Warning for employers dismissing without notice
Author: Antonia Blackwell
Employers seeking to dismiss employees without notice for acts of gross misconduct should be mindful of recent case law in this area.
What the law says
Generally, to terminate an employment contract, an employer will need to give the requisite period of notice, or risk a claim of wrongful dismissal. However, in circumstances where the employee commits an act of gross misconduct the employer is entitled to dismiss immediately without giving notice. To constitute "gross misconduct" the misconduct in question must be sufficiently serious as to undermine the mutual trust and confidence between the employer and the employee - that is, it must amount to a repudiatory breach - and this will be a question of fact in each case.
Deliberate wrongdoing required
In Robert Bates Wrekin Landscapes Ltd v Knight, Mr Knight worked as a gardener for Robert Bates Wrekin Landscapes Ltd ("RBW"). His contract included 17 situations in which his employment could be ended without notice, one of which was theft of the employer's or customer's property and another was breach of security rules including the removal of property without a "property pass". A bag of bolts from the site was found in Mr Knight's van. Although Mr Knight claimed he had found the bag but forgotten to hand it in, he was dismissed for theft and removing goods from the site without the required "property pass".
The Employment Appeal Tribunal ("EAT") held that RBW was not entitled to rely on its contractual termination provisions to dismiss Mr Knight without notice. Although Mr Knight had breached those requirements, the issue was whether that breach was deliberate and so serious as to justify immediate dismissal, and the finding was that Mr Knight had not acted deliberately and his inadvertent breach was not sufficient to be a repudiatory breach. The EAT interpreted the termination provision against the backdrop of the general principle that a summary dismissal is not justified unless there has been gross misconduct or gross negligence.
A similar approach was taken by the Supreme Court in the case of West London Mental Health NHS Trust v Chhabra. The Trust's disciplinary procedure distinguished between "serious misconduct", being more than minor but not so severe as to warrant dismissal, and "gross misconduct" which is so serious as to "make any further relationship and trust between the Trust and the employee impossible". Dr Chhabra was accused of breaching patient confidentiality when travelling by train in the company of another doctor, in particular that she discussed an incident involving a patient in a secure unit and was reading a medical report on a patient whose name and personal details could be clearly identified. In addition, it was also claimed that on other journeys she had dictated reports containing patient sensitive information. The Trust instigated disciplinary proceedings against Dr Chhabra who in turn sought an injunction to stop the Trust from proceeding on the basis that the conduct amounted to gross misconduct. The Supreme Court upheld the granting of the injunction and stated that whilst the breaches of patient confidentiality could be viewed as serious misconduct, they could not, on the facts, give rise to a valid charge of gross misconduct as defined by the Trusts' own policy, because there was no material to support the view that they were done wilfully or deliberately.
When considering a gross misconduct dismissal, employers are advised to bear in mind the following:
- a breach of policy will not necessarily amount to gross misconduct simply because the employer's disciplinary code stipulates that it will;
- the context is everything and it will be incumbent on an employer to investigate the seriousness of the offence in the particular case;
- in order to constitute gross misconduct, the conduct must be so serious as to go to the root of the contract;
- in addition, the conduct must be deliberate and a wilful breach of the contract or amount to gross negligence;
- dismissal will not always fall within the range of reasonable responses in cases of gross misconduct - an employer should always assess any mitigating factors before making the decision to dismiss.