Case No 8001375/2024Venue DundeeHearing 1, 2 & 3 April 2025
Between
Mr J GilogleyClaimantAir Products PLCRespondent
Before
Employment Judge R MackayMr D Hay KC, Counsel for claimantMs A Stobart, Counsel for respondentDate 5 June 2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claims brought by the claimant fail and are dismissed.
REASONS
[1]The claimant presented three claims before the Tribunal. These were summarised in an agreed list of issues.[2]The first is a claim for unfair dismissal. The respondent’s position is that the claimant was fairly dismissed by reason of conduct. The second claim is one of wrongful dismissal, the question being whether the claimant committed gross misconduct such as to entitle the respondent to terminate the contract without notice.[3]The third claim is brought under Section 15 of the Equality Act 2010 (“the Equality Act”). The disability relied upon by the claimant (conceded by the respondent) is PTSD. The “something” arising from the disability is the “failing to have perfect recall of and/or varying his account” in respect of disciplinary incidents for which the claimant was dismissed. The alleged detriments were(i) being considered to be lying by the respondent and(ii) the dismissal itself. The respondent’s position was that if the unfavourable treatment was due to the claimant’s disability, it was for one of the following legitimate aims:a. Upholding reasonable safety standards;b. Upholding adherence to company procedures;c. Complying with DVSA requirements; and/ord. The need to deal with instances of misconduct appropriately.[4]In the agreed list of issues, the claimant referred to other mental impairments. These were not relied upon by him before the Tribunal.[5]Parties co-operated in the preparation of a joint bundle of documents of approximately 300 pages. Only a portion of these was referred to in evidence.[6]The Tribunal heard from three witnesses for the respondent: Ms Andrea Gardner, who conducted the disciplinary investigation; Mr John Davies, who took the decision to dismiss; and Mr Mark Pawsey, who heard the claimant’s appeal against dismissal.[7]The Tribunal also watched a training video which it was accepted the claimant had seen during his employment.[8]The claimant gave evidence on his own behalf and led evidence from his wife, who spoke to injury to feelings only. Findings in Fact[9]The respondent is involved in the sale and distribution of gases and chemicals for industrial use. It is part of a global group listed in the USA, employing over 1,000 employees in the UK.[10]The claimant was employed from 29 July 2013 as a driver. He was responsible for driving tankers loaded with gases, including oxygen in liquified form. He was summarily dismissed on 12 April 2024.[11]The transportation of liquified oxygen is a highly hazardous operation. On exposure to the air, it expands by a factor of approximately 800%. Exposure to higher-than-normal concentrations of oxygen in the atmosphere can result in rapid death. The release of liquid oxygen is particularly hazardous. It is frozen to -220°. It is an extremely rare occurrence. Mr Davies had never encountered such an incident in his nine years with the respondent or his previous employment.[12]The respondent has in place certain procedures and policies relating to the transportation of oxygen. Training is provided by way of videos which employees such as the claimant are required to watch. One such video, watched by the claimant, deals with the process to be followed in the event of an uncontrolled release of product. The video suggests that the delivery should be stopped, and the issue reported immediately. The respondent’s policy is that such incidents require to be notified to the driver’s line manager, or out-of-hours, to an out-of-hours supervisor. No written policy to that effect was produced before the Tribunal.[13]The respondent has a disciplinary procedure. As part of that, examples of gross misconduct are said to include “… unreasonable refusal or a serious failure to comply with Company instructions or Company policies or standard operating procedures” and “infringement of health & safety rules”.[14]On each occasion a vehicle is used by a driver, he or she is required to conduct checks before and after use. These are known as pre and post vehicle checks. They involve a detailed inspection of the vehicle so as to identify any issues. The checking of vehicles is a legal obligation, governed by the DVSA. As a matter of law they must take at least 15 minutes. The respondent’s policy is to provide for a longer period (30 minutes).[15]The claimant was working on the evening of 8 September into the morning of 9 September 2023. An incident took place that evening. Some confusion over the date of the incident is apparent in the documentation, partly as a result of the US formatting of dates on certain documents. Parties were agreed, however, that 8 to 9 September 2023 was the relevant timeframe.[16]On that evening, the claimant was scheduled to deliver oxygen to Aberdeen Royal Infirmary. This involves putting in place a connection between the tank on the vehicle and the storage tanks at the hospital. The claimant’s account of the incident is reflected in an accident record form which he completed. In this, he described the incident in the following terms: “As I was checking the vaporisers for leaks, the tank started venting gas and liquid. I tried to shut down the tank on the emergency stop but it didn’t work. I had to go to the back of the tank through the vapour cloud and liquid from the vent. I fell over the “bump stop” on to my hands and knees and had to crawl to the back of the tank to control the venting.”