Weston Recovery Services v Fisher

Statutory fairness under section 98(4) of the Employment Rights Act 1996 is distinct from the contractual question whether conduct amounts to gross misconduct. A dismissal may be fair where the employer reasonably believes, after a reasonable investigation and fair procedure, that misconduct occurred and dismissal falls within the range of reasonable responses. The absence of a repudiatory breach does not make that dismissal unfair. Conversely, where the employee’s conduct does not justify summary dismissal at common law, the employee remains entitled to damages for wrongful dismissal, including notice pay.

The employer appealed from the Bristol Employment Tribunal’s decision that the employee had been unfairly dismissed after returning a company vehicle from a fishing holiday with a missing rear step and insecure seats. The Tribunal found the conduct serious and dismissal within the range of reasonable responses, but held that it was not gross misconduct and therefore that the summary dismissal was unfair.

The employee’s ET1 also included a claim for notice pay. The central issue was whether the Tribunal had erred by treating the absence of gross misconduct, in the contractual sense, as determinative of statutory unfair dismissal.

1. Appeal allowed in part. The Tribunal’s finding of unfair dismissal and its associated compensation award were set aside. The dismissal was fair under section 98(4) of the Employment Rights Act 1996.
2. The employer had established conduct as a potentially fair reason for dismissal. On the Tribunal’s findings, the employer genuinely and reasonably believed, following a reasonable investigation, that the employee had committed the misconduct alleged. There was no procedural unfairness. The Tribunal had also found that dismissal fell within the range of reasonable responses.
3. The Tribunal erred by treating the absence of gross misconduct as making the dismissal statutorily unfair. Section 98 concerns the sufficiency of the conduct reason for dismissal. It does not determine whether the employee committed a repudiatory breach entitling the employer to terminate without notice. Contractual entitlement to dismiss and statutory fairness are distinct questions.
4. The finding that the conduct was not gross misconduct was a factual finding which the Appeal Tribunal could not disturb on an appeal limited to errors of law. It followed that the employer was not entitled to summarily dismiss at common law.
5. The notice-pay claim therefore succeeded as a free-standing claim for wrongful dismissal. The Appeal Tribunal substituted damages of £798, being four weeks’ net pay of £1,160 less £318 for holiday pay already received. Interest was to be added in accordance with the Employment Tribunal’s notice.

• Employment Appeal Tribunal: allowed the employer’s appeal against the unfair-dismissal finding, but substituted a finding of wrongful dismissal and reduced the award.
• Bristol Employment Tribunal: upheld the employee’s unfair-dismissal claim and awarded £2,118, while finding that the conduct was serious but not gross misconduct.