B Gillies v The North British Distillery Company Ltd: 8001007/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001007/2024Venue EdinburghHearing 22, 24 and 25 April 2025
Between
B GilliesClaimantThe North British Distillery Company LimitedRespondent
Before
Employment Judge J McCluskeyG Cunningham (instructed by Advocate) for claimantK Norval (instructed by Solicitor) for respondentDate 8 May 2025
JUDGMENT
[1]The complaint of unfair dismissal is not well founded and is dismissed.[2]The complaint of breach of contract is not well founded and is dismissed.
REASONS
[1]The claimant is making the following complaints:. Unfair dismissal and breach of contract. He seeks reinstatement and compensation by way of remedy. ETZ4(WR)[2]The claimant’s employment terminated on 14 March 2024. ACAS early conciliation began on 22 May 2024 and ended on 13 June 2024. The claim was presented on 11 July 2024.[3]The claimant gave evidence on his own behalf. The following witnesses gave evidence on behalf of the respondent: Robert Hay – investigating manager; and Zara Stewart – HR advisor. The dismissing manager, Peter Treacy had suffered a serious illness since the claimant’s dismissal. He remained unwell at the start of this final hearing. The final hearing had been postponed on a previous occasion by the respondent due to his illness. The respondent did not wish to apply for a further postponement of the final hearing and decided to call Ms Stewart to give evidence about the disciplinary procedure in lieu of Mr Treacy.[4]There was a joint file of productions extending to 251 pages. Parties added some additional documents to the file at the outset of the hearing and during the hearing. Issues[5]The unfair dismissal issues to be determined are:(i) What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.(ii) If the reason was misconduct, did the respondent act reasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular whether: there were reasonable grounds for that belief; at the time the belief was formed the respondent had carried out a reasonable investigation; the respondent otherwise acted in a procedurally fair manner; dismissal was within the range of reasonable responses.[6]The wrongful dismissal issues to be determined are:(i) What was the claimant’s notice period?(ii) Was the claimant paid for that notice period?(iii) If not, was the claimant guilty of gross misconduct?[7]The remedy issues to be determined are:(i) The claimant wishes to be reinstated, and so should the Tribunal make such an order?(ii) If there is a compensatory award how much should it be?(iii) What basic award is payable to the claimant, if any?(iv) Would it be just and equitable to reduce the claimant’s basic or compensatory award and, if so, to what extent? Findings in fact[8]I made the following essential findings in fact, necessary to determine the claim.[9]The claimant was employed by the respondent from 26 April 2011 to 14 March 2024. At the time of his dismissal, he was employed as a warehouse operative.[10]The respondent is a distillation and maturation business selling grain spirit, which is the base for blended whisky, and its by-products.[11]The site where the claimant worked is classed as an upper tier COMAH site under the Control of Major Accident Hazards Regulations 2015 (the “COMAH Regulations”). Under the COMAH Regulations, a COMAH site is an establishment which stores large quantities of industrial substances of a hazardous nature, and the upper tier designation is reserved for sites with very large quantities of such materials.[12]On 14 February 2024, the claimant’s colleague Jamie Robertson was driving a tractor with a trailer loaded with casks. Mr Robertson’s vehicle was directly in front of a forklift truck (“FLT”) being driven by the claimant. There was an incident which resulted in a loss of containment (a spillage of spirit) from a cask on Mr Robertson’s trailer.[13]Robert Hay, a Warehouse Team Leader on the site, was appointed to investigate the incident. Mr Hay spoke to Mr Robertson. Mr Hay viewed the CCTV footage which recorded the incident. The CCTV footage showed that the claimant had also been present at the time of the incident, driving a FLT behind Mr Robertson.[14]Mr Hay reviewed the claimant’s training records. The claimant had completed a number of training courses about health and safety on a COMAH tier 1 site and about safe driving and operation of a FLT.[15]On 16 February 2024 the claimant was suspended on full pay pending further investigation. The suspension letter referred to an investigation into a loss of containment on 14 February 2024 and said “As part of this, we reviewed the CCTV footage of the incident....During this review of the CCTV footage we became aware of another incident which could constitute a serious breach of our health and safety procedures, that could have caused damage to company property, and could have endangered the safety of our colleagues. Given the potential seriousness of this incident, we see it appropriate that you are suspended from work on full pay....”.