Mr D McCallion v Menzies Distribution Solutions Limited — 2024

Mr D McCallion was dismissed by Menzies Distribution Solutions Limited for conduct related to removing his tachograph card from his vehicle and continuing to drive. He accepted the conduct at the investigation, disciplinary and appeal stages, and the tribunal found that the respondent had reasonable grounds to believe misconduct had occurred and that the investigation up to the appeal stage was reasonable. The claimant relied on mitigation, his caring responsibilities, and alleged disparity of treatment, including a letter from Jim Curran, but the tribunal found that Mr Curran worked for a different Menzies company and that the appellant could not verify his record.

The tribunal held that the dismissal was unfair under section 98(4) ERA 1996 because the appeal was not heard within a reasonable period and the respondent failed to contact the claimant to say that the policy timescale could not be met. It accepted that the respondent had given him the right to be accompanied, provided the evidence relied on, and allowed him to make representations at the first stages, but concluded that the delayed appeal process, in the context of a sizeable employer with HR support, was outside the range of reasonable responses.

On compensation, the tribunal found that if a fair appeal procedure had been followed the outcome would have been the same, so any compensatory award would have been reduced by 100% on Polkey principles. It also held that the claimant's own conduct was culpable and blameworthy and had caused the dismissal, so the compensatory award would in any event have been reduced by 100% for contributory conduct. The basic award was agreed at £1,471.50, but the tribunal reduced it to zero under section 122(2) ERA 1996. The judgment therefore recorded that no monetary award was made.