Miss J Bradbury (Counsel). For the v Respondent — 2020

The claimant, Mr S Worby, had 14 years' continuous service and was dismissed summarily on 28 March 2019 for conduct said to involve altering scaffolding after it had been signed off as safe. The tribunal accepted that TUPE applied to the employment relationship and that the respondent treated the matter as gross misconduct under its health and safety arrangements.

On the facts, the tribunal found that the claimant had repeatedly raised concerns that the scaffold was unsafe or unsuitable for the work, including the gap between the scaffold and the wall, the stability of the structure, and other issues such as ladder, toe board, and positioning problems. The tribunal accepted that those concerns were not properly resolved over several site visits in January, February, and March 2019, and that the claimant was also dealing with complaints from the tenant and neighbour, as well as distressing news about his mother's illness.

The tribunal held that the dismissal was unfair because the respondent's process was not reasonable overall. The investigation was inadequate: the investigating officer did not carry out promised enquiries, did not properly investigate the claimant's earlier complaints, and had already formed a view that the claimant had broken the law. The disciplinary decision was also tainted because Ms Worden had obtained pre-authorisation to dismiss before the hearing and relied on documents, including a risk assessment and emails, that were not disclosed to the claimant. The appeal did not cure these defects; the appeal officer relied on an unsupported 'feeling' that the claimant might have done this before.

Although the dismissal was unfair, the tribunal found that the claimant contributed to his dismissal by moving the scaffold poles. It held that this conduct was the root cause of the disciplinary process, but also that it was understandable in context. Applying s.123(6) ERA 1996, the tribunal reduced any compensatory award by 60%. The judgment records that remedy would be determined at a later hearing, so no monetary award was fixed in this decision.