In person For v Mr M Huggett, Legal Executive FULL MERITS HEARING — 2019

The Claimant, Mr D Markham, had worked for the Respondent since 29 January 2002 and was dismissed summarily on 26 February 2018 after a TFE charge valve was found to have been left open during his shift on 14 February 2018, allowing Freon to escape. The tribunal accepted that the Respondent genuinely believed misconduct had occurred: the valve had been left open, the Claimant had signed the step as completed, and when first questioned he said it must have been him and apologised. The tribunal also accepted that the matter was serious and potentially capable of amounting to gross misconduct.

The tribunal nevertheless found the process unfair. It held that the suspension on 23 February 2018 was not properly explained and appeared to have been applied routinely. It also found that a graph relied on at the disciplinary hearing was not disclosed to the Claimant in advance, that the basis for dismissal shifted from the original allegation about not following GMP operating procedures to a later reliance on breach of statutory health and safety responsibilities, and that this latter case had not been clearly put to him. On appeal, the tribunal considered Mr Gary Reid was not an impartial appeal officer because of the tone and content of his 28 February 2018 email to staff, which indicated he had already formed a view about the case.

On substance, the tribunal held that dismissal fell outside the band of reasonable responses. It attached weight to the Claimant's 16 years of service, unblemished record, character references, and the fact that no actual injury to employees, patients, or the environment occurred. It also relied on the technical evidence that the root cause was equipment design: both Mr Bristow and Mr McAndrew concluded that the plant design failed to provide sufficient safeguards against a single operator error, and subsequent changes were made to the process, including a lock and chain and a second person check. The tribunal considered the Respondent had not given sufficient weight to those matters or to its own policy wording that gross misconduct examples would 'normally' result in summary dismissal.

The wrongful dismissal claim also succeeded. The tribunal found that, although the Claimant had probably made an error in leaving the valve open and signing that it was closed, there was nothing to show he had acted deliberately or tried to conceal what happened. In that context, the conduct was not a serious enough breach to amount to a repudiatory breach of contract, so the Respondent was not entitled to dismiss without notice. The judgment did not determine remedy and directed that a further hearing would be needed.