Mr John Pullar v Represented by:15 Mr W McParland, Solicitor Forth Ports Limited — 2021

Mr John Pullar was employed by Forth Ports Limited as a Maintenance Electrician from 22 January 2007 until his dismissal on 11 August 2020. The respondent dismissed him for conduct after he pursued a personal injury claim in which he sought to recover losses said to flow from moving from Grangemouth to Rosyth, including alleged loss of earnings. The tribunal found that conduct was the reason for dismissal within section 98(2)(b) ERA 1996.

The tribunal accepted that the respondent genuinely believed Mr Pullar had committed misconduct, satisfying the first limb of the Burchell test. However, it found that belief was not based on reasonable grounds. The respondent had proceeded on a mistaken understanding, reinforced by the Crawfords email and by its own notes, that Mr Pullar was saying he had been forced to transfer to Rosyth. By the time of the disciplinary hearing it became clear that he was not making that allegation, but was saying he had chosen the move because of his ankle and believed he would earn less because of overtime and shift arrangements at Grangemouth.

The tribunal also held that the investigation was not reasonable in the circumstances. It noted that the respondent did not properly identify the new head of claim, did not give Mr Pullar a proper opportunity to address the misunderstanding before the investigation progressed, did not speak to two fitters he said knew about his ankle pain, and pressed him in the disciplinary process about his personal injury claim and whether he would withdraw the loss of earnings element. The tribunal found that this risked forcing him to litigate part of his personal injury case within the disciplinary process, including issues that could engage legal privilege.

Applying section 98(4) ERA 1996 and the band of reasonable responses approach, the tribunal concluded that dismissal was not reasonable. It found that no reasonable employer would have conducted the disciplinary process in that way and that the flaws were compounded on appeal. The tribunal therefore held that Mr Pullar was unfairly dismissed and directed that a further hearing be fixed to determine remedy.