Hodgson v. Menzies Aviation (UK) Ltd

In deciding whether summary dismissal falls within the range of reasonable responses, a tribunal may assess the employee’s conduct as a whole and in the round. A disciplinary code need not contain an exhaustive list of every act capable of justifying dismissal. The material question is whether, in its employment context, the employee could reasonably appreciate the gravity of the conduct.

A deliberate departure from assigned duties for personal reasons may justify immediate dismissal where it causes operational risk or loss, and the employee’s changing explanations and failure to accept responsibility reasonably affect the employer’s assessment. An appellate tribunal must not substitute its own view of sanction where dismissal was within the band of reasonable responses.

The claimant, an airport ground service operative, was summarily dismissed after taking an unauthorised cigarette break instead of proceeding to meet an incoming aircraft. He arrived late and without the equipment needed to provide ground power, causing the aircraft to operate an engine in hotel mode.

The Employment Tribunal at Manchester dismissed his claims for unfair dismissal and breach of contract. It held that the employer could reasonably regard the conduct, his changing accounts, and his failure to accept responsibility as sufficiently serious to justify dismissal without notice.

The claimant appealed on the grounds that the conduct was not capable of amounting to gross misconduct on a first offence and that summary dismissal was unjustified. The central issue was whether the Tribunal had lawfully applied the range of reasonable responses test.

1. Appeal dismissed unanimously. The Employment Tribunal made no error of law in holding that summary dismissal was within the range of reasonable responses and that the claimant had repudiated the contract of employment.

2. The conduct was not to be artificially divided into an unauthorised cigarette break and a single instance of lateness. It was permissible to assess it in the round. The claimant deliberately delayed performing an assigned task for his own benefit, arrived late to the aircraft, lacked the necessary equipment, and thereby caused avoidable operational and financial consequences.

3. The Tribunal was entitled to take account of the claimant’s awareness that permission for the further break would have been refused, his experience and knowledge of the importance of airline contracts, his inconsistent explanations, and his attitude during the investigation, disciplinary process and appeal. Those matters supported the conclusion that the conduct was sufficiently grave to justify immediate dismissal.

4. The employer’s disciplinary documentation did not require an exhaustive specification of every possible act of misconduct. This was not merely a case of lateness or an extra cigarette break. The claimant could reasonably appreciate that the combined conduct exposed him to dismissal. Lock v Cardiff Railway Company Ltd, [1998] IRLR 358, was distinguishable.

5. The Employment Tribunal was not entitled, nor was the Appeal Tribunal entitled, to substitute its own view of sanction for that of the employer where dismissal fell within the permissible band. The claimant’s conduct and subsequent failure to take responsibility also entitled the employer to accept a breach of trust and confidence and dismiss without notice.

• Employment Appeal Tribunal: dismissed the claimant’s appeal against the dismissal of his unfair dismissal and breach of contract claims.

• Employment Tribunal, Manchester: dismissed the claimant’s claims for unfair dismissal and breach of contract.