Mr R Boyce v Howden Joinery People Services Ltd — 2021

The tribunal heard that the claimant was dismissed for gross misconduct after the 7 June 2018 Waterlooville unloading incident. The respondent had introduced the 4 x 4 Rule after a fatal HGV/FLT accident in 2014, and the claimant had been trained on that procedure and on near-miss reporting. At the disciplinary hearing he accepted that he had agreed the unloading method, allowed the forklift to place its forks under the pallet while the HGV moved forward, did not have clear visibility of the rear of the trailer, signed the control form to say the 4 x 4 procedure had been followed, and did not report the incident as a near miss.

On unfair dismissal, the tribunal applied the usual misconduct dismissal approach: whether the respondent genuinely believed the claimant was guilty of the misconduct alleged, whether that belief was based on reasonable grounds after a reasonable investigation, whether a fair procedure was followed, and whether dismissal was within the range of reasonable responses. It found the delay between the incident and the disciplinary process was explained by the whistleblowing investigation first being handled within the Trade division and then passed to Supply. It also found there was no need for further witness re-interviews because the material facts were not in dispute and the claimant had admitted the core conduct.

The tribunal held that dismissal was within the range of reasonable responses. It accepted the respondent's evidence that the 4 x 4 Rule was treated as a critical safety rule introduced after a fatality, reinforced by the POD and control forms, and intended to eliminate the risk of a potentially catastrophic incident. It found that the claimant had been party to the decision to proceed as he did, had accepted in the disciplinary process that he should have reported the matter as a near miss, and could reasonably be viewed as someone the respondent could not trust to follow the rule in future. The unfair dismissal claim was therefore dismissed.

The direct race discrimination claim was also dismissed. The claimant, who was found to be of black Afro-Caribbean ethnic origin, relied on a white comparator known as Employee A, but the tribunal found no less favourable treatment because the claimant had not applied for another role and been refused it. It also found that JC, a white assistant manager involved in the same incident, had in fact been dismissed for the same breach of health and safety, showing consistency of treatment. SH was not a proper comparator because she was disciplined for failing to escalate the matter after being told about it later. The tribunal also rejected the further complaint about a six-week delay in issuing the P45, noting that it had not been identified as a separate issue and, in any event, there was no basis for treating it as race discrimination.