EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4100009/2017 Held in Glasgow on June 20175 Employment Judge: J D Young Mr C Darby v Marsh Services Ltd — 2017

The tribunal held that Mr Darby was not unfairly dismissed under section 98 of the Employment Rights Act 1996 and dismissed the claim. The dismissal arose from events at the respondent’s Team Walk Challenge at Center Parcs on 16-18 September 2016, where Mr Darby was found to have been very intoxicated, to have argued with Eamonn Gallacher, and to have sent apologetic text messages on 18 September 2016 referring to his conduct and suggesting resignation. The respondent investigated the incident, took witness statements, and concluded that it was more likely than not that Mr Darby had punched Mr Gallacher in the face.

The tribunal accepted that the respondent genuinely believed Mr Darby had committed gross misconduct, that there were reasonable grounds for that belief, and that the investigation was reasonable. It relied on the evidence from Mr Gallacher, Mark Turner, Matt Marshall, and the text messages, and rejected the submission that the tribunal should prefer the claimant’s account that he had only pushed, not punched, Mr Gallacher. The tribunal also found that the disciplinary hearing and appeal process were fair and that the respondent was entitled to treat fighting or assault as gross misconduct under its disciplinary policy.

The claimant’s consistency argument based on the earlier Martin Pugh case was rejected. The tribunal found that the circumstances were not truly parallel because the Pugh incident occurred in a public house rather than at a work event, involved a different relationship between the employees, and included an element of provocation. Applying section 98(4), the Burchell guidance, and the band of reasonable responses approach, the tribunal concluded that dismissal fell within the range of reasonable responses for this employer.