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Merely stating that an act is gross misconduct does not make it so

Posted by TonyBrownEmploymentSolicitor on February 10, 2014

The next case serves as a reminder that merely stating that an act is gross misconduct does not necessarily make it so.

The Claimant was employed by a company providing gardening and grounds maintenance including at a customer’s secure site containing a great deal of MOD equipment. His employment contract included the following:

Summary Termination of Employment

The employment of the Employee may be terminated by the Employer without notice or payment in lieu of notice in the following circumstances:

14.10 If the Employee commits any breach of the Employer's or Customer's security rules.

The Claimant was also provided with a copy of the customer’s rule book which included the following:

"Any vehicle entering or leaving [the site] is liable to security spot checks and search. No property is to be removed from the site without the appropriately completed property pass signed by [the customer]."

Following a tip-off, the Claimant’s supervisor looked in the Claimant’s van and saw a bag of bolts on the dashboard of the van that had come from the customer’s site. The Claimant’s explanation was that he had found the bag of bolts while litter-picking. He put it to one side and then on the dashboard of his van. He intended to hand it in. It was a difficult day: a window in the van had been shattered by a stone and there had been a puncture on the mower. He forgot to hand in the bolts. He intended to return them to site when he next went to work.

The Claimant was dismissed for breach of clause 14.10 of his contract and issued tribunal proceedings for his notice pay and for unfair dismissal.

Upholding the claim, the Employment Judge accepted the Claimant’s evidence that he had simply forgotten to hand the bolts in. The Employment Judge expressed his conclusions as follows:

“I find on the balance of probabilities the claimant was not guilty of theft. He was, however, guilty of failing to comply with the requirements of [the customer] and his employer by removing the bolts without written permission. Again, I find on the balance of probabilities that this was due to him forgetting the bolts, i.e. that it was not deliberate. Accordingly in my judgment the claimant was not in fundamental breach of contract and the respondent was not entitled to terminate the contract summarily."

The EAT dismissed the employer’s appeal ruling that clause 14.10 did not apply to a breach of security rules that was minor or inadvertent. It explained that, as a general rule, an employee is entitled to notice unless the employer can point to a breach of contract which is either wilful and deliberate contravention of an essential term of the contract or gross negligence. Clause 14.10 did not give the employer the right to dismiss for any breach of a security rule, however minor or inadvertent.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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