East Coast Main Line Company Ltd v Cameron (CONTRACT OF EMPLOYMENT)

A negligent breach of duty may justify summary dismissal where it is sufficiently grave and weighty to destroy the employment relationship. The assessment focuses on the seriousness of the dereliction and its effect on trust and confidence. In a safety-critical role, a failure to perform known and necessary safety checks which exposes another person to a risk of death may meet that standard, even though no harm occurs and the conduct is not wilful.

Length of service does not bear on that question in a wrongful-dismissal claim. Where the Tribunal’s findings permit only the conclusion that the employee was not wrongfully dismissed, the appeal court may substitute dismissal of the claim rather than remit it.

The Claimant, a long-serving shunter at a railway depot, was summarily dismissed after authorising a train’s departure without adequate safety checks. Another driver, standing between adjacent trains, was brushed by the departing train. The Employment Tribunal initially dismissed the Claimant’s claims, including wrongful dismissal.

On an earlier appeal, the wrongful-dismissal issue alone was remitted because the Tribunal had not made the necessary findings or applied the relevant legal principles. On remission, the Tribunal found that the Claimant’s negligent and non-wilful conduct occurred amid confused circumstances and was not sufficiently grave to justify summary dismissal. It awarded notice pay.

The employer appealed. The central issues were whether that conclusion was perverse on the Tribunal’s findings and whether the Claimant’s length of service was legally relevant to wrongful dismissal.

1. Appeal allowed. The Tribunal’s conclusion that the Claimant had been wrongfully dismissed was perverse. Applying the principles in Adesokan v Sainsbury’s Supermarkets [2017] ICR 590, the question was whether the negligent dereliction of duty was so grave and weighty as to justify summary dismissal.

2. The Claimant held an important safety role in a safety-critical environment. He knew that adequate safety checks were his responsibility, failed to carry them out, and authorised a train’s departure when his conduct could have led to loss of life. His failure to acknowledge wrongdoing also supported the employer’s legitimate concern that he might pose a future safety risk. Those findings compelled the conclusion that the conduct justified summary dismissal.

3. The absence of actual harm and the fact that the conduct was not wilful did not prevent the negligence from amounting to gross misconduct. The qualifying findings concerning confusion at the depot did not make the contrary conclusion permissible.

4. The Tribunal also erred in treating long service as relevant to whether the negligent act was sufficiently grave and weighty for the purposes of wrongful dismissal. That inquiry concerns the damage caused by the act to the employment relationship. In any event, the Tribunal’s own finding that experience should produce the required standard meant that long service could not rationally assist the Claimant.

5. Under Jafri v Lincoln College [2014] EWCA Civ 449, remission was unnecessary because the facts found admitted of only one lawful result. The EAT substituted a decision that the wrongful-dismissal claim failed and was dismissed.

• Employment Appeal Tribunal: Allowed the employer’s appeal from the remitted Tribunal decision and substituted dismissal of the wrongful-dismissal claim.
• Employment Tribunal: In its judgment sent on 11 January 2019, following remission of the wrongful-dismissal issue, held that the Claimant had been wrongfully dismissed and entitled to notice pay.
• Employment Appeal Tribunal: By a judgment dated 17 May 2018, set aside the earlier dismissal of the wrongful-dismissal claim and remitted that issue to the same Tribunal. The Tribunal’s 2017 dismissal of the unfair-dismissal and discrimination claims remained undisturbed.