Mr K King v GVG Contracting Ltd — 2025

GVG Contracting Ltd dismissed Mr King, a skilled site operative, on 23 February 2023 for gross negligence, which the tribunal treated as gross misconduct. The dispute concerned a temporary manhole repair carried out by his team on North Street, Guildford, on 5 September 2022 and a member of the public's fall there on 23 October 2022. The tribunal dismissed his unfair dismissal and direct age discrimination claims.

The tribunal found that GVG reasonably regarded King as the lead operative responsible for the work and its sign-off. His colleague, Joe Draper, lacked some necessary qualifications. Although the tribunal accepted that the signature recording completion was probably Draper's, it found that GVG could reasonably hold both men responsible. It accepted that an option to flag further work was available on the handheld device. Marking the job as completed removed it from the system, so no further repair or referral to the power company followed. The temporary repair had deteriorated beyond its expected lifespan by the time of the fall. The tribunal regarded the incorrect sign-off as the main reason the repair had not been revisited, while finding that GVG could also consider its quality.

There were procedural failings at the dismissal meeting: King had been told it was an investigation meeting, had not been warned that it could result in dismissal and had not received the documents beforehand. The tribunal found that these failings would have made dismissal procedurally unfair without a remedy. They were remedied by offering an appeal by way of rehearing. GVG offered three dates, including one at 6pm, and gave sufficient notice. King chose not to request leave from his new work to attend, and the appeal proceeded in his absence. The allegation that his dismissal had already been announced to colleagues before the meeting was rejected for lack of supporting evidence.

Applying the Burchell test and section 98(4) of the Employment Rights Act 1996, the tribunal found that GVG genuinely believed King's actions amounted to gross misconduct, had reasonable grounds for that belief and conducted a reasonable investigation. The judge would personally have regarded the conduct as misconduct rather than gross misconduct and considered a final warning with retraining or dismissal with notice. However, the tribunal could not substitute its own decision for the employer's. Summary dismissal fell within the range of reasonable responses despite King's history of unblemished work.

On age discrimination, the tribunal gave King the benefit of the doubt on whether the burden of proof shifted to GVG. It took account of the limited evidence about employees' ages, King's position towards the older end of the workforce and his higher cost under historic day-rate terms compared with newer, younger staff. It nevertheless accepted that the reason for dismissal was GVG's belief that his handling of the repair amounted to gross misconduct, not his age. Claims that other older employees had been forced out carried little weight because there was no substantial supporting evidence.