Mr M Flavin v WH Malcolm Limited — 2024

The claimant, Mr M Flavin, brought a claim of unfair dismissal arising from his dismissal by WH Malcolm Limited on 24 October 2023 following an incident on 4 October 2023 at the Newhouse site, where a trench being excavated for a fire main struck an HV cable. The tribunal found that the claimant had completed the permit to disturb ground incorrectly by confirming that the cable had been hand dug and exposed when it had not been, and that the work proceeded by machine rather than by the hand digging or vacuum method required by the relevant documentation.

The tribunal accepted that the respondent had a potentially fair reason for dismissal based on conduct. Applying the Burchell test and section 98(4) ERA 1996, it found that the respondent genuinely believed the claimant was guilty of misconduct, had reasonable grounds for that belief, and carried out a reasonable investigation before dismissing him. The tribunal relied on the investigation by Mr Bringan, the contemporaneous documents, and the CCTV evidence, and rejected the claimant’s later suggestion that the method statement and risk assessment had been completed after the incident.

The main challenge for the claimant was that dismissal was too harsh and inconsistent with the treatment of others, particularly Craig Wilson, who received a final written warning. The tribunal held that Mr Wilson and the claimant were not in truly parallel circumstances, noting differences in responsibility, involvement, and reaction to the disciplinary process. It also found that two others directly involved, Mr Jackson and Mr Brady, were dismissed for gross misconduct.

The tribunal concluded that dismissal for gross misconduct fell within the range of reasonable responses open to the respondent and was therefore fair. The unfair dismissal claim was dismissed, and no financial award was made.