[17]The claimant slipped the accident record form underneath the door of his then supervisor, Mr Robert Carruthers, on 9 September 2023 (being a Saturday).[18]On the evening in question, the claimant did not contact the respondent’s oncall supervisor (or any other supervisor).[19]As part of its global incident reporting procedure, Mr Carruthers reported the incident by means of what is known as an EM incident report. On that, there is reference to an investigation start date of 25 September 2023. Mr Carruthers did not progress any disciplinary investigation with the claimant. He left the respondent some time in October 2023. For a period prior to that time, he was on garden leave. Whilst not particularised, witnesses spoke of him as having poor management practices.[20]Ms Gardner commenced employment in November 2023, and at that time she took over as the claimant’s line manager. As part of her induction with her line manager, Mr Mark Bonsall, she was advised of the incident with the claimant and was told that it has not properly been investigated and that she should investigate further.[21]She had an initial conversation with the claimant and asked him what had happened. Ms Gardner was not familiar with the respondent’s procedures and sought further advice from her line manager. He advised that a formal investigation should take place under the respondent’s disciplinary procedures.[22]The claimant was not suspended at any time following the incident or during the disciplinary processes.[23]The claimant was invited to attend an investigatory meeting on 19 December 2023. He did not attend the meeting and did not contact Ms Gardner to explain his absence. His position was that his workload was such that he was not able to return to the office in time.[24]By letter dated 9 January 2024, the claimant was invited to a reconvened investigatory meeting. The matter of concern specified in the letter was said to be “Incident 8 August 2023”. A copy of the respondent’s disciplinary procedure was attached.[25]The claimant attended the meeting on 16 January 2024 with his trade union representative. In response to several questions, he gave single word answers which were not, in some cases, logical. His position was that his trade union representative had advised him to respond in this way. The first question was what time he had started his shift that day. He responded “No”. He also responded “No” to a question about how he was feeling that day/night. He was asked whether he had entered a vapour cloud and answered “No”. He responded “Yes” to a question as to whether he was aware that it was dangerous to do so.[26]He confirmed that he had not reported the issue to the customer and had not contacted the on-call supervisor. His response was that he did not think he had to as he “was okay”. He was asked about his awareness of the reporting processes for incidents/accidents. He said that he was not aware at the time but had become aware following a training course. He stated that he had never been involved in an incident before.[27]During the course of the meeting, Ms Gardner was typing in the claimant’s responses to her prepopulated questions. At the end of the meeting the claimant was invited to read over the notes and to confirm that he was happy with them. He did so, witnessed by his trade union representative.[28]The claimant sent further information to Ms Gardner on 24 January 2024. He stated that with the incident having occurred just under six months before, he was struggling to recall some specifics at the start of the meeting. In relation to the question as to whether he had reported the incident to the on-call supervisor, he noted that he had spoken to the scheduling team when he finished the delivery to tell them that the tank was defective and that he told them about the incident. In relation to Mr Carruthers, he said that he had spoken to him as soon as he came into work that evening and that Mr Carruthers had told him everything was okay.[29]Ms Gardner checked the claimant’s training records and identified that he had received video training on driver incident reporting on 14 April 2023. The video (which was the one viewed by the Tribunal) stipulates what should take place in the event of an uncontrolled release of product. In summary, the driver is expected to stop the delivery and immediately report the issue to a superior.[30]Ms Gardner produced an investigation summary report dated 24 January 2024. In that, she identified two issues which she recommended warranted consideration for disciplinary action. The first was that the claimant did not follow correct procedures in reporting the incident in that he did not report to site or the on-call supervisor, and secondly, that he had failed to follow procedures at the delivery point in that he left the delivery area at the rear of the tanker, he continued with a delivery after having identified that the emergency stop buttons were not working and he crawled through a vapour cloud.[31]She attached a number of documents to her report including a document headed “Operations Procedure” which covers procedures to be followed where damage is caused to or by a vehicle used by the respondent. It was subsequently accepted by others in the respondent that this was not the relevant procedure for the circumstances.[32]The investigation pack was passed to Mr Davies. On reviewing the pack, Mr Davies identified that the policy contained in the pack was the incorrect one. The relevant policy was, to his mind, that contained in the online training which was also referred to in the report.