Mr N Finlayson v Network Rail Infrastructure Ltd: 4102589/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102589/2024

Venue Glasgow

Hearing 17 and 18 September 2024

Between

Mr N FinlaysonClaimant

Network Rail Infrastructure LimitedRespondent

Before

Employment Judge M Whitcombe

Mr P Deans for claimant

(Solicitor) for claimant

Mr E Gilligan for respondent

(Solicitor) for respondent

Date 18 September 2024

JUDGMENT

The judgment of the Tribunal is as follows.(1) The claimant was unfairly dismissed by the respondent.

(2) It would be just and equitable to reduce both the basic and the compensatory awards by 70% because of the claimant’s contributory fault.

(3) Oral reasons were given in the presence of the parties.

(4) All other issues of remedy, including reinstatement or re-engagement, will be dealt with at a further hearing. The parties will be sent a separate notice of hearing once the date has been confirmed.

REASONS

[1]Oral reasons for this judgment were given in the presence of the parties or their representatives on 18 September 2024. These written reasons have been prepared at the respondent’s request in accordance with rule 62.

[2]The claimant was formerly employed by the respondent for more than 21 years from June 2002 until 22 September 2023. By the end of his employment, the claimant was employed as an Operations Delivery Supervisor. As part of that role, he drove the respondent’s vehicles. The nature of the respondent’s business is well-known and requires no further explanation. The claimant was dismissed for gross misconduct arising from two incidents of speeding in a company vehicle on 9 January 2023. Complaints and issues

[3]The sole complaint brought in a claim form received by the Tribunal on 7 February 2024 was one of unfair dismissal.

[4]The claimant has always accepted the alleged misconduct, that he exceeded the speed limit while driving a company vehicle twice within a short period on 9 January 2023. He did not make any criticism of the reasonableness of the respondent’s investigation or of the respondent’s grounds for believing in his (admitted) guilt.

[5]The claimant took one point of procedural fairness, arguing that the disciplinary process was so lengthy that it fell outside the reasonable range and was unfair.

[6]Otherwise, the issues had a common theme: whether the sanction of dismissal was so harsh that it fell outside the range of reasonable responses given mitigating factors such as the claimant’s clean disciplinary record, 21 years of service and successful attendance on a speed awareness course.

[7]It was also agreed that it would be proportionate and consistent with the overriding objective for me to deal with potential issues of contributory fault at the same time. Since the claimant proposed to seek reinstatement or reengagement if successful, it was agreed that all other issues of remedy would be deferred to a separate remedy hearing.

Evidence

[8]I heard from the following witnesses in the following order. All of them gave evidence on oath or affirmation and were cross-examined.a. Stephen Rogers, the respondent’s Head of Health and Safety Assurance and Reporting.

b. Emma Brown, a Project Manager at the relevant time, who conducted the disciplinary hearing.

c. Keiren Sharkey, an Infrastructure Maintenance Engineer at the relevant time, who conducted the appeal hearing.

d. Neil Finlayson, the claimant, an Operations Delivery Supervisor.

[9]I was also provided with an agreed joint file of documentary evidence running to 450 pages. Around a quarter of it was referred to in evidence.

Relevant facts

[10]There were very few disputes of fact. Where facts were disputed, I made my findings on the balance of probabilities, in other words the “more likely than not” basis which applies to fact finding in almost all civil litigation.

[11]Prior to his dismissal, the claimant had never been subject to disciplinary action of any kind. His disciplinary record was therefore entirely clean. Additionally, he held a clean driving licence at all relevant times.

[12]For several reasons including safety, the respondent is concerned to monitor the speeds at which its vehicles are driven and to prevent incidents of speeding. That is reflected in a series of rules reproduced in its “Driver’s Handbook”, which the claimant had received and was required to observe. The “Life Saving Rules” were brought in to address the 10 most common causes of injury or fatality among employees. They are expressed as 5 “musts” and 5 “must nots”.

[13]So far as relevant, a page in the Driver’s Handbook headed “Our Lifesaving Rules” contains the statements, “Safe behaviour is a requirement of working for Network Rail. These rules are in place to keep us safe and must never be broken” and, “Always obey the speed limit and wear a seat belt.”

