Mr J G Sutherland v Jansen Travel Limited — 2021

The tribunal held that Mr Sutherland’s unfair dismissal claim was well-founded. He was employed by Jansen Travel Limited as a driver, had a longstanding Saturday second job, and the tribunal accepted that the respondent was aware of that second job from at least August 2018 and again by the November 2018 discussion. It found that the claimant continued to record Saturdays as rest days and that, when he signed the March 2020 and June 2020 declaration forms, he was not seeking to hide the second job from the respondent.

The respondent relied on alleged breaches of the Road Transport Regulations and on the claimant’s declarations. The tribunal accepted that Mr Heddle’s investigation was proper and reasonable on the premise that the respondent did not know about the second job. However, on the facts found, the tribunal did not accept that the respondent genuinely believed the claimant was guilty of the alleged misconduct, because it had itself known about the second job and had continued to allocate additional work to him. It also found that the dismissing manager had already decided to dismiss before the disciplinary meeting.

The tribunal held that the dismissal was procedurally unfair because the claimant was not given advance notice of the allegations, was not shown supporting documents, was told of gross misconduct only shortly before the hearing, and had no meaningful appeal. It also held that the dismissal was substantively unfair under section 98(4) ERA 1996 and the Burchell approach, concluding that no reasonable employer acting reasonably could have characterised the claimant’s conduct as gross misconduct in the light of the respondent’s knowledge. The tribunal also found contributory conduct on the claimant’s part and directed that the remedy hearing would consider any ACAS uplift and contribution.