[33]He decided that the claimant should be invited to a disciplinary hearing. By letter dated 26 February 2024, he was invited to a disciplinary hearing to take place on 12 March 2024. The allegations set out reflected the summary in the investigation report. The claimant was advised that the matters were potentially gross misconduct and that dismissal without notice was a potential sanction. A copy of the investigation report and supporting documentation were enclosed.[34]Prior to conducting the disciplinary hearing, Mr Davies had never met the claimant. Before becoming a manager, he drove vehicles similar to those operated by the claimant. He had previous experience as a trade union representative.[35]The claimant spoke to a member of the respondent’s HR Department on 5 March 2024. He described a number of underlying physical health conditions and also the ongoing disciplinary issues which he said were causing him to feel stressed at work. In a follow up email to the claimant, he is noted as having advised that he did not need any immediate support but that if that were to change, he should contact HR or his line manager as soon as possible. In the email, a rescheduling of the disciplinary hearing was mentioned.[36]The disciplinary hearing was postponed in order for an investigation to take place in relation to two other incidents concerning the claimant. By letter dated 5 March 2024, he was invited to attend an investigatory meeting with Andrea Gardner on 12 March 2024. The meeting took place that day. Both issues related to vehicle damage, the first on 17 February and the second on 19 February 2024. The issue in relation to the first incident was not ultimately progressed by Ms Gardner. The second issue was. In this context, the claimant had failed to notice damage to a vehicle during his shift. He was asked whether he had carried out post checks before he finished his shift. He initially confirmed that he had. Ms Gardner went on to refer to an earlier conversation she had with him where he confirmed that he had not done so because he was attending training. The claimant on being asked to clarify that he did not carry out the checks answered “No”.[37]Ms Gardner prepared an investigation summary report in a format similar to that she had prepared in respect of the earlier incident.[38]By letter dated 15 March 2024, the claimant was invited to a rescheduled disciplinary hearing to take place on 19 March 2024. In addition to the two original allegations, a further allegation was added, namely: “A failure to follow standard operating procedure in that it is alleged you did not complete your daily driver checks on 19 February 2024”. The second investigation summary report was attached. The terms of the invitation letter were otherwise the same as before.[39]Following receipt of the letter and the updated disciplinary pack, the claimant contacted HR. He stated that he was “…totally stressed to the point where I do not feel I am safe to be driving because my concentration levels are elsewhere”. He became absent from work due to sickness around this time.[40]In response, he was asked if he was happy for HR to share with Mr Davies that the claimant was experiencing “heightened anxiety” in order that he could make any adjustments to support him during the disciplinary hearing. The claimant responded to the effect that he did not have heightened anxiety but was feeling stressed out. He stated that he did not feel at that moment that he would need extra breaks as he was aware that he could take breaks if required.[41]The disciplinary hearing took place on 19 March 2024 as scheduled. The claimant was again accompanied by a trade union representative.[42]During the course of the disciplinary hearing (as it related to the first issue) there was much focus whether what took place amounted to an incident or not and the claimant's reasons for not reporting it. His position was that there had not been an uncontrolled release of product as he stopped it. He also questioned where it was stipulated that an incident of this nature should be reported.[43]In relation to the second issue, the claimant gave differing accounts as to whether he had carried out the vehicle checks. He initially said that he had before confirming that he did not do a post vehicle check.[44]Mr Davies adjourned the hearing in order to conduct further investigations. He obtained EM incident reports which the claimant had requested. He also obtained copies of the video training as it related to incident reporting and obtained the claimant’s tachograph record as it related to the vehicle check issue. He provided the EM reports, as well as the minutes of the first part of the hearing, to the claimant by e-mail dated 21 March 2024. In response, the claimant emailed to clarify the minutes, stating that he did carry out post checks but not to his normal standard due to time constraints.[45]The reconvened disciplinary hearing took place on 8 April 2024. The claimant was again accompanied by his trade union representative. The claimant became agitated during the course of the meeting which resulted in several adjournments.[46]At the outset of the meeting, four training videos were played (including the video seen by the Tribunal). The claimant was asked if he wished copies. He declined, saying that he had already seen them.[47]Mr Davies went on to clarify what he saw as a discrepancy between the claimant’s account at the previous disciplinary hearing (that there was no leak of liquid oxygen) and his accident report which referred to the leak of gas and liquid. His responses, whilst not entirely clear, accepted the release of at least some liquid. He maintained the position that what took place was not a reportable incident.