Mr M Cooney v Represented by Miss L Campbell Solicitor C J Lang & Sons Limited — 2019

Mr M Cooney was employed by C J Lang & Sons Limited as a warehouse operative. The respondent admitted dismissal and relied on gross misconduct arising from an incident in the chilled area on 17 October 2018. The tribunal found that Mr Cooney used cleaning fluid in the male toilets to mask a foul smell, but also poured liquid onto the corridor and walkway outside the toilets, making the tiled floor wet and slippery.

The tribunal accepted the respondent's evidence from CCTV, witness statements and the investigation record, and rejected the claimant's explanation that another employee, Mr Furey, was responsible for the liquid seen on the footage. It found that the claimant's account changed over time and that the suggestion of improper pressure by Mr Dougie Buchanan had no foundation. The tribunal also found that two employees slipped shortly afterwards, including Mr Stewart, who sustained a lumbar injury and was absent from work for two weeks.

Applying section 98(4) of the Employment Rights Act 1996 and the Burchell approach, the tribunal held that the respondent genuinely believed the claimant had committed gross misconduct, had reasonable grounds for that belief, and carried out a reasonable and fair investigation. It held that dismissal fell within the band of reasonable responses, taking account of the health and safety implications, the availability of warning signs, the injury to Mr Stewart, and the claimant's failure to accept responsibility. The appeal was also found to have been conducted fairly.

The tribunal noted some matters of best practice that were not followed, including wording in the disciplinary letter, the absence of some documents and statements, and the limited detail in the appeal outcome letter. It held that these did not make the dismissal unfair. In the alternative, if the dismissal had been unfair, the tribunal said it would have reduced compensation by 100% for Polkey reasons and contribution. The claim was therefore dismissed and no award was made.