Mr Swan (representing himself) For the v Respondent — 2019

Mr Swan, an Operations Control Manager, was dismissed on 13 March 2018 after a 14 September 2017 incident in which he dealt with a line-block request, placed the block on the wrong line, corrected it, amended the form rather than completing a new one, and left the shift without reporting the incident. The tribunal found that the reason for dismissal was the failure to report the incorrect line blocking, not the blocking error itself. It also recorded that the holiday pay claim had been withdrawn at the start of the hearing because Mr Swan said he did not have the evidence with him.

Applying section 98 ERA 1996 and the Burchell approach, the tribunal accepted that the respondent genuinely believed misconduct had occurred, but held that the investigation was too narrow and too slow. It found that the respondent did not adequately explore the possible effect of the claimant's bereavements, family circumstances, and later disclosure of anxiety and antidepressant use, including by seeking occupational health input on whether those matters may have affected his conduct or amounted to mitigation. The tribunal also found that the claimant was not familiar with the specific Siemens near-miss reporting process and that the respondent had not shown, on the evidence before it, that he had been properly trained in it.

The tribunal concluded that the claimant's conduct was misconduct but not gross misconduct, because it was not so serious as to go to the root of the contract and there was a lack of clarity about the reporting process in the control room context. It held that dismissal was outside the range of reasonable responses and that the appeal process was also unfair because Mr Allen spoke to other people after the appeal hearing, could not identify or note those conversations, and did not put the further material to the claimant before deciding the appeal. The unfair dismissal claim therefore succeeded, and remedy was left for a later hearing; the tribunal said it did not yet have sufficient information to determine remedy, Polkey, or contributory fault.