Brian Butler: What constitutes gross misconduct and defective machinery liability

Emma Williams
By Emma Williams November 13, 2011 17:02

Brian Butler: What constitutes gross misconduct and defective machinery liability

The below questions are ones Brian Butler has received recently from golf club managers

Question

An employee told club officials that provisions could not be delivered due to weather conditions. Catering arrangements in the club were therefore cancelled over a weekend with a consequent serious loss of income. It transpired later that no provisions had been ordered by the employee and that the catering provider could have made the delivery. There is a difference of opinion in the club whether this misconduct is gross misconduct. One opinion is that the conduct of the employee amounts to a breach of trust and confidence and that such a breach must amount to gross misconduct. The alternative opinion is that the misconduct does not fit with the examples in the disciplinary procedure. The procedure also states that an employee should not normally be dismissed for a first offence. Can you give us any guidance on what constitutes gross misconduct?

Answer

What amounts to gross misconduct is not a question that depends entirely on the reasonableness of the employer’s belief. Two things need to be distinguished. Firstly, the conduct alleged must be capable of amounting to gross misconduct. Secondly, the Club must have a reasonable belief that the employee has committed such misconduct. In many cases the first will not arise. For example, many misconduct cases involve the theft of goods or money. That gives rise to no issue so far as the character of the misconduct is concerned. The fact that the employee’s offence is not specifically mentioned in the Club’s Disciplinary Procedure is not significant. The list of examples of gross misconduct is not meant to be exhaustive. What is usually an issue in such cases is the reasonableness of the belief that the employee has committed what may amount to gross misconduct.

In this particular case there is no doubt that the employee is guilty of misconduct, the question is whether the misconduct is so serious that it amounts to gross misconduct.

The question as to what is gross misconduct is a mixed question of law and fact. What then is the direction as to law that the Club should apply when a decision has to be made?

Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee. One judge can be quoted as follows:

“Now what will justify an instant dismissal? – something done by the employee which impliedly or expressly is a repudiation of the  fundamental terms of the contract,” and “the disobedience must at least have the quality that it is ‘wilful’: it does (in other words) connote a deliberate flouting of the essential contractual conditions.”

The conduct must therefore be a deliberate and wilful contradiction of the contractual terms. It might be argued, as some club members have done, that the mutual term of trust and confidence is either the same thing as gross misconduct or, if the conduct falls short of gross misconduct but was serious, it might still lead to a loss or breach of trust and confidence. It is self evident that all cases of gross misconduct necessarily lead to breaches of trust and confidence. However, not all breaches of trust and confidence are necessarily gross misconduct. For example, an employee may make so many minor mistakes that an employer may no longer trust or have confidence in the employee’s ability. Such lack of trust and confidence would not amount to gross misconduct.

In the present case the employee has lied and his wilful lie has led to serious consequences. The implied term of the employee’s contract is that he should perform his work competently, using reasonable skill and care. The misconduct, therefore, goes to the root of the contract and meets the characteristics of gross misconduct.

It should also be appreciated how an Employment Tribunal decides whether the misconduct warrants summary dismissal. The Tribunal has to consider whether the disciplinary penalty falls within a ‘band of reasonable responses’. If a Tribunal decides that a reasonable employer would dismiss an employee in similar circumstances the dismissal will be held to be fair. This is the case even though a Tribunal might think that a lesser penalty would have been more appropriate and that other reasonable employers might have imposed a lesser disciplinary penalty. The Tribunal cannot substitute their opinion for that of the employer. The Tribunal can find the dismissal is unfair if the decision of the employer is ‘perverse’ meaning no other reasonable employer would have dismissed the employee in the circumstances.

A Tribunal can, however, find the dismissal is unfair if the investigation does not meet the standard of thoroughness that could be expected of a reasonable employer. It is for this reason that Secretaries, who normally have the authority to dismiss, are advised to avoid investigating the circumstances of a case. It is better that the investigation is conducted by a senior official of the Club. Giving an employee the right to be accompanied at an investigatory meeting will also help to establish the fairness of the investigation.

Question

An employee has been injured while operating a machine. The machine was purchased from a reputable supplier. The problem is that the machine was defective and the defect was the direct cause of the accident. Is the club or the supplier of the machine liable for the accident?

Answer

Up until 1969 the Club would not have been liable in relation to the defective equipment where the equipment was purchased from a reputable supplier and the defect was latent, that is not manifest.

This position was unacceptable. In order to remedy this, the Employer’s Liability (Defective Equipment) Act 1969 was passed. Section1 of the Act provides that – where an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer and the defect is attributable wholly or partly to the fault of a third party (whether identified or not) – the injury is deemed to be also attributable to negligence on the part of the employer. If the supplier tries to protect himself by disclaiming responsibility in a sales agreement the agreement would be void.

Emma Williams
By Emma Williams November 13, 2011 17:02
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