Mr G Shields v Falcon Tower Crane Services Ltd: 8000107/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000107/2025Venue EdinburghHearing 14, 15 and 16 April 2025
Between
Mr G ShieldsClaimantFalcon Tower Crane Services LtdRespondent
Before
Employment Judge A JonesDate 24 April 2025
JUDGMENT
The claimant was unfairly dismissed, and the respondent is ordered to pay to the claimant a basic award of £18.550 and a compensatory award of £10,665.68 net, being notice pay of £10,165.68 and £500 in respect of loss of statutory rights. The compensatory award is subject to recoupment. The prescribed element is £10,165.68 and the prescribed period is between 24 August 2024 and 16 November 2024.
REASONS
[1]The claimant worked as a crane operator for the respondent which supplied cranes to clients throughout the UK and beyond. The claimant lodged a claim on 14 January 2025 claiming that he had been unfairly dismissed. The respondent’s position was that the claimant’s dismissal was by reason of misconduct and that a fair procedure had been followed. A joint bundle of documents was produced and the Tribunal heard evidence from four witnesses on behalf of the respondent; Mr Hurrell, Associate Technical Director, Mr Brown, Managing Director, Mr Rix, Health and Safety Manager who dismissed the claimant and Mrs Brown a non-executive director, who dealt with the claimant’s appeal against dismissal. The claimant gave evidence on his own account. A video which had been put together of still photographs was also shown. Representatives made oral submissions on the conclusion of the evidence. Issues to be determined[2]There was no dispute that the claimant had been dismissed by reason of conduct and therefore the Tribunal was required to determine whether the dismissal was fair or unfair in terms of section 98(4) Employment Rights Act 1996. In addition, if the claimant was found to have been unfairly dismissed what, if any compensation should be awarded to him. Findings in fact[3]Having listened to the evidence, considered the documentary evidence to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.[4]The respondent provides cranes and crane operators to clients across the UK and abroad. It employs around 400 staff.[5]The claimant was employed by the respondent as a crane operator from 10 May 2004 until his summary dismissal on 23 August 2024. He was one of the respondent’s most experienced crane operators.[6]The claimant worked on a site at Stead’s Place in Edinburgh to provide holiday cover on 27 and 28 November 2023. That site was managed by another company called Collab Construction Ltd who was the principal contractor on site. The claimant operated a Jaso J380PA crane which had a tower height of 21 metres and a jib length of 65 metres. It was fitted with a park radius device which was operated to place the crane out of service as a safety feature. The crane had been located at that site for some months, during which time another crane operator had operated the crane.[7]The respondent did not at any time see any works plan which would set out what items were to be lifted on any particular day by the crane or what weight such items might be. No investigations were carried out by the respondent to establish this information.[8]On 27 November 2023, the claimant had been lifting various items with the crane such as bricks and wooden roof trusses. He did not know what items he might be required to lift the following day.[9]The claimant communicated with a crane supervisor by radio when being directed to carry out tasks by the crane supervisor who was employed by the main contractor, Collab Construction Ltd. On 27 November, there was an issue with the radios which had not been charged properly.[10]The claimant heard an unusual noise during the course of 27 November when operating the crane but was not unduly concerned about it.[11]The claimant placed the crane in the out of service position at some time after 4pm on 27 November when it was getting dark. When he did so, he did not knowingly operate the park radius device on two separate occasions. He sought to operate that safety feature on one occasion. He was not aware that damage may have been caused to the crane when operating that device.[12]At some time before 16.32 on 27 November damage was caused to the jib of the crane. The claimant was not aware that any damage had been caused to the jib at that time.[13]At 16.34 the crane supervisor, Mr Waddle who was employed by Collab Ltd, called the claimant who was still in the crane on his mobile phone to find out when he was finishing up as he wanted to close the site. The claimant said that he was just packing up and finishing for the day. That call last 79 seconds.[14]The claimant then tried to call Mr Waddle back to find out where to put the radios which were generally used for communication with him and had not been working properly that day. He did not get a reply to his calls. The claimant descended the crane and left the radios on charge in the portacabin office. Mr Waddle had already left the site by this point.