Mr K Riggott v Cemex UK Operations Limited — 2022

Mr K Riggott was employed by Cemex UK Operations Limited as a Multi-Skilled Operative from 25 September 2017 until his summary dismissal on 15 April 2020. The dismissal followed a collision on 19 March 2020, when the claimant reversed a loading shovel into a customer lorry on the Leeds site. The tribunal accepted that the respondent relied on conduct as the reason for dismissal and applied the unfair dismissal framework under section 98 ERA 1996, including the Burchell criteria and the band of reasonable responses test from Iceland Frozen Foods v Jones.

The tribunal found that the customer lorry should not have been on the yard without authorisation from the claimant, and that the claimant was initially carrying out a legitimate reversing manoeuvre while observing other vehicles properly on site. It accepted that he saw the lorry only once he had straightened up, and that he braked, but too late to avoid the collision. The tribunal did not accept that the accident was entirely the claimant’s fault, or that he had been negligent or reckless.

In assessing the investigation and appeal, the tribunal noted that Mr Beard investigated the incident, but that on the morning of the disciplinary hearing he telephoned the claimant and gave reassurance, which the tribunal considered could explain why the claimant did not expect dismissal. The tribunal also found the appeal hearing was not fair: parts of the Skype hearing were inaudible, Mr Luxon refused to allow the claimant to call Mr Beard as a witness, and his approach suggested a closed mind. The tribunal also considered that the respondent had not shown what steps, if any, had been taken to address the risk of unauthorised lorries entering the yard.

The tribunal concluded that a reasonable employer would have taken the mitigating circumstances into account, including the claimant’s remorse and clean disciplinary record, and would have considered the respondent’s own safety arrangements and the presence of the lorry on site without authorisation. It held that dismissal was outside the band of reasonable responses and therefore unfair. It noted that contributory fault and Polkey were matters for the remedy hearing, which had yet to take place.