In the case of Wincanton PLC v Atkinson plus 1, the EAT reminded Tribunals not to lose sight of the crucial test for gross misconduct dismissals, where the facts were not in dispute.

Here, the employee lorry drivers failed to renew their special dangerous load HGV driving licence. This licence was valid for 5 years, on expiry of which a holder was required to renew the license by passing a satisfactory health check.

The employees failed to do this and were driving without a valid license for one month and five months. They were dismissed, given that the failure could potentially impact on the insurance.

The Tribunal found the dismissal unfair and relied on two points, firstly there was no actual harm done to the employer and secondly an employee had not been disciplined for the same offence some years back, even though three other employees had been.

The EAT held that the Tribunal had been side tracked. The EAT found the dismissals fair as the key question was whether the dismissals were within the range of reasonable responses. Here clearly some (if not most) employers would have dismissed based on those facts, so the dismissals were fair as they were within the range.