E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: S/4100803/17 Held in Glasgow on November 2017 Employment Judge: J M Hendry (sitting alone) Mr Andrew Taylor v Timbmet Ltd — 2017

The claimant, Mr Andrew Taylor, worked for Timbmet Ltd as a Timber Checker from 6 October 2014 until his summary dismissal on 6 March 2017. He alleged unfair dismissal, saying he had been denied witness statements and the chance to question witnesses, that the investigation and disciplinary process were unfair, that he had been treated differently from Billy Masson, and that he had not been given a proper appeal hearing. The respondent said he had been fairly dismissed for gross misconduct after admitting that he punched Mr Masson.

The tribunal accepted that the reason for dismissal was conduct within section 98(2)(b) ERA. It also accepted that the respondent had investigated the incident by taking statements and holding a disciplinary hearing, but it found serious procedural and substantive defects in how the matter was handled. The claimant was not shown the witness statements, including the statement of Mr Rose, and the respondent did not give evidence establishing a proper basis for withholding them on the asserted ground of fear of reprisals.

The tribunal found that the lack of disclosure affected the fairness and transparency of the disciplinary hearing. It also found that Mr Frame treated the fact that the claimant had struck Mr Masson as automatically amounting to gross misconduct, without properly considering the wider background, including the alleged earlier threats, the possibility that Mr Masson had struck first, or whether Mr Rose’s account supported the claimant’s version. The appeal did not cure those defects because Mr Sullivan did not hold a hearing or make further enquiries.

Applying section 98(4) ERA and referring to the Burchell test, the tribunal concluded that the dismissal fell outside the range of responses open to a reasonable employer in the circumstances. It therefore held that the dismissal was unfair and directed that a remedy hearing would be assigned. The tribunal noted that the claimant had started new employment and had not yet produced vouched information about his current and expected income.