimant had not helped himself in the internal investigation, his stance was explained by his loyalty to CRO.

CRO appealed, arguing that the Tribunal had failed to apply the correct legal tests in relation to unfair dismissal and wrongful dismissal.

Judgment

The Employment Appeal Tribunal ('EAT') allowed the appeal and remitted the unfair dismissal and wrongful dismissal claims to be reheard by a fresh tribunal.

The EAT considered that, by failing to make clear the different tests that it had to apply in relation to wrongful dismissal and unfair dismissal, the Tribunal had fallen into error. In relation to wrongful dismissal, the Tribunal had to reach its own conclusion on whether CRO had established that the Claimant was guilty of a fundamental breach of contract entitling it to summarily dismiss him. In relation to unfair dismissal, the Tribunal had to test CRO's decision to dismiss against the range of reasonable responses test, not by applying its own view as to the parties' respective culpability.

Tips for Employers

This case is useful for employers when considering how to deal with an employee's admissions of misconduct and also for employees who may be minded to make admissions. From an employer's perspective, the question will be whether the admission of misconduct means that there is little purpose to a full investigation. As was noted in the above case, the admission may still leave relevant issues unresolved which reasonably require investigation. Each case needs to be assessed on its facts.


 

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