Business Law: Andrew West on when employers can, and cannot, dismiss without notice

Andrew West, Gotelee Solicitors

Andrew West, Gotelee Solicitors - Credit: Archant

Most, if not all, of your employment contracts will contain a summary dismissal clause. This entitles you to end the employment straightaway (summarily) if the employee commits an act of gross misconduct or gross negligence.

But if an employee acts in a way which appears to fall within the scope of this clause, will it always be reasonable for you to dismiss?

The Employment Appeal Tribunal (EAT) has issued a timely reminder in the case of Robert Bates Wrekin Landscapes v Knight that not every breach will justify summary dismissal. You need to be careful to ensure that that threshold has been reached before invoking a summary dismissal clause.

Mr Knight was a gardener. His contract listed a number of circumstances in which his contract could be terminated without notice. These included “breach of the employer’s or customer’s security rules”, and “theft of the employer’s or customer’s property”.

Mr Knight was working on a Ministry of Defence site. The rule book stated that removal of any property required a “property pass” and that vehicles would be security searched. He was suspended after his van was searched and a bag of bolts from the MoD site was found in it. He had not followed the correct procedure. During the investigation, he said that he had forgotten to hand the bolts in but had intended to do so the next day. He was summarily dismissed for breaching protocol by taking goods from the site without the pass.

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At the EAT, the crucial question was whether the employer was entitled to summarily dismiss for any breach of protocol, including those which were minor or inadvertent. The EAT said not. The usual rules of contract should play a part; a repudiatory breach – one which entitles the employer to dismiss without notice – must involve gross negligence or a deliberate breach of contract. Mr Knight’s conduct was not serious enough to justify summary dismissal.

The main point to take from this case is that just because a contract gives examples of gross misconduct, that doesn’t mean that the right to summarily dismiss kicks in when one of those events happens. Consider the context and the severity of the breach before taking the serious step of summary dismissal.

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There are other factors that you also have to take into account, including any mitigating features, prior disciplinary record and length of service, amongst others. All of these have to be considered before a final decision is made.

: : Andrew West is a partner at Gotelee Solicitors

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