[16]By letter dated 19 February 2024, the claimant was invited to attend an investigation meeting. The allegation in the investigation invite letter was that “you were involved in an incident on Wednesday 14 February 2024 while you were operating the FLT that could constitute a serious breach of our health and safety procedures that could have caused damage to company property, and could have endangered the safety of our colleagues. If the allegation is found to be gross misconduct, this may lead to summary dismissal”.[17]On 21 February 2024 the claimant attended the investigation meeting with Mr Hay. Ms Stewart was in attendance as a notetaker. During the investigation meeting, Mr Hay asked the claimant to describe the incident and whether Mr Robertson had seen him. The claimant said “I don’t know because he reversed. If he’s reversing I’m going to reverse”. The claimant was asked if he used his horn. He said “No I just reversed and got out of his way. He has reversed and stopped so I have reversed and stopped”. The claimant said when he stopped behind Mr Robertson the claimant’s forks on the FLT were “close to” the trailer with the casks which Mr Robertson was pulling. The claimant said “If he moved back I moved back. If he moved forward that’s what I have done. I’m only moving because he is moving”. The claimant also said that Mr Robertson had braked suddenly which caused the casks to move, one of the casks then broke and started leaking.[18]On 20 February 2024 Mr Hay carried out investigation meetings with David McIver and James Kennedy who were part of the claimant’s team. They had been nearby at the time of the incident. Mr McIver and Mr Kennedy said they had not seen the incident. Mr Kennedy said he could see spirit leaking from the trailer when Mr Robertson came round the corner. This did not accord with what the claimant or Mr Robertson said. On 21 February 2024 Mr Hay carried out an investigation meeting with Mr Robertson.[19]Following a review of the CCTV footage, the claimant’s training records and the investigation meetings, Mr Hay recommended that the case proceed to a disciplinary hearing against the claimant. Mr Hay believed the claimant’s behaviour was unsafe while operating company machinery.[20]Mr Hay also recommended that the case proceed to a disciplinary hearing against Mr Robertson for the same reason. There were additional allegations against Mr Robertson about his actions in handling the casks.[21]On 28 February 2024 the respondent wrote to the claimant to invite him to attend a disciplinary hearing. The invite letter stated “It is alleged that while operating a FLT on Wednesday 14 February 2024 you made contact with another vehicle. It is alleged that you engaged in behaviour while operation a FLT that could have caused damage to company property and could have endangered the safety of our colleagues. This could constitute a serious misuse of company property and a serious breach in our health & safety procedures”.[22]The invite letter listed the documents which were enclosed with the letter. This included notes of the interviews with Mr Robertson, Mr McIver and Mr Kennedy, the claimant’s training records, the respondent’s health and safety policy, the respondent’s workplace transport policy and procedure, the respondent’s disciplinary procedure and the Optafleet report for the FLT driven by the claimant. The letter told the claimant that he could view the CCTV on the respondent’s premises. The respondent’s CCTV policy did not allow copies of the footage to be circulated.[23]The respondent’s disciplinary procedure provided examples of gross misconduct including serious misuse of property and serious infringement of health and safety rules.[24]The claimant was given the opportunity to bring a companion to the disciplinary hearing. The claimant was told that one outcome of the hearing was that his employment could be terminated without notice.[25]The disciplinary hearing took place on 4 March 2024. The claimant was accompanied by his trade union representative, Tony Bakhsh. The hearing was chaired by Mr Treacy. Ms Stewart provided HR support to Mr Treacy. She also took notes of the disciplinary hearing. Mr Treacy was the sole decision maker.[26]The claimant was given the opportunity to state his case at the disciplinary hearing. Everyone present viewed the CCTV footage during the hearing. The claimant said that due to an error in judgement he should have stayed further behind the tractor. The claimant’s overall position was that he was operating the FLT correctly.[27]Mr Treacy wanted time to consider what had been said at the disciplinary hearing. He told the claimant he would reach a decision as soon as possible. The hearing ended.[28]On 14 March 2024 the claimant attended a disciplinary outcome hearing. The claimant was accompanied by his trade union representative, Mr Bakhsh. The hearing was chaired by Mr Treacy. Ms Stewart took notes of the meeting. At the beginning of the meeting Mr Treacy confirmed that the purpose of the meeting was to deliver the outcome of the disciplinary hearing. Mr Treacy confirmed that he would read the disciplinary outcome letter which would then be given to the claimant. Mr Treacy told the claimant that the allegations against him were substantiated and that he was dismissed, without notice, for gross misconduct. Mr Treacy explained his reasons to the claimant.