Mr W McGinty v Vistry Homes Limited — 2021

The claimant, a forklift truck driver, was dismissed after he fell asleep in the cab of a running forklift truck on 28 November 2019 while materials were being unloaded at height. The tribunal accepted that he had been asleep for a few minutes and that he accepted the conduct, describing it in his disciplinary statement as a serious and dangerous error of judgment. The respondent treated the incident as gross misconduct and dismissed him with immediate effect on 12 December 2019.

On the unfair dismissal claim, the tribunal found that dismissal was for misconduct, that the dismissing manager genuinely believed the misconduct had occurred, and that there were reasonable grounds for that belief. The investigation was held to be reasonable: the claimant was interviewed, the manager who found him asleep was heard, and the claimant was allowed to provide a written statement. The tribunal also found the disciplinary and appeal process fair, with the claimant given notice, relevant documents, and the opportunity to make representations. Applying section 98(4) ERA 1996 and the authorities cited in the judgment, the tribunal concluded that dismissal was within the range of reasonable responses.

The claimant argued that he had been too tired because he had not been allowed to take a lunch break the previous day, and also relied on alleged inconsistent treatment involving another forklift driver. The tribunal rejected those points. It found that on 27 November 2019 the claimant was very busy and did not take a full 30-minute lunch break, but he generally was able to take breaks, the site had a canteen, no one told him he could not take breaks, and the respondent had not created a culture in which breaks were not respected. The alleged incidents involving the other driver were not accepted by the tribunal, and the claimant had not raised them during the internal process.

The wrongful dismissal and Working Time Regulations complaints were also dismissed. On wrongful dismissal, the tribunal held that the claimant's conduct amounted to a fundamental breach of contract and that the respondent's disciplinary policy treated a serious breach of health and safety obligations as gross misconduct. On the WTR complaint, the tribunal held that the working arrangements did not fail to allow a 20-minute rest break within regulation 12: the claimant was positively enabled to take breaks, was not forced to work through them, and could have raised any difficulty with the site manager on 27 November 2019, which he did not do.