Mr Adam Ross, Counsel. For the v Respondent — 2023

The Claimant, a Yard Controller with about 30 years' service, was dismissed on 3 August 2022 after a shunting manoeuvre ended in a buffer stop collision following radio failure. The Respondent said he had reacted too slowly when expected radio messages did not arrive and characterised the conduct as gross negligence. The Tribunal found there was a potentially fair reason for dismissal and that the Respondent genuinely believed misconduct had occurred, but it also found the investigation and disciplinary process were not reasonable in the circumstances.

The Tribunal found several procedural failings. It held that the Respondent did not interview relevant witnesses about longstanding radio problems and site safety issues, did not send the disciplinary policy or yard safety plan before the hearing, and did not tell the Claimant in advance that he could call witnesses. It also found the appeal did not cure those defects. The Tribunal considered the timing table relied on by the Respondent to be unreliable and found the Respondent had relied on timing that ran from before the failed transmission was sent. On its findings, the relevant delay after the failed message was about 16 seconds, while the train was moving at walking pace and slowing to a stop.

Applying the Polkey approach, the Tribunal held that if a fair procedure had been followed the Claimant would have called witnesses, including Mr Wadeson, and there was a 60% chance he would still have been dismissed fairly, leaving a 40% chance he would have been retained. It nonetheless concluded that the unfair dismissal claim succeeded. On contributory conduct, the Tribunal found the Claimant did not contribute to his dismissal because his conduct was not culpable in the circumstances, given the radio problems and the imprecision of the distance-calling system. For wrongful dismissal, it held the Claimant's conduct did not reach the 'grave and weighty' threshold for summary dismissal and that the Respondent had breached contract by failing to pay notice. No remedy was quantified in this judgment; the losses were to be determined at a remedy hearing.