SM Trucking Ltd v A Dixon

The Appeal Tribunal allowed the employer's appeal in part. The Employment Tribunal had found that the employee was wholly to blame for a road traffic accident which wrote off the employer's only HGV, but nonetheless awarded notice pay for wrongful dismissal and reduced the basic unfair dismissal award by only 50% under section 122 of the Employment Rights Act 1996. The Appeal Tribunal held that, given the Tribunal's factual findings amounting to gross negligence or gross misconduct, the award for wrongful dismissal could not stand and the basic award should have been reduced to nil under s.122(2). The appeal on the holiday pay claim failed because the Employment Tribunal properly exercised case management discretion in refusing late, undisclosed evidence.

Background and parties: The claimant (Mr Dixon) was employed by SM Trucking Ltd as an HGV driver from 27 November 2013 until his summary dismissal on 28 November 2018. The employer owned one HGV. On 27 November 2018 the claimant was involved in a collision which wrote off the employer's vehicle. The employer terminated the claimant's employment the next day by telephone and the claimant brought claims for unfair dismissal, wrongful dismissal (notice pay) and unpaid holiday pay.

Procedural posture: The matter was heard by Employment Judge Reed on 27 January 2020. The Employment Tribunal found there had been a dismissal, held the dismissal was unfair because of procedural defects, awarded notice pay for wrongful dismissal, made a basic award for unfair dismissal reduced by 50% under s.122, and awarded a modest sum for outstanding holiday. The employer appealed; an initial sift rejection by Lavender J under rule 3(7) was followed by an oral permission hearing before HHJ James Taylor on 23 February 2021, which allowed three of six grounds to proceed.

Relief sought: The claimant sought compensation for wrongful dismissal (notice pay), a basic award and compensatory award for unfair dismissal, and unpaid holiday pay.

Issues before the Appeal Tribunal:

• whether the claimant's conduct amounted to gross misconduct or gross negligence entitling summary dismissal (wrongful dismissal issue);
• whether the Employment Tribunal's 50% reduction of the basic award under s.122(2) was consistent with its factual findings;
• whether the Employment Judge erred in refusing to allow the employer to adduce previously undisclosed holiday records late in the hearing.

Reasoning and decision: The Appeal Tribunal emphasised that appeals are confined to points of law and that factual findings of the tribunal are generally conclusive. The tribunal had found the claimant was entirely to blame for the accident and that the vehicle was written off; those findings amounted to gross negligence or gross misconduct. On that basis the Appeal Tribunal held the Employment Tribunal should not have awarded notice pay and substituted a finding that the claimant was not wrongfully dismissed. As the Tribunal had itself found the claimant wholly at fault, a 100% reduction under s.122(2) was required and the basic award was set to nil. The Appeal Tribunal upheld the Employment Tribunal's refusal to admit late holiday records as a proper exercise of case management discretion and left the holiday pay award intact.

Appeal allowed in part. The Appeal Tribunal substituted the Employment Tribunal's finding on wrongful dismissal with a finding that the claimant was not wrongfully dismissed because the Tribunal's factual findings showed conduct amounting to gross negligence/gross misconduct. For consistency with those findings the basic unfair dismissal award was reduced to nil under section 122(2) Employment Rights Act 1996. The Employment Tribunal's refusal to admit late holiday records was a proper exercise of case management discretion and the holiday pay award stands.

Initial appeal documents were rejected at the sift stage by Lavender J under rule 3(7). The appellant applied for an oral permission hearing which took place before HHJ James Taylor on 23 February 2021; three of six proposed grounds were allowed to proceed to the full appeal heard by the Employment Appeal Tribunal.