[48]Mr Davies went on to clarify the claimant’s position in relation to the second issue, and his differing accounts. It was put to him that having regard to the timings he would have had only approximately 4 minutes to do the post vehicle check instead of the 15-minute minimum. He accepted that. The meeting was then adjourned in order for Mr Davies to reach a decision.[49]On returning to the meeting, the claimant raised an issue concerning his disability. He mentioned PTSD alongside other disabilities from which he said he suffered. Mr Davies asked him to talk through the relevance of his disability or health conditions to the case. The claimant is noted as responding: “Oh, it won't affect it. I just want it noting for the record”. The meeting was once again adjourned and Mr Davis confirmed that he would issue his decision in writing.[50]He did so by letter dated 12 April 2024. He upheld both allegations which he found amounted to gross misconduct. In relation to the first, He noted that it was clear from the claimant’s position that there had been an unexpected uncontrolled release of product, that it was an unusual event which the claimant had not experienced before, and about which he was sufficiently concerned to shut down the delivery. Mr Davies criticised the claimant for not seeking guidance, for not reporting the incident at the time and for recommencing the delivery, putting himself and the site at what may have been serious and imminent danger. He referred to the claimant’s training records which demonstrated that he had received the relevant training.[51]In relation to the second allegation, he referred to the claimant’s inconsistency of statements concluding that he was satisfied that the claimant did not complete a post vehicle check.[52]In the letter, Mr Davies goes on to state that he considered the claimant’s length of service and whether a lesser sanction would be appropriate. He states that he was not satisfied that the claimant had cooperated fully or openly during the process which compounded what he believed to be an irretrievable breakdown of trust and confidence in the employment relationship. In his evidence before the Tribunal, Mr Davies stated that a factor in his decision to dismiss was a concern that, faced with similar circumstances in the future, the claimant would not act differently.[53]The claimant was offered the right of appeal. He exercised this by letter dated 19 April 2024. In that, he stated that he felt the punishment was overly severe. He went on to say that he understood that the decisions were based on certain criteria and circumstances, but he believed that not all information had been taken into consideration. He questioned the process under the Acas code of practice and “potentially the Disabilities act”.[54]An appeal hearing was scheduled to take place on 1 May 2024 via Teams. At the request of the claimant, this was postponed in order for a face-to-face meeting to take place. The appeal hearing ultimately took place on 15 May 2024. The claimant was represented by a different trade union representative on this occasion. The hearing was chaired by Mr Mark Pawsey, the respondent’s UK Distribution Manager. He is also the respondent’s designated transport manager which means that he has the regulated function of licence holder, ultimately responsible for the safety of the respondent’s vehicles and drivers. Mr Pawsey approached the hearing as a review of the grounds of appeal rather than a rehearing of the entire matter.[55]During the course of the appeal, concerns were raised about the delays in the disciplinary process and the absence of any involvement of Mr Carruthers in the investigation. Suggestions were also made that Ms Gardner had been dishonest or otherwise behaved inappropriately. There was no basis for these allegations and they were not pursued before the Tribunal. Various references were made to the claimant’s PTSD and the absence of reasonable adjustments to accommodate that. In relation to the substance of the allegations, the claimant’s position was broadly as it had been before.[56]Mr Pawsey did not uphold the claimant’s appeal. He confirmed this in a letter dated 29 May 2024. He outlined what he saw was a fulfilment of the minimum requirements of the Acas code of practice, and in relation to PTSD, referred to the fact that, once he raised it, the claimant did not identify any adjustments that would be required. In the final section of the letter, dealing with a concern raised that the EM reports were not provided at an earlier stage, Mr Pawsey referred to the distinction between EM reporting which is a global system, separate from any internal disciplinary investigations. He did not identify anything in the reports which would have made any difference to the decision. In terms of the severity of the conduct in question Mr Pawsey shared the assessment of Mr Davies.[57]As noted above, the claimant has PTSD. In a disability impact statement prepared for the purposes of this Tribunal, he suggested that he suffers from PTSD, anxiety and depression. He stated that since the beginning of the disciplinary process, he suffered from heightened anxiety and adverse reactions to stress. He went on to say that the symptoms severely hindered his ability to function effectively during the disciplinary hearing.