(sitting alone) Richard Avery v John Mitchell (Grangemouth) Limited and 1 other — 2018

Mr Avery was employed by John Mitchell (Grangemouth) Limited as an HGV driver from 4 October 2011 until his dismissal on 28 September 2017. The tribunal found that the respondent’s stated reason for dismissal was that he had wilfully damaged a colleague’s vehicle while at work, and that this was a conduct reason capable of amounting to a potentially fair reason under section 98(1) ERA 1996. The tribunal accepted that the dismissing officer genuinely believed Mr Avery had committed the misconduct and that the appeal officer also upheld dismissal on that basis after viewing the CCTV and the surrounding circumstances.

The tribunal found that the respondent had reviewed the CCTV for 21 September 2017, spoken to the colleague whose car had been scratched, and concluded that only Mr Avery had engaged in conduct consistent with the damage. It noted that the CCTV footage alone did not show the car being scratched, but held that the respondent was entitled to take the footage together with the wider circumstantial evidence. The tribunal also accepted that the claimant had been shown the footage, that he was suspended pending disciplinary proceedings, that he had a right to be accompanied, and that he had an appeal hearing at which the footage was provided again.

The tribunal criticised aspects of the process, including the absence of a written investigation report, the lack of a written summary of the evidence, and the failure to give Mr Avery the hearing minutes during the process. It also found it was unreasonable to draw a negative inference from his failure to answer allegations where he had been advised by his solicitor to make no comment because of criminal proceedings. However, it held that these matters did not take the dismissal outside the range of reasonable responses under section 98(4) ERA 1996. Applying the Burchell approach and the Iceland Frozen Foods range of reasonable responses test, the tribunal concluded that the respondent had reasonable grounds for its genuine belief and that the dismissal was fair. The claim was therefore dismissed and no award was made.