[14]It is uncontroversial that the respondent owes a duty of care to its own employees and to other road users.

[15]The respondent has clearly communicated the importance of adhering to speed limits when driving vehicles on company business, and the seriousness with which it takes the issue. Unsurprisingly, paragraph 2.10.2 of the respondent’s disciplinary procedure lists “Serious infringement of health and safety rules” as a potential example of gross misconduct. Section 2.8 “Possible disciplinary penalties” makes it clear that dismissal without notice will normally follow if the respondent concludes that the employee has been guilty of gross misconduct. Paragraph 2.1.1 indicates that expected standards of conduct can be found within the Statement and Terms of Employment and, where applicable, in work specific rules and/or regulations issued from time to time. The Driver’s Handbook fell into that category.

[16]The respondent has progressively introduced an “In Cab Safety System” (“ICSS”) which, among other things, monitors aspects of driver behaviour including road speed and location. It is set up automatically to report speeding incidents falling within certain parameters. So far as relevant to this case, they are that where a speed of 20mph above the speed limit is recorded for one minute, the system generates a report showing the minimum, maximum and average speed over the legal limit for the 60 second speeding event. 6 December 2022

[17]On 6 December 2022, before the incident at the heart of this case, the claimant was driving Ford Ranger 4x4 vehicle YM67 MJX, by then fitted with ICSS. The system reported that at about 21:23 the claimant had driven at more than 20 mph over the legal speed limit. At that time the respondent’s system was being phased in. In accordance with the interim policy the claimant was spoken to by his line manager on or about 12 December 2022. The incident was dealt with informally and no recorded warning was added to the claimant’s disciplinary record, which remained entirely unblemished.

[18]The claimant was booked onto a speed awareness course which ultimately took place on 14 February 2023, but by then the claimant had committed the further act of speeding which led to this claim. 9 January 2023

[19]On the night of 8 to 9 January 2023 the claimant was carrying out “PICOP” (person in charge of possession) duties in an engineering possession between Inverness and Clunes. The ICSS reported to the respondent that for about 3.5 minutes just before and just after 0100 on 9 January 2023 the claimant had been travelling in the respondent’s vehicle YM67 MJX at slightly over 70mph on a section of the A96 near the village of Auldearn, near Nairn. A few minutes later the same night, the vehicle again exceeded 70mph in a section of road with a 50mph limit close to Brodie. Both incidents occurred within a 5 minute period.

[20]There was no accident, there were no injuries, there was no damage to property and the police were not involved. Those were listed as potential aggravating factors in the respondent’s Guide to Investigating Speeding Events.

[21]Throughout the internal process which followed, and at this hearing, the claimant freely admitted the facts that he was exceeding the legal speed limit and that he was in breach of the respondent’s rules. His explanation was that he had realised that his work iPad had insufficient charge to complete his duties that night, and that he had left the charger elsewhere. He was in a panic, and the two instances of speeding had occurred while he was driving to a friend’s house to retrieve a charger.

[22]The respondent’s policy, expressed in “The Speeding Matrix” in the Guide to Investigating Speeding Events, is that if the speed limit is 50mph, speeding in the range 60-69mph for 60 or more seconds will be dealt with by line management, but that speeds of 70mph or more for 60 or more seconds will trigger a safety investigation. The same Guide reminds investigators to “consider the serious nature of speeding events [in this context] 20mph or over and repeat speeding events. Such excess speeding should not be condoned unless there are strong mitigating factors as detailed in Step 3 above.”

[23]The claimant was not removed from all safety critical work but was stood down from driving the respondent’s vehicles. Safety investigation

[24]The respondent decided to carry out a safety investigation. A report was submitted on 22 February 2023 and re-submitted with amendments on 2 March 2023. On 22 March 2023 an Independent Panel Review advised that the report should be revisited once again. The investigation report was eventually resubmitted on 14 June 2023 and was approved on 16 June 2023.

