Mr O Fullar, Counsel For the v Mr P Nainthy, Solicitor Interpreter: Polish Interpreter — 2023

The Claimant was employed as a Fork Lift Truck Driver from November 2008 until he was summarily dismissed on 23 December 2021. The tribunal found that in May 2021 he had received a formal misconduct warning for earlier forklift and safety breaches, and that at the time of the later incident on 19 August 2021 that warning was still live. The later incident involved a dropped or collapsed pallet; the Claimant admitted that he did not stop work and report it immediately, but instead rewrapped the stock and continued working. The tribunal also accepted that CCTV showed him driving the forklift with the forks facing forward, contrary to training and safety rules, and that he admitted that conduct at the disciplinary hearing.

Applying s.98 ERA 1996 and the Burchell test, the tribunal held that the Respondent genuinely believed the Claimant had committed serious or gross misconduct, that belief was reasonably held, and it was reached after a proper investigation. The tribunal accepted the evidence of Mr Toole that he considered the Claimant’s length of service, contrition, and the live warning, but still concluded that dismissal was justified in light of the seriousness of the conduct. It found that the decision fell within the band of reasonable responses open to the employer.

The tribunal rejected the procedural challenges advanced for the Claimant. It found there was no unfairness in reconvening the disciplinary hearing in his absence on 23 December 2021 because he had been given ample opportunity to attend, including by video link, and the purpose of that reconvened hearing was principally to communicate the outcome. It also found no procedural failing in the delay between the incident and dismissal, or in Mr Robertson’s handling of the appeal, which was based on length of service and an asserted entitlement to redundancy pay rather than proper grounds under the policy. The unfair dismissal claim was therefore dismissed.