Skip to main content

UPS Ltd v S Harrison (2012) EAT

The fairness of a dismissal rests on the reasons for it and the fairness of the procedure rather than the label attached to it by the employer.

The fairness of a dismissal rests on the reasons for it and the fairness of the procedure rather than the label attached to it by the employer.


H had been employed as a driver. UPS’s company rules stated that three avoidable accidents within a 12-month period would constitute incapability for which an employee might be dismissed with notice. H had two accidents in January. At a disciplinary hearing in February, he admitted that the accidents had been avoidable. He received a written warning in respect of the first accident and a simultaneous final written warning in respect of the second. The final warning stated that if he had a further accident within 12 months, he might be dismissed. H had a third accident in December. Although there was reference during the disciplinary process to Mr Harrison’s capability, he was found to have had another avoidable accident and was dismissed for misconduct.

The Claim

Mr Harrison brought a claim for unfair dismissal on the grounds that at the time of his final accident he had been driving carefully and it was therefore unfair to count that accident against him. Moreover, UPS should have followed a capability process rather than conduct because it was his driving skills rather than his conduct which had caused the accidents.

The Decision

The tribunal found that Mr Harrison’s dismissal was unfair because he had been driving carefully at the time of the third accident; because UPS had applied the "three accidents" rule too prescriptively without taking account of the minimal damage and Mr Harrison’s mitigating factors; and because the two written warnings had been given at the same time, affording H no opportunity to improve his driving between the two. It also held that the issue was one of capability rather than conduct.

UPS appealed.

Employment Appeal Tribunal

The EAT allowed the appeal. It found that the Employment Tribunal’s reasoning had been flawed.  The starting point was first to make findings as to the employer's own reasons for dismissal and then ask itself how those reasons best fitted with the potentially fair reasons for dismissal in the Employment Rights Act.   It was not bound by the label the employer put on its reasons.  In this case, the correct starting point was that Mr Harrison had been dismissed for having three avoidable accidents. The tribunal's reasoning was flawed because it had taken the starting point that he had been driving carefully. Misconduct and capability were hard to differentiate, but if the tribunal had taken the correct starting point, it would have characterised UPS's reason for dismissal as relating to conduct.

The tribunal had also failed to apply the correct legal test in determining whether UPS had properly followed its own procedure for dealing with conduct and capability issues. The question was not whether UPS had failed its own policy, but whether the procedure it followed had been reasonable.

What does this mean for employers?

It is often hard to differentiate between conduct and capability issues, as this case illustrates.  It is therefore comforting to find that the legal test for a fair dismissal concentrates not on the label but on the fairness of the procedure followed.  As long as the employer follows a procedure that is reasonable for the allegations, whether conduct or capability, it is not for a Tribunal to substitute its own views to the contrary. 

Georgina Porter
Associate (Birmingham)
Weightmans LLP