Mr T McColgan v Heyrod Construction Limited — 2021

Mr McColgan worked for Heyrod Construction Limited as a concrete labourer from 9 July 2001 until his dismissal on 20 November 2020 for gross misconduct. The tribunal accepted that the respondent had a potentially fair reason for dismissal, namely misconduct, but held that the dismissal process was not fair within s.98(4) ERA 1996. The case concerned an incident on 5 November 2020 when the claimant was seen smoking on site in an excavation pit and was red-carded by the main contractor.

The tribunal found that the disciplinary process was inadequate. There was no proper investigation meeting with the claimant, the suspension was without pay, the disciplinary invitation did not set out a specific charge or enclose documents, and at the hearing Mr Cagney did not properly consider the claimant's explanation, mitigation, or points about consistency. The claimant had said he was under stress, that the ladder had been removed from the pit, and that other workers also breached site rules. The tribunal found that once the claimant admitted smoking, Mr Cagney's mind was effectively made up and he failed to act in an open-minded and fair way.

The appeal did not cure the unfairness. Mr Ness later obtained information about induction documents showing smoking was prohibited, but the tribunal found that he had not meaningfully investigated the claimant's explanation or the reliability point he raised, and that he wrongly dismissed the claimant's consistency argument because the comparator incident involved a different contractor. The tribunal therefore upheld the unfair dismissal claim, but it also found that the claimant knew smoking was prohibited and that his conduct materially contributed to the dismissal. It said that any compensation would be reduced by 90% for contributory fault, and it listed the case for a separate remedy hearing because it could not yet calculate the award.