[29]On 14 March 2024 Mr Treacy wrote to the claimant to confirm the decision given to him orally at the meeting. The reasons given for summary dismissal of the claimant were: “Whilst you acknowledged that through an error in judgement you should have stayed further behind the tractor, your overall position was that you were operating the FLT correctly and did not come into contact with another vehicle. I do not however believe this to be credible given the following: - CCTV footage shows that the tractor pulls into the left side of the road and stops, leaving enough space for your forklift truck to pass. However, you drive behind the tractor and trailer, raise your forks to the height of the trailer and drive forward closing the small gap between the vehicles. - CCTV footage shows your forklift truck moving forward toward the tractor as it is reversing in the direction of your forklift truck. - It is my view that CCTV shows that your forklift truck makes contact with the trailer. - You acknowledged that when travelling, the forklift trucks should be at a height of 6 inches and tilted backwards. You were unable to offer a satisfactory explanation that would justify you adjusting your fork height to the height of the trailer floor (approximately 12 inches) and adjusting your forks multiple times over a distance of only a few meters. -You were unable to provide a credible explanation for manoeuvring back and forward behind the tractor when the road ahead was blocked. On review of the CCTV and other evidence gathered through the investigation, it is clear you engaged in a game of horseplay with the driver of a tractor and trailer while you were operating a forklift truck. Whilst you disputed this characterisation of events, the driver of the tractor [Mr Robertson] gave a conflicting account and said that the two of you had been engaging in horseplay. I have no reason to doubt his account, which is in accordance with the evidence. On this basis I believe your conduct was intentional. Having considered your representations, the CCTV and witness statements, I consider that the forklift truck you were driving came into contact with a trailer as a result of the above mentioned horseplay. Engaging in such behaviour is entirely unacceptable and could have had potentially very serious consequences”.[30]In the dismissal letter Mr Treacy also wrote “Even if my conclusions are wrong, and your FLT did not come into contact with the trailer, it is clear to me from the evidence that you were not operating the FLT in a manner that was safe in accordance with our ....Health and Safety Policy.... and Workplace Transport Policy Procedure. You failed to maintain a safe distance, you travelled with forks raised towards another vehicle and you were seen on CCTV to be driving forwards towards a vehicle that was reversing in your direction in breach of our Health and Safety protocols. I consider that, at the very least, this shows you had a wilful disregard for your safety and the safety of those around you, as well as Company property”.[31]In the dismissal letter Mr Treacy also wrote “I have considered the seriousness of your misconduct and the potential consequences. I have also considered your previous clean disciplinary record and your length of service. You did not put forward any credible mitigating circumstances. I have considered whether an alternative sanction would be appropriate and I do not think that it would in this case. At the hearing I feel that you displayed a lack of remorse and failed to show any appreciation for the potential serious consequences of your behaviour, which undermines our trust and confidence in your ability to make the required improvements to your behaviour”.[32]The claimant appealed against the decision to terminate his employment. The grounds of appeal were: the claimant’s FLT had not made contact with the trailer as there were no records produced by the respondent to substantiate any contact and that the CCTV was inconclusive of any contact; the claimant had only mirrored the movements of Mr Robertson in front of him, forwards and backwards at a low and controlled speed; the sanction of dismissal was too severe.[33]An appeal hearing was arranged for 3 April 2024 to be chaired by the respondent’s managing director. The claimant was given an opportunity to be accompanied at the appeal hearing. The appeal hearing date was rearranged for 10 April 2024. On 8 April 2024 the claimant wrote to withdraw his appeal. He said “....even though I am very confident I would win my appeal to be reinstated, I feel there is an irreparable trust between management and myself....”.[34]Mr Robertson who was driving the tractor trailer was also summarily dismissed for gross misconduct, the allegations against him having been found to be substantiated.