Mr H Wiltshire (Counsel) For the v Mr L. Fakunle — 2023

Mr Andrew Wood was employed as a shunter by Moran Logistics Ltd and was dismissed without notice after a 6 November 2022 accident at the Arla Foods National Distribution Centre in Leeds. The tribunal found that it had become the custom and practice at the site for shunters to work in pairs or "double up" because of a shortage of tugs, and that there was inadequate training and no clear written instruction prohibiting that practice before the incident. It also found that the accident happened while Mr Wood and Mr Kevin Holburt were working together, that Mr Holburt removed the trestle first, and that Mr Wood was trapped when Mr Holburt reversed without waiting for a signal and without adequate visual checks.

On unfair dismissal, the tribunal held that the dismissing officer, Ms Froggatt, did not make an independent decision in the way the employer alleged. It found that she was pressured by Ms Emma Ward, did not watch the CCTV before deciding to dismiss, and did not have the training documents and other material she considered necessary. The disciplinary process also failed to identify the specific health and safety rule said to have been breached, and Mr Wood was not given the documents relied on against him or the earlier notes of the meeting between Mr Denville Hobson and Mr Wood. The tribunal held that the appeal did not cure those defects because Mr Lee did not properly investigate the accepted buddying-up practice, the training issue, or the missing material, and the dismissal therefore fell outside the band of reasonable responses.

On remedy issues considered at the liability hearing, the tribunal held that there was no Polkey reduction because, if a fair procedure had been followed, Mr Wood would not have been dismissed. It accepted Ms Froggatt's evidence that, if left to decide the case with access to the relevant process and training documents, she would not have dismissed him. The tribunal also found unreasonable failures to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, including the failure to tell Mr Wood of his right to be accompanied in the disciplinary letter and the failure to provide sufficient information and written material, and it awarded a 15% ACAS uplift. The tribunal further found that Mr Wood contributed to his dismissal by blameworthy conduct in failing to follow the correct key, Salvo, trestle order, and said it would be just and equitable to reduce both compensatory and basic awards by 25%, but the amount of compensation was to be decided at a separate remedy hearing.

On notice pay, the tribunal held that Mr Wood was wrongfully dismissed. Although it accepted that his conduct endangered his own life, it found that the respondent had not identified any health and safety rule that he had breached, and that the written systems did not set out the correct order of the process or prohibit the buddying-up practice that had been in place at the site. For that reason, the respondent was not entitled to dismiss him without notice.