Mr M Donohoe v L Lynch Plant Hire & Haulage Ltd: 3302573/2025
JUDGMENT
The claim for unfair dismissal is dismissed.REASONS
[1]This is a claim for unfair dismissal. The Claimant was employed between 1 August 2022 and 20 January 2025, when he was dismissed on grounds of gross misconduct. Prior to his employment, he had been engaged by the Respondent as a subcontractor for a considerable number of years.[2]I heard evidence from the Claimant, and for the Respondent from Mr Charles Hounslow (CH), Area Manager, and Mr Darren Walden (DW), National Operations Manager. I was also referred to an agreed bundle of documents and a CCTV video recording, on the basis of which evidence I make the following findings of fact.Facts
[3]After Christmas 2025, CH was asked to conduct a disciplinary hearing in respect of an incident that had taken place on 20 December 2025 and in respect of which Andy Freshwater (AF) had conducted an investigation. The Claimant was accused of physically assaulting another member of staff, Lyam Hammersley (LH). 1 of 5[4]CH was provided with witness statements from LH, and from witnesses Jonjo O’Byrne (JOB) and two other employees. The Claimant’s statement hadn’t been taken on the day because he had been immediately suspended and the Respondent had then shut down for Christmas. The Claimant was telephoned after Christmas and asked to email in his statement, which he did on 5 January 2025.[5]CH received all of the statements, including the Claimant’s statement, at the same time. He was also provided with CCTV video footage of the incident, (which was also provided to the Tribunal).[6]The disciplinary hearing took place on 13 January 2025.[7]In his statement and at the disciplinary hearing the Claimant maintained that LH had been the aggressor and that “he [the Claimant] stood up and put my arm out, showing the palm of my hand”. He insisted that he had merely restrained LH.[8]The Claimant also said that in a previous conversation with the field engineers LH had imitated a disabled person, and that he had subsequently had a “colourful” telephone conversation with LH in which he had shouted and sworn at LH and told LH to meet him in the training room. It was about ten minutes after that conversation that LH in fact came into the service office and walked over to the Claimant shouting “what the fuck?” The Claimant said although he had never taken official disciplinary action against LH, he had previously reprimanded him on two occasions for mocking the disabled, which was a matter he felt very strongly about as his sister, who had passed away the previous Christmas, had been mentally and physically disabled.[9]CH rejected the Claimant’s interpretation of events. On the basis of the CCTV footage and the witness statements, CH concluded that LH had walked into the office and over to the corner where the Claimant was sitting at his desk. The Claimant then got up and tried to punch LH in the face, a third employee’s attempts to come between the two men being unsuccessful. The Claimant then pushed LH across the room before grabbing him around his upper chest and neck, and holding onto him for several seconds, including at one point almost lifting LH off the floor.[10]CH also noted that in his statement LH said he had heard the Claimant say to him “don’t let him near me I’ll kill him”, and that in his statement JOB stated the Claimant had said to LH “stay the fuck away from me” and “I’ll rip your fucking head off you cunt” and “I’ll kill you”.[11]CH further noted that in the CCTV footage LH, who was a lot smaller than the Claimant, had at no time attempted to grab or punch the Claimant.[12]CH further took the view that even if LH had said something inappropriate in the conversation with the field engineers this did not justify the Claimant’s actions. The correct course of action would have been for the Claimant to walk away and make a complaint about any comments LH may have made. Further a lesser sanction than dismissal would have created a dangerous precedent that such conduct could be tolerated in the workplace and moreover the Claimant did not appear to have appreciated the seriousness of his actions, which raised the risk of something similar happening again. 2 of 5[13]The Claimant was therefore dismissed.[14]His subsequent appeal was heard by DW but was unsuccessful.Conclusions
[15]In this case the reason for dismissal is conduct, which is a potentially fair reason for dismissal (s.98(2)(b) Employment Rights Act 1996 (ERA)).[16]The fairness of the dismissal therefore depends on whether, in the circumstances, the Respondent acted reasonably or unreasonably in treated it as a sufficient reason for dismissing the Claimant (s.98(4)).[17]In the context of a dismissal for gross misconduct, assessment of the fairness of the dismissal requires the Tribunal to ask whether: - The employer had a genuine belief in the employee’s guilt; - Whether the employer had reasonable grounds for that belief, having carried out such an investigation as was reasonable in the circumstances; and - Whether dismissal was within the range of reasonable sanctions open to a reasonable employer in the circumstances.[18]I am satisfied that the Respondent had a genuine belief in the Claimant’s guilt.[19]As regards whether that belief was based on reasonable grounds following a reasonable investigation, the Claimant submitted that there hadn’t been an investigation and that the disciplinary process had been unfair.[20]This submission appeared to be on the basis that there hadn’t been an investigatory meeting with him, despite the fact that the letter suspending him from work stated there would be one.