[35]The respondent obtained a Driver Utilisation Report from Optafleet for the FLT driven by the claimant on 14 February 2024. The Optafleet report was included in the pack of documents sent to the claimant on 28 February 2024 with the disciplinary invitation letter. The Optafleet report does not record any contact made by the FLT driven by the claimant and any other vehicles on 14 February 2024. Not all contact would show up on the Optafleet report, particularly where this was contact by the forks of the FLT. Observations on the evidence[36]This judgment does not seek to address every point upon which the parties have disagreed. It only deals with the points which are relevant to the issues I must consider, to decide if the claim succeeds or fails. If I have not mentioned a particular point, it does not mean that I have overlooked it. It is simply because it is not relevant to the issues.[37]The standard of proof is on balance of probabilities. This means that if I consider that, on the evidence, the occurrence of an event was more likely than not, then I am satisfied that the event in fact occurred. Likewise, if I consider that, on the evidence, an event's occurrence was more likely not to have occurred, then I am satisfied that it did not occur.[38]For the purposes of the wrongful dismissal / breach of contract claim only, I require to make findings in fact about the claimant’s conduct. The CCTV footage was shown multiple times during the hearing, both to the respondent’s witnesses and to the claimant. From the CCTV footage, which was clear, I make the following findings in fact:[39]The claimant drove up close behind the tractor and trailer, raising his forks to the height of the trailer floor as he did so; the claimant then drove forward, right up to the back of the trailer; there was no impact visible on the CCTV, but from the CCTV it looked as if the forks of the FLT were touching the trailer and I am satisfied on balance that they were in contact with the trailer; the claimant and Mr Robertson then engaged in a series of manoevres back and forward; the claimant’s FLT was moving forward toward the trailer as the tractor and trailer was reversing in the direction of the claimant’s FLT ie: the vehicles were both moving towards each other.[40]From the documentary evidence about the training the claimant had received I make the following findings in fact for the wrongful dismissal / breach of contract claim only:[41]The claimant had received training on driving FLTs including the requirement to leave a minimum separation gap of three truck lengths when following another truck and not getting involved in horseplay of any type; the claimant had received training on working in a health and safety critical environment on a top tier COMAH site.[42]I found the respondent’s witnesses to be credible and reliable. Their evidence accorded with the contemporaneous documentation and CCTV footage.[43]The claimant submitted that the evidence of Ms Stewart should be dismissed in its entirety because she was not the person who made the decision to dismiss. I accepted the respondent’s explanation about the ongoing illness of the decision maker Mr Treacy and the uncertainty about when he may be fit to give evidence. The final hearing had already been postponed on one occasion due to Mr Treacy’s ill-health. The respondent was in a difficult position, and I accepted that out of fairness to the claimant it did not want to see a further postponement of the final hearing.[44]It is for the respondent to show the reason for dismissal and that it was a potentially fair one i.e. one that fell within the scope of section 98(1) and (2) ERA and was capable of justifying the dismissal of the claimant. Once the respondent has shown a potentially fair reason for dismissal, the tribunal must go on to decide whether the dismissal for that reason was fair or unfair. This involves deciding whether the employer acted reasonably or unreasonably in dismissing for the reason given in accordance with section 98(4) ERA. In this regard, there is no burden of proof on either party and the issue of whether the dismissal was reasonable is a neutral one for the tribunal to decide (Boys & Girls Welfare Society v McDonald [1996] IRLR 129).[45]I accepted the evidence of Ms Stewart that she had worked closely with Mr Treacy throughout the dismissal process. There was no suggestion that she was the decision maker. I was satisfied that Mr Treacy was the decision maker. As they had worked together closely with Ms Stewart providing HR guidance throughout the process I was satisfied that she was able to give evidence about the reason for dismissal, the dismissal process and the decision-making process carried out by Mr Treacy. The disciplinary invite letter, minutes of hearings and the disciplinary outcome letter also recorded the reason for dismissal and the decision-making processes of Mr Treacy. I was satisfied that the evidence of Ms Stewart together with the contemporaneous documentary evidence was sufficient for the respondent to show the reason for dismissal and that it was a potentially fair one and for me to go on to decide whether the dismissal for that reason was fair or unfair.