[25]The claimant told the investigation that the ICSS had not sounded an audible buzzer or lit a light warning him of speeding. It should have done, if in good working order. The investigation report contained no contrary evidence on that point. The claimant admitted the speed violation. A section reminding the investigator to “understand the employee’s previous driving and employment record including length of service” was left blank.

[26]The report commented that the claimant was aware of the road speed for the A96 and the vehicle and had exceeded that speed because he did not pay attention to the speed of the vehicle at the time of the ICSS triggers. The conclusion was that the claimant had committed a “reckless contravention without personal gain”, because the claimant had ignored the speed of his vehicle without caring about the consequences.

[27]On 12 July 2023 the Independent Review Panel endorsed that conclusion and decided that the matter should proceed to disciplinary action. Speed awareness course

[28]On 14 February 2023, while the safety investigation was underway, the claimant attended the “speed awareness course” which had been booked as a result of the speeding incident on 6 December 2022 which led to no formal action. The course was provided by the Fleetmaster Group on behalf of the respondent and involved both an on-road assessment and a Q&A session conducted by an independent assessor. The course lasted for half a day. There were three grades of pass: “Satisfactory”, “Good” and “Outstanding”. The claimant was graded “Outstanding”. The claimant explained that he did not just go through the motions and treat the course as something which had to be done, he saw it as a valuable opportunity to learn.

[29]I find that he took the opportunity to learn, that he did learn, and that his driving probably improved as a result. I find on the balance of probabilities that the claimant’s knowledge, insight and situational awareness improved because of his attendance on the speed awareness course. Disciplinary investigation

[30]The disciplinary investigation was carried out by Darren Brown, Operations Delivery Manager. He interviewed the claimant on 23 August 2023. The claimant admitted speeding.

[31]Mr Brown investigated the claimant’s allegation that the audible warning had not been working. Those maintaining the system had checked it on 7 March 2023 and discovered that maintenance warning lights and fuel consumption data were not being picked up by the system, but that all other data was being collected as usual. However, that fails to shed any light on the question whether the audible alarm was working on the night in question. The same can be said of the warning light that also failed to operate, according to the claimant. The further investigation neither contradicted nor supported the claimant’s evidence on that point. Ultimately, the conclusion of the report appeared to accept that the ICSS was faulty and had not given the claimant a warning that he was exceeding the speed limit, but added that it was the driver’s responsibility to check the speedometer and to know the speed limit for the relevant section of road.

[32]The report noted the claimant’s “outstanding” grade on the speed awareness course, and added “there is an argument to be had that this course should have been attended before the 09/01/2023”.

[33]The report recommended formal action because the claimant was in breach of the Lifesaving rule “Always obey the speed limit”, had broken the law, had been a danger to himself and other road users, and was in breach of the disciplinary policy and drivers’ handbook. The allegation was classed as potential gross misconduct. Disciplinary hearing – 19 September 2023

[34]A disciplinary hearing took place on 19 September 2023 at the respondent’s St Vincent Street premises in Glasgow. The decision maker was Emma Brown, then a Project Manager. The claimant was represented by his RMT representative Billy Blair.

[35]The claimant accepted that he had been speeding and that he should have relied less on the safety system and more on the speedometer saying, “the main thing would have been not to go over the speed limit”. He accepted that it was his responsibility to obey the speed limit and to observe the respondent’s rules but pointed out that the warning alarm indicating excessive speed had not gone off. The claimant said that an alarm would have stopped him from speeding. Emma Brown accepted that the evidence failed to establish whether warning lights indicating excessive speed had been working at the time. She did not state any conclusion in relation to an audible alarm during the hearing, but the equivalent conclusion is implicit. The claimant confirmed that he had attended the speed awareness course after, and not before, 9 January 2023.

