Mr Nike Hasaj v Biba’s Landscaping Limited — 2021

The Claimant, Mr Nike Hasaj, brought claims including unfair dismissal, unlawful deductions from wages, holiday pay, notice pay, and detriment claims under s47B and s44(1)(c) Employment Rights Act 1996. He withdrew the unlawful deductions and holiday pay complaints at the outset of the hearing. The tribunal preferred Mr Biba's evidence on the main disputed issues and accepted contemporaneous records showing that the Claimant had received prior warnings in 2015 and 2016 about site behaviour and PPE, including a toolbox talk in June 2016 warning that misuse of PPE could lead to immediate dismissal.

The tribunal found that the reason for dismissal was the Claimant's conduct on 24 January 2019 at an Ashlea/Galliford Try site. It accepted the independent Ashlea accident/incident report and related email, and found that the Claimant was not wearing the correct PPE, refused to wear a hard hat when asked, became angry, and smashed a hard hat on the floor. In light of the first-hand reports from the Respondent's supervisor and the client, the earlier warnings, the Respondent's reliance on a small number of customers, and the concern that the conduct could jeopardise the contract, the tribunal held that the dismissal was for conduct, amounted to gross misconduct, and fell within the range of reasonable responses under s98 ERA 1996.

The tribunal rejected the Claimant's case that he had made a protected disclosure or a qualifying health and safety disclosure when he asked for safety boots on 23 January 2019. It found that this was a simple request for boots, not a disclosure of information, and not a matter of harm or potential harm to health and safety in the statutory sense. It therefore dismissed the s47B and s44(1)(c) detriment complaints. Because the tribunal found gross misconduct, it did not award notice pay.