[58]In response to a question from his counsel as to whether the claimant saw any connection between his PTSD and how he responded to questions, he answered: “Not in an emotive way. I was just very unhappy. That's due to the pressure I was under. I don't like confrontation”. Observations on the Evidence[59]To a large extent, the facts in this case are not in dispute. The sequence of events relating to the disciplinary process, and what was said, are reflected in the correspondence and agreed minutes. The respondent’s witnesses all gave their evidence in a broadly open and helpful manner. That is true to some extent of the claimant who made appropriate concessions in cross examination. For the purposes of the breach of contract claim, however, it is necessary to resolve some conflicts in the evidence, and in this context, aspects of the claimant’s evidence where unreliable.[60]The first area for consideration is what actually happened on the evening of 8 September 2023. Only the claimant was there, but there is a conflict between what he said at the time on the accident form, and his evidence before the Tribunal. On the form, he described a release of liquid and a release of vapour to the extent that there was a cloud. Before the Tribunal, he initially said that there was no release of liquid before suggesting that there may have been a small amount. He also sought to minimise the release of vapour, referring to it as a small leak. On another occasion he referred to not being able to see his feet. The Tribunal preferred to the contemporaneous note of the claimant over his evidence before the Tribunal, the latter being at odds with his own written account and in places contradictory. It was clear that the claimant sought to minimise the severity of the issue, as he had done during the disciplinary process. In relation to the seriousness of the issue, the Tribunal preferred the evidence of the respondent’s witnesses, particularly those chairing the disciplinary hearing and the appeal who conveyed deep concern about the severity of the incident, its rarity and the potential catastrophic implications.[61]In relation to the second the incident, there was again a conflict in the claimant’s own evidence as to what actually happened, and whether he did or did not carry out a post vehicle check. At different times, he stated that he had, that he had not, or that he had albeit not to the correct standard. The Tribunal found it surprising that, had the claimant carried out the necessary check, he would not simply have maintained that position. The fact that he changed his account casts doubt on his testimony to the extent that it seeks to support his claim. The only other evidence comes from the tachograph records which the claimant accepted showed insufficient time to carry out the check in full. For those reasons, the Tribunal concluded that the claimant did fail to carry out the necessary check either at all or to the necessary standard. Relevant Law Unfair Dismissal
Relevant Law
[62]The law relating to unfair dismissal is set out in the the Employment Rights Act 1996 (“ERA”). Section 98(1) states: “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 subsection (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.[63]Section 98(2) sets out that a reason falls within this subsection if (inter alia) it- (b) relates to the conduct of the employee[64]Section 98(4) states: [Where] the employer has fulfilled the requirements of subsection (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 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.[65]This determination includes a consideration of the procedure carried out prior to the dismissal and an assessment as to whether or not that procedure was fair.[66]In circumstances where the reason for dismissal is conduct in terms of Section 98(2)(b), what has to be assessed is whether the employer acted reasonably in treating the misconduct that he believed to have taken place as a reason for dismissal.[67]British Home Stores v Burchell [1978] IRLR 379, sets out the questions to be addressed by the Tribunal when considering reasonableness as follows: i. whether the respondent genuinely believed the individual to be guilty of misconduct; ii. whether the respondent had reasonable grounds for believing the individual was guilty of that misconduct; and iii. whether, when it formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.[68]Tribunals must not substitute their own view for the view of the employer (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 and London Ambulance Service NHS Trust v Small [2009] IRLR 563) and must not consider an employer to have acted unreasonably merely because the Tribunal would not have acted in the same way.[69]Following Iceland Frozen Foods Ltd v Jones 1983 ICR 17 the Tribunal should consider the “band of reasonable responses” to a situation and consider whether the Respondent’s decision to dismiss, including any procedure prior to the dismissal, falls within the band of reasonable responses for an employer to make. The importance of the band of reasonable responses was emphasised in Post Office v Foley [2000] IRLR 827. Wrongful Dismissal[70]For a breach of contract claim, the Tribunal must consider, on the balance of probabilities, whether 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 to defeat such a claim.[71]The EAT in British Heart Foundation v Roy UKEAT/0049/15 set out the distinction between a claim of unfair dismissal and wrongful dismissal as follows: "Whereas the focus in unfair dismissal is on the employer's reasons for that dismissal and it does not matter what the Employment Tribunal thinks objectively probably occurred, or whether, in fact, the misconduct actually happened, it is different when one turns to the question […] of […] wrongful dismissal. There the question is, indeed, whether the misconduct actually occurred. In a claim for wrongful dismissal the legal question is whether the employer dismissed the Claimant in breach of contract. Dismissal without notice will be such a breach unless the employer is entitled to dismiss summarily. An employer will only be in that position if the employee is herself in breach of contract.”