M Kearns (sitting alone)10 Mr M Allinson v Solway Transport Limited — 2022

Mr M Allinson was employed by Solway Transport Ltd as a lorry driver. In June 2021 he was on a three-month full-time trial period, but he asked on 18 June 2021 to revert to a zero-hours arrangement from 21 June. Later that day there was a dispute over a replacement trailer: Mr Armstrong Wilson instructed him to clean it, and the claimant refused, saying it was the previous driver’s responsibility. Mr Armstrong Wilson told him to take his things out of the trailer and leave, and later decided not to give him any further work.

The tribunal held that the dismissal was for a reason relating to conduct. It accepted that Mr Armstrong Wilson believed the claimant had refused a reasonable instruction, and it found that belief had reasonable grounds. The instruction to clean the trailer was held to be reasonable in the circumstances, including that the trailer had been unused in the yard for three weeks. The tribunal also found that the claimant’s proposed move back to zero hours had not yet taken effect when the instruction was given, so he remained required to comply with a reasonable workplace instruction.

The dismissal was nevertheless unfair because the respondent did not follow its disciplinary policy at all. There was no written disciplinary process, no disciplinary meeting, no opportunity for the claimant to state his case or put forward mitigation, no accompaniment right, and no appeal. The tribunal rejected the employer’s reliance on Polkey futility: it found Mr Armstrong Wilson did not decide that procedure would be futile, but rather assumed it was unnecessary because the claimant was on zero hours. The tribunal therefore found the dismissal procedurally unfair under section 98(4) ERA 1996.

On remedy, the tribunal calculated a basic award of £2,448 using a capped weekly pay figure of £544, three years’ service, and an age factor of 1.5, then reduced it by 50% for the claimant’s conduct before dismissal to £1,224. The compensatory award was assessed at £500 for loss of statutory rights, reduced by 50% under Polkey to £250, increased by 20% for unreasonable failure to comply with the ACAS Code to £300, and then reduced by 50% for contributory fault to £150. The total award was therefore £1,374.