SM Trucking Ltd v A Dixon

An employee’s entirely blameworthy driving accident may amount to gross misconduct or gross negligence justifying summary dismissal where, on the particular facts, it writes off the employer’s sole vehicle. That conclusion remains fact-sensitive and does not make every culpable road traffic accident grounds for dismissal without notice.

Where an Employment Tribunal finds the employee wholly responsible for the conduct underlying dismissal, a 100% reduction of the basic award may be required under section 122(2) of the Employment Rights Act 1996, despite procedural unfairness. A tribunal may also refuse late, undisclosed documentary evidence as a case-management decision within its discretion.

The claimant, an HGV driver employed by the respondent, collided with a vehicle ahead while driving the respondent’s only lorry. The lorry was written off. The Employment Tribunal found that the claimant was entirely to blame, but held that his summary dismissal was wrongful and procedurally unfair. It awarded notice pay, a basic award reduced by 50%, and holiday pay.

The employer appealed. The central issues were whether the Tribunal’s factual finding required a finding of gross misconduct or gross negligence; whether the basic award should have been reduced to nil; and whether the Tribunal could refuse late holiday records which the employer had not disclosed.

1. Appeal allowed in part. The appeal against the wrongful-dismissal award and the 50% basic award succeeded. The appeal concerning holiday pay was dismissed.
2. The issue on wrongful dismissal was whether the claimant’s conduct, as found by the Tribunal, repudiated the contract and entitled the employer to dismiss without notice. The Tribunal had found that the claimant was entirely at fault for an accident which wrote off the employer’s HGV. On those facts, the conduct fell within gross misconduct or gross negligence. The claimant was therefore not entitled to notice pay. This was a fact-sensitive conclusion; a driver’s responsibility for a road traffic accident will not invariably justify summary dismissal.
3. The Tribunal’s finding that the dismissal was unfair for want of procedure remained undisturbed. However, its finding of complete responsibility for the accident could not consistently support only a 50% conduct reduction. Applying section 122(2) of the Employment Rights Act 1996, it was just and equitable to reduce the basic award by 100%, to nil.
4. No remission was required because the Tribunal had made all necessary factual findings. The Appeal Tribunal substituted findings that the claimant had not been wrongfully dismissed and that the basic award was nil.
5. The Tribunal was entitled to refuse the employer’s attempt, during cross-examination, to introduce holiday records which had not been disclosed or included in the bundle as ordered. That case-management decision was within its wide discretion. The holiday-pay award of £370.54 stood.

• Employment Appeal Tribunal: appeal allowed in part in [2022] EAT 66. The wrongful-dismissal finding and notice-pay award were revoked, and the basic award was substituted at nil. The holiday-pay award was upheld.
• Employment Tribunal: found the claimant wrongfully and unfairly dismissed; awarded notice pay, a basic award reduced by 50%, and holiday pay. The judgment and reasons were sent on 25 February 2020.