[72]In considering whether the employee is in breach, the conduct “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. Discrimination arising from Disability[73]Under section 15(1) of the Equlaity Act, "discrimination arising from disability" occurs where:(a) A treats B unfavourably because of something arising in consequence of B's disability, and(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[74]In Pnaiser v NHS England and another [2016] IRLR 170, the EAT summarised the approach to claims for discrimination arising from disability as follows:(a) The Tribunal must identify whether the claimant was treated unfavourably and by whom.(b) It then has to determine what caused that treatment, focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the motive of the alleged discriminator in acting as he or she did is irrelevant.(c) The Tribunal must then determine whether the reason was "something arising in consequence of [the claimant's] disability", which could describe a range of causal links. That stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.[75](d) The knowledge required is of the disability; not knowledge that the "something" leading to the unfavourable treatment was a consequence of the disability. Submissions[76]For the respondent, Ms Stobart submitted that the case was a straightforward Burchell one. She outlined the facts she invited the Tribunal to find, submitted that the respondent had established conduct as the reason for dismissal, and that the dismissal was fair being within the range for reasonable responses having regard to the respondent’s reasonable investigation and procedural fairness. She highlighted what she submitted was the seriousness of both issues under consideration as well as the claimant’s lack of cooperation during the disciplinary process.[77]She described the reference to PTSD as being a red herring and highlighted the claimant’s own position that the PTSD had no effect on the way in which he conducted himself.[78]For the claimant, Mr Hay took the basic principles for determining the fairness of a conduct dismissal as a given and highlighted six issues which he submitted struck at the fairness of the process, either substantively or procedurally. He referred to a number of authorities in support of his submissions.[79]First, he referred to the delay between the first incident and the commencement of the disciplinary investigation. He highlighted what he said were difficulties the claimant had in remembering the details of the incident during the process.[80]Secondly, he criticised the investigation and in particular the failure to take evidence from Mr Carruthers about what was said at the time.[81]The third criticism related to the framing of the charges. He emphasised the need for care and precision and submitted that that was lacking in the present case. As a result, the claimant was required to ascertain what the charges were by going through an investigatory pack. He also pointed to what he described as a shifting of the emphasis as the disciplinary process went on.[82]The fourth criticism made by Mr Hay was the issue of dismissal for a first offence. He pointed to the absence of clarity in the disciplinary rules as to what might amount to gross misconduct and justify summary dismissal. In relation to the video itself, that was silent on disciplinary sanctions. Moreover, he questioned why if the issue is so important, it was not contained in a written rule. He submitted that any lack of remorse on the part of the claimant was not capable of bumping up the seriousness of the conduct itself.[83]The fifth area of concern raised by Mr Hay was the absence of suspension. He highlighted the fact that the claimant remained at work for a period after the first incident, and questioned why, if the allegation was so serious, the claimant was permitted to do so.[84]The final area of criticism related to the appeal process. He pointed to this as an opportunity to look at shortcomings but submitted that Mr Pawsey failed to do so. He failed to address, for example, the claimant’s position that the delay in the process could result in a failing memory of issues and the interplay of that with the claimant’s mental health condition. At the stage of the first disciplinary hearing, the claimant had referred to his diagnosis and had previously referred to suffering significant stress. He submitted that those points were capable of explaining the claimant’s changing accounts as well as his demeanour. At the very least, he submitted that it was unreasonable not to investigate this further.[85]In relation to the discrimination claim, he submitted that there was a sufficient causal link between the “something” and the failure to have perfect recall and/or varying his account and the detriments relied upon.[86]Both Counsel made submissions on remedy and made submissions as to any levels of reduction for contribution and/or Polkey in the event of a finding of unfair dismissal. Both also made submissions as to the appropriate level of injury to feelings if the discrimination claim was successful.[87]The Tribunal first considered the claim for unfair dismissal. It was satisfied that the respondent established that the reason for dismissal was conduct, being a potentially fair reason. No other reason was suggested. The question for the Tribunal, therefore, was whether or not the dismissal was fair for that reason.