Relevant law
[46]Section 94 ERA provides that an employee has the right not to be unfairly dismissed.[47]Section 98 ERA sets out that for a dismissal to be fair, the employer must show the reason for the dismissal and that it is one of the potentially fair reasons set out in section 98(1) or(2) of the ERA.[48]A reason relating to the conduct of the employee is one of the potentially fair reasons for dismissal (section 98(2)(b) ERA).[49]In terms of section 98(4) ERA, if the Tribunal was satisfied that the respondent has established a potentially fair reason for dismissal, it must then determine the question of whether the dismissal was fair or unfair having regard to the matters set out in section 98(4) (a) and (b): whether taking into account the size and administrative resources of the employer, it acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee and the equity and substantial merits of the case.[50]Once it is established that the claimant was dismissed for a potentially fair reason relating to conduct the test of the substantive fairness outlined in British Home Stores Limited v Burchell 1978 IRLR 380 is relevant to the question of whether it was reasonable for the respondent to treat that reason as sufficient to justify dismissal.[51]When applying the Burchell test, the Tribunal should consider three issues:a. whether the employer genuinely believed that the employee was guilty of misconduct;b. did the employer have in its mind reasonable grounds on which to sustain that belief andc. at the stage at which the employer formed the belief on those grounds had the employer carried out as much investigation into the matter as was reasonable in the circumstances?[52]The ultimate test in determining the application at section 98(4) is whether the dismissal fell within the “band of reasonable responses”, a test which reflects the fact that inevitably there may be different decisions reached by different employers in the same circumstances (see British Leyland (UK Limited) v Swift 1981 IRLR 91).[53]In applying section 98(4) ERA, the tribunal must not substitute its own view of the matter for that of the employer but must apply an objective test of whether the dismissal was in the circumstances within the range of reasonable responses open to a reasonable employer (see Iceland Frozen Foods Limited v Jones [1982] IRLR 439, Post Office v Foley and HSBC Bank plc (formerly Midland Bank plc) v Madden [2000] IRLR 827CA).[54]The range of reasonable responses test applies in a conduct case both to the decision to dismiss and to the procedure by which that decision was reached ( J Sainsbury plc v Hitt 2003 ICR 111, CA). This includes whether the investigation carried out by the employer fell within the range of reasonable responses that a reasonable employer might have adopted.[55]There is always an area of discretion within which a respondent may decide on a range of disciplinary sanctions all of which might be considered reasonable. It is not for the Tribunal to ask whether a lesser sanction would have been reasonable but whether or not the dismissal was reasonable (Boys & Girls Welfare Society v McDonald [1996] IRLR 129).[56]The test of whether or not the employer acted reasonably is usually expressed as an objective one — i.e. Tribunals must use their own collective wisdom as industrial juries to determine ‘the way in which a reasonable employer in those circumstances, in that line of business, would have behaved’ — NC Watling and Co Ltd v Richardson 1978 ICR 1049, EAT.[57]The Tribunal was given the power to hear breach of contract claims by the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994 when the claimant’s employment has come to an end. That is the case here.[58]The conduct of the employee “must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’ Neary and anor v Dean of Westminster 1999 IRLR 288; Briscoe v Lubrizol Ltd 2002 IRLR 607, CA.[59]The Tribunal must be satisfied, on the balance of probabilities, that there was an actual repudiation of the contract by the employee. It is not enough for an employer to prove that it had a reasonable belief that the employee was guilty of gross misconduct. Submissions[60]The claimant and the respondent both provided written submissions and made oral submissions in support of those. I carefully considered the submissions of both parties during my deliberations. I have dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching my decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision Unfair dismissal Reason for dismissal[61]The first issue is what was the reason for dismissal? I am satisfied that the reason for dismissal was misconduct, namely respondent believed that on 14 February 2024 the claimant made contact with another vehicle whilst driving a FLT and the respondent believed that the claimant engaged in behaviour while operating a FLT that could have caused damage to company property and could have endangered the health and safety of his colleagues. The respondent believed that this was misconduct which justified dismissal. Misconduct investigation[62]The next question is the three stages of the BHS v Burchell case. First did the respondent reasonably believe that the claimant made contact with another vehicle whilst driving a FLT. Did the respondent reasonably believe that the claimant engaged in behaviour while operating a FLT that could have caused damage to company property and could have endangered the health and safety of his colleagues. Those were the allegations set out in the disciplinary invitation letter. Those were the allegations discussed with the claimant at the investigation meeting on 21 February 2024 and at the disciplinary hearing on 4 March 2024. I am satisfied that the respondent did reasonably believe that the claimant had committed this misconduct.