Veitch Penny LLP - Exeter | Crediton, Devon

Case

British Bakeries Limited v M L O'Brien

Issues

(1) Wrongful dismissal
(2) Disciplinary Rules
(3) Gross Misconduct - throwing telephone at member of staff
(4) Repudiatory conduct

Facts

This was an appeal by the employer from a decision of the Employment Tribunal that it had wrongly dismissed the Respondent employee.

The employee had worked as a senior manager and in the course of employment had sworn and violently thrown a telephone at one of his staff. There was a Disciplinary hearing which concluded that he had been guilty of gross misconduct and as a result he was dismissed summarily.

It was common ground that the employer's company rules were incorporated into his contract of employment. These included a section which were entitled "gross misconduct" which stated that summary dismissal "would occur" when an employee behaved in such a manner that it was "unreasonable to expect" the employer to accept all risk of continuation or repetition of such behaviour.

There followed a list of categories which included "abusive, objectionable or threatening behaviour to employees%u2026%u2026%u2026.and any other circumstances where the employee may be regarded as having repudiated his or her contract of employment" to the extent where there was no alternative but to summarily dismiss the employee.

At the bottom of the section there was a clause which stated "in all cases of disciplinary action, the need to satisfy the test of reasonableness would apply and mitigating factors would be taken into account".

The employer submitted that the contractual terms were such that the Tribunal had not been entitled to consider whether the conduct complained of was gross misconduct in the ordinary sense and secondly, that it did not determine whether his conduct in respect of the telephone incident had been gross misconduct and made no findings at all on his use of expletives.

In reply he maintained that even if his conduct fell within the contractual definition of gross misconduct, it did not follow that summary dismissal was automatically justified as:

(a) the Tribunal still had to consider whether this conduct was serious enough to be repudiatory; and

(b) the Tribunal still had to take into account the risk of repetition of mitigating factors and reasonableness.

Decision

None of the members of the EAT had ever seen terms in a contract of employment as had been set out above but the case had raised an important point of principle namely where there were types of conduct defined in a contract of employment so entitling the employer to dismiss summarily whether it was sufficient for the employer that there had been conduct falling within that definition however trivial it may be or whether the employer also had to prove that the conduct was repudiatory.

The answer was that conduct that fell into one of the contractual categories of gross misconduct did not automatically justify summary dismissal in the absence of clear words stating that it would.

The contractual terms in this case actually favoured the employee when compared to the situation where there were no contractual terms at all.

As resulted in this case none of the employer's submissions succeeded; the Tribunal had approached the issue under the terms of the contract itself and there had been sufficient factual findings.

The decision that the dismissal was wrongful was therefore not perverse and the Appeal was dismissed.

Comments

This case goes to show that conduct that might fall within a contractual category of gross misconduct does not automatically justify summary dismissal in the absence of clear words stating that it would.

The contract applicable in this case was somewhat unusual in that it had contained wording which did not assist the employer in dismissing the employee for such conduct by stating that the test of reasonableness had to apply and that mitigating factors would be taken into account. That wording would have imposed a duty on the employers to consider whether a final written warning should have been applied rather than summary dismissal in that particular case.