Mr H Rae v Represented by: Ms M Gribbon - Solicitor Network Rail Infrastructure Ltd — 2021

Mr H Rae worked for Network Rail from November 2012 until his dismissal in November 2019. The tribunal found that he had been scheduled to work night shifts on 16, 17 and 18 April 2019, but arrived late on 16 and 17 April and left early on 18 April, while completing timesheets showing full shifts. The case was heard as an unfair dismissal claim only, and the tribunal treated falsification of timesheets as gross misconduct under the respondent's disciplinary policy.

The tribunal accepted that the claimant and other employees suggested there was a local practice or job-and-knock arrangement, but it found no evidence of a standing agreement authorising late starts or early finishes of the kind relied upon. It noted that the claimant had sought consent to arrive late on 17 April, which was not given, and that an early departure over 70 minutes before the end of shift did not fall within job and knock. The tribunal held that the investigation by Mr Allan was within the band of a reasonable investigation, even if further questions might have been asked, and that the claimant had been given a fair opportunity to respond with union representation.

At the disciplinary stage, Keiren Sharkey decided to dismiss the claimant after considering the investigation material, the claimant's comments, his length of service and clean record, and the disciplinary policy. The tribunal held that the decision to dismiss met the Burchell requirements and fell within the band of reasonable responses. It rejected the suggestion that Kevin Sharkey improperly influenced the process and found no basis for saying that the choice of disciplinary decision-maker rendered the dismissal unfair.

On appeal, Stephen Crosbie considered the claimant's arguments on inconsistency, including reliance on AB and CD and the earlier Fife/Inverkeithing cases. The tribunal found there was a rational basis for distinguishing those cases: AB and CD involved a single incident and were accepted on appeal as different in character, while the claimant had two late starts and one early finish without consent, and the Fife cases turned on job and knock circumstances. The tribunal also held that there was no fair notice for reliance on Mr Urquhart as a comparator. It rejected the complaint that the delayed appeal outcome made the dismissal unfair and concluded that the dismissal was fair overall.