A wrongful dismissal claim can arise where an employee is summarily dismissed without notice for gross misconduct, the employee argues that his or her actions did not amount to gross misconduct and therefore the dismissal is in breach of contract. The claim is for damages, i.e. any loss caused by the breach, for example, no notice. The employer has to show that the misconduct amounted to a willful and deliberate repudiatory breach, i.e. so serious that it undermined trust and confidence, making continued employment impossible. Issues of fairness and reasonableness do not come into play in such cases – the only issue is whether the employee repudiated the contract.

In Robert Bates Wrekin Landscapes Ltd v Knight, the contract stated that employment may be terminated without notice in certain circumstances, one of which was “if the employee commits any breach of the employer’s or customer’s security rules”. An employment tribunal (ET) upheld Knight’s (K) wrongful dismissal claim. The ET found that K had breached security requirements when he left the customer’s premises with a bag of their bolts in his van, but on the balance of probabilities K was not guilty of deliberate theft. K simply forgot about the bolts, which he had found while litter-picking and which were in a visible position on the van’s dashboard. Therefore, K was not in fundamental breach of contract and the employer was not entitled to terminate the contract summarily.

The EAT rejected the employer’s argument that it could rely on the contractual termination provision to dismiss without notice. Summary dismissal is not justified unless there has been gross misconduct or gross negligence and the specific contractual provision, as drafted in this case, did not give the employer the right to dismiss for breach of a security rule, however minor or inadvertent. It would fly in the face of the general understanding of employer and employee if it applied in all such cases, e.g. it would be absurd if an employee could be dismissed summarily because he forgetfully took a broken cup with him from the site.

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