EAT UNFAIR DISMISSAL – Reasonableness of dismissal
The Respondents were employed as drivers by the Appellant which carried on business as a haulage company and they were required to have in addition to their normal HGV licence, an ADR licence to enable them to carry the dangerous loads which were required of them by the Appellant. As the Respondents were over 45 years of age, they were required to renew their licence every five years and this entailed passing a medical test.
As a result of their inadvertence, the Respondents failed to renew their HGV licences and therefore the First Respondent had been driving without a licence for about a month and the Second Respondent had been driving without a licence for the previous five months. At disciplinary proceedings, both Respondents accepted that they had been guilty of misconduct. It was decided that given the potentially serious adverse effects to the Appellant of the Respondents driving without a licence, the dismissal of both Respondents was justified. Those potentially adverse consequences were that not only that the Appellant’s insurance cover would be placed in jeopardy, but also that the Regulators could take action over the breach and jeopardise the Appellant’s operator’s licence; this could also damage the Appellant’s standing in the increasingly competitive market in which the Appellant competes nationally with other haulage companies for large contracts.
The Respondents appealed and advanced an argument based on a precedent relating to a Mr Preston, who had some six years earlier allowed his HGV licence to lapse but in whose case, no disciplinary action of any type was taken. The appeal of the Respondents was dismissed and the Appellant relied on three cases in which those employees, who had failed to renew their licenses were dismissed.
The Respondents brought claims for unfair dismissal and wrongful dismissal and the Employment Tribunal held that those claims succeeded because in the present case, none of the potential problems arose for the Appellant as the Regulator took no steps against them, no client was inconvenienced and the reputation of the Appellant was not placed in jeopardy.
In addition, the case of Mr Preston showed that dismissal was not appropriate. The Employment Tribunal upheld the claim for wrongful dismissal and unfair dismissal, but it held that the Respondents through their own conduct had contributed to their dismissal and this reduced the sums payable to them for unfair dismissal by 60%. The Appellant appealed.
Held: Allowing the appeal because:-
(a) The Employment Tribunal failed to consider properly the crucial question which was whether the decision of the Appellant to dismiss the Respondents fell within one of the reasonable range of responses for the Appellant in dealing with the Respondents as it erred (i) in considering as decisive the fact that the Respondents failed to renew their licences had actually no adverse effect on the Appellant while regarding as unimportant the accepted fact that such failures had the potential for causing very serious problems and financial losses for the Appellant; and (ii) in attaching too much weight to the case of Mr Preston and incorrectly regarded the Appellant’s treatment of him as imposing the accepted tariff (Hadjioannou v Coral Casinos [1981] IRLR 352 and Paul v East Surrey DHA [1995] IRLR 305 applied); and
(b) The Employment Tribunal should have considered whether the Respondents’ dismissal was wrongful in the light of the Appellant’s disciplinary procedure and the potential consequences to the Appellant but it did not do so.
Silber J
[2011] UKEAT 0040 – 11 – 1907
Bailii
England and Wales
Employment
Updated: 02 November 2021; Ref: scu.441972