Yovka Kisheva v Secure Frontline Services Limited

Gross misconduct must be assessed objectively. A tribunal may not treat conduct as fundamentally repudiatory simply because the employer regarded it as such, particularly where the alleged requirement is not contained in the contractual code and the stipulated consequence is only possible disciplinary action.

Where the evidence permits only one lawful conclusion, the Employment Appeal Tribunal may substitute that conclusion. A finding of gross misconduct was perverse where the employee left while upset, the team leader knew she had left, and the asserted obligation personally to telephone management was neither a stated basis for dismissal nor a documented gross-misconduct rule.

The claimant, a door supervisor with long service, left part-way through a shift after an argument with a colleague. Her team leader knew she was leaving. The respondent summarily dismissed her, alleging that she had left without informing management through its central telephone number.

The Employment Tribunal found the dismissal unfair because the respondent had used no proper procedure. It nevertheless held that the claimant’s conduct was gross misconduct, dismissed the wrongful-dismissal claim, and reduced both unfair-dismissal awards by 100%.

The claimant appealed on the basis that the gross-misconduct finding was perverse and that the approach to remedy was erroneous. The central issue was whether leaving early without making the asserted telephone call could properly be characterised as gross misconduct on the Tribunal’s findings.

1. Appeal allowed. The finding that the claimant was guilty of gross misconduct was perverse and was substituted with a finding that she was not guilty of gross misconduct.

2. Gross misconduct is conduct which fundamentally breaches the employment contract and justifies summary dismissal. It is assessed objectively, rather than solely through the employer’s view. The contractual code stated that leaving a venue without authorisation could possibly lead to a fine or disciplinary action. It did not identify failure personally to telephone management after leaving as gross misconduct, nor did the respondent’s pleaded case identify that failure as the basis of dismissal.

3. The Tribunal’s own findings showed that the claimant left because she was upset after an argument, and that her team leader knew she had gone. The alleged telephone requirement was, at most, an orally delivered administrative instruction. A proper investigation could have addressed the team leader’s assessment of the need for a replacement and whether the claimant’s distress engaged the respondent’s stated assurance concerning a genuine emergency. On that evidence, the Tribunal could not lawfully conclude that the combined conduct amounted to gross misconduct.

4. Applying Jafri v Lincoln College [2014] EWCA Civ 499, the EAT substituted the only legitimate conclusion. The existing unfair-dismissal finding remained, but the wrongful-dismissal finding could not stand because it depended on the perverse gross-misconduct conclusion.

5. The case was remitted to a differently constituted Employment Tribunal to determine remedy on that footing. In any event, the Tribunal had not adequately explained its 100% reductions or why dismissal was the only possible sanction; those reasons were not compliant with Meek v City of Birmingham District Council [1987] IRLR 250.

• Employment Appeal Tribunal: appeal allowed. The finding of gross misconduct was set aside and replaced with a finding that the claimant was not guilty of gross misconduct. Remedy was remitted to a differently constituted Employment Tribunal.
• Employment Tribunal, London Central: in reasons sent on 9 August 2023, held the dismissal unfair but found gross misconduct, dismissed the wrongful-dismissal claim, and reduced the basic and compensatory awards by 100%.