[88]It went on to consider whether the respondent genuinely believed the claimant to be guilty of misconduct, and was satisfied that such a belief existed. Although there are differences in emphasis, it was not in dispute that the claimant had in two separate incidents, failed to comply with health and safety procedures. Both issues where reasonably characterised by the respondent’s witnesses as being serious, with potentially significant consequences. The disciplinary policy highlights a failure to comply as potentially giving rise to disciplinary action for gross misconduct.[89]The Tribunal also concluded that there were reasonable grounds for the respondent holding that belief. In relation to both incidents, there was clear evidence to support the claimant’s misconduct. Dealing with the first, the claimant's own written account pointed to there having been a release of liquid oxygen and a cloud of oxygen vapour. The respondent’s procedure in such circumstances, as demonstrated in the training video, is that the delivery must be halted and the matter reported immediately. The claimant had, in recent times, viewed the video. He did not act in accordance with the specified procedure.[90]In relation to the second incident, although the claimant gave inconsistent accounts, the respondent was entitled to accept the claimant’s position when he said that he did not carry out a post vehicle check. That is consistent with the respondent’s findings that there would have been insufficient time for him to do so. Such a failure is contrary not only to the respondent’s safety procedures but also legal requirements. The claimant did not at any time deny awareness of the requirement.[91]The Tribunal then considered whether the respondent had carried out a reasonable investigation in reaching the conclusions it did. Whilst some criticisms can be made about the quality of the investigation, the Tribunal was satisfied that it was conducted within the range of reasonable options open to a reasonable employer. It included the claimant being invited to two investigatory meetings at which the allegations were put to him and he was given an opportunity to respond. Supporting documentation was collated and provided to him in respect of the two incidents. As noted, an incorrect policy was provided to the claimant. This did not, however, have a material bearing on the issue or the claimant’s ability to respond. It was corrected during the course of the disciplinary process.[92]The Tribunal considered Mr Hay’s particular criticism of the investigation, namely the failure to speak to Mr Carruthers. The claimant's position was that he had spoken to Mr Carruthers on the day after the incident and that Mr Carruthers had told him that the matter was dealt with. Leaving aside the question as to whether that conversation took place (and Mr Davies was sceptical given that that day was a Saturday on which Mr Carruthers would not ordinarily work) the question is whether a failure to speak to him rendered the investigation inadequate. The Tribunal was not satisfied that it did. Whatever the view of Mr Carruthers, it is clear from the sequence of events that the matter was considered live at the time of Ms Gardner's appointment such that she was asked to investigate. Even if Mr Carruthers had been of the view that no further action was required, that was not the view of those more senior to him, and it is reasonable for decisions regarding disciplinary procedures to be taken by senior managers.[93]It is relevant at this point to consider another criticism of the investigation, that is to say the delay between the first incident and the commencement of the formal investigation. It is recognised that Acas guidance suggests that investigations take place without delay and that unreasonable delay, even if it does not cause prejudice, can render a dismissal unfair.[94]Mr Hay’s submission was that the delay had caused prejudice to the claimant in that his recall of events was affected and may have affected how he answered questions. The Tribunal had some difficulty with this position. The claimant had a contemporaneous note of the incident in his own hand. To the extent that he departed from the terms of that note in his evidence during the disciplinary processes, the Tribunal concluded that this was designed to minimise the severity of the incident rather than as a consequence of failed recollection. Moreover, the main focus of his challenge was not on the specifics of what happened, rather how they ought to be characterised and whether they were reportable. There was nothing to suggest that he would have done anything differently had the investigation started earlier. He explained his uncooperative approach not as a result of delay but due to advice from his union representative.[95]On the other hand, the area in which the claimant's evidence was most contradictory or unreliable related to the second incident and that was investigated very shortly after it took place.[96]The Tribunal was not satisfied, therefore, that any delay caused prejudice to the claimant. It considered whether it was nonetheless unreasonable so as to render the dismissal unfair. Whilst an organisation the size of the respondent might have taken steps to deal with the issue more swiftly, there were a number of reasons for the delay in commencing the investigation. The departure of Mr Carruthers and the gap in time before the appointment of Ms Gardner was unhelpful. Equally, Ms Gardner might have acted more quickly once in post. It is clear, however, that having been tasked with the investigation, she initially sought to meet with the