Claimant v DS Smith Recycling UK Limited — 2018

The claimant, Mr Clark, brought a claim of unfair dismissal after being dismissed for conduct while employed by DS Smith Recycling UK Ltd. The tribunal found that the respondent had a potentially fair reason for dismissal under s.98(1) ERA 1996 because the dismissal related to conduct, and it accepted that Mr Clark had long service and was working as transport team leader at the Glasgow depot.

The respondent investigated concerns raised from its systems and from AIM about the claimant's working hours and the Tisweb records. The investigation showed that, over the relevant reference periods, the claimant had worked in excess of the average and maximum drivers' working time limits, and that he had manually adjusted Tisweb entries. Mr Clark did not dispute the underlying accuracy of the data, but said the hours were caused by staff shortages and that the Tisweb changes reflected what had actually happened when drivers forgot to switch tachographs.

Applying s.98(4) ERA 1996 and the Burchell approach, the tribunal held that the respondent genuinely and reasonably believed the misconduct had occurred and that the investigation was reasonable. It also held that the disciplinary process, including the appeal which was conducted as a full rehearing by AW, was procedurally fair. The tribunal attached weight to the claimant's managerial role, his training on drivers' hours, the seriousness the respondent attached to compliance because of the risk to its O Licence, and the conclusion that dismissal fell within the band of reasonable responses. The claim was dismissed and no monetary award was made.