[1]The claimant’s complaint of unfair dismissal is not well-founded. That means it does not succeed.[2]The claim is dismissed.[3]The remedy hearing, provisionally listed for 6 October 2025, will be cancelled.
REASONS
[1]The respondent (“Murphys”) is a major contractor operating in construction including, for the purposes of this claim, in the rail infrastructure construction sector. Mr O’Neil was a very long-serving employee engaged, latterly, as a site supervisor.[2]Shortly after 3am in the morning of 31 March 2024 a serious incident occurred on the railway just north of Doncaster. A large cable spool, mounted on a metal ‘A-frame’ fell to the ground from the trailer of the vehicle carrying it. Although no one was hurt, and there was no damage to infrastructure, this was nonetheless a major failure. The gravity of the event is put into sharp relief by the fact that a worker had passed by the point where the spool left the trailer only seconds before. Had the equipment landed on the worker, he could easily have been killed.[3]This event occurred during over-night rail works at the site, which were being supervised by Mr O’Neil. Following an investigation and disciplinary process, Mr O’Neil was dismissed without notice on 27 June 2024. This is his claim for unfair dismissal.
The Hearing
[4]The hearing was conducted by CVP and there were no significant technical difficulties. The parties had agreed an electronic bundle running to some 578 pages, which I began to read in advance of the hearing. Compared to what might normally be expected in an unfair dismissal claim the bundle was difficult to read quickly, both because of its length but also because of the striking density of industry acronyms and jargon contained in the documents. After initial discussions with the parties, and further discussions at noon, I eventually spent until 3.00 pm on the first day reading. During that time, the parties were able to agree a glossary of terms, which was of assistance. I read the witness statements, and the documents referred to therein, focusing on key sections of longer documents as identified by the parties.[5]At 3.00 pm I reconvened the heard evidence from the respondent’s first witness, Mark Rittenberg, who was the investigating officer. Although his evidence concluded at the end of the day, Mr Gibson produced two additional documents overnight which were admitted into evidence by agreement. Mr Rittenberg was then briefly recalled to deal with those documents before I heard evidence from Jamie Rothwell, the disciplinary officer and finally Thomas Lacy, the appeal officer. The respondent’s evidence concluded at 12.15pm on the second day of the hearing. I then heard evidence from Mr O’Neil, his evidence finished just after 4pm. The witness statement bundle contained statements from three other people (Matthew Williams, Darren Reek and Nigel Clayton) submitted in support of Mr O’Neil. None of those people attended to give evidence and, with the agreement of both parties, I admitted the statements into evidence on the understanding that they would carry less weight in relation to any contested matter than they would have done had the witnesses attended.[6]There was therefore insufficient time in the two days allocated to this case for me to deliberate and give a Judgment. Following some discussion about Tribunal availability, the parties agreed to submit their final submissions in writing in order to achieve a quicker decision. I am grateful to both representatives for exchanging their written submissions and supplying them to the Tribunal in a timely way, given the relatively short timescales involved. I reconvened the hearing in chambers on 1 July 2025 to consider my decision, with the benefit of written submissions and reply submissions from both Mr Gibson and Mr Stenson. There was then a short further delay in finalising this Judgment due to other judicial commitments.
The Issues
[7]There had been no attempt to agree a List of Issues in advance of this hearing, which was unsurprising given the nature of the case. I talked through the issues with the representatives at the start of the hearing, explaining the Burchell test and emphasising that I would not be deciding whether or not I would have dismissed Mr O’Neil had I been conducting the disciplinary hearing instead of Mr Rothwell. Mr Gibson indicated his familiarity with the Burchell test and the role of the Tribunal, and we agreed the issues to be as follows:1.1 Has the respondent shown the reason or principal reason for dismissal?1.2 Was it a potentially fair reason under section 98 Employment Rights Act 1996? (The respondent relies on conduct as its potentially fair reason and the claimant agrees that this was a conduct dismissal)1.3 If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:1.3.1 The respondent genuinely believed the claimant had committed misconduct;1.3.2 at the time the belief was formed the respondent had carried out a reasonable investigation;1.3.3 the respondent followed a reasonably fair procedure;1.3.4 dismissal was within the band of reasonable responses. Findings of Fact
Background
[8]Mr O’Neil says that he started employment in 2003, Murphys says his start date was in 2012, although I understand that this is likely due to a potential break in service and it is acknowledged that his previous employment does date back further. I have not needed to decide whether Mr O’Neil had continuity of employment in the legal sense; on any basis he was a very long-serving and experienced employee. Prior to the events of 31 March 2024 he had a clean disciplinary record and seems to have been regarded as a highly valued employee. The three supporting witness statements submitted by former colleagues speak very highly of him, using terms such as “meticulous” and “professional”.[9]Latterly, Murphys had been involved in a project to upgrade the power supply on the East Coast mainline. That project was being conducted by the REAL Alliance, a consortium of organisations including Murphys, Network Rail and other contractors. Mr O’Neil was working on that project, particularly at weekends where sections of the line would be closed to allow workers access to the railway in order to install high-voltage cable along sections of the line. The cable would arrive onsite on a spool and would be ‘pulled’ from the spool along the line. Mr O’Neil’s job was to supervise a group of workers who would complete each cable pull.[10]The respondent’s witnesses acknowledged that Mr O’Neil was an expert in this work and that they did not doubt his evidence as to the context of the work being done on the night in question. I accept that evidence. Specifically, I accept that the project had lasted 6-7 years and was coming to its end, and that there had originally been four supervisors but by March 2024 Mr O’Neil was the only person remaining in this role. I accept his approximation of the size of the project and his involvement in it as follows: “We pulled a million miles of cable on the project. I pulled 600k of them.”[11]There is a conflict between the parties about the culture at Murphys. Ostensibly, safety is a matter of utmost seriousness. The respondent’s witnesses point to a plethora of references to the importance of safety in its policies, job descriptions, training regime etc. This includes encouragement for employees at all levels to “speak up” if they are concerned about safety and an assurance that they will not be penalised for doing so.[12]Mr O’Neil says that the situation ‘on the ground’ was somewhat different. He says that there was constant pressure to get work done on time and on budget. He says that when he raised things with his manager, Gary Fielding, he was simply told to get on with it, and it got to the point where there would be no point in raising certain things at all. Mr O’Neil pointed to some text messages and emails in support of his argument, although there were only a small number of these from a period covering several years. In particular, Mr O’Neil relied on a text message which he had drawn attention to during the disciplinary process. This was sent from him to Mr Fielding on 21 January 2024 and read: Alright Gaz Just a message to apologise for losing my head a bit last night while speaking to u. It just when I arrived on-site more than half a hour before meeting time to sit and check over all paperwork I just got totally bombarded with everything and I didn’t have all answers because I wasn’t fully briefed on RRVs situation – POS plan. I was told there were different types of RRV’s, when they were actually the same type but also had to supervise fill in all paperwork brief everyone basically just do everything myself. Also when the gate got hit at the end of shift only guys left to deal with everything was me Gary Maclean the fitting and C/C, everyone one else just fucked off not even asking if the could help me or take a bit of pressure off me in anyway. I totally understand that everyone has got a lot on and finding time can be difficult, but communication between management and supervisors needs to improve or we’re going to fail big time.[13]Things did not improve, and in the months running up to the incident, Mr O’Neil was working lots of shifts and was feeling pressured and anxious. He contacted Mr Fielding, by email on 7 March 2024 to inform him of this and ask for a morning off to discuss things with his doctor and review his medication. Mr O’Neil was released from duty to return home to Scotland for the weekend. 31 March incident[14]As I have stated, on the evening of 30-31 March, Mr O’Neil and his team were to conduct a cable pull on the East Coast mainline north of Doncaster. The access point was at a level crossing.[15]Mr O’Neil received paperwork in advance of the job. This included a lift plan prepared by a John Hart document and a plant operations plan (“POP”). In order for the cable pull to take place, the cable spool, mounted on the Aframe, had to be loaded onto a road-rail vehicle (“RRV”) to be taken onto the tracks. The equipment would be lifted by a telehandler. The lift plan was incorrect in that it stipulated that the A-frame would be lifted separately from the spool, with the A-frame loaded onto the RRV and the spool then being lifted onto it. In fact, the spool arrived on-site pre-mounted onto the A-frame, meaning that they would be lifted together by the telehandler onto the RRV – a significantly heavier lift than stipulated in the plan.[16]Mr O’Neil said that the spools invariably arrived on-site preloaded. If he had reviewed the lift plan fully, he would therefore have known in advance that the lift plan was likely wrong, and he would have known for sure that it was wrong when the spool arrived on-site preloaded with the A-frame.[17]The respondent points out that calculations for the lifts had to be done afresh for each part of the project. There would be a different length of cable on the spool which would affect the weight. Other variables, such as a the slope (or “cant”) of the site also had to be accounted for. It is the respondent’s position that Mr O’Neil should have stopped the lift from going ahead based on the incorrect lift plan. Further, the respondent says he could not have briefed the team properly about the lift, as he did not have the correct document to brief them with.[18]Mr O’Neil says that this sort of error in the lift plan was commonplace. He accepted that he was not qualified to do the calculations which underpin the lift plans, but says that he knew the equipment well and that he knew a telehandler with an 8-tonne capacity could safely lift an A-frame and spool with a total weight of about 4.5 tonnes, even on a cant.[19]The POP was prepared by Mr Mike Harding and signed by Mr O’Neil. Neither of them conducted a site visit in order to prepare the POP, although the document itself indicates that an inspection should be undertaken. The POP had errors, specifically the cant of the site was recorded as being zero which was incorrect.[20]Mr O’Neil’s position is that he assessed the cant and other site-specific factors on the night and verbally briefed his team. The changes were not recorded in the POP, which the team signed, nor elsewhere, including in the Point of Work Risk Assessment document (“POWRA”) which Mr O’Neil also completed.[21]The crane operator on the night was Mr Williams. His role was not to physically control the lifting machinery, but to direct its operation. The RRV driver was Mr Daniels, who was a contract worker not employed by Murphys, and who Mr O’Neil did not know well. There were several other operatives on site, including a Mr Baker.[22]The spool and A-frame were successfully lifted from the telehandler onto the trailer of RRV. They needed to be strapped into place. Mr O’Neil instructed Mr Baker to get the straps, he moved past the trailer in order to do do so. A few second later, as I have said, the spool and A-frame crashed off the trailer to the ground.[23]It was initially thought, including due to comments from the driver, that the equipment may have slid from the trailer spontaneously. This called into focus issues around the cant of the location and the physical interface between the A-frame and the trailer. CCTV ought to have been available from the RRV but was not (a problem which was explored in its own strand of Mr Rittenberg’s subsequent investigation). Later, CCTV obtained from external sources would reveal that the mechanical arm of the RRV had in fact knocked the equipment, pushing it off.[24]The operation should have involved a very high level of control around movement in the vicinity of the equipment. When any of the equipment or machinery was going to move, an exclusion zone should be in place to keep the workforce away from it. When the exclusion zone was suspended (for example to allow workers to strap the equipment to the trailer) none of the equipment or machinery should have been moving.[25]Mr O’Neil’s position is that he had signalled the suspension of the exclusion zone with a hand signal to allow Mr Baker to access the straps. The incident was due to the RRV driver’s actions in knocking the equipment at a point where he should not have been carrying out any operation with the RRV, as the exclusion zone was suspended. The respondent does not accept that Mr O’Neil had suspended the exclusion zone, and this, is a conflict I will return to.[26]After the incident occurred Mr O’Neil suspended the work and contacted a duty manager, who in turn contacted Mr Fielding. The chronology produced in the investigation report records that Mr Fielding “wants to get the winch out” i.e. to carry on with the cable pull operation. Mr O’Neil relies on this as evidence of Murphy’s ‘on the ground’ culture of prioritising getting the job done. In any event, however, the work was suspended and Mr O’Neil and Mr Williams were sent to undertake drug and alcohol testing (which was negative). Mr O’Neil was subsequently suspended from duty and an investigation was undertaken. The investigation[27]An investigation was undertaken by Mr Rittenberg. This was not specifically a disciplinary investigation into Mr O’Neil. It was a broader incident investigation. The resulting report was 82 pages long. Mr Rittenberg is trained in the “taproot” investigation methodology which, I understand, seeks to go behind the proximate causes of failures to identify underlying causes at various levels. The investigation was undertaken on behalf of the REAL Alliance and supplied to Network Rail and the principal contractor.[28]Mr Rittenberg obtained initial statements from all of those on site. These were followed up with further interviews although, after providing an initial statement the RRV driver, Mr Daniels, declined to cooperate further. Mr O’Neil has criticised Mr Rittenberg for not having notes taken of one of their early interviews. However, it was not suggested to Mr Rittenberg that anything was said (or not said) in that interview which would have made a difference to his conclusions of the progress of the subsequent disciplinary. The investigation did not interview Mr Fielding (Mr O’Neil’s manager, whom the “we’re going to fail big time” message had been sent to), Mr Hart (who completed the lift plan) or Mr Harding (who completed the POP).[29]There were essentially two phases to the investigation. In the first phase, the evidence seemed to suggest that the equipment had slipped, and the focus was on how that could happen including, for example, the commissioning of calculations of the friction between the trailer bed and the A-frame surface. After the CCTV emerged, demonstrating that the equipment had been knocked, the focus of the investigation shifted.[30]The investigation report was finalised on 31 May 2024. Whilst I appreciate that the wait would have seemed very long to Mr O’Neil, I consider that to be a reasonable time frame in view of the severity of the incident and the coverage of the report, as well as the delay caused by the CCTV issue and this shift in the investigation focus. It is very common in the Tribunal to hear evidence of employers taking far, far longer to investigate much simpler matters.[31]In his executive summary, Mr Rittenberg identified ‘risk assessing’, ‘paperwork quality’ and ‘Quality of POWRA’ as all being causal factors of the accident, highlighting the discrepancies in the lift plan and the POP. The summary contains statements such as “We as a delivery team have utilised Generic Risk Assessments for the works which is insufficient in terms of planning and controlling of the works... we haven't assessed the actual sitespecific risks that presented themselves at this location... we have failed in following protocol.” In making these assessments Mr Rittenberg does not attribute blame to particular individuals. Of course, that must be seen in the context of this being an incident investigation and not, at this stage, a disciplinary investigation into Mr O’Neil.[32]Mr Rittenberg also referenced another factor, which I have not described thusfar, but which formed an important part of Mr O’Neil’s case. That is the fact that he was performing a number of roles on the night in question. In his executive summary Mr Rittenberg said: Causal Factor 6 (Failure) - Supervision (SO) [Steve O’Neil] role as supervisor on site at the time of the accident and was insufficient / ineffective based on him conducting a number of roles on the night in question, (SO) was the Single Point of Contact (SPOC) , Supervisor for the works/POS and Winch operator which is why I have deemed his position on the night as ineffective and untenable for One person to conduct all Four roles whilst ensuring that his key Responsibilities & Duties were administered for the works he was supervising/overseeing.[33]Mr Rittenberg went on to identify “Delivery of Materials” as a further causal factor, noting again the discrepancy between the lift plan providing for the A-frame and spool to be lifted separately, and the reality of the spool being delivered to site pre-loaded onto the A-frame: “It also brings into question that we are planning these deliveries with a flawed plan in line with the paperwork and how we plan to go to work in habitual way”.[34]Another causal factor highlighted was the management of exclusion zones. Mr Rittenbeg recorded that an operative (Mr Baker) had entered an agreed exclusion zone, instructed by the supervisor, and narrowly missed being crushed. There was no reference to Mr O’Neil’s position, which was that the exclusion zone had been suspended. I have only mentioned some of the causes identified, others, such as driver error, were not relevant to Mr O’Neil’s disciplinary.[35]The analysis proceeds to identify ‘root causes’ and then to recommend remedial actions and actions to prevent recurrence. This included the health and safety investigation being passed to “the People Team/DSR/MSD” to undertake separate processes as appropriate before “employee consequences” are applied. It also included various actions to ensure that paperwork was completed in a more robust way and to prevent people being given multiple roles within an operation when this was not appropriate.[36]Section 9.5 of the report is headed “Culture and Human Factors”. The introduction explains that the “Fair Culture Flowchart” has been used in relation to each employee’s involvement in an unsafe act identified by the investigation.[37]It has emerged during the course of this hearing that the Fair Culture Flowchart is a document produced by Network Rail. The new documents introduced by the claimant at the end of Day 1 also related to Network Rail’s Fair Culture system and comprised a “Consequences Matrix” document and an “FAQ” document.[38]The flowchart uses questions to categorise the type of conduct by an individual which has contributed to a safety incident. Mr Rittenberg’s report includes analysis in respect of the following individuals and acts: RRV driver (Mr Daniels) – Driver error – uncontrolled movement Crane controller (Mr Williams) – Not securing the load Telehandler driver and machine controller – not adhering to lift plan Operative (Mr Baker) – exclusion zone breach Supervision duty failures (Mr O’Neil) There was no scrutiny of any individuals not present on the night, including individuals responsible for the flawed and inadequate paperwork being presented to Mr O’Neil (such that, in the view of the respondent’s witnesses, he should have halted the work and refused to go ahead) or individuals responsible for resourcing the work, such that Mr O’Neil was allocated to take on a number of roles deemed “ineffective and untenable” by Mr Rittenberg”. In the commentary below this list, in relation to Mr O’Neil, Mr Rittenberg has recorded “The supervisor has contravened the lift plan and failed to stop the works”. This error is categorised by Mr Rittenberg using the flowchart as being a “Contravention or Slip/lapse”.[39]The significance of this, according to Mr Gibson, is that under the Fair Culture model only errors which are categorised as “Sabotage, malicious intention or reckless contravention for personal benefit” can proceed via a disciplinary process. All other types of error in the flowchart are to be addressed via other means, such as, for example, coaching conversations. Although I do not have all of the documents associated with the Fair Culture model, I accept that Mr Gibson is correct in his assertion as to how that model applies. That much seems clear from the documents that have been provided.[40]The respondent also does not appear to dispute the operation of the Fair Culture model. Instead, it says that it was entitled to apply its own disciplinary procedures to its own employee. There was no obligation upon it to import a Network Rail model. There was no evidence of any overarching contractual requirement which obligated Murphys to adhere to the Fair Culture Model as a contractor working as part of the REAL alliance. I will return to Murphy’s position on this later.[41]Mr Rittenberg also completed a 9-page investigation summary form, dated 3 June 2024, which related specifically to Mr O’Neil. It concluded by recommending “Further Action Required” which Mr Rittenberg clarified as being a recommendation for disciplinary action, as opposed to any other sort of action. There was no where in the form for Mr Rittenberg to recommend the level of disciplinary action which might be appropriate, and he did not do so. This report summarised what were described as serious breaches of health and safety policy by Mr O’Neil. I will not set these out here as they subsequently fed into the letter inviting Mr O’Neil to a disciplinary hearing.[42]The next section is entitled “Possible Mitigating Circumstances” and Mr Rittenberg writes: In my experience with (SO) I have always found (him) to be trustworthy, dependable, and hardworking in his approach to work. (SO) is of good character and highly thought of within the Real Alliance and wider Murphy business. (SO) has no previous disciplinary measures recorded on his file from any past demeanours. (SO) was SPOC/Supervisor for the works/POS and Winch operator which is why I have deemed his position on the night as ineffective and untenable for One person to conduct all Four roles whilst ensuring that workers are following established safety protocols for the works they are conducting. I think (SO) has been placed in an unfair position due to lack of planning/foresight from the project team in securing sufficient resources in the correct timescales from resource ops. Disciplinary process[43]Mr O’Neil was initially invited to a disciplinary hearing by letter dated 7 June 2024. The hearing was to be conducted by a Mr Paget, Murphys’ Head of Procurement. The respondent’s evidence, which I accept, was that Mr Paget raised a concern that he did not have the technical background needed to manage this particular disciplinary process and so the process was taken over by Mr Rothwell, who subsequently issued his own invitation letter in similar terms. However, before moving onto that there is a point I must reference in relation to Mr Paget’s letter.[44]The letter stated that the allegation was one of gross misconduct and that the meeting could result in a sanction up to and including dismissal without notice. It is good practice to inform an employee of these matters to enable them to prepare for the meeting and understand the seriousness of the allegations they face. Mr Rothwell confirmed that the respondent, in common with most employers of any scale, has a suite of template invitation letters depending on the maximum sanction which could be applied in that particular hearing.[45]Unfortunately, when Mr Paget’s invitation letter was emailed to Mr O’Neil the electronic document was entitled “Invitation to a Disciplinary Meeting (Gross misconduct – summary dismissal) SON”. Mr O’Neil believes that that indicated that the meeting was a foregone conclusion – the decision to dismiss him had already been taken.[46]Mr Rothwell rejected this contention. He was clear that the decision to dismiss was his decision, and he had not even been involved at the time that this letter was sent. I accept his evidence on that point. Mr Rothwell suggested that it was likely that the document title came from the template document, differentiating it from other templates where, for example, the meeting might result in a warning. I agree that this seems a likely explanation (although ultimately it does not matter how Mr Paget’s letter came to have the title it did, given my finding that the decision could not have been pre-determined as it was made by Mr Rothwell). In his evidence on this point Mr Rothwell described the title of the letter as “really unfortunate” and said “I can imagine it would have worn heavy on Mr O’Neil”. Although I have found that this point does not have a bearing on the fairness of the dismissal it is to Mr Rothwell’s credit that he was ready to recognise the upset that would have been caused to Mr O’Neil. I hope that the respondent will learn from this error and ensure that other employees are not put in the same position.[47]The replacement of Mr Paget with Mr Rothwell resulted in a short delay to the process. A further invitation was sent, this time from Mr Rothwell, on 14 June, inviting Mr O’Neil to a disciplinary hearing on 25 June 2024. The letter set out the following allegations, specifying that they breached the Murphy Simple Actions (i.e. the company’s key health and safety standards) and may constitute gross misconduct:• You failed to ensure the Lift Plan was being complied with, which resulted in the correct procedures not being followed.• Failure to conduct a thorough site-specific risk assessment before starting work to ensure significant risks have been mitigated.• Failure to ensure the full working party is briefed sufficiently and understood the safety documents.• A failure to maintain safety distances from plant equipment as the exclusion zone around RRV was insufficient.• A serious breach of Health and Safety procedures when failing to challenge Jonathan Barker who walked through an exclusion zone.• You failed to work responsibly in line with Network Rail, Our Lifesaving Rules[48]It was not clear from the way the bundle was presented exactly what documents were in the disciplinary “pack” prepared for the hearing. It appears likely that this included only excerpts from the lift plan and POP documentation, as per Mr Rittenberg’s report, and not the full documents, but the lack of a paper trail made this difficult to establish. There was also some correspondence between the claimant, his representative and the respondent asking for various documents, and there was a degree of miscommunication around this. In a complicated case it is good practice to keep a record of documents which have been issued and how these have been issued and not to assume that employee will necessarily be able to access sharepoint sites and similar facilities if they do not use those facilities in their day-to-day role, as seems to have happened here. Having said that, I am satisfied that Mr O’Neil and his representative at least had access to Mr Rittenberg’s investigation report and investigation summary report and that that was sufficient to enable them to fully understand and comment on the allegations. Although Mr Gibson has continued to raise documents missing from the disciplinary hearing as an issue in the case, he has not been able to demonstrate how any specific document would have put Mr O’Neil in a better position to put forward his case to Mr Rothwell, or would have been likely to change Mr Rothwell’s assessment.[49]Mr Rothwell met with Mr O’Neil and his representative, Colin Fisher, on 25 June. Detailed notes of that meeting were included in the document bundle. Mr O’Neil complains that he was not given the opportunity to check the notes for accuracy before Mr Rothwell reached his decision. The bundle also includes notes of challenges or corrections which Mr O’Neil would have made to the minutes had he had the opportunity to do so, and I have taken account of those in considering what happened at the meeting. Some of the corrections are indicative of the fact that the note taker lacks familiarity with the work e.g. ‘POT’ instead of ‘POP’ and ‘crane driver’ instead of ‘crane controller’. The main substantive points raised are that Mr O’Neil objects to the record stating that he had received all documents, and he states that he had made the point that the exclusion zone was suspended when Mr Baker walked into it, but that this is not recorded in his answers.[50]In terms of what is not disputed about the meeting, Mr O’Neil accepted that he had not read the lift plan “word for word”. He said that the lift plan was “shocking” and acknowledged he should have picked up on that, but that the plans used were generic and he had too many jobs that evening to do so. He acknowledged that he had not picked up on the fact that the lift plan specified two lifts rather than one.[51]Mr O’Neil referred several times to the fact that he had multiple job roles that evening and was asked if he had pushed back on that point. He acknowledged that he had not on the evening in question but pointed to his 21 January message to Mr Fielding in which he had raised the point of being overworked with too many tasks to deal with and asked for better communication between managers and supervisors.[52]When asked about the circumstances on-site, Mr O’Neil was adamant that he had checked the cant and briefed the team about it, but that he had had insufficient time to reflect that in the paperwork (specifically the POWRA) because of the multiple tasks he was managing.[53]In relation to the POP Mr O’Neil said, “It’s not right, basically you get forced into a corner to review and sign it. It covers his [i.e. Mr Harding’s] arse but not mine.”[54]In relation to the exclusion zone, the notes reference Mr O’Neil saying that he had given a “thumbs up” (page 434). That was the sign to suspend the exclusion zone and to permit Mr Baker to approach. Further, there is a specific note of Mr O’Neil saying that the exclusion zone had been suspended later in the record (top of page 436). Although there may have been a failure by the notetaker to capture another occasion where the point was made, I am satisfied that Mr Rothwell was aware of the point and aware of its significance. If the exclusion zone was suspended, then the culpability of the driver in making a movement which he was not instructed to do by the crane controller is increased. Conversely, the culpability of Mr O’Neil and Mr Williams directing operations on the ground would be decreased, at least in respect of Mr Baker’s near miss. Mr O’Neil made the further point that he couldn’t see Mr Baker enter the exclusion zone, so couldn’t challenge him.[55]Later in the meeting, Mr O’Neil confirmed that if he thought something was not right he would speak up, and if he thought there was danger he would stop work.[56]The meeting was reconvened on 27 June 2024 when Mr Rothwell verbally delivered his decision to summarily dismiss Mr O’Neil. The decision was confirmed by a letter of the same date. The letter dealt with each allegation in turn. I summarise its contents as follows: You failed to ensure the Lift Plan was being complied with, which resulted in the correct procedures not being followed Mr Rothwell concluded that Mr O’Neil had admitted this allegation. Failure to conduct a thorough site-specific risk assessment before starting work to ensure significant risks have been mitigated Mr Rothwell noted the paperwork deficiencies in the POP the fact that these were not recorded by Mr O’Neil in the POWRA. Mr Rothwell went on to state: I have taken on board your comments around having multiple roles that evening, however at no point prior to the shift starting or during the shift did you speak up and raise your concerns to senior management. You also admitted that it was not possible to undertake the multiple roles assigned to you, but still proceeded with the works. At Murphy will continually deliver the message to all our employees to 'speak up’ if they feel something isn’t right, and if you did believe something was not right, it is expected that our people speak up. Therefore, I believe this is a serious breach of our policies and procedures. Simple Actions, ‘Control our Work Area, we always know the risks & Control them, we are clear on everyone’s role. If not right speak up. Failure to ensure the full working party is briefed sufficiently and understood the safety documents. Mr Rothwell appeared to accept Mr O’Neil’s account that he had given a full verbal briefing to the team, but was of the view that this could not be completed given that he had not read the lift plan. He expressed the view that there was a “lack of control” on the shift and that Mr O’Neil should have ensured the relevant safely documents were in place notwithstanding the multiple roles he was undertaking. A failure to maintain safety distances from plant equipment as the exclusion zone around RRV was insufficient. Mr Rothwell appeared to accept that driver error was the primary cause of the incident, but did not agree that it was the only cause, saying “there are other factors/decisions made by you which contributed”, in particular, the fact that the RRV was permitted to move when the equipment was not strapped down. A serious breach of Health and Safety procedures when failing to challenge Jonathan Barker who walked through an exclusion zone. The letter simply records “In the meeting you have said that you did not challenge Jonathan Baker, as you did not see it.” It is not clear from the way in which this is expressed whether that statement was accepted by Mr Rothwell, and whether that particular allegation was therefore excluded from consideration. On appeal, it was clarified that Mr Rothwell had indeed accepted Mr O’Neil’s position on this point and his failure to challenge Mr Baker was not part of the reason for dismissal. The letter did not deal expressly with the final allegation in the invitation, namely, “You failed to work responsibly in line with Network Rail, Our Lifesaving Rules”. That was a catch-all allegation, summarising the conduct described in the previous allegations, and it was therefore addressed in Mr Rothwell’s discussion in relation to the previous allegations.[57]The letter concluded by setting out details of Mr O’Neil’s termination arrangements and informing him of his right to appeal.