[15]There was no discussion on 27 November between the claimant and anyone else regarding any damage which had been caused to the crane and the claimant was not aware of any damage having been caused to the crane at that time.[16]Mr Waddle had left the site by the time the claimant put the radio on charge in the portacabin. The claimant eventually spoke to Mr Waddle to tell him he had left the radios on charge. The claimant had had previously spoken to Mr Waddle on his mobile phone on the morning of 27 November at 08.04 and 07.53, both calls lasting 113 and 103 seconds respectively.[17]The claimant travelled from his home in Glasgow to the site in Edinburgh. He had travelled from the train station to the site by tram on 27 November following the advice of Mr Waddle. On 28 November, there was an issue with the trams and the claimant contacted Mr Waddle by phone at 7.22 for advice about the best way to get to the site. That call lasted 81 seconds.[18]The claimant got a bus to the site. As he was approaching the site entrance, he met Mr Waddle who had been walking from where the respondent had offices opposite the site entrance. The claimant said that he would need 15 minutes to carry out his checks of the crane before starting lifts.[19]The claimant ascended the crane and carried out routine checks. He climbed up onto the top platform on either side of his cab, where he operated the crane. He did this to take a photograph of Edinburgh Castle. His daughter had asked for a photograph of the Castle, and it was his normal practice to take photographs of sites from which he operated a crane. The respondent did not ever ask to see the claimant’s phone to ascertain whether he had taken a photograph of the Castle or at what time.[20]When the claimant was climbing the ladders to carry out his checks and to access his cab, he concentrated on always having three points of contact with the ladder. This meant that he was looking slightly up towards the next rung of the ladder as he climbed it and not looking right up at the top of the structure as he was climbing.[21]The claimant did not see any damage to the crane while he was carrying out his inspections on 28 November. Had he done so, he would have reported the damage to the respondent and not operated the crane.[22]The claimant commenced work under direction of Mr Waddle and on the third lift he carried out, the jib of the crane collapsed. The claimant was injured to his shoulder at the time. No one else on site suffered any injury. The emergency services were called and attended the site.[23]The claimant immediately contacted his line manager by video call to tell him what had happened. He took photographs of what had happened. He subsequently attended hospital in relation to his injuries.[24]A statement was taken from the claimant by the respondent in the immediate aftermath of the incident. This was not produced to the claimant during the disciplinary process or to the Tribunal.[25]The claimant has been diagnosed with Post Traumatic Stress Disorder because of the incident. He experiences flashbacks and nightmares and has developed a fear of heights.[26]Messrs Brown, Hurrell and Rix and another travelled to the site on 27 November from Telford to investigate what had happened.[27]Around 29 November Mr Rix attended the site and spoke to a number of individuals. No record was taken of any of these discussions. Mr Rix examined the crane in the condition it was after the incident. He had not seen the crane prior to the incident.[28]The respondent obtained some time lapse footage of the crane from Collab Construction Ltd. Pictures had been taken of the crane every 2 minutes from a distance and uploaded to a server. The respondent found Collab Construction Ltd reluctant to provide information to them or to co-operate with their investigations into the cause of the accident. The respondent found a picture which it understood had been taken of the crane at 16.48 on 27 November which showed damage to the jib.[29]The time stamps on the pictures which had been taken were not accurate. They were one hour and three minutes ahead of when the photograph was taken. This was accounted for by the difference with daylight time saving and the time to upload the photograph to the server. The reason for this discrepancy was discovered by Mr Rix in preparations for this Tribunal.[30]Mr Rix produced a preliminary report in relation to the incident on 4 December 2023. It stated “At the end of the working shift of Monday 27th November the crane operator would lower the arm and place the crane jib in the out of service position in accordance with the manufacturer’s instructions. During the procedure the jib has contacted the end of the arm, causing damage to the top spine of jib section 1.”[31]The respondent was under significant pressure from the construction industry to explain how the incident had occurred.