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Case law: tribunals consider effect of policies allowing summary dismissal for breach

Employers relying on policy wording allowing summary dismissal for breaches of those policies may find they can't dismiss the employee unless the breaches are serious and wilful or grossly negligent. Employers should consider taking specialist advice if the breaches are not that serious.

Legal Alert

This update was published in Legal Alert - May 2014

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

In a recent case, 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 remitted back to the ET for reconsideration.

In the other case, a gardener 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 fundamentally inconsistent with the employer/employee relationship. As they were not, he was unfairly dismissed.

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Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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