[58]It is also material to set out some of the wording used by Mr Rothwell when communicating the dismissal (as recorded in the notes) which does not appear in the dismissal letter: I have thought long and hard over everything and taken into consideration the mitigation, around the multiple roles that you had been doing on the night of the incident. I have also taken into consideration how you had previously sent messages four/five months ago, saying something similar, but where I am struggling is the decisions you made around not reviewing paperwork, lift plan and I feel you had taken a risk there and I think you could have pushed back on. I do think hypothetically what could have happened if you refused to do all those roles, as you didn't have the proper time to complete each of those roles. Yes, the job would not have been completed and the business would have taken a financial hit on that. But ultimately the business is always taking steps to inform people if they don’t think something is right then speak up. As a business we promote that…. I do agree the management is also at fault for the number of roles given to you. I have flagged this to senior management, and I have been assured this will be looked at. But individually your role and speaking up, however there are elements such as the POS plan, where you have signed something without even reviewing and you could have pushed back to say I am not happy doing that. You could have pushed back on the entire shift to say you are under resourced and not willing to proceed with it and you would have been supported in terms of any commercial implications… My decision is you admitted you didn’t read the paperwork; at no point did you stop the shift because you felt it was unsafe. The cable drum should have been strapped down before any movement of trucks. You can see from the footage, a few seconds earlier this could have ended very differently, with a fatality if that cable drum had landed on somebody… I would like to reiterate, you were the supervisor on site that night, you didn’t read the paperwork, you allowed the RRV to move without the cable drum being strapped down. If this was in court due to a fatality, they would have looked at what documents you had, you had these and chosen not to read them. You can choose not to sign something if you haven’t had time to read it or understand it. You can choose to stop works if you felt it was unsafe or can’t complete all those roles to the level required.[59]The claimant exercised his right to appeal and an appeal hearing was held on 16 July 2024 by Mr Lacy. By letter dated 15 August 2024 Mr Lacy informed Mr O’Neil that he was not upholding the appeal and confirming the sanction of dismissal. As I have noted above, the appeal also resulted in the clarification that failing to challenge Jonathan Barker when he walked through the exclusion zone had not been a finding of misconduct which contributed to the dismissal.[60]I note for completeness that Mr Williams, the crane controller was also dismissed following a disciplinary process arising out of this incident and Mr Baker was given a disciplinary warning. Mr Daniels, the RRV driver, was not subject to Murphys’ disciplinary process as he was not a Murphys employee. Murphys did inform his employers that he would not be accepted on jobs controlled by Murphys in the future. Mr Rittenberg’s report included wide-ranging recommendations for various actions which more senior members of staff would be responsible for taking or over-seeing. No other member of staff was identified in the report as having committed errors to which the Fair Culture Flow Chart should be applied, and no other member of staff was therefore referred for disciplinary proceedings. Relevant Legal Principles[61]The relevant legal principles are well established and not in dispute.[62]Section 98, so far as relevant, provides as follows:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal and (b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this sub-section if it- (b) relates to the conduct of the employee (4) Where the employer has fulfilled the requirements of sub-section (1), 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 reasonable 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[63]The respondent bears the burden of proving, on the balance of probabilities, that the claimant was dismissed for a potentially fair reason: s. 98 (1) ERA. In this case the potentially fair reason relied on is misconduct.[64]If a potentially fair reason is shown, then consideration must then be given to the general reasonableness of that dismissal under s.98(4) ERA.[65]In considering the question of reasonableness, I have had regard to the decisions in British Home Stores v. Burchell [1980] ICR 303; Iceland Frozen Foods Limited v. Jones [1993] ICR 17; Foley v. Post Office and Midland Bank plc v. Madden [2000] IRLR 82.[66]In summary, these decisions require that I focus on whether the respondent held an honest belief that Mr O’Neil had carried out the acts of misconduct alleged, and whether it had a reasonable basis for that belief. I must not, however, put myself in the position of the respondent and decide the fairness of the dismissal based on what I might have done in that situation. It is not for me to weigh up the evidence as if I was conducting the disciplinary process afresh. Instead, the Tribunal’s function is to determine whether, in the circumstances, the respondent’s decision to dismiss the claimant fell within the band of reasonable responses open to an employer.[67]In conduct cases, when considering the question of reasonableness, we are required to have regard to the test outlined in the ‘Burchell’ case (the case is cited above). The three elements of the test are:a. Did the employer have a genuine belief that the employee was guilty of misconduct?b. Did the employer have reasonable grounds for that belief?c. Did the employer carry out a reasonable investigation in all the circumstances?[68]In addition, the Tribunal will consider whether a fair dismissal process was followed.[69]It was confirmed in Sainsbury’s Supermarket v Hitt 2003 ICR 111 that the ‘band of reasonable responses’ test applies equally to the employer’s conduct of an investigation as it does to the employer’s decision on sanction.[70]Sections 122(2) and 123(6) ERA respectively provide that the tribunal may reduce the amount of the basic and/or compensatory awards payable following a successful unfair dismissal claim where it is just and equitable to do so on the grounds of the claimant’s conduct. In the case of the compensatory award, the Tribunal can only take into account conduct which caused or contributed to this dismissal.[71]Under the principle in Polkey v A E Dayton Services Ltd 1988 AC 344 the Tribunal may reduce the amount of compensation payable to the claimant if it is established that a fair dismissal could have taken place in any event – either in the absence of any procedural faults identified or, looking at the broader circumstances, on some other related or unrelated basis. Submissions[72]The submissions put forward by both Mr Stenson and Mr Gibson were set out fully in writing, so I do not intend to lengthen this Judgment by repeating them at length.[73]In brief summary, Murphys position was that Mr O’Neil had committed clear and serious errors, some of which he admitted, and that dismissal was plainly within the band of reasonable responses given the seriousness of the potential consequences.[74]Mr Gibson’s position was that Mr O’Neil’s errors had nothing to do with the incident on the 31 March, which was entirely due to driver error. Whilst accepting that Mr O’Neil had made errors, he submitted that these represented a much broader state of affairs than simply the events of 31 March, and that it had been caused by management failures to ensure that proper time and resources were allocated to the completion of paperwork and safety arrangements. Mr O’Neil, it was said, was a scapegoat.