[63]Second, was that belief held on reasonable grounds? I am satisfied that it was. Having viewed the CCTV Mr Treacy decided that it showed that: Mr Robertson’s tractor and trailer pulled into the left side of the road and stopped, leaving enough space for the claimant to pass in his FLT; the claimant didn’t pass but instead drove behind the tractor and trailer, raising his forks to the height of the trailer and drove forward closing the small gap between the vehicles; the claimant’s forks made contact with the tractor and trailer; there was an occasion when the claimant’s FLT was moving forward toward the tractor and trailer as it was reversing in the direction of the claimant’s FLT; the claimant acknowledged that when travelling, the forks should be at a height of 6 inches and tilted backwards and that they were not in that position. Mr Treacy concluded that the claimant had not provided a satisfactory explanation as to why he was adjusting his fork height to the height of the trailer floor (approximately 12 inches) and adjusting his forks multiple times over a distance of only a few metres. Mr Treacy did not find the claimant’s explanation that he was adjusting his forks multiple times to suit the condition of the road to be a credible one, given the very short distance. The respondent concluded that the claimant had not provided a credible explanation for maneuvering back and forward behind the tractor and trailer, as could be seen clearly from the CCTV footage. Mr Treacy reviewed the vehicle training and the health and safety training which the claimant had completed. Mr Treacy reviewed the respondent's workplace transport policy and procedure and its health and safety policy which had been provided to the claimant. Mr Treacy concluded that the claimant was well aware of the standards required of him when driving a FLT and that he was in breach of those policies by failing to maintain a safe distance behind Mr Robertson, travelling with forks raised towards another vehicle and driving forward towards a vehicle that was reversing in the direction of the claimant.[64]The claimant said at the disciplinary hearing that due to an error in judgement he should have stayed further behind the tractor, but his overall position was that he was operating the FLT correctly. Mr Treacy was entitled not to agree with that position in the light of the evidence from the CCTV footage and the training which the claimant had received on operating the FLT correctly and in a safe manner.[65]Third, was there a fair and reasonable investigation. I am satisfied that there was. The respondent carried out an investigation with the claimant, with Mr Robertson and with the two other employees, Mr McIver and Mr Kennedy, who had been working nearby. The respondent reviewed the claimant’s training records on use of the FLT and working on a tier 1 COMAH site. The respondent obtained a Driver Utilisation Report from Optafleet (Optafleet report) for the FLT driven by the claimant on 14 February 2025. The respondent reviewed the CCTV footage of the incident. Procedure generally[66]As regards procedure generally, I am satisfied that the procedure followed was reasonable. The claimant was notified in a letter in advance of the allegations against him. He was advised he could bring a companion. A hearing was held at which he and his trade union representative were able to put his case. He was informed of the outcome and his right of appeal. An appeal hearing was arranged at which he was advised he could bring a companion. The individual to conduct the appeal hearing was more senior than Mr Treacy and had not previously been involved in the case. The claimant decided not to go ahead with the appeal hearing.[67]The claimant submits that the allegation put forward by Mr Hay on conclusion of the disciplinary investigation was altered by Mr Treacy when he sent out the disciplinary invite letter. The conclusion reached by Mr Hay was that the case should proceed to a disciplinary hearing as believed the claimant’s behaviour was unsafe while operating company machinery. This conclusion was sent by email by Mr Hay. Mr Treacy and Ms Stewart, who helped to draft the disciplinary invitation letter, were also provided with all of the investigation notes prepared by Mr Hay and the other documentation which he had reviewed. I am satisfied that there was no requirement by Mr Hay to frame the precise wording of the allegation to be set out in the disciplinary invite letter. I am satisfied that the procedure followed in framing the allegation for the disciplinary invite letter based on all of the investigation documents was reasonable. I am satisfied that the allegation together with the accompanying paperwork and the access to the CCTV footage gave the claimant proper notice of the allegation and the procedure was reasonable.