[21]Further, a witness statement hadn’t been taken from the Claimant on the day of the incident, and he hadn’t been asked to provide one until after Christmas.[22]The Respondent submitted that the suspension letter was a standard form letter and it had conducted an investigation that was reasonable in the circumstances. In that respect all the employees present at the time of the incident had been asked for statements, as had the Claimant. Since the Respondent also had CCTV footage of the incident it did not consider it necessary to have an investigation meeting.[23]The main purpose of an investigation meeting is to decide whether there is a case of misconduct to answer prior to bringing formal disciplinary proceedings. Here, in the light of the CCTV footage of the incident together with witness statements, I consider it was reasonable of the Respondent to decide the matter should progress to a disciplinary hearing without having a meeting with the Claimant first.[24]As regards the fact the Claimant was not asked for a statement until after Christmas, there was a good reason for this, namely the fact he had been suspended immediately, and then the Christmas shutdown. However, in the course of the hearing, the Claimant suggested his statement was not as accurate or complete as it would have been had it been taken on the day of the incident. This submission was somewhat at odds with his position at the outset of this hearing, when he stated that he wanted to rely on that same statement 3 of 5 for the purposes of this hearing. Notably, the Claimant did not suggest the statement was inaccurate or incomplete until his cross-examination, when he asserted that when LH came into the office, he had continued to make abusive comments about disabled people, using the word “spastic,” and it was pointed out that this was not what the Claimant had said in his statement (or at any point during the disciplinary process). However, and in any event, even if the Claimant had forgotten to include any relevant matter in his statement, he had had every opportunity to say whatever he wanted to say in support of his case at both the disciplinary and the appeal hearing.[25]I therefore do not accept that the fact that the Claimant emailed his statement to the Respondent after Christmas undermined the reasonableness of the investigation and/or caused the Claimant procedural unfairness.[26]I also note that the Respondent did not investigate in any detail the Claimant’s allegation that LH had imitated a disabled person during the conversation with the field engineers, or what was said between the Claimant and LH in their subsequent phone call, shortly before LH came into the office. The Respondent took the view that whatever LH may have said did not justify or excuse the Claimant’s actions in physically assaulting him.[27]As regards that alleged physical assault, the Claimant maintained (both throughout the disciplinary process and in this hearing) that LH had been the aggressor, not him. He submitted that LH had come into his workspace, having been told not to do so, and that he, the Claimant, had simply pushed LH away before restraining him as a matter of self-defense and out of fear of what LH might do.[28]In this respect there had plainly been a heated telephone conversation between the Claimant and LH, following which, having been told not to do so, LH, came into the office and approached the Claimant. It is therefore understandable that the Claimant viewed LH’s actions as confrontational.[29]Nevertheless, there is no evidence that LH posed a physical threat to the Claimant or that LH was looking to inflict physical damage on the Claimant.[30]The video footage does not show LH raising his hands or at any point attempting to grab or punch the Claimant, whereas it does appear to show the Claimant attempting to punch LH and then grabbing him in an armlock around his neck. Further, none of the evidence gathered during the disciplinary process, including the evidence of the Claimant, suggested that at the time LH was making oral threats to the Claimant. To the contrary, the evidence of LH and of JOB was that the Claimant was making oral threats to LH.[31]Accordingly, I am satisfied that the Respondent had ample grounds for concluding that the Claimant physically assaulted LH, that the Claimant was the physical aggressor rather than LH, and that the Claimant was not acting in selfdefense. It follows I am satisfied that it was reasonable for the Respondent to conclude that the Claimant was guilty of gross misconduct and that it was not necessary to investigate what LH may have said during the conversation with the field engineers and in his subsequent telephone conversation with the Claimant, because whatever he had said did not justify the Claimant physically assaulting him. 4 of 5[32]As regards whether dismissal was within the range of reasonable sanctions open to a reasonable employer, the Claimant argues that mitigation factors should have been taken into account such as the incident happening around the anniversary of his sister’s death, the provocation by LH and the Claimant’s long association with the Respondent.[33]However, even with such mitigating factors, it cannot be said that dismissal was not within the range of reasonable responses open to the Respondent. The Respondent had clear evidence of the Claimant committing an assault and was further entitled to take into account that the Claimant did not appear to have understood the seriousness of his actions but rather maintained that they had been justified in the circumstances.[34]It follows that the claim for unfair dismissal is dismissed. Approved By: