Mr John Austin v Wood Group Industrial Services Limited — 2021

Mr John Austin, a scaffolding chargehand and health and safety representative employed from 1 November 2009, was dismissed on 30 January 2020 after a 5 November 2019 incident at a pharmaceutical site. The respondent said he had committed serious health and safety breaches by allowing a scaffold coupler to be thrown from ground level to a colleague on the scaffold and by failing to sign the risk assessment and method statement. The claimant said he had asked for the fitting to be passed up, not thrown, and that he caught it instinctively to prevent it falling; for the notice-pay and contribution issues the tribunal found that account more likely than not to be what happened.

Applying s.98 ERA 1996, the Burchell approach, Polkey and the ACAS Code, the tribunal held that conduct was the potentially fair reason for dismissal but that the respondent did not have reasonable grounds, after a reasonable investigation, to believe the claimant had knowingly allowed the fitting to be thrown to him. It found that the decision-maker relied on assumptions that were not supported by the evidence, did not properly investigate the account of the people present, failed to test the client evidence, and relied on material from Mr Bell that was not disclosed to the claimant. The appeal did not cure those defects.

The tribunal also held that the separate failure to sign the method statement and risk assessment was misconduct, but not misconduct that would itself have justified dismissal. The unfair dismissal claim therefore succeeded. The basic award was £5,250 reduced by 20% to £4,200, and the compensatory award of £18,710.69 was increased by 10% for the ACAS breach and then reduced by 20% for contributory conduct to £16,465.40. No Polkey reduction was made. The prescribed element was £9,778.41 and the balance £10,886.99. On the wrongful dismissal claim, the tribunal awarded 10 weeks' net pay of £4,705.30 plus a 10% ACAS uplift, producing £5,175.83.