ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4100064/2020 Hearing by Cloud Video Platform on 24, 25, and June 2021 Employment Judge: M A Macleod Craig Waites v Represented by Mr P Hannah Solicitor Bilfinger Salamis UK Limited — 2021

The claimant, a Level 3 Rope Access Technician and team leader, was dismissed after an incident on 27 August 2019 involving rope access work with Level 1 technician Ricky Burgess. The respondent investigated concerns that the claimant had used an outdated rope access procedure, carried out the task risk assessment in the workshop, was not properly kitted out for rescue, did not challenge the Level 1 technician’s technique, allowed use of pipework as anchorage, and showed poor judgement in the set-up for the task.

The tribunal found that the claimant had the 2013 Rope Access Procedure available to him, not a 2012 version, and that he had relied on the 2013 procedure at the time of the incident. It accepted that the respondent was mistaken at first in believing the claimant had TMS access and would receive procedure updates electronically, because he did not have an email address on the platform and there was no evidence that he received such updates. The tribunal nevertheless found that the respondent had reasonable grounds to conclude that the claimant should have ensured he was working to the correct procedure, given his senior role, his awareness of the method statement for the electrical work, and his regular IRATA testing.

On the individual allegations, the tribunal held that the respondent was entitled to find that the task risk assessment had been done in the workshop, that the claimant was not fully equipped for rescue, that he failed to ensure the Level 1 technician remained properly attached and under control, that he allowed unsafe use of pipework as anchorage, and that he showed poor judgement in the rope access set-up. It concluded that the respondent had conducted a reasonable investigation, followed a fair procedure, and was entitled to regard the claimant’s conduct as gross misconduct.

Applying section 98 ERA 1996, the Burchell approach, and the band of reasonable responses from Iceland Frozen Foods Ltd, the tribunal held that dismissal was not outside the range of reasonable responses open to a reasonable employer. The claimant’s unfair dismissal claim therefore failed and was dismissed. No monetary award was made.