Case 1804813/2021 · Employment Tribunal

Mr J Rodbourne v Fosters Building Contractors Limited — 2022

Case reference: 1804813/2021
Decision date: 5 July 2022
Jurisdiction: England & Wales
Judge: Employment Judge Jaleel Representation
Venue: Leeds

Indexed: 22 May 2026

Parties

2 named

Claimant

Mr J Rodbourne

Respondent

Fosters Building Contractors Limited

Key findings

Tribunal's reasoning

Mr Rodbourne was employed as an apprentice bricklayer from 12 September 2018 to 6 May 2021. The dismissal arose from an incident on 5 May 2021 when he used his mobile phone while on scaffolding, was told twice by foreman Mr Hardy to put it away, and then argued with him; the tribunal found he told Mr Hardy to "fuck off". Mr Foster went to site, told the claimant to leave, and later decided to dismiss him for gross misconduct, with the termination letter issued on 10 May 2021. The tribunal also found there was a regular practice on site of workers using mobile phones and being told to put them away, without formal disciplinary sanctions being imposed in prior cases.

The tribunal held that the respondent genuinely believed the claimant had committed gross misconduct, but it did not act reasonably in treating that as sufficient reason for dismissal. Applying section 98(2)(b) and section 98(4) of the ERA 1996, together with the Burchell approach, it found there had been no reasonable investigation, no disciplinary meeting, no opportunity for the claimant to give his version of events, no consideration of alternatives to dismissal, and no appeal. The tribunal also considered the respondent's disciplinary rules, the ACAS Code of Practice, and the site practice of mobile phone use, and concluded that dismissal was outside the range of reasonable responses.

For Polkey purposes, the tribunal found there was no chance the claimant would have been fairly dismissed in any event if a fair procedure had been followed. It nevertheless found the claimant's own conduct was blameworthy: he used his phone on scaffolding, refused instructions to put it away, and behaved abusively towards Mr Hardy. On that basis, the tribunal held that any basic and compensatory award should be reduced by 50% to reflect contributory conduct. The holiday pay complaint was withdrawn at the hearing and recorded as dismissed upon withdrawal, and the remedy hearing was left to be dealt with separately.

Claims and outcomes

2 findings recorded

Claim type	Issue or finding	Outcome	Protected characteristic	Award
Unfair dismissal	Liability succeeded. The tribunal found the dismissal unfair, but no monetary award was quantified in this judgment because remedy was listed for a later hearing. The tribunal also held that any basic and compensatory award should be reduced by 50% for contributory conduct.	Upheld	—	—
Holiday pay	The claimant withdrew this complaint at the hearing after confirming he was satisfied he had been paid the correct amount; the judgment records it as dismissed upon withdrawal.	Withdrawn	—	—

Legal tests applied

10 references

Official outcome judgment PDF

Gov.uk primary record

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