Wincanton Plc v Atkinson & Anor

In assessing unfair dismissal, an Employment Tribunal must determine whether dismissal fell within the range of reasonable responses. It must consider the potential seriousness of the misconduct and its possible consequences, not only the absence of actual harm. A previous lenient decision does not establish a tariff unless it falls within the limited categories identified in Hadjioannou. The fairness of dismissal remains an individual assessment. The contractual right to dismiss summarily for gross misconduct is distinct from statutory fairness and must be determined separately.

Two long-serving haulage drivers allowed their HGV licences to lapse and continued driving, including vehicles carrying dangerous goods. They accepted responsibility for the misconduct. The employer dismissed them because of the potentially serious consequences, including insurance, regulatory, commercial and reputational risks.

An Employment Tribunal upheld their claims for unfair and wrongful dismissal, relying substantially on the absence of actual adverse consequences and on an earlier case in which another driver had not been disciplined. The employer appealed on fairness, contributory conduct and wrongful dismissal.

1. Unfair dismissal. The appeal was allowed and the finding of unfair dismissal was set aside. The Tribunal correctly stated the statutory principles but misapplied them at the point of decision. It treated the absence of actual harm as decisive and gave insufficient weight to the accepted potential for serious damage, including uninsured driving, regulatory action and loss of the operator’s licence.
2. The relevant question under section 98(4) of the Employment Rights Act 1996 was whether dismissal fell within the range of reasonable responses available to this employer. In the circumstances found, dismissal fell well within that range. The absence of an accident, regulatory sanction or client inconvenience did not make dismissal unreasonable.
3. The Tribunal also attached excessive weight to the earlier treatment of Mr Preston. Under Hadjioannou v Coral Casinos [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] ILR 305, previous treatment is relevant only in limited circumstances. It does not create an automatic tariff or require identical treatment where the cases are not truly parallel. The Preston case fell outside those categories.
4. The collective disciplinary provisions might also have supported dismissal without notice because the conduct involved contravention of statutory obligations and seriously negligent behaviour creating potential damage. The Tribunal had not determined the contractual status of those provisions.
5. Wrongful dismissal. The Tribunal’s reasoning was defective because it failed to consider the disciplinary provisions and the contractual significance of the drivers being unable to perform their work lawfully, together with the potentially grave consequences of uninsured driving. The test for wrongful dismissal differed from the statutory unfair-dismissal test. That issue was remitted to a different Employment Tribunal.

• Employment Tribunal: upheld claims for unfair and wrongful dismissal, reducing unfair-dismissal compensation by 60% for contributory conduct.
• Employment Appeal Tribunal: allowed the appeal, held both dismissals fair, set aside the unfair-dismissal findings and remitted wrongful dismissal to a different Employment Tribunal.