Fair dismissal may still be breach of contract

In the recent case of Weston Recovery Services v Fisher the EAT reminded us that many dismissals are unfair even where the employer is contractually entitled to dismiss. Conversely, some dismissals are not unfair even though the dismissal was in breach of contract.

This was one of those cases. The employee had, with permission, borrowed a minibus from his employer but on returning it had failed to check that it was in a safe condition. The rear step was missing and the seats were insecure. The employer thought this was a safety hazard. There was a disciplinary hearing and the employee was summarily dismissed for gross misconduct.

The employment tribunal decided that even though the employer's dismissal decision was within the 'range of reasonable responses', the misconduct was not a gross misconduct offence. They decided that, as a matter of contract law, the employee should not have been summarily dismissed. They then concluded it was an unfair dismissal.

On appeal, the EAT considered that the dismissal was fair, because the ET had decided that the employee was guilty of the misconduct alleged and the dismissal sanction fell within the 'range of reasonable responses'. The EAT pointed out that tribunal had confused the difference between contract law and unfair dismissal law: under his contract he may have been entitled to four week's net pay as notice, but that did not mean there was a failure to comply with unfair dismissal law.

Points to note:

  • Unfair dismissal statute law is only concerned that there should be a sufficient reason for dismissal and the employer has only to establish that what they did was 'within the range of reasonable responses' to show that their reason was fair.
  • The approach to claims for breach of contract is much more concrete. In order to avoid a claim for wrongful dismissal, a prudent employer may prefer to simply pay the employee the notice money due to them under the contract.