Employers proposing to rely on policy wording allowing summary dismissal for breaches of those policies may find they cannot dismiss the employee unless the breaches are serious and wilful or grossly negligent, following two recent decisions.
An employer’s policy on substance misuse said a positive drugs test amounted to gross misconduct under the company’s disciplinary procedure, and the employee concerned could be summarily dismissed.
An employee’s job involved using a forklift to carry heavy loads in the warehouse. She tested positive in a drugs test. Her employer relied on the policy and summarily dismissed her for gross misconduct but did not investigate the circumstances. Had it done so it might have found the positive test was a result of her taking cannabis the previous weekend, and she may not actually have been intoxicated at work.
The ET ruled that it should have investigated further and she was therefore unfairly dismissed.
However, the Employment Appeal Tribunal (EAT) ruled:
• the employer was entitled to rely on the positive drugs test as the reason for dismissing her, but the ET should have asked whether this was capable of being a sufficient reason;
• however, it was hard to see why it would not have been a sufficient reason, as it was clearly specified as gross misconduct in the policy;
• there may also have been evidence why it was a reasonable policy given the risks inherent in operating machinery like forklifts in a warehouse.
The decision was therefore remitted back to the ET for reconsideration.
In the other case, a gardener at a Ministry of Defence site accidentally took a bag of bolts off-site in his van. A policy clearly allowed summary dismissal if anything was taken off-site without permission and he was summarily dismissed.
The EAT ruled that despite the clear words in the policy, summary dismissal was only allowed if the breach was serious and wilful or grossly negligent, ie if the employee’s actions were so fundamentally inconsistent with the employer/employee relationship that they amounted to a ‘repudiatory breach’. As they were not, he was unfairly dismissed.
Employers proposing to rely on wording in policies allowing summary dismissal for breaches of that policy should consider taking specialist advice if the breaches stated as justifying dismissal are, in fact, neither serious and wilful nor grossly negligent.
Case refs: Kuehne and Nagel Ltd v Cosgrove UKEAT/0165/13/DM
Robert Bates Wrekin Landscapes Ltd v Knight  UKEAT 0164_13_3001
Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.