Length of service and gross misconduct

Econ Engineering Ltd v Dixon and others [2020] UKEAT/285/19 

In this case, the Employment Appeal Tribunal ("EAT") found that whilst length of service is a valid consideration when deciding whether a dismissal is unfair, it is not a relevant factor when assessing whether a summary dismissal is in breach of contract (a "wrongful dismissal").

Mr Cameron had worked for East Coast Mainline Company (the "Company") for nearly 35 years. At the time of the incident in question he was a shunter, responsible for safely moving trains between platforms. In 2015, whilst working a night shift, he authorised the movement of a train which resulted in a driver, who was standing between the moving train and his own, being "brushed" by the moving train. The Company deemed the incident a serious safety incident as Mr Cameron had failed to carry out adequate safety checks. The Company dismissed him for gross misconduct and he brought claims for unfair dismissal, discrimination and wrongful dismissal in the employment tribunal.

The tribunal dismissed Mr Cameron's claims of unfair dismissal and discrimination but upheld his wrongful dismissal claim. It placed weight on the Mr Cameron's long service and concluded that, in the circumstances, his conduct was not so serious as to justify dismissing him without notice.

On appeal, EAT held that the tribunal had been wrong to take into account Mr Cameron's length of service when determining whether his dismissal without notice was in breach of contract. The EAT stated that length of service should have no bearing on the question of whether an employee's misconduct was so serious as to justify dismissal without notice.

This decision offers useful clarity to employers considering whether summary dismissal is appropriate in a case of misconduct, and confirms that the key issue is whether the conduct is serious enough to justify dismissal without notice. Extraneous factors such as an employee's length of service are not relevant.