Cameron v East Coast Main Line Company Ltd

A finding that a dismissal was fair for the purposes of section 98 of the Employment Rights Act 1996 does not determine a distinct claim for wrongful dismissal. Wrongful dismissal requires findings as to what the employee actually did and an objective decision whether that conduct amounted to a repudiatory breach of contract justifying summary dismissal.

An Employment Tribunal errs if it decides the contractual claim solely through the reasonable-employer and range-of-reasonable-responses inquiry applicable to unfair dismissal. Where the necessary facts have not been found, the Employment Appeal Tribunal cannot itself determine the contractual claim under section 35(1) of the Employment Tribunals Act 1996; it should remit it for fact-finding.

The claimant, a rail-company shunter, was dismissed after an allegation that he had given clearance for a train which brushed a driver. The Employment Tribunal dismissed claims for unfair dismissal, wrongful dismissal, and race and age discrimination.

Only the wrongful-dismissal claim was pursued before the Employment Appeal Tribunal. The central issue was whether the Tribunal had wrongly treated the failure of the unfair-dismissal claim as necessarily disposing of the contractual claim, without finding whether the claimant had committed conduct amounting objectively to a repudiatory breach of contract.

1. Appeal allowed. The Tribunal’s conclusion that the wrongful-dismissal claim necessarily failed because the unfair-dismissal claim failed was set aside. The wrongful-dismissal claim alone was remitted to the same Tribunal.

2. The Tribunal had correctly determined unfair dismissal under section 98 of the Employment Rights Act 1996. It considered the employer’s genuine and reasonable belief, procedure, and the range of reasonable responses. That inquiry was not a substitute for the separate contractual cause of action.

3. Wrongful dismissal required separate legal direction, factual findings and the appropriate burden of proof. The Tribunal had to determine what the claimant did, whether that conduct was misconduct or negligence, and whether it objectively amounted to a repudiatory breach entitling the employer to dismiss without notice. It had made no such findings. Its references to serious misconduct and to the employer reasonably treating conduct as justifying dismissal recorded the employer’s belief, rather than the Tribunal’s own finding of actual gross misconduct.

4. Under section 35(1) of the Employment Tribunals Act 1996, the EAT could record only a decision which the Tribunal could have been directed to record on the facts found. The missing factual findings made that course impossible.

5. Remittal to the same Tribunal was appropriate. There was no suggestion of bias, partiality, or a closed mind, and the original decision was otherwise professional and careful. The Tribunal could receive further evidence only if it considered it necessary.

• Employment Appeal Tribunal: Allowed the appeal on wrongful dismissal and remitted that claim to the same Employment Tribunal.
• Employment Tribunal, Watford: Dismissed the claims for unfair dismissal, wrongful dismissal, race discrimination and age discrimination. The decision and reasons were sent to the parties on 15 September 2017.