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Employment Appeal Tribunal ruling on gross misconduct dismissals

20 October 2014

When you aren’t allowed to show zero-tolerance for gross misconduct according to your rules, according to the Employment Appeal Tribunal

The Employment Appeal Tribunal has ruled that an employee can’t be dismissed for gross misconduct under an employer’s own contractual rules, unless the employer can prove the breach of rules was serious and that the employee acted either wilfully or grossly negligently.

So, where an employer says that it will operate a zero-tolerance policy and will summarily dismiss anyone who does certain things and puts that in writing in employees’ contracts, it means employers will have to investigate each and every case and judge fairly whether the  breach was serious and whether the employee intended to do it or ended up doing it because they were grossly negligent, even if they did not mean to do it.   And if the employer doesn’t, and simply goes ahead and dismisses the employee, the employee is going to be due pay in lieu of notice and (if qualified) compensation for unfair dismissal.

Although the judgment in Robert Bates Wrekin Landscapes v Knight (2014) does not actually say so, we presume there are some sorts of zero tolerance rules the law will allow. Say for example,  for smoking down a coal mine where the risk and consequences of a fire or an explosion to life and property are very real and so serious. But even that rule has a legal underpin, as section 66 of the Mines and Quarries Act 1954 makes it a criminal offence to have smoking materials down a coal mine. So perhaps, there really is no exception unless there is an existing legal underpin like that.