[32]Mr Hurrell drafted a further preliminary incident report which was dated 11 December. The report set out the sequence of events and referred to ‘witness statements’. No witness statements were appended to the report. Mr Hurrell did not speak with the claimant regarding the incident prior to producing the report. The employees of Collab Construction Ltd did not provide witness statements to the respondent. The report noted that the operator had stated that he had some issues with the reduced out of service device. The claimant had not told anyone that he had any issues with that device but had said to Mr Waddle that he had heard a squeaking noise at some point during the day.[33]The report noted that “the main client confirms they witnessed the damage and discussed the incident with the operator”. The report did not say who was spoken to, by whom, what was said or when any such conversation was said to have occurred. The claimant had not at any stage suggested to the respondent or anyone else that he had seen damage to the crane on 27 November.[34]The report stated that at 08.00 “the operator arrives on site and informs the lift supervisor that he wants an additional 15 minutes to check the crane before commencing lifting operations. This was to undertake checks to the reduced free slew device because of the issues of the previous night.” A period of 15 minutes was a normal period for the claimant to carry out his checks before commencing operations. The claimant had informed the supervisor that he would check whether there was any reason for the noise from the period day. The report did not state who this information had come from or when it was obtained.[35]The respondent invited the claimant to an investigation meeting on either 18 or 19 December 2023 in a hotel. The meeting was not part of any disciplinary process. Mr Hurrell and Mr Brown attended the meeting. By this stage the respondent had created a video from stills from the time lapse footage it had obtained from Collab Construction Ltd. The respondent had formed the view that the claimant had caused the damage to the jib. Mr Brown decided not to show the footage he had obtained and edited to the claimant until the claimant had told him what had happened. The claimant understood the purpose of the meeting was to discuss what might have happened to cause the incident. The claimant was shown the time lapse footage and asked whether he made two attempts to engage the park radius device. The claimant was categorical that he had only made one attempt to do this. The meeting lasted more than two hours and the claimant was distressed at various points during the meeting.[36]The claimant was informed that the notes of this meeting would be typed up and a copy of them issued to him. The notes of the meeting were only transcribed by an artificial intelligence program for the purpose of the Tribunal hearing and a number of gaps in the transcription which stated [inaudible] remained. The recording of the meeting was not provided to the claimant at the time.[37]The claimant, as an experienced crane operator, knew that he should report any damage to a crane to the respondent. He also knew that operating a damaged crane could risk his life and that of all other individuals on the site. If the claimant reported any damage to a crane, he would continue to be paid while any damage was repaired. The claimant has two children and would not have risked his life and that of others by knowingly operating a damaged crane. The claimant did not know that the crane had been damaged on 27 November until after the incident on 28 November.[38]The respondent had formed a view from at the latest the production of the report on 11 December that the claimant was aware of the damage to the crane on 28 November before he started operating the crane.[39]Another crane operated by the respondent collapsed on a site in London in January 2024. That crane was not in use at the time of its collapse. The collapse of a crane is an unusual event and the collapse of a second crane operated by the respondent in a short period of time placed additional pressure to explain why both this and the incident of 28 November 2023 had occurred.[40]The claimant was signed off work sick between 18 January and 6 June 2024. On 6 June his GP recommended that the claimant may be fit for work on the basis of a phased return to work and amended responsibilities.[41]The claimant was required by the respondent to attend a disciplinary hearing on 17 June by letter dated 11 June. The letter indicated that the allegations against the claimant were: “Failure to notify the Service Department of an incident which occurred whilst deploying the Park Radius Device. Continuing to operate the tower crane after the incident occurred. The above action and the consequences will damage the Company’s reputation.” The letter had been drafted by the respondent’s Associate HR Director, Ms Dagless who had been appointed by Mr Brown to deal with the matter and who reported to him. The letter stated that Mr Rix would chair the meeting. Mr Rix reports to Mr Brown and carried out the disciplinary procedures under the instructions of Ms Dagless who is a Board member. No documents were enclosed with the letter inviting the claimant to a disciplinary hearing.