Mr. W Louton v Hovis Ltd — 2020

The claimant, Mr W Louton, was employed as a radial driver and was dismissed by Hovis Limited after an allegation that he had been smoking in a company vehicle on 27 December 2019. The tribunal found that the respondent investigated the allegation through Mr Jarvis, including checking vehicle records, taking witness statements, reviewing front-facing camera footage, and holding investigatory, disciplinary and appeal hearings. It accepted the respondent's evidence that the Smoking Policy prohibited smoking in work vehicles and that a breach could lead to dismissal.

On the unfair dismissal complaint, the tribunal held that the reason for dismissal was conduct and that the dismissal was fair under s.98(4) ERA 1996. Applying the Burchell test, it found that the respondent carried out a reasonable investigation and was entitled to form a reasonable belief that the allegation was made out. It also found that summary dismissal was within the range of reasonable responses, given the seriousness of the alleged smoking in a company vehicle and the respondent's policy. The claimant's criticisms about the investigation, the reconstruction at appeal, and reliance on the witnesses' accounts were rejected.

On the wrongful dismissal complaint, the tribunal applied the balance of probabilities and made its own findings on what had happened. It found that the respondent had not called Mr or Mrs Sittre, who were the only first-hand witnesses to the events of 27 December 2019, and therefore could not prove that the claimant had been smoking. Although there was supporting evidence, including the FFC footage and the later reconstruction, the tribunal held that this was not enough to make the necessary factual finding. It said that if it had found smoking proved, it would have regarded the conduct as sufficiently serious to justify summary dismissal, but it did not reach that conclusion on the evidence before it.

For remedy, the tribunal recorded that the claimant was entitled to 12 weeks' notice and accepted the net weekly pay figure of £497.07. It therefore ordered Hovis Limited to pay £5,964.84 in respect of the wrongful dismissal claim. The unfair dismissal claim was dismissed and no separate award was made on that claim.