Mr Robert Bletcher v J H Willis Limited — 2022

Mr Robert Bletcher was employed by J H Willis Limited as an HGV driver from August 2015 until his dismissal on 13 November 2020. The dismissal arose from allegations about milk sampling practice on 1 September 2020 and related incidents, including allowing Mr Shaw to take his own samples, allegedly pressurising a colleague to do the same, allowing Mr Shaw's daughter to ride in a company vehicle, and a repeated course of allowing Mr Shaw to take his own samples over the previous 12 months. The tribunal set out the issues under section 98(4) ERA 1996 and the misconduct approach in British Home Stores v Burchell and Iceland Frozen Food v Jones.

The tribunal found that the respondent genuinely believed the claimant was guilty of misconduct and that its belief was based on reasonable grounds. It accepted that the claimant allowed Mr Shaw to take samples, and it treated the driver procedures and DTAS materials as making the sampling responsibility implicit. It also found that the allegation about the 14 or 15 year old daughter riding in a vehicle had properly been discounted on appeal as irrelevant to the disciplinary issue.

The tribunal held, however, that the investigation and disciplinary process were not reasonable, although it concluded that the appeal process undertaken by Mrs Bellis was reasonable and had gone some way to addressing earlier defects. In assessing the overall fairness of dismissal, the tribunal took account of evidence that farmers taking their own samples was a known practice, that several managers and employees had indicated that this was allowed or tolerated in practice, that the claimant had signed training records but that the training appeared to be a brief tick-box exercise, and that there was no evidence of actual harm. It also noted that the claimant had worked for the respondent for five years without apparent problem.

Applying section 98(4) ERA 1996 and the range of reasonable responses test, the tribunal concluded that dismissal for gross misconduct was not a fair sanction in the particular circumstances. It held that the respondent had not properly taken the wider context into account and that the decision to dismiss did not fall within the band of reasonable responses. The claim for unfair dismissal therefore succeeded.