[68]The claimant submits that the allegation set out in the disciplinary invite letter was not clearly focussed and did not give the claimant fair notice of the conduct for which he could be dismissed. The claimant also submits that the allegation did not give notice that the claimant’s conduct was intentional; that the claimant was acting with another person (Mr Robertson) and the particular sections of the policies which had been breached. The allegation was that while operating the FLT on Wednesday 14 February 2024 the claimant made contact with another vehicle and that he was engaged in behaviour while operating the FLT that could have caused damage to company property and could have endangered the safety of colleagues. The claimant was sent the notes of the investigation meetings with him and colleagues, copies of his completed training records, copies of the respondent’s vehicle and health and safety policies and the disciplinary policy, the Optafleet report and other documents. The claimant was given access to the CCTV footage. I am satisfied that the allegation, accompanying paperwork and CCTV footage did give the claimant fair notice of the conduct for which he could be dismissed. I am satisfied that the procedure followed was reasonable.[69]The claimant submits that the respondent failed to obtain the Driver Utilisation Report from Optafleet (Optafleet report) for the FLT driven by the claimant on 14 February 2025.[70]The Optafleet report is listed as a document which was enclosed with the invitation letter dated 28 February 2024 to the disciplinary hearing. The claimant and his trade union representative did not raise with the respondent either prior to or at the disciplinary hearing that he did not have a copy of the Optafleet report. It is not a matter which was pled in his claim form. On balance I concluded that it was more likely than not that the Optafleet report was included in the pack for the disciplinary hearing as it was listed in that letter.[71]The claimant also submits that the respondent failed to take account of the Optafleet report because it does not record any contact made by the FLT, which, the claimant submits, supports his position. In the dismissal letter Mr Treacy records that from viewing the CCTV he has concluded that the claimant’s FLT came into contact with the trailer but that if he is wrong on that it was clear to him from the CCTV footage that the claimant was not operating the FLT in a safe manner. The evidence of the respondent, which I accepted, was that not all contact would show up on the Optafleet report, particularly where this was contact by the forks.[72]I am satisfied that a reasonable employer, weighing the evidence obtained in the investigation, could decide to reach the conclusion which Mr Treacy reached, namely that the CCTV showed contact between the forks of the FLT and the trailer and to reach the conclusion that even if he was wrong on that it was clear to him from the CCTV footage that the claimant was not operating the FLT in a safe manner.[73]The claimant submits that the disciplinary hearing was unfair as Mr Treacy had made up his mind on the outcome before the hearing started. In making this submission the claimant relies on Mr Treacy asking the claimant, at the beginning of the disciplinary hearing, if there is anything the claimant would like to change from the information provided at the investigation stage, in light of having viewed the CCTV. I am satisfied that that this is a reasonable question for Mr Treacy to ask.The claimant submitted that Mr Treacy was aggressive, repeated the same questions and placed heavy reliance on the CCTV. Ms Stewart’s evidence, which I accepted, was that Mr Treacy was not aggressive in the disciplinary hearing. I am satisfied that it was reasonable for Mr Treacy to repeat questions as part of carrying out a thorough disciplinary hearing and giving the claimant an opportunity to state his case. I am satisfied that Mr Treacy was entitled to place heavy reliance on the CCTV footage. Where the events as described by the claimant at the investigation and disciplinary hearings differed markedly from the CCTV footage, I am satisfied that it was reasonable for Mr Treacy to prefer the CCTV footage.