[36]Emma Brown decided that the claimant should be dismissed for gross misconduct and informed him of the outcome by phone on 22 September 2023. The claimant was dismissed without notice or a payment in lieu of notice. The disciplinary outcome letter was dated 27 September 2023. Emma Brown confirmed in evidence that it contained all the important points of her reasoning. Allowing for the way in which this case was argued before me, the key points were as follows.a. The claimant’s admissions of speeding and responsibility were noted.

b. The ICSS might not have been providing a visible or audible warning and might have helped. However, it was an aid and ultimately it was the claimant’s responsibility to ensure that he obeyed the speed limit by checking the vehicle speedometer.

c. The fact that the claimant was going to get the charger for his work iPad and was in a panic had probably led to him driving above the speed limit, but that was not a “justifiable reason” to break the law and endanger the claimant’s own safety and that of others.

d. The incident on 6 December 2022 had taken place on the same road.

e. The claimant’s outstanding grade on the driving course was not “sufficient mitigation as you were aware that the course was being booked after the first offence on 6 December 2022 and driving 20mph over the speed limit was a serious offence”.

f. Driving at more than 20mph above the legal limit was a serious offence and a safety risk. It was such a serious breach of the claimant’s obligations that it called for dismissal without notice.

[37]The claimant appealed. The grounds were summarised as, “severity of the punishment, interpretation of the facts and procedural errors”. The claimant subsequently explained on 9 November 2023 that he relied on the length of the time from the incident until dismissal (10 months), his previous clean employment history, and some personal issues and other points which are not now relied on. Appeal hearing – 20 November 2023

[38]An appeal hearing took place on 20 November 2023 chaired by Kieren Sharkey. Representatives of HR were present but they remained silent and did not offer him any advice. The claimant’s trade union representative argued that the penalty of dismissal was disproportionate and excessive given the claimant’s long and unblemished service, the severity of the offence, the personal issues not now relied on and the mitigating factor that the ICSS was not working properly at the time. The claimant added that if he had seen or heard a speed warning from the ICSS he would have “automatically slowed down and the offence would never have taken place. It’s there to assist people.”

[39]The claimant’s appeal was unsuccessful and the decision to dismiss was confirmed. The claimant was informed of the outcome at the end of the hearing and it was confirmed in writing by a letter dated 28 November 2023.

[40]The key points of Mr Sharkey’s reasoning were as follows.a. Speeding offences breached the respondent’s Life Saving Rules.

b. It was the claimant’s personal responsibility to know the speed at which he was driving, whether at work or off duty, so he should not require an aid to know what the speedometer said.

c. There were no mitigating circumstances arising from ill health or personal matters.

d. The claimant had been given a “lifeline” in December 2022. “This is a huge thing as the appeal manager. It was noted you were speeding, and you were duly notified, and you are aware you were going to complete the advance driver training [sic]; I think that was fair. I feel you should have taken extra care to adhere to the speed limit. I think more than others because you’d been given a lifeline. You disregarded the lifeline and the speed limit in a railway vehicle.”

e. The 10 month period between the incident and dismissal was a long time, but that had been caused partly by holidays over the summer months. It could be hard to pin down managers, but Mr Sharkey would recommend that “HR have a serious look at this.” Mitigation

[41]For the purposes of this claim, the claimant put forward the following mitigating factors. Additional points were made during the internal processes but are not now relied upon.

[42]The claimant stated that he was in a panic because his work tablet was low on charge, and he had left the charging cable at a friend’s house. He was trying to get the charger as quickly as possible. If the tablet had gone flat, he would not have been able to complete his work since the tablet contained all the safety critical paperwork necessary to hand back possession of the line after maintenance work.

[43]While accepting his personal responsibility not to exceed the speed limit, and that he should have monitored road signs and the vehicle speedometer accordingly, he also highlighted the fact that when working properly the respondent’s ICSS should have had an audible and visible alarm to alert drivers to the fact that the speed limit was being exceeded but alleged that it was not working at the relevant time.

[44]The claimant also highlighted his long career of more than 21 years with the respondent, without any disciplinary blemish at all during that period.

