Mr D Stachura v Hydro Extrusion UK Ltd — 2020

Mr D Stachura was employed by Hydro Extrusion UK Ltd from 26 May 2009 until his dismissal on 2 July 2019, working as a forklift truck driver. The tribunal found that on 17 June 2019 he drove the forklift truck without hands on the steering wheel through a pedestrian area. CCTV was shown to him shortly afterwards, and at the hearing he accepted that the footage showed him driving hands free. The tribunal accepted that this created a clear health and safety risk in circumstances where the vehicle was heavy and colleagues were nearby.

Applying section 98 of the Employment Rights Act 1996, BHS v Burchell, Iceland Frozen Foods v Jones and Sainsbury's Supermarkets v Hitt, the tribunal held that the respondent genuinely believed the claimant was guilty of misconduct, that the belief was based on reasonable grounds, and that the investigation was reasonable. It also found that the disciplinary process was fair, including the early opportunity to view and comment on the CCTV, the disciplinary hearing, and the opportunity to be accompanied. The tribunal concluded that dismissal fell within the band of reasonable responses.

In its alternative breach of contract reasoning, the tribunal found that the claimant's conduct amounted to gross misconduct. It held that he did not maintain proper control of a potentially dangerous vehicle, that the risk to health and safety was obvious, and that the respondent was entitled to summarily dismiss him. The unfair dismissal claim and the notice pay breach of contract claim were therefore dismissed.

On sick pay, the tribunal construed the offer letter and the absence management procedure as giving a contractual entitlement to sick pay in accordance with the scheme in force. It held that the respondent had not proved that the site-wide 3% absence trigger had been met, so it was not entitled to pay SSP only on that basis. The tribunal found the claimant should have received contractual sick pay rather than SSP for the relevant period and, on the parties' agreed figures, awarded £820.