Mr Kopinski in Person For the v Respondent — 2021

The tribunal found that Mr Kopinski was dismissed for conduct arising from the night shift of 26 September 2018, when he was found in a loading bay area after colleagues had raised concerns that he was taking extra breaks. The tribunal accepted that he was extremely tired after returning from leave, but found that he had gone out of his way to create a concealed resting place among stacked goods, removed an item from a prepared block of eight, and then sat down in a dangerous area where heavy manual handling equipment operated. It found that he had fallen asleep in that position and that the incident created a serious health and safety risk.

The tribunal rejected the claimant's case that the matter had been set up or that there had been collusion. It found the disciplinary action arose solely from the events of that night and that the managers' discovery of him asleep was largely by chance. It also accepted that the later change in his explanation, together with the CCTV and the initial interview answers, supported the respondent's belief that he had been asleep and had deliberately arranged stock to shield himself from view. The tribunal held that dismissal for gross misconduct was, substantively, within the range of reasonable responses.

The claim nevertheless succeeded because of procedural unfairness. The disciplinary hearing went ahead in the claimant's absence, while the grievance he had raised on 24 October 2018, which raised issues directly relevant to the disciplinary allegations, had not been brought before the disciplinary decision maker. The tribunal considered that either point alone might not have made the process unfair, but the combination of the two did. It also held that the later appeal, although thorough, did not cure the unfairness because it was not concluded until around six months after dismissal.

On remedy, the tribunal considered that a fair dismissal could potentially have been reached by 15 January 2019 once the claimant was able to engage in the grievance and appeal process. However, it found that the claimant's own conduct before dismissal was blameworthy and that he had brought about his own dismissal. Applying the relevant compensation principles, it reduced any compensatory award by 100% and found no different basis for the basic award. The result was no compensation award. The unlawful deduction from wages claim failed because the tribunal found SSP had been credited and that the nil payment was the result of recovery of other overpayments rather than an unlawful deduction.