[45]Finally, the claimant relied on the beneficial effect of the speed awareness course that he successfully attended long before the decision to dismiss him. Legal principles The reason for dismissal

Legal principles

[46]The respondent has the burden of proving a potentially fair reason for dismissal. In this case it is agreed between the parties that the reason for dismissal related to the conduct of the claimant, and therefore fell within section 98(2)(b) ERA 1996. Fairness – general principles

[47]Where the employer has proved a potentially fair reason for dismissal, the test of fairness and reasonableness derives from s.98(4) ERA 1996: …the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

[48]Prior to a change effected by the Employment Act 1980, the employer also had the burden of proving fairness, and some of the older authorities must be read with that in mind. The test of fairness now contained in s.98(4) ERA 1996 does not impose any burden of proof on either party.

[49]Whether the employer acted reasonably is a question of fact, not law, and tribunals have a wide discretion to base their decisions on the facts of the case before them and on good industrial relations practice, without regard to a lawyer’s technicalities (UCATT v Brain

[1981] ICR 542

, CA). The reference to “equity and the substantial merits of the case” shows that the word “reasonably” is to be construed widely (Lord Simon in Devis v Atkins

[1977] ICR 662

, HL).

[50]It is well-established at Court of Appeal, Court of Session and EAT level that a tribunal must not substitute its own view for that of the hypothetical reasonable employer. The law recognises that different reasonable employers might respond in a range of reasonable ways to a given situation. The correct approach is for the tribunal to assess the reasonableness of the decision to dismiss by reference to a band, or range, of reasonable responses (see e.g. Iceland Frozen Foods Ltd v Jones

[1983] ICR 17

, endorsed in many cases including Foley v Post Office

[2000] ICR 1283

, CA, which ended a brief but important challenge to the previous orthodoxy).

[51]The process must always be conducted by reference to the objective standards of the hypothetical reasonable employer (Mummery LJ in Foley at 1293 B). If no reasonable employer would have dismissed, then the dismissal is unfair. If some reasonable employers would have dismissed, then the dismissal is fair.

[52]The “range of reasonable responses” test applies not only to the selection of sanction or the ultimate decision to dismiss, but also to the procedure by which that decision was reached (J Sainsbury plc v Hitt

[2003] ICR 111

, CA).

[53]Reasonableness is assessed on the basis of facts or beliefs known to the employer at the time of dismissal, which for these purposes will normally include any internal appeal process (O’Brien v Bolton St Catherine’s Academy

[2017] ICR 737

, CA, West Midlands Co-operative Society Ltd v Tipton

[1986] ICR 192

, HL). Principles of fairness in dismissals for misconduct

[54]The classic test in British Home Stores v Burchell

[1980] ICR 303

, EAT remains good law, if allowance is made for the change in the burden of proof since then (see above). The three-part test raises the following issues:a. whether the employer did have a belief in guilt (in practice, this is little different from the need to prove a potentially fair reason for dismissal);

b. whether the employer had reasonable grounds on which to sustain that belief;

c. whether the employer carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

[55]However, since no real issue arises in relation to the BHS v Burchell principles in this case it is not necessary to say any more about the way in which those principles have developed since 1978 when the case was decided. Delay

[56]Investigations should be carried out without unreasonable delay. The ACAS Code emphasises the importance of establishing facts and putting allegations to the employee promptly before recollections fade (see paragraphs 4, 5 and 11). For example, in RSPCA v Cruden

[1986] ICR 205

, EAT a delay of 7 months before commencing disciplinary proceedings made the dismissal unfair, even though the employee suffered no prejudice. However, in Christou v London Borough of Haringey

[2012] IRLR 622

, the EAT upheld a decision that dismissals were fair despite an 18 month delay between the alleged misconduct and the relevant disciplinary proceedings. The Court of Appeal upheld that decision on other grounds without referring to the delay point. Those decisions demonstrate that the effect of delay on fairness is fact sensitive and will vary from case to case.

