Cossington v C2C Rail Ltd

Wrongful dismissal and unfair dismissal require distinct inquiries. For wrongful dismissal, the tribunal determines for itself whether the employee committed a fundamental repudiatory breach. A single act of disobedience warrants summary dismissal only where it has a wilful quality showing deliberate flouting of an essential contractual condition.

For unfair dismissal, the range of reasonable responses applies to the investigation, findings, procedure and sanction. A tribunal that states that test must also give intelligible reasons showing how it resolved the central criticisms of the employer’s process. A bare conclusion that the dismissal fell within the range is insufficient. The reasons must enable the parties and an appellate court to understand why the claim succeeded or failed.

The claimant, a train driver, was summarily dismissed after driving an empty train over part of a route on which he had agreed not to be rostered. The employer treated his failure to stop when he realised the route as gross negligence.

The Employment Tribunal upheld his wrongful-dismissal claim, finding that he had made an error of judgment in unexpected circumstances partly caused by others, rather than deliberately disregarding safety rules. It dismissed his statutory unfair-dismissal claim, holding that the employer’s decision fell within the range of reasonable responses.

The claimant appealed the unfair-dismissal decision. The employer cross-appealed the wrongful-dismissal decision. The central issues were whether the tribunal had applied the correct tests and whether its reasons on unfair dismissal were adequate.

1. The claimant’s appeal was allowed. The unfair-dismissal issue was remitted to the same Employment Judge for reconsideration. The employer’s cross-appeal on wrongful dismissal was dismissed.

2. On wrongful dismissal, the tribunal was entitled to make its own findings on whether the claimant had committed a repudiatory breach. Summary dismissal requires a fundamental breach. In a case of disobedience, one act will justify dismissal only if it shows a wilful and deliberate flouting of an essential contractual condition. Applying Laws v London Chronicle, [1959] 2 All ER 285, the tribunal was entitled to find that the claimant had made an error of judgment in difficult and unexpected circumstances, rather than deliberately disregarding rules or the safety of others. That finding excluded repudiatory breach.

3. On unfair dismissal, the Employment Judge had directed himself correctly. The range of reasonable responses applied to every aspect of the conduct dismissal, including investigation, disciplinary procedure, findings and sanction. The appeal did not succeed because of an incorrect legal test.

4. However, the reasons did not explain how the tribunal had evaluated the claimant’s substantial criticisms of the investigation and disciplinary process. Its conclusion that the dismissal remained within the range of reasonable responses did not reveal why apparent deficiencies, including the treatment of relevant background matters, did not affect that conclusion. This fell short of the duty to give reasons under rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

5. The remitted tribunal was to consider only facts relevant to unfair dismissal, address the issues under section 98(4) of the Employment Rights Act 1996, and reach and state fresh conclusions. Written submissions were ordered.

• Employment Appeal Tribunal: allowed the claimant’s appeal against dismissal of the unfair-dismissal claim and remitted that issue; dismissed the employer’s cross-appeal against the wrongful-dismissal decision: [2013] UKEAT 0053_13_1209.
• Employment Tribunal, East London: by a judgment dated 24 October 2012, upheld the wrongful-dismissal claim but dismissed the unfair-dismissal claim. No citation was stated in the judgment.