In East Coast Main Line Company Limited v Mr J Cameron the questions considered by the Employment Appeal Tribunal were whether the judgment of the Employment Tribunal, based on the facts, was perverse, and whether the Tribunal should have taken into account Mr Cameron’s long service when considering his claim for wrongful dismissal.
Mr Cameron had been employed by East Coast since 1981 and, since 1990, as a shunter. On 26 November 2015 he was working a night shift. At about 5.30 a.m. he authorised the departure of a Grand Central train, as requested by the driver. At the same time a Mr Munro had been preparing his own train for departure and was standing between both trains. As the Grand Central train left it brushed Mr Munro. This was classed as a significant safety incident. Following a disciplinary process Mr Cameron was summarily dismissed. His appeal against dismissal was unsuccessful. It was determined that the accident was caused because Mr Cameron had failed to carry out adequate safety checks.
At the subsequent Employment Tribunal hearing Mr Cameron acknowledged that he had failed to conduct adequate safety checks. The Tribunal concluded that his conduct appeared to have been caused by negligence or inattention and he was the person with responsible for the depot and all the person in it at the time. It was accepted that this was a one-off event. The Tribunal found that Mr Cameron had been wrongfully dismissed.
On appeal it was submitted on behalf of East Coast that the Tribunal had taken the wrong approach. Although length of service can be a relevant factor when considering whether the decision to dismiss fell within the band of reasonable responses for the purposes of an unfair dismissal claim, it is not relevant to a claim for wrongful dismissal. Alternatively, if length of service was a relevant consideration for wrongful dismissal, it should be an aggravating rather than mitigating factor because higher standards should be expected of a long-serving employee.
On behalf of Mr Cameron it was submitted that the Tribunal made a permissible finding of fact which was not perverse. Because there had been no wilful failure by Mr Cameron, the Tribunal’s conclusion was one which it was entitled to reach. In this case Mr Cameron had made a mistake, as do the vast majority of employees, from time to time. It was also contended that length of service must be a relevant factor to take into account because it is material to the level of trust and confidence.
In her decision, Deputy Judge Naomi Ellenbogen QC found that the decision of the Tribunal was perverse. It was unarguable that Mr Cameron would not have been aware that it was his responsibility to carry out adequate safety checks. He had failed to conduct the relevant checks and it was reasonable to expect that someone who had carried out the role for a substantial period of time would have sufficient experience and expertise to carry the role to the required standard. What happened was correctly characterised as negligence and could have had catastrophic results. Mr Cameron had filed to accept that he had done something wrong and would or could do it better in the future, so that there was a legitimate concern that he would not act differently in the future, so there was a safety risk.
As for length of service as a factor, the proper question was whether the negligent dereliction of duty so grave and weighty as to justify summary dismissal. Put simply, it was. Length of service had no bearing on that question and it was therefore wrong to take it into account. Since the only proper conclusion that could be drawn was that the claim for wrongful dismissal was unfounded, there was no need to remit the matter to the Tribunal. Instead, Judge Ellenbogen substituted a finding that the claim for wrongful dismissal failed and should be dismissed.
It is important to note that the rationale in this case is applicable only to wrongful dismissal, i.e. breach of contract. Length of service would, on these or similar facts, remain a relevant consideration when dealing with a claim for unfair dismissal.