[57]The ACAS Code of Practice also suggests that suspensions with pay should be “as brief as possible” and should be kept under review (paragraph 8). Appeals

[58]Paragraphs 26 to 29 of the ACAS Code of Practice recommend that employees should be provided with an opportunity to appeal disciplinary action taken against them. Fair appeals are an integral part of procedural fairness and while unfairness in an appeal will not inevitably lead to a finding of unfair dismissal, it will be a relevant matter. Appeals can be relevant in another way too: defects in pre-dismissal procedures or in a disciplinary hearing might be rectified by a suitable appeal. In those circumstances the tribunal’s task is to assess the fairness of the whole disciplinary process, including the appeal (Taylor v OCS Group Ltd

[2006] ICR 1602

, CA). The procedural fairness, thoroughness and impartiality of the appeal stage will all be important, but it is not helpful to resolve the question by a crude categorisation of the appeal as being either a “review” or a “rehearing”. Contributory fault

[59]There are two relevant statutory provisions.a. Section 122(2) ERA 1996 provides that where the tribunal considers that any conduct of the claimant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.

b. Section 123(6) ERA 1996 provides that where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.

[60]The language of section 122(2) is therefore less restrictive than that of section 123(6), which requires causation before any reduction can be made. When applying section 122(2), the tribunal must identify the conduct which is said to give rise to possible contributory fault, decide whether that conduct is culpable or blameworthy and decide whether it is just and equitable to reduce the amount of the basic award to any extent (Steen v ASP Packaging Ltd

[2014] ICR 56

, EAT).

[61]Reductions in the compensatory award depend on findings that the conduct was culpable or blameworthy, that the conduct caused or contributed to the dismissal, and that it would be just and equitable to reduce the award by the proportion specified (Nelson v BBC (No.2)

[1980] ICR 110

, CA). Any reduction must be based on my own findings and view of the conduct concerned, so there is no deference to the respondent’s view or to any hypothetical reasonable range of views on those questions (London Ambulance Service NHS Trust v Small

[2009] IRLR 563

, CA). Reasoning and conclusions

[62]Dismissal is admitted. As noted above, it is also common ground that the respondent’s reason for dismissal was conduct, which is a potentially fair reason for dismissal falling within s.98(2)(b) ERA 1996.

[63]Unusually for a case involving a dismissal for misconduct, none of the elements of the BHS v Burchell test were in issue. It is uncontroversial that the respondent had an honest belief in guilt and, since the claimant admitted the relevant misconduct, he made no criticism of the reasonableness of the investigation or the reasonableness of the respondent’s grounds for a belief in guilt.

[64]All but one of the claimant’s points concern the way in which the respondent approached potential mitigating factors: whether they were properly considered at all; or whether having taken them into account dismissal fell within the range of reasonable responses. The other point concerns the length of the disciplinary process. The approach to mitigation and penalty at the disciplinary hearing

[65]Having listened carefully to the evidence, and especially the crossexamination of Emma Brown, I find that she did not give meaningful consideration to the mitigating factors put forward by the claimant. As she put it, she was mindful of those things but, “given the fact that it was a speeding offence, and a very serious offence, I was basing it more on the evidence I had been given from ICSS.” She was certainly focussed on the offence and its seriousness, which were not disputed. From her oral evidence and the documents evidencing her reasoning I conclude that she failed to balance the nature and seriousness of the offence against the mitigating factors when assessing the degree of culpability and the appropriate penalty.

[66]For example, in the notes of the call on 22 September 2023 the lack of audible or visible warnings of excessive speed from the ICSS is not regarded as a mitigating factor at all: “I stated that the ICSS is an aid and may have helped but ultimately you were responsible to ensure that you obeyed the legal speed limit for the road by checking the speedometer on the vehicle.” The claimant did not dispute his responsibility to avoid speeding or that he should have done so by monitoring the speedometer, the issue was whether the defective equipment reduced his culpability and the appropriate penalty. Emma Brown did not engage with that point.

[67]There was no mention of the claimant’s length of service or clean disciplinary record at all, whether in the notes of the call on 22 September 2023 or in the dismissal letter. In those circumstances I find that the claimant’s length of service and clean record were not taken into account when selecting the appropriate penalty.