[42]A disciplinary hearing took place on 21 June. The claimant was accompanied by his trade union representative at that meeting. Mr Rix had not listened to the audio recording of the meeting of 18 or 19 December prior to this hearing.[43]At the meeting Mr Rix said that the respondent had not been able to provide the claimant with the reports which had been produced or the pictures or video which had previously been shown to him as they were too confidential. Unknown to the claimant at that time, one of the reports had been sent to clients of the respondent in December 2023 by email. There was no good reason why these reports could not have been provided to the claimant on a confidential basis in advance of the hearing.[44]The claimant and his trade union representative were given the opportunity to review the reports and video footage in the room they were in and were not permitted to take them out the building in which the meeting was taking place or take any copies. The claimant complained during the meeting that he had not been given a copy of the notes of the meeting in December as had been promised to him. The claimant was told that any appeal would be dealt with by Mrs Barbara Brown who is also the mother of Mr Brown.[45]During the hearing, the claimant indicated that he understood that the park radius device had been reconfigured, and that there had been 65 mph winds on the site the previous week. He offered these suggestions as potential contributory factors to the damage to the crane having occurred. He also indicated that he understood that the while there had been a recent inspection of the crane, the park radius device had not been inspected. The respondent was asked to check the CCTV footage of the inspection which was said to have taken place during the inspection together with various other pieces of information. That CCTV footage was available to the respondent but it was not viewed by them.[46]The claimant said during the hearing that the respondent should check his record regarding safety as he had pointed out issues in the past. The claimant also said that he had gone to the upper platform to take a picture for his daughter. He said that he could not have discussed damage to the crane with anyone on site on 27 November as there was no one there when he was leaving the site. A written log was kept of those entering and leaving the site.[47]The claimant questioned if the lift supervisor had heard something, why he hadn’t done anything and had left site. He suggested that the supervisor would not have allowed anyone to keep working and that if that had been the case, the claimant said he would have contacted service, and he could have taken a day off.[48]The respondent did not carry out any investigations into the issues the claimant raised during this hearing. There was no attempt to check the claimant’s employment record, whether in terms of length of service or safety record.[49]The respondent then wrote to the claimant by letter dated 15 July providing some information which had been requested by him. No notes from the meeting of “19th December” were provided. It was said that these were unavailable but that an audio recording could be provided. The letter also stated that no other operator outside the respondent’s organisation had operated the crane and that this had been verbally confirmed by Collab Construction Ltd. The letter did not say who had confirmed this or when or what information the assertion was based upon. The letter also said the respondent was “unable to obtain a written record confirming that the damage to the crane was witnessed, however, we have received verbal confirmation that at least two people on site, witnessed the damage.” The letter did not state who was said to have witnessed the damage, what damage they witnessed, where or when they witnessed damage or how this was communicated to the respondent. It gave no explanation as to why if the damage had been witnessed, those said to have witnessed it continued working on site. It did not explain on what basis it was suggested that the claimant had been aware of the damage.[50]The claimant was informed that a second hearing would take place and that after that a disciplinary outcome meeting would be arranged and chaired by Mr Rix. The letter stated “if your behaviour constitutes gross misconduct this may result in the termination of your employment.”[51]The claimant asked for further information from the respondent including the statements of people said to have witnessed damage to the crane.[52]Ms Dagless responded by stating that “we can confirm that there are no written statements. The reason being is, they are not directly employed by Falcon and are not prepared to go on written record. We have received verbal confirmation that the damage was known on the evening of 27 November 2024.” No further information about who was alleged to have said what to whom or when was provided.[53]The disciplinary hearing reconvened on 23 August. During the hearing the claimant stated that if something had happened to the crane, he would never have operated it. He also said that the 15 minutes for checking the crane is a standard time for carrying out checks. The hearing lasted 12 minutes. A decision had been taken to dismiss the claimant prior to the hearing taking place. There was an adjournment of less than 15 minutes and when the meeting was reconvened, Mr Rix informed the claimant that he was being dismissed without notice. Mr Rix said that there had been no reason for the claimant to go up to the third platform, although the claimant had given him a reason. Mr Rix said that the claimant would have seen the damage to the jib although he did not explain to the claimant how he had come to that conclusion. Mr Rix did not have regard to the claimant’s length of service or his record of reporting faults when taking the decision to dismiss him.[54]The decision was confirmed in writing to the claimant by Ms Dagless, and he appealed against the decision.[55]The Health and Safety Executive completed their investigations into the crane collapse of 28 November 2023 and confirmed their position to the respondent in a letter of 4 September 2024. The letter stated that “the most likely cause of the failure appears to have been the damage to the jib due to operator error. There is evidence suggesting that whilst the out of service arm was not fully deployed, the jib was luffed up and came into contact with the out of service arm causing damage to the jib. It is possible that the aforementioned out of service arm sensor and luffing limits were not functioning correctly and as a result the operator caused the damage through failure of these safety features not slowing the jib or indicating the out of service arm was not fully deployed. However, no failure or damage was reported by Mr Shields, and the components were recorded as working correctly at the service inspection. It cannot be positively determined whether the components failure prior to, or as a result of the damage to the jib and the subsequent crane collapse. Witness statements obtained from operatives present at the time, do not confirm any failures of damage being noted prior to the collapse. However, HSE have received uncorroborated hearsay information that site personnel may have been aware that the jib was damaged and that operatives failed to report it. There is insufficient evidence to take formal enforcement action with respect to this allegation.”[56]An appeal hearing took place on 25 September 2024 and lasted 30 minutes. Mrs Brown was noted as saying that she had not read the notes on the file until the previous afternoon and had not discussed this with anyone else. She also stated that the claimant had not “brought to the table anything that hasn’t already been discussed.” It was not clear what information Mrs Brown had considered in advance of the appeal. Shortly prior to the hearing commencing, Mrs Brown had been talked through the video made with stills footage by Mr Chandler who accompanied her at the meeting and was a HSE officer for the respondent. He told Mrs Brown what he took from the video stills footage and Mrs Brown accepted that interpretation was accurate. The appeal was not upheld. It was not a rehearing, and Mrs Brown was of the view that for the appeal to be upheld, the claimant would have to provide new information which was not provided at the disciplinary hearing.[57]The claimant has not worked since his dismissal and has not applied for jobs due to his health. He is now in receipt of universal credit and adult disability payment. Observations on the evidence[58]The respondent’s witnesses were generally credible and reliable. The claimant was an impressive witness who candidly and voluntarily conceded that it was the accident which had caused him to be unable to obtain alternative employment and not his dismissal by the respondent.[59]The main issue in dispute was whether the claimant had operated the park radius device twice rather than once and whether he was aware that this had caused damage to the crane. The respondent’s witnesses were of the same view, that the claimant had done this twice and that the claimant was aware of the damage to the crane. They all had theories as to why this was the case. No one, however, ever put these theories to the claimant. Mr Brown and Mr Rix both stated that they thought that the claimant had believed that if he was not lifting heavy weights on 28 November then the damage caused to the crane might not be unsafe. However, neither of them ever put that to the claimant and neither of them ever carried out any investigation into whether the claimant knew what he would be lifting the following day or his understanding of when it might be safe to use a damaged crane. It was notable to the Tribunal that both Mr Brown and Mr Rix had the same theory as to why the claimant might have gone ahead and operated a damaged crane and that neither of them had carried out any investigations into this matter. The Tribunal came to the conclusion that Mr Brown as the most senior employee and a shareholder in the respondent company had formed a view early on in the process that the claimant was responsible for the damage which resulted in the crane collapse and this view was then adopted by others in the organisation.
Relevant law
[60]Section 98(4) Employment Rights Act 1996 (‘ERA’) provides that in determining whether a dismissal is fair or unfair, “(a) depends on whether in the circumstances (including the size and administrative resource 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.[61]In parties’ submissions I was referred to the well-known case of British Home Stores Ltd v Burchell 1980 ICR 303. I was also referred by the claimant’s representative to A v B 2002 WL 32067939 in support of the proposition that where a dismissal may result in the end of a career, this should be taken into account in terms of determining the reasonableness of an investigation. Reference was also made to Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 in that where there is a question of believing one person over another, the claimant ought to given the benefit of the doubt. In addition, it was said that Taylor v OCS Ltd [2006] EWCA Civ 702 required consideration of the whole procedure which had been followed in relation whether a dismissal was fair or unfair.[62]In addition to these cases, I was mindful of the fact that whether an employer acted reasonably is an objective test in that the Tribunal should not substitute its own view as to whether the dismissal was fair or otherwise (see for instance Foley v Post Office and HSBC Band plc v Madden ICR 1283). A dismissal will be fair if the decision to dismiss is within what is generally referred to as the band of reasonable responses. Discussion and decision[63]There was no dispute that respondent had dismissed the claimant for a potentially fair reason being conduct. The issue for determination was whether that dismissal was fair in all the circumstances.[64]The Tribunal found that both Mr Brown and Mr Rix concluded that the claimant had been aware of the damage to the crane on 27 November and had made a conscious decision to go ahead and use the crane the following day without reporting that damage. However, they had not carried out sufficient investigation to permit them to reasonably come to that view. The evidence Mr Rix appeared to rely on in coming to that decision was firstly that the claimant had conversations with Mr Waddle on 27 and 28 November. Mr Rix created a hypothesis of what might have been said in those conversations. He did not put that to the claimant. He did not take into account the other conversations the claimant had with Mr Waddle or ask the claimant what had been discussed during any calls. In addition, it appears entirely unlikely that what was suggested by Mr Rix was in fact discussed. Mr Rix view appeared to believe that Mr Waddle and the claimant had conspired to agree how they would continue to operate on site with the damaged crane and not report damage. It was suggested that this discussion took place in a call which took place around the time when the damage was likely to have occurred and lasted just over a minute. It seemed entirely unlikely that a discussion about damage to a crane and what steps might be taken to conceal that damage between two people on the phone could take just over a minute.[65]Mr Rix position was that the claimant and Mr Waddle had then collaborated “off-site” the following day to conceal the damage. He appears to have based this assumption entirely on the claimant saying during the disciplinary hearing that he met Mr Waddle “outside site” on 28 November. He didn’t put this hypothesis to the claimant and the claimant’s position before the Tribunal was that he met Mr Waddle as he was approaching the site. The hypothesis of Mr Rix was entirely unlikely and was simply illustrative of his approach that anything the claimant said reinforced his view that the claimant was guilty of the alleged conduct. Secondly Mr Rix came to the view that the claimant had concluded that as he would only be lifting roof trusses on 28 November, the damage to the crane would be unlikely to result in an accident and this was why he had conspired to conceal the damage despite the apparent danger to him and others. However, Mr Rix did not try to establish whether the claimant knew what he would be lifting that day with the crane. He did not even ask the claimant whether he knew what he would be lifting that day. Again, this was illustrative of an approach where Mr Rix was looking (albeit probably unconsciously) for facts which supported his decision rather than looking at facts neutrally or considering whether there were any alternative reasons as to why the accident had occurred.[66]The Tribunal is fortified in its assessment of Mr Rix approach in that there appeared to be no mention or consideration of the claimant’s almost 20 years of service with the respondent or what he had to gain by failing to report damage to a crane. Mr Brown stated clearly that the claimant would not have been dismissed for causing damage to the crane, and the claimant’s evidence that if he had reported the damage, he would have continued to have been paid until he could operate the crane again.[67]The conclusions reached by Mr Rix (and Mr Brown who shared his view) were all based on conjecture and hypothesis, none of which was ever investigated or even put to the claimant to allow him to comment on it. It appeared to the Tribunal that there was nothing the claimant could have said which would have changed the view of either Mr Rix or Mr Brown as they viewed everything the claimant said within the prism of the conclusion they had already reached. There was no effort to investigate anything the claimant said. There was no effort to establish any evidence which might support the claimant’s position, such as signing out sheets to show whether Mr Waddle had left the site when the claimant finished work.