Mr S Brown v Svitzer Marine Limited — 2022

Mr Brown was employed by Svitzer Marine Limited from 2005 and was dismissed summarily on 23 December 2020 after an incident on 25 August 2020 involving the vessel Stanford on the Humber. He initially started an Incident Report on HMS and later completed a Near Miss Report, in which he described the vessel as having come aground, but the reports remained in progress and were not submitted to a named recipient. The respondent treated the matter as gross misconduct, first on the basis that the vessel had grounded and not been reported properly, and then on the further allegation that Mr Brown had knowingly falsified the HMS report to downgrade the incident.

The tribunal accepted that the respondent genuinely believed the vessel had grounded and had reasonable grounds for that belief. It relied on the claimant’s own Near Miss Report, crew accounts, and technical data from the echo sounder and chart plotting, which the tribunal found were sufficient to support a view that the Stanford had briefly grounded. The tribunal also accepted that the grounding issue itself was not materially undermined by the diver’s report, because there was no damage and the grounding, if it occurred, was against soft mud or sand.

The unfair dismissal finding turned on the separate allegation of dishonesty. The tribunal held that the investigation into whether Mr Brown had knowingly falsified or downgraded the report was unreasonably slight, because the respondent focused almost entirely on whether a grounding had occurred and did not properly examine his knowledge of the HMS reporting system, whether he understood that in-progress reports were visible on HMS, or whether his conduct could really support an inference of dishonesty. It also noted that he had asked the crew to prepare statements on the evening of 25 August 2020, which cut across the suggestion that he was trying to conceal the incident. The tribunal concluded that dismissal was therefore outside the range of reasonable responses.

The tribunal rejected the principal procedural complaints as causing no substantive unfairness, and it made no Polkey reduction. It did, however, find contributory fault: Mr Brown’s wording of the Near Miss Report, his failure properly to submit the HMS report, and his lack of contrition during the disciplinary process were blameworthy and contributed to the dismissal. The basic award and compensatory award were each reduced by 40%, and a further hearing was listed to determine the remaining remedy issues.