Discussion and conclusions
[75]I will frame my analysis around the issues identified towards the start of this Judgment. Has the respondent shown the reason or principal reason for dismissal?[76]The reason is the set of fact which gave rise to the dismissal, rather than the ‘label’ placed on it for the purposes of s.98. I am satisfied that the reason for dismissal was the breaches of procedure relating to health and safety which were set out in Mr Rothwell’s dismissal letter. Was it a potentially fair reason under section 98 Employment Rights Act 1996? (The respondent relies on conduct as its potentially fair reason and the claimant agrees that this was a conduct dismissal)[77]Mr Gibson acknowledged at the outset of the hearing that the respondent had a potentially fair reason for dismissal. If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: The respondent genuinely believed the claimant had committed misconduct;[78]Following on from what is said above, Mr Gibson acknowledged in his submissions that the respondent held a genuine belief that Mr O’Neil had committed misconduct. The only real dispute here was whether the respondent had formed a genuine belief that Mr O’Neil had not suspended the exclusion zine when Mr Baker walked into it, or whether this was overlooked. I am satisfied, as explained above, that Mr Rothwell did consider this issue and was entitled to reach the conclusions he did. At the time the belief was formed the respondent had carried out a reasonable investigation;[79]Broadly, Mr Rittenberg’s investigation in relation to Mr O’Neil was thorough and wide-ranging. Further, to the extent that Mr O’Neil’s dismissal arose from admitted conduct (which it largely did) I accept Mr Stenson’s submission that the need to investigate is more limited.[80]Mr Gibson made certain specific criticisms of the investigation which I will address.[81]Firstly, he criticises the fact that Mr Gary Fielding and Mr Michael Harding were not interviewed. I share Mr Gibson’s concern up to a point. Given the broad nature of the investigation (i.e. the fact that it was the circumstances of the incident as a whole which were being investigated, and not simply a disciplinary investigation into Mr O’Neil) and the conclusions reached I find that there was a distinct lack of curiosity on Mr Rittenberg’s part to go behind the failures that he identified on the part of individuals present on site in order to identify responsibility for the system failures that seem to underlie some of those issues. Mr Rittenberg wrote quite eloquently about how Mr O’Neil had been placed in a difficult position by being expected to carry out a number of different roles on the night, but he demonstrated no curiosity as to how he had come to be allocated so many roles, and whether this was a one-off situation, or a widespread issue which was brought to light by this incident. There was a similar lack of curiosity as to why lift plans were being issued which did not reflect the way in which spools and A-frames were assembled when delivered to site, and as to whether Mr O’Neil had been put under pressure to deliver jobs notwithstanding his own concerns about overwork.[82]I make those comments, however, in the context of the broad investigation undertaken by Mr Rittenberg. Was it strictly necessary for the respondent to interview Mr Fielding, Mr Harding or anyone else in order to establish the facts as they related to Mr O’Neil, particularly in view of the extent to which his conduct was admitted? In my view it was not. Mr Rothwell was asked about the mitigation put forward by Mr O’Neil, and he accepted it as far as it went. Mr Rothwell’s view was that it did not go far enough in view of the serious breaches (including the admitted breaches) he had found Mr O’Neil to be responsible for. That is a decision which was well within the band of reasonable resources.[83]As well as asserting that the investigation into Mr Fielding and Mr Harding was insufficient. Mr Gibson set out other criticisms of the investigation in his written submission. He said (and this is related to the Fielding/Harding point) that despite the use of the “Swiss Cheese Model” the investigation focused only on the final layer and failed to consider systemic contributing factors. In my view this is a justifiable criticism of the broader safety investigation. Mr Stenson emphasised that Mr O’Neil was the respondent’s “last line of defence” and that he had failed in that role by not stopping the works. It is presumably not the respondent’s position that the last line of defence is also the first line, and that the primary resolution to paperwork issues such as the ones that occurred in relation to this lift is for on-site supervisors to be regularly halting expensive operations which are about to start. It is surprising, given the ostensible rigour of the taproot analysis and Mr Rittenberg’s subsequent report that there seems to have been very little analysis undertaken of the failures (or at least potential failures) of the earlier lines of defence, not least in circumstances where Murphys presumably wishes to avoid another supervisor being placed in the position of having to halt works due to similar paperwork deficiencies.[84]In my judgment, however, that criticism of the broader investigation does not mean that the narrower investigation into Mr O’Neil’s actions is necessarily flawed. I am satisfied that the investigation into Mr O’Neil was reasonable and that, for the reasons given in paragraph 82, any further investigation into management culpability would not have exculpated him to any material degree.