Keywords: Unfair dismissal; Conduct; Reasonable Instruction; Health and Safety; Seatbelt; Previous Behaviour

The claimant was dismissed for alleged gross misconduct following a road traffic accident involving one of the respondent’s delivery vans with the main issue being that he was not wearing his seatbelt. The claimant had been involved in a similar accident 3 years previous, after which he was dismissed but successfully challenged in the tribunal.

The tribunal accepted that the previous dismissal was not a factor taken into account on this occasion, except that the claimant’s previous dismissal should have made him aware of the importance of wearing a seatbelt. The tribunal held that the dismissal was both procedurally and substantively fair and that the penalty was a reasonable one in the circumstances.

Practical Lessons

As the LRA makes clear, what amounts to ‘gross misconduct’ should be contained in an employer’s own disciplinary rules. Whilst the non-wearing of a seatbelt was not specifically mentioned in the employer’s disciplinary code here, that code was non-exhaustive.

Importantly, the individual circumstances of the employee in question cannot be ignored and the fact that the claimant had undergone ‘refresher training’ after his first seatbelt incident was clearly relevant. This subjective element allows an employer to point to previous relevant examples of the employee’s conduct which add colour to the meaning of ‘gross misconduct’ in each individual case.

The fact that the employer also made concerted efforts to highlight the safety issue among staff shows how addressing such issues internally can protect an employer without necessarily changing aspects of the disciplinary code.