[68]There is no indication in the notes of the call on 22 September 2023 or the dismissal letter that Emma Brown gave any consideration to penalties other than dismissal, and I find that she did not. To dismiss the value of the speed awareness course on the basis that it was “after the fact” rather misses the point because it goes to remediation, learning and the chance of repetition. In the dismissal letter Emma Brown said that it was “not…sufficient mitigation” because the claimant had been aware that the course was being booked after the 6 December 2022 incident, but the claimant’s point was that he had learned from the course, would not repeat the speeding offence and therefore deserved a less severe penalty than dismissal. Emma Brown did not engage with that argument. Emma Brown also accepted that she was unaware of the speed awareness course syllabus, and for that reason I find that she was illequipped to weigh its relevance when selecting the appropriate penalty. The approach to mitigation and penalty on appeal

[69]Similarly, I find that Keiren Sharkey did not give any real consideration to the mitigating factors on appeal. At one point the outcome letter states, “there were no mitigating circumstances to your conduct on 9 January 2023”. Even though I accept the respondent’s submission that those words should be read as a reference to some welfare issues raised in the preceding sentences, the fact remains that there are no other passages in which Mr Sharkey mentions, let alone weighs, matters such as length of service, clean disciplinary record or the claimant’s “outstanding” grade on the speed awareness course. The fact that the audible and visual warnings of speeding were defective is dismissed on the basis that “it is your personal responsibility to know what speed you are going at whilst driving, whether it is a works vehicle or a personal vehicle. You should not require an aid to know what the speedometer says.” However, that misses the point because the claimant was not arguing that the failure of that equipment completely exonerated him, rather it was put forward as a mitigating factor which reduced his culpability and therefore the appropriate penalty. Keiren Sharkey did not engage with that argument.

[70]Mr Sharkey explained in evidence that the outcome letter was an adapted HR template which was intended to bring a proper structure to the expression of a decision maker’s reasons, and that HR had checked the letter before it went out. The omissions are more significant in those circumstances.

[71]Whether mitigating factors are powerful, weak, or somewhere in between, if an employee puts them forward a fair procedure requires that they are given genuine and meaningful consideration. I find that the respondent’s consideration of the potential mitigation was so deficient that it fell outside the reasonable range of approaches to the important question of mitigation. The penalty of dismissal

[72]The claimant had some cogent mitigating factors. All reasonable employers would have given them weight.a. The claimant immediately admitted the relevant facts. He had been honest throughout and there was no suggestion to the contrary. He had not sought to deny his guilt or responsibility. That says something about the claimant’s insight and the trust which a reasonable employer could feel able to place in him if permitted to drive company vehicles in the future.

b. The claimant was of long service. He had worked for the respondent for a continuous period of more than 21 years. That weighs in favour of leniency when selecting the appropriate penalty. That did not mean that he could commit acts of gross misconduct with impunity, but it did mean that a reasonable employer would regard long service as a factor weighing in the claimant’s favour of the issue of penalty.

c. The claimant had a clean disciplinary record. That is almost always a matter of potential weight. While gross misconduct is, by definition, a matter which could lead to dismissal for a first offence (since it would be a fundamental breach of contract), a clean disciplinary record has a bearing on whether it reasonably should lead to that result. In this case the claimant’s clean disciplinary record was combined with long service. He had a lot of credit in the bank. Reasonable employers would regard it as a factor weighing in the claimant’s favour on the issue of penalty.

d. The claimant’s successful completion of the speed awareness course, with the highest possible grade of pass, was something to which all reasonable employers would have given weight. That is because it had a direct bearing on the risk of recurrence of a similar offence, which is presumably why the respondent sent staff on that course. The potential for remediation and improvement is important and recognised by the disciplinary policy. The policy statement at the beginning of the respondent’s disciplinary policy and procedure states its purpose as, “…to emphasise and encourage improvement in the conduct of employees and will not primarily be used as a means of imposing sanctions.” Reasonable employers would have regarded the very successful outcome of the claimant’s speed awareness course as a degree of remediation which had occurred prior to dismissal. All reasonable employers would have regarded it as a factor weighing in the claimant’s favour when selecting the appropriate penalty.