[74]The claimant submits that because Mr Robertson admitted to the allegations made against him at his disciplinary hearing, there should have been a further disciplinary hearing with the claimant to make him aware of that and to allow the claimant to challenge Mr Robertson’s admissions. I am satisfied that it was reasonable of Mr Treacy not to arrange a further disciplinary hearing with the claimant for this purpose. The claimant had been given an opportunity to state his case, both at the investigation stage and at the disciplinary hearing. He had the benefit of his trade union representative at the disciplinary hearing. In the disciplinary outcome letter Mr Treacy wrote that on review of CCTV and other evidence gathered in the investigation it was clear that the claimant engaged in a game of horseplay with Mr Robertson whilst operating a forklift truck. Mr Treacy also wrote that Mr Robertson had given a different account from the claimant and had accepted that they had both been engaged in horseplay. I am satisfied that it was reasonable for Mr Treacy to tell the claimant at the outcome hearing that Mr Robertson, at his disciplinary hearing which came after the disciplinary hearing of the claimant, had given a different account from the claimant about what had happened. I am satisfied that this statement does not render the procedure generally to be unfair. I am satisfied that, prior to his outcome hearing the claimant had already been given a reasonable opportunity to challenge the allegations against him and that the procedure followed by Mr Treacy was reasonable. Sanction[75]I considered whether dismissal was a fair sanction. Could a reasonable employer have decided to dismiss for making contact with another vehicle whilst driving a FLT and engaging in behaviour while operating a FLT that could have caused damage to company property and could have endangered the health and safety of his colleagues. I am satisfied that they could. Although the claimant had a lengthy period of service without any previous warnings, Mr Treacy had concluded that this was a very serious offence. The claimant had completed a number of training courses about health and safety and about safe driving and operation of a FLT. As a COMAH tier 1 site and where machinery such as tractors, trailers and FLTs was being operated, Mr Treacy had concluded that being able to rely on employees to operate machinery safely was a very important part of the respondent’s operation.[76]Mr Treacy wrote in the dismissal letter that the claimant displayed a lack of remorse and failed to show any appreciation for the potential serious consequences of his behaviour, which undermined the respondent’s trust and confidence in the claimant’s ability to make the requirement improvements to his behaviour.[77]The claimant submitted that the reference to a lack remorse is misplaced as the claimant accepted errors of judgement in his driving of the FLT. While the claimant said at the disciplinary hearing that he should have stayed further back from the trailer he did not accept the substance of the allegations which were put to him. This was not a case where the respondent was saying because the claimant had not shown remorse a decision which would otherwise have been reached to give a final written warning was being elevated to a dismissal. Rather the respondent was saying that the claimant had failed to show any appreciation for the potential serious consequences of his behaviour or give the respondent confidence that the claimant’s behaviour would improve, such that dismissal was necessary. Equity and substantial merits of the case[78]I have set out above that I am satisfied the respondent has shown the reason for the claimant’s dismissal was conduct. I have also set out above my conclusion that the respondent had reasonable grounds upon which to sustain his belief in the claimant’s misconduct and that the procedure followed was reasonable. I reminded myself that the question it must ask myself is not whether I would have dismissed the claimant. I must ask whether the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted (Iceland Frozen Foods Ltd v Jones 1983 ICR 17). The claimant was in a position of trust. The respondent had concluded that he had made contact with another vehicle whilst driving a FLT and engaged in behaviour which could have caused damage to company property and endangered the safety of colleagues. I decided that, in the circumstances of this case, the respondent’s decision to dismiss the claimant fell within the band of reasonable responses which a reasonable employer might have adopted. The dismissal was accordingly fair. Wrongful dismissal / breach of contract[79]Dismissal without notice or pay in lieu of notice is wrongful, unless the respondent can show that summary dismissal was justified because the claimant was guilty of gross misconduct. It was agreed that the claimant had not worked a notice period or been paid in lieu of a notice period.[80]From the findings in fact which I have made in my observations on the evidence section above, for the purposes of the wrongful dismissal complaint only, I am satisfied that the conduct of the claimant on 14 February 2024 amounted to gross misconduct. Accordingly, the claimant has not been wrongfully dismissed.
Conclusion
[81]Having concluded that each of the complaints is not well founded, there is no requirement for me to consider remedy.