[85]Mr Gibson also asserts that there should have been more investigation carried out into the role of fatigue. Ultimately, for the purposes of a disciplinary investigation into him as an individual, Mr O’Neil reported as fit to work and the respondent is entitled to hold him to the standard of a fit employee. It is notable that Mr O’Neil did not assert that fatigue had contributed to his actions, and this seems to have been a point taken, with hindsight, by Mr Gibson on his behalf. It would certainly have been possible for the respondent to focus more on that area within its investigation, but that can almost always be said of some point within an investigation, and there is nothing here which takes the investigation outside the band of reasonable responses. The respondent followed a reasonably fair procedure[86]The essential building blocks of a fair procedure were in place here. The claimant was informed of the allegations against him, invited to a disciplinary hearing at which he was accompanied, and given the opportunity to state his case, and subsequently given the opportunity to appeal.[87]I have rejected the suggestion that outcome of the disciplinary process was predetermined, I am satisfied that Mr Rothwell (and in turn Mr Lacy) came to the case with an open mind and each of them reached his own considered view on the material in front of him.[88]Again, there were some specific procedural failings raised in Mr Gibson’s submissions (although not all of the points made there are truly matters of procedure). Dealing with the main points:88.1 I find the respondent was entitled not to follow Network Rail’s Fair Culture Model and to adopt its own disciplinary rules and procedure which did provide for summary dismissal in instances such as this;88.2 For reasons I have already explained, the issuing of an invitation which included the words “Gross Misconduct - Summary Dismissal” in its title was very unfortunate, but not unfair.88.3 There should have been a better paper trail of documents issued through the process, and more steps taken to ensure that Mr O’Neil and his representative could access them, but this error did not impact on the overall fairness of the dismissal in the context of this case.88.4 Similarly, it would have been better practice to have minutes agreed in a timely way, but this did not impact on the overall fairness of the dismissal.88.5 I do not accept that Mr O’Neil had insufficient opportunity to prepare his case, nor that there was any breach of the ACAS Code of Practice;88.6 Mr O’Neil did not establish in evidence that the respondent had placed improper reliance on CCTV recordings;88.7 I did not find any significant unfairness in the conduct of the appeal. The dismissal was within the band of reasonable responses[89]Before assessing whether the decision to dismiss was in the band of reasonable responses, I must deal with one specific point made by Mr Gibson on behalf of Mr O’Neil. There was a suggestion in Mr Gibson’s written submissions that it suited the respondent’s purposes to dismiss Mr O’Neil in spring/summer 2024 as the East Coast Power Supply Upgrade Project was coming to an end after an extended period. This allegation was not contained in the claim form, and was not put to Mr Rothwell or any of the respondents other witnesses. Any finding that the decision to dismiss was motivated by those commercial considerations, rather than being a genuine response to the health and safety breaches identified, would make the dismissal unfair. But it would be simply impossible to make such a finding when the allegation did not feature in evidence at all. I proceed on the basis that the respondent is entirely genuine in its assertion that Mr O’Neil was summarily dismissed due to the seriousness of the disciplinary against him.[90]Employment Tribunals often remind themselves when giving judgment in unfair dismissal cases that there will be circumstances in which two reasonable employers can take a different approach to an issue within disciplinary proceedings – and particularly to the appropriate level of sanction when misconduct is found. Provided that the decision taken by this employer falls within that band of reasonable responses, the dismissal will be fair. It is rare, however, to have a case where one can trace in the evidence two distinct parallel paths showing how this process might have unfolded.[91]Employers working in safety-critical settings might adopt a systemic approach to risk management, seeking to create a culture which avoids blame and the temptation towards cover-ups and instead fosters learning and the development of insight. Such an approach might well result in an approach to health and safety breaches which strives to avoid disciplinary action where at all possible, as demonstrated in this case by the Network Rail Fair Culture Model. An employer seeking to take such an approach, when faced with an individual such as Mr O’Neil, with his unsurpassed experience, his excellent performance record, and his good standing amongst workers and managers, might be much more interested in understanding what had caused such an employee to make the errors and take the shortcuts that he did, and using that learning to make whatever changes in culture were necessary to stop such an event from happening again.[92]Equally, employers working in safety-critical settings might take the view, as this employer has, that only a zero-tolerance approach will do, and that the best way to ensure safety is treated as a number one priority by all workers is to demonstrate that failure to abide to safety standards will have the severest possible consequences.[93]I cannot say that one of those approaches is reasonable and the other not.[94]Having heard the evidence in this case, I do have some sympathy for Mr O’Neil’s view that he was, as Mr Gibson put it in his submissions “a convenient fall guy for wider organizational failings”. Sadly, though, it was Mr O’Neil’s own actions which created the opportunity for him to be that fall guy. Had he refused to allow the work to go ahead, and stood his ground, he would, on the basis of the respondent’s evidence, have been supported and had the protection of the senior management. If that evidence was not, in fact, correct, he would have had the protection of the law.
Conclusion
[95]For the reasons I have set out I conclude that the dismissal was fair and the claim must be dismissed. I hope, nevertheless, that the respondent will reflect carefully on some of the points raised by Mr O’Neil and in this Judgment. Approved by: