Mr Wiktor Muszanaski v Eastbrook Logistics Ltd — 2023

Mr Wiktor Muszanaski brought a claim for unfair dismissal after Eastbrook Logistics Ltd dismissed him for gross misconduct on 1 July 2022. The tribunal found that on 7 July 2022 he drove a van to Tewkesbury, stopped at Red Distribution’s loading dock, and urinated there on CCTV after leaving the vehicle. A nearby employee confronted him immediately and a complaint was made the same day to the respondent.

The claimant accepted the conduct, although he said it happened because he needed the toilet after a long drive. The tribunal found that he had been aware of the need to urinate for much of the 3 hour 50 minute journey, had passed multiple services with toilet facilities, and could have returned to the depot rather than going to Greggs. It rejected his evidence that the need to urinate came on suddenly when he got out of the van. At appeal stage he produced a GP letter referring to an overactive bladder and urge urinary incontinence, but the tribunal found this did not explain the conduct because his own account showed he knew he needed the toilet well before reaching Tewkesbury.

Applying the Burchell test and section 98(4) of the Employment Rights Act 1996, the tribunal held that the respondent had a reasonable belief in misconduct after a reasonable investigation, and that dismissal fell within the range of reasonable responses. It noted the public nature of the incident, the risk of reputational damage because the van was identifiable as belonging to Eastbrook Logistics, and the fact that the claimant either deliberately chose the location to urinate or acted in full knowledge of the risk that he might have to do so there. The tribunal also found the procedure fair, including the written investigation and disciplinary process, the opportunity to view CCTV, and the appeal heard by a senior manager.

The unfair dismissal claim was therefore dismissed. The tribunal recorded that gross misconduct was a fair reason for dismissal under section 98(2)(b) of the Employment Rights Act 1996, and that the respondent had complied with its disciplinary procedure and the ACAS Code of Practice.