Mr J Pancholi v Sofidel UK Ltd — 2022

Mr J Pancholi was employed by Sofidel UK Limited from 20 October 2006 until his summary dismissal on 2 June 2021. The case arose after he had previously suffered a back injury when training on a clamp truck in 2019, after which his manager told him he did not need to drive the clamp truck and he continued to drive the FLT instead. In April 2021 he was told that, if he needed to avoid the clamp truck because of a health issue, he should obtain medical evidence. He then obtained a first fit note referring to backache and advising that he should avoid clamp fork lift operation, and later obtained a second fit note after the respondent told him that if he was unfit to drive one type of truck he was unfit to drive both and would be treated as sick.

The tribunal accepted that the claimant had weak English for the purposes of the investigation and disciplinary process and that he required an interpreter to engage properly with those stages. It found that the first fit note reflected a managed chronic back condition or vulnerability and was not a false document, and that the claimant had gone to his doctor because he feared a recurrence of back pain if he drove the clamp truck. The tribunal held that the respondent misread the fit notes, focused too narrowly on the word "backache", and failed to consider the possibility that the claimant was seeking to avoid re-injury rather than to fabricate illness.

Applying the Burchell test and the section 98(4) ERA 1996 fairness test, the tribunal found that the respondent did not form its belief on reasonable grounds after a reasonable investigation. It held that the investigation, disciplinary process, and appeal all failed to engage properly with the claimant's explanation, that Mr Galan had effectively closed his mind to the claimant's account, and that the appeal did not cure the earlier unfairness. The tribunal therefore found the dismissal unfair. It refused a Polkey deduction, but made a 25% reduction to both basic and compensatory awards for contributory conduct because the claimant had submitted fit notes that lacked detail and could have done more to obtain clearer medical clarification. The tribunal made no ACAS uplift and left remedy to a later hearing.