Slevin v Premier Foods Group (t/a Hovis)

In an unfair-dismissal appeal based on perversity, the appellate tribunal will intervene only where the employment tribunal’s decision was plainly wrong or one which no reasonable tribunal could have reached on a proper appreciation of the facts and law.

Where the employer reasonably believes, after a reasonable investigation, that an employee knowingly breached a clear safety instruction, it is sufficient that the employee knew of the instruction; the precise route by which that knowledge was acquired is immaterial. A dismissal for a first act of misconduct may fall within the range of reasonable responses when the safety breach is sufficiently serious.

The claimant, an HGV distribution operative, was dismissed for gross misconduct after jamming a fuel-pump nozzle open with a stone while refuelling. The employer had removed the nozzle pins as a safety measure, had issued safety instructions, and had previously dismissed another driver for using an improvised device to obtain continuous fuel flow.

An Employment Tribunal sitting at Glasgow dismissed the claimant’s unfair-dismissal claim. It found that the employer had reasonably investigated the incident, genuinely believed that the claimant knew his conduct was unsafe and contrary to instructions, and had acted within the range of reasonable responses.

The claimant appealed on grounds including perversity, alleged failures to consider evidence and mitigation, and alleged shortcomings in the employer’s wider health-and-safety arrangements.

1. Appeal dismissed. The Employment Tribunal had applied the correct approach to unfair dismissal under Employment Rights Act 1996, section 98. Its conclusion that dismissal was within the range of reasonable responses was plainly open to it.

2. The Tribunal had not substituted its own view for that of the employer or bolstered the employer’s case. It properly considered what the employer believed the claimant had done, whether that belief followed a reasonable investigation, and whether dismissal was reasonable in all the circumstances.

3. The material finding was that the claimant knew drivers had been instructed not to jam open the nozzle handle and knew that his conduct was wrong. It was immaterial whether that knowledge came from reading the notices or otherwise. The employer’s belief that he had seen the notices was a conclusion it was entitled to reach and was sufficient for Burchell purposes.

4. The claimant’s challenge based on the employer’s alleged general failures under health-and-safety legislation was irrelevant. The issue was whether he was fairly dismissed for knowingly misusing company equipment in a manner amounting to a safety breach, not whether the employer had complied generally with every statutory safety obligation. The personal-injury decision in Doran did not assist.

5. The remaining challenges to the Tribunal’s findings on the notices, admissions, mitigation and credibility disclosed no error of law or perversity. No timely application had been made for a note of evidence despite grounds asserting evidential deficiencies. The EAT therefore pronounced an order dismissing the appeal.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the dismissal of his unfair-dismissal claim.
• Employment Tribunal, Glasgow: judgment registered on 6 September 2011 dismissing the claimant’s claim that his dismissal for gross misconduct was unfair.