Ian Cartmill v Represented by: B McKinlay, Trainee solicitor Always Transport Jean Murray Frank Shaw and 2 others — 2023

The tribunal dismissed the claims against the second and third respondents with the claimant's consent. The claimant, an HGV driver employed by the first respondent from 1 December 2019 to 13 April 2023, was dismissed after a telephone exchange on 13 April 2023 about an urgent Carlisle delivery. The tribunal accepted that he had previously agreed to finish early on 14 April and found that his refusal to drive from Penrith to Hamilton and then on to Carlisle was not unreasonable in the circumstances he understood to exist.

Applying Burchell and section 98(4) of the Employment Rights Act 1996, the tribunal held that the decision-maker genuinely believed the claimant had refused a work instruction, but no investigation was carried out before dismissal. No disciplinary hearing or appeal took place and the respondent did not follow its own disciplinary procedure. The dismissal was therefore unfair. The tribunal also rejected any reduction for contributory conduct. Although it considered a Polkey reduction, it found that, if a fair process had been followed, the claimant would not have been dismissed for the 13 April incident.

The tribunal nonetheless found that later information changed the remedial position. By mid-May 2023 the respondent had learned of the claimant's CU80 endorsement for using a mobile phone while driving and of overspeed data, and the tribunal held that a fair disciplinary process would probably have led to dismissal by 1 June 2023 on that basis or for failure to report the offence timeously. It therefore limited the compensatory loss period to 5 May to 1 June, before applying a 25% uplift for unreasonable failure to comply with the ACAS Code, producing a compensatory award of £1,800.76.

By agreement, notice pay succeeded at £1,468.38 net and accrued untaken holiday pay succeeded at £221.93 gross for 1.5 days. The tribunal also made a section 38 Employment Act 2002 award of £2,367.28, being four weeks' gross pay, because the claimant had not been given a written statement of particulars during more than three years of employment and the tribunal considered the higher amount just and equitable in all the circumstances.