Mr P Flockhart v Represented by: Mr R Dorrian - Solicitor Hoyer Gas and Petroleum Logistics Limited — 2022

The case arose from a road traffic collision on 15 December 2021 while Mr P Flockhart was driving a fuel tanker on the A814 Clydeside Expressway. The respondent investigated the incident using forward-facing camera footage, the claimant’s account, and the audio recording of his calls to the call centre controller. Ms Ure conducted the investigation, and Ms Matheson chaired the disciplinary hearing. The tribunal recorded that the claimant had no prior accident history and that the damage and injuries were limited, but the footage showed the third party vehicle already in the inside lane before the claimant moved into it.

The tribunal held that the unfair dismissal complaint failed. It accepted that the reason for dismissal was conduct, a potentially fair reason under section 98 of the Employment Rights Act 1996, and applied the Burchell approach and the range of reasonable responses test. It found that the respondent had reasonable grounds for believing the claimant had driven without ensuring it was safe to move into the inside lane, that the investigation was reasonable, and that the disciplinary and appeal processes were fair. The tribunal noted that Ms Matheson considered the claimant’s mitigation, including his length of service and clean driving record, but concluded that dismissal was justified given the nature of the incident and the potential consequences.

The tribunal also dismissed the wrongful dismissal claim. Clause 26 of the written particulars gave the claimant one calendar month’s notice after probation, but the tribunal found that the conduct disclosed on the footage was sufficiently serious to amount to repudiatory breach and fell within the contractual examples of gross misconduct, including grossly negligent, reckless or dangerous driving. It accepted that blind spots existed, but found that the claimant executed the manoeuvre when the other vehicle was already alongside, then continued driving for about 46 seconds with the third party vehicle wedged against the cab before stopping. No remedy was awarded because both claims were dismissed.