London Central Bus Company Ltd v Nana-Addai

Unfair dismissal and wrongful dismissal involve different questions. In an unfair dismissal claim, the tribunal examines the employer’s reason, the reasonableness of the belief formed after appropriate investigation, and whether dismissal fell within the range of reasonable responses. In a wrongful dismissal claim, the tribunal determines objectively whether the employee committed a fundamental contractual breach justifying summary dismissal. The employer’s perception is not decisive. Potentially serious consequences may be relevant, but they cannot determine culpability without clear findings about the underlying procedure and events. Where material factual issues have not been resolved, the proper course is to allow the appeal and remit the case for further findings.

The employer and employee brought cross-appeals against an Employment Tribunal decision. The tribunal had found that the employee was not unfairly dismissed but had been wrongfully dismissed, and awarded pay in lieu of notice.

The employee, a bus driver, had driven a bus from which a rear wheel later fell off. The tribunal treated the central issue as whether check links had been fitted, but did not address evidence about the actual wheel-torquing procedure, a possible 24-hour period without check links, or how drivers were to know whether check links were required. The central questions were whether the tribunal had applied the correct tests and whether its factual findings were sufficient to determine both claims.

1. Both appeals allowed and remitted. The appeal tribunal remitted the unfair dismissal and wrongful dismissal issues to the same Employment Tribunal, with permission to hear necessary fresh evidence. Counsel were directed to formulate a schedule of issues within 21 days.
2. For unfair dismissal, the tribunal must identify the employer’s reason for dismissal and consider whether the employer’s belief in the employee’s misconduct was reasonably formed after appropriate enquiries and investigation. It must then decide whether dismissal fell within the band of reasonable responses. It must not substitute its own view of the employee’s guilt or the appropriate sanction.
3. Wrongful dismissal is a contractual and common-law question. The tribunal must decide what actually happened, including witness credibility, and whether the employee committed a fundamental or repudiatory breach sufficiently serious to justify summary dismissal. The employer’s perception and the employee’s perception are not determinative. A breach unknown at dismissal may, in principle, justify dismissal retrospectively, as recognised in Boston Deep Sea Fishing & Ice Co v Ansell [1888] 39 ChD 339.
4. The tribunal had failed to make material findings about the actual and official procedures for torquing wheels, the significance of the worksheet and whiteboard, the alleged 24-hour period before fitting check links, and how drivers were to know whether check links were required. Without those findings, the tribunal’s assessment of reasonableness, negligence and culpability could not be fairly evaluated.
5. The potential consequences of an employee’s conduct may be taken into account, but the appeal tribunal expressed reservations about treating potential consequences as determining the precise degree of culpability. The issue was therefore remitted for proper factual findings rather than decided by the appeal tribunal.

• Employment Appeal Tribunal: allowed the employer’s and employee’s appeals against the Employment Tribunal’s findings that the dismissal was fair but wrongful. Both matters were remitted to the same Employment Tribunal for further findings and determination.