[68]The respondent sought to rely on the reluctance of Collab Construction Ltd as a justification for not providing the claimant with information or carrying out further investigations. However, they did not produce any correspondence or lead any evidence about any steps they had taken to obtain any evidence from the principal contractor. Moreover, there was no statement from whomever from the respondent was said to have spoken to Mr Waddle or anyone else on site about any awareness of damage caused to the crane. There was no explanation to the Tribunal about who had been spoken to about this or why a statement could not have been obtained from their own employee to at least give the claimant some information about what was being alleged. Mr Rix said in evidence before the Tribunal that Mr Waddle had said to him on the site around 29 November words to the effect that the claimant had caused the damage and that he had agreed with Mr Waddle. It was not however clear whether the assessment that the claimant was aware of the damage had come from this conversation or another conversation. Mr Rix did not tell the claimant about any conversation he had with Mr Waddle or anyone else on site.[69]Mr Rix concluded that the claimant had spent longer than necessary carrying out safety checks. However, the claimant’s position was that 15 minutes was a normal period in which to carry out checks and Mr Rix did not explore this further with the claimant or give any reason why he disbelieved the claimant. Mr Rix concluded that the claimant had gone to the third platform to inspect the damage he knew was there. The claimant gave an alternative explanation, and Mr Rix did not explore this further, by for instance asking to see the photograph the claimant said he had taken.[70]Instead, the respondent relied on an alleged and undemonstrated inability to give information to the claimant about what was said to whom or by whom while at the same time relying on an interpretation of what that information might have been given to support the decision to dismiss the claimant. This was entirely unfair and not within a band of reasonable responses of a reasonable employer.[71]The Tribunal came to the view that it was likely that Mr Brown had concluded at an early stage that the claimant was responsible for the damage to the crane and that he must have known about the damage before operating the crane on 28 November. That view became the view of the respondent more generally given that Mr Brown was the most senior person in the organisation. In any event even if Mr Rix came to that view independently, it was not a reasonable approach for him to take. He did not carry out investigations into his conclusions, he did not put his suspicions to the claimant for comment. He did not explore at all with the claimant why the claimant would have put his life and that of others on the site at risk. He did not give any consideration to the claimant’s length of service or whether he had reported health and safety issues in the past.[72]In all of these circumstances, the dismissal of the claimant was unfair. In considering the test set out in Burchell, while Mr Rix may have believed that the claimant was guilty of misconduct, but he did not have in mind reasonable grounds on which to sustain that belief and he had not carried out as much investigation into the matter as was reasonable in all of the circumstances.
Remedy
[73]The Tribunal did not accept that the dismissal of the claimant was unfair simply by reason of the procedure followed. The procedure was not fair in that information was not put to the claimant and that there was no investigation into any matters which might have supported the claimant’s position. However, the failures of the respondent were also such that the claimant’s dismissal was substantively unfair. The respondent suggested that the appeal hearing was a rehearing and therefore remedied any procedural unfairness. The Tribunal did not accept that position. The appeal hearing was very brief, and Mrs Brown did not consider matters afresh but looked to the claimant to produce new evidence to change the position.[74]The respondent did not make submissions that any award should be reduced by reason of contribution. However, the Tribunal considered whether any reduction should be made on that basis and concluded that there was no evidence to suggest that the claimant had committed any conduct which would merit a reduction in compensation by reason of contributory conduct.[75]The claimant candidly conceded that he had not been able to apply for jobs because of his health. He continues to suffer from PTSD because of the accident and indicated that he had developed a fear of heights. Therefore, the Tribunal concluded that the claimant was likely to have remained off sick from work and have been unlikely to have returned to work. No evidence was led by the claimant regarding any other role he could have performed for the respondent and the claimant was only entitled to statutory sick pay at the time of his dismissal. He was likely to have been dismissed with notice unless alternative employment could be found for him.[76]Therefore, while the claimant is entitled to a basic award in respect of his age and length of service, it would not be just and equitable to make any award in respect of loss of earnings. However, it would be just and equitable to make an award in respect of the notice pay to which the claimant would have been entitled as any dismissal as a result of the claimant’s inability to return to work would have resulted in him being paid notice pay on termination of his employment. In addition, it would be appropriate to make an award in respect of loss of statutory rights.[77]Therefore, the respondent is required to pay to the claimant a basic award of £18,550, and a compensatory award of £10,165.68 in respect of twelve weeks’ notice pay to which the claimant would have been entitled had he been dismissed fairly by reason of his inability to work and £500 in respect of loss of statutory rights. As there was no breach of contract or wrongful dismissal claim before the Tribunal, the notice pay is subject to the recoupment provisions as the claimant was in receipt of benefits during that period.