If an employee is found guilty of gross misconduct, their employer can lawfully dismiss them without notice (known as summary dismissal). In SM Trucking Ltd v Dixon, the Employment Appeal Tribunal (EAT) held that as the tribunal had found that Mr Dixon was responsible for writing off the company’s HGV vehicle, it followed that he was guilty of gross misconduct or gross negligence, thereby entitling the company to dismiss him summarily.
Basic facts
Mr Dixon, an HGV lorry driver, was the company’s sole employee. On 27 November 2018, he was driving the company’s HGV vehicle when he collided with a lorry in front of him as he approached a set of traffic lights. Mr Dixon was not seriously injured but the company’s lorry was a write-off.
The company director and sole shareholder, Mr Moore, rang Mr Dixon the next day to explain that they would have to “part ways” as he could no longer get insurance cover for Mr Dixon because of his past driving history. Although he did not say so during the call, he was convinced that Mr Dixon was entirely responsible for the accident.
Mr Dixon’s account of the call differed from that of Mr Moore in that he understood he was being dismissed because there was no vehicle for him to drive, and therefore, no job to come back to. He therefore expected to receive a redundancy payment but when he heard nothing and asked for written reasons, he discovered that he had been summarily dismissed. Mr Dixon claimed unfair and wrongful dismissal, among other things.
Tribunal decision
The tribunal judge found that Mr Dixon had been dismissed for 'some other substantial reason' (SOSR). Namely, the inability to get insurance cover, as well as the lack of a vehicle for him to drive. Although this was a potentially fair reason, the tribunal found that the dismissal was unfair as it was procedurally flawed. However, the tribunal reduced the award to Mr Dixon by 50 per cent as it found, as a matter of fact, that he was entirely responsible for the accident.
With regard to the claim for wrongful dismissal, it found that Mr Dixon “would only be disentitled to notice if he committed gross misconduct. That was not the case here”. Although the tribunal did not enlarge on this finding, it held that as he had been summarily dismissed for some other substantial reason, he was entitled to notice pay of one week per year.
Mr Moore appealed on the basis that the tribunal was wrong to find that Mr Dixon had been wrongfully dismissed as he had, in fact, committed gross misconduct. He also challenged the conclusion that Mr Dixon should be awarded 50 per cent of the basic award when the correct percentage should have been zero.
EAT decision
The EAT held that the issue for the tribunal was whether, as a matter of fact, Mr Dixon had committed gross misconduct, thereby entitling Mr Moore to dismiss him summarily. As the tribunal had found that the accident was entirely Mr Dixon’s fault, it followed that it should have found that this fell within the definition of either gross misconduct or gross negligence. As such, Mr Dixon had not been wrongfully dismissed.
In light of the finding that there was no mechanical failure or oil slick on the tarmac causing the lorry to skid, the tribunal found that Mr Dixon was entirely to blame for the accident. It followed therefore that it should have made a reduction of 100 per cent for his conduct, despite the technical finding of unfair dismissal for procedural failings. The EAT therefore reduced the award to zero.