In Robert Bates Wrekin Landscapes Ltd v Knight UKEAT/0164/13/GE, the Employment Appeal Tribunal ("EAT") held that an employer was not entitled to rely on a summary dismissal clause where there had been no gross misconduct or gross negligence by the employee.

Mr Knight was a gardener for Robert Bates Wrekin Landscapes Ltd (RBW).  His employment contract contained a clause listing a set of circumstances in which his employment could be terminated without notice.  These included "breach of the employer's or customer's security rules".  When RBW found a bag of bolts belonging to a client in Mr Knight's van, it relied on the clause to dismiss him without notice.  Mr Knight alleged that he had simply forgotten to return the bolts.  He brought a claim for his notice pay, arguing that RBW had breached his employment contract by dismissing him without notice. 

Although the EAT accepted that Mr Knight had breached the security rules (by failing to obtain permission before taking the bolts), it said that the clause had to be interpreted in line with the well-established principle that summary dismissal for misconduct is not justified unless there has been gross misconduct or gross negligence.  Here, Mr Knight had not acted deliberately and his inadvertent breach was not sufficiently serious to constitute a repudiatory breach. His employment had therefore been terminated in breach of contract and RBW had to pay him in respect of his notice period.

In light of this decision, employers should take great care when dismissing employees for misconduct without notice.  It will not necessarily be sufficient to rely on an express summary dismissal clause; the conduct itself must still be sufficiently serious as to go to the root of the contract.