Mr S Tettey of Counsel, For the v Respondent — 2021

The claimant was a long-serving HGV driver, Unison shop steward and health and safety representative. The tribunal accepted that on 17 January 2020 he was involved in an altercation with a site team leader at Weel HWRC. It found from the CCTV and witness evidence that he committed health and safety breaches by driving off without netting the load, not checking the skip/load doors, and entering further onto site while a member of the public was still present. The tribunal also found that the site team leader swore at him and did not act as banksman, so the incident involved provocation as well as misconduct.

The automatic unfair dismissal claim under s.152 TULRCA 1992 and the s.146 detriment claim both failed. The tribunal found no basis for the contention that the dismissal, suspension, grievance outcome, or appeal outcome were linked to union membership, union activity, or use of union services, and it found no evidence of a wider anti-union pattern. It accepted that the delay before the disciplinary hearing was unfortunate but attributable to unrelated factors, including arranging access to the CCTV and the Covid lockdown.

The ordinary unfair dismissal claim succeeded. The tribunal held that the respondent genuinely relied on aggressive conduct, but the investigation was flawed because no one spoke to Mr Davies and the key witnesses were not re-interviewed after the claimant's account was heard. It also found that Ms Atkinson's intervention at the disciplinary hearing unfairly cut short the claimant's attempt to raise his union-victimisation case, although the appeal gave him further scope to do so. Even so, dismissal was found to be outside the band of reasonable responses because the claimant had nearly 13 years' service, no live warnings, the incident was verbal rather than physical, and the tribunal found significant provocation.

The wrongful dismissal claim also succeeded because the conduct found did not amount to repudiatory breach. The tribunal said the claimant was entitled to 12 weeks' notice pay. Remedy was deferred to a later hearing, but the tribunal indicated that any compensatory award would be reduced for contribution and that there should be no Acas uplift.