e. The fact that the ICSS audible and visible warnings of excessive speed were not working on the night in question was a factor which all reasonable employers would have regarded as mitigation. The respondent fits that equipment for a reason. It is a way of encouraging and enforcing proper standards of driving without needing to resort to disciplinary procedures. The claimant did not argue that it absolved him of all responsibility, and it did not. However, all reasonable employers would regard it as a factor going to the degree of culpability, since the respondent’s clear intention was that drivers should have audible and visible warnings of excessive speed before they reached the limits which triggered ICSS notifications to management and potential disciplinary proceedings. As Mr Rogers put it, ICSS is not just a source of intelligence, it is also a support aid, alerting drivers if they are not driving safely. The claimant did not have the benefit of those supportive ICSS warnings and his misconduct ought reasonably to be seen in that light.

[73]I have not lost sight of the important evidence of blameworthy misconduct, just because the facts were immediately admitted. To be more than 20mph over the speed limit in a company vehicle on company business was a serious matter. It had implications for the safety of the claimant, other road users and company property. The importance of adhering to speed limits, and its particular importance as part of the respondent’s safety culture, was made clear by its inclusion in the list of 10 Life Saving Rules. It was also an aggravating feature that the claimant had failed to learn the lesson of the incident on 6 December 2022 when the part-introduced system had reported similarly excessive speed. That said, the respondent had chosen not to impose any disciplinary penalty at all following that first incident, and in those circumstances reasonable employers could not treat the claimant as if he already had a warning for the same type of offence.

[74]I have been careful not to fall into the trap of view substitution, and to focus instead on the range of reasonable responses. Having reflected at length, my conclusion is that no reasonable employer would have dismissed the claimant for this offence. The claimant was certainly culpable and, as he freely accepted, disciplinary action was probably inevitable. However, the claimant had a number of cogent mitigating factors and their cumulative effect or weight was sufficient to take dismissal outside the range of responses that reasonable employers might have adopted. None of those reasonable employers would have gone so far as to have dismissed in this situation.

[75]In conclusion, the claimant was unfairly dismissed for two broad reasons, either of which would have been sufficient on their own for him to have succeeded:a. the respondent failed to give meaningful consideration to potential mitigating factors and handled that issue in a way which fell outside the reasonable range;

b. having examined those mitigating factors no reasonable employer would have dismissed.

[76]For either or both reasons, the complaint of unfair dismissal succeeds. Delay

[77]The time taken to complete the disciplinary process was excessive. The investigation should have been simple and quick. Not only was all the key data provided automatically by technology, but the claimant also immediately admitted the relevant facts. The only matters which might have required much investigation were the mitigating factors put forward by the claimant, but they were also straightforward. The appeal decision maker also thought that the delay was excessive, and that should be reason enough for the respondent to take a hard look at the time taken to begin the formal disciplinary process. The incident occurred on 9 January 2023. The claimant did not attend a disciplinary hearing until 19 September 2023, more than 8 months after the incident. The appeal concluded on 20 November 2023, more than 10 months after the incident. I see no good reason for such a protracted process.

[78]However, my role is to consider, in the context of s.98(4) ERA 1996 and a “range of reasonable responses” test of fairness, whether the dismissal was reasonable or unreasonable. I cannot detect any adverse effect of the delay on the fairness of the dismissal, so that is not a basis on which I find the dismissal to have fallen outside the reasonable range. Contributory fault

[79]So few of the relevant facts are in dispute that my own findings need go no further than those which the claimant frankly admits. He was significantly over the speed limit in breach of the respondent’s rules as well as road traffic legislation and the Highway Code. The respondent’s rules in relation to speeding were both clear and important. The claimant had failed to learn from the detection of excessive speed on 6 December 2022 before ICSS and the associated policies were fully operational, though it should be remembered that no disciplinary penalty was imposed for that. The claimant’s conduct was nevertheless culpable and causative to a significant extent. Largely, the claimant was to blame for the position he found himself in. Reasonable employers would almost certainly have imposed disciplinary penalties short of dismissal. For those reasons I have decided that the just outcome is that both the basic and the compensatory awards will be reduced by 70%. M Whitcombe