Mr C Boxall v Network Rail Infrastructure Limited — 2022

The claimant was dismissed for serious neglect of his Controller of Site Safety duties after an incident on 22 October 2019 in which a team member went onto a line and a train approached. The tribunal accepted that conduct was the reason for dismissal, and that the respondent had reasonable grounds to believe the claimant had committed misconduct based on the accounts of the other site team members. It also accepted that the respondent did not need to obtain CCTV footage or evidence from the train driver.

The tribunal found the dismissal unfair because the investigation and procedure were unreasonable. There were substantial unexplained delays, including a four-month delay before witness interviews and almost a further year before the disciplinary investigation began. The tribunal also found that the respondent failed to follow its Fair Culture process properly: the matter had originally proceeded to discipline on the basis of an unauthorised lookout allegation, but that allegation was not pursued, and the later communication allegation should have been referred back to the Fair Culture process.

The tribunal further found that dismissal was not within the range of reasonable responses because the respondent did not properly consider alternative sanctions or mitigation, including the claimant's personal circumstances, clean disciplinary record, length of service, and the fact that he had continued working as a team leader for almost two years after the incident without further safety issues. It also found that the dismissing and appeal officers took account of a previous safety incident in a way that probably influenced the dismissal decision.

For remedy issues, the tribunal considered that there was a 30 to 40 percent chance the matter could still have been referred on for a disciplinary process if sent back through the Fair Culture process. It also found that the claimant was partially responsible for the incident and that his failure to report it at the time was culpable and blameworthy, indicating that any basic award should be substantially reduced and that contribution to dismissal could not be put higher than about 25 percent.