When deciding whether an employee has been wrongfully dismissed, the Employment Appeal Tribunal (EAT) has held in East Coast Main Line Company Ltd v Cameron that it is not always appropriate for tribunals to take the individual’s length of service into consideration.

Basic facts

Mr Cameron, who had worked as a shunter for 35 years, was dismissed for gross misconduct after an incident in which a driver was put at risk as a result of his failure to undertake adequate safety checks.

Following a disciplinary process, he was summarily dismissed, a decision that was upheld on appeal. Mr Cameron brought claims for race and age discrimination, unfair dismissal and wrongful dismissal. The tribunal dismissed all the claims.

On appeal, the EAT remitted his claim for wrongful dismissal back to the tribunal to decide “with further evidence only if it decides it necessary” whether the claim should succeed or fall.

Tribunal decision

In the event, the tribunal decided it did not need to receive further evidence before deciding that, given his long service and the fact that this had been a one-off event in a confused situation, Mr Cameron had been wrongfully dismissed and was entitled to notice pay.

The employer appealed, arguing that the tribunal’s decision to rely on Mr Cameron’s length of service was perverse and/or a misapplication of the relevant law. While length of service can be a relevant factor in considering whether dismissal falls within the band of reasonable responses in relation to a claim for an unfair dismissal, it is not relevant to a claim for wrongful dismissal. Alternatively, if length of service was a relevant consideration, it should add weight to the argument against Mr Cameron in the sense that higher standards would be expected of a long-serving employee.

EAT decision

Relying on the case of Adesokan v Sainsbury’s Supermarkets Limited (see LELR 511) in which the Court of Appeal held that employees can be summarily dismissed for gross misconduct where they have acted in breach of contract, the EAT held that the tribunal’s decision was perverse.

This was particularly the case because the tribunal had made the following findings of fact:

  • Mr Cameron was aware that it was his responsibility to carry out adequate safety checks which, in this incident, he had failed to do;
  • That it was reasonable for the employer to expect people who have carried out a role for a substantial period of time to have sufficient experience and expertise to carry out that role to the required standard;
  • Mr Cameron’s behaviour should be categorised as negligence;
  • That the consequences of his failure to carry out the relevant safety checks could have been catastrophic in that they could have led to a loss of life; and
  • As Mr Cameron had failed to accept he had done anything wrong, his employer had legitimate concerns that he would not act differently in the future, thereby posing a safety risk.

 

Although the issue of length of service was not irrelevant, the tribunal still had to answer one basic question: “was the negligent dereliction of duty in this case so grave and weighty as to justify summary dismissal”. The EAT concluded that it was, based on the findings of fact made by the tribunal. Length of service had “no bearing on that question” and the tribunal was therefore wrong to come to a contrary conclusion.

Rather than remitting the matter to the tribunal to reconsider its decision, the EAT substituted a finding that the claim of wrongful dismissal failed.

Comment

This case serves as a useful reminder that the test for unfair dismissal and wrongful dismissal are different. Unfair dismissal looks at fairness and reasonableness under the Employment Rights Act 1966. Wrongful dismissal, on the other hand, is concerned with looking at the terms of the employee’s contract, with the employee’s length of service being an irrelevant factor.