Archive for November 28th, 2012

The Employment Appeal Tribunal has upheld an employment tribunal’s decision that a dismissal for misconduct in failing to observe safety rules was unfair.

The employee, in this case, had been employed as a track worker for 23 years when he was spotted, not wearing a hard hat, beside a track with a group of workers. He had previously been on long term sick leave and had just returned to work. He needed a Track Safety Certificate (PTS) and some retraining and because he had not done that, he was asked to work as a driver for a group of track workers.

After carrying out an investigation the employer made three charges against him which amounted to breaches of safety rules: (1) that he did not have a hard hat when in the proximity of the track; (2) that he did not have a valid PTS certificate while he was in that vicinity; and (3) that he had failed to set up a safe system of work as required by the rules because he was a lone worker, and not part of the group.

These allegations were upheld at a disciplinary hearing and the employee was dismissed. The employee appealed arguing that the sanction was too severe but was unsuccessful and then brought a claim for unfair dismissal.

The tribunal found that the employer had carried out a reasonable investigation and followed a reasonable procedure. However, the tribunal found that the decision to dismiss fell outside the range of reasonable management responses because:

1.    the employee was not aware that his PTS certificate had been suspended until the investigation yet that was given as one of the principal reasons for his dismissal;

2.    the employee was not standing near a fully operational line and the risks were minimal;

3.    the tribunal found it difficult to see how he could be classified as a lone worker, since he was working as a driver for the team;

4.    there had been a difference between the treatment of the employee and the supervisor of the team who should have told the employee to return to his van and reported him. They were both in breach of the safety rules, but only one of them was dismissed;

5.    the employee had an unblemished record of 23 years’ service and the dismissal was for a first offence.

Accordingly, the tribunal ruled that the dismissal was unfair.

The employer unsuccessfully appealed arguing that the decision of the tribunal was perverse and that it had erred in law by substituting its view for the employer’s.  The Employment Appeal Tribunal dismissed that appeal, finding that the tribunal had in mind the right tests and was entitled to reach the conclusion that it had about unfair dismissal.

However the Tribunal had also applied a 50% reduction to the award for the employee’s contributory fault and had not given any reasons for that. This finding was remitted to the Tribunal to make a fresh decision and give reasons for it.

Case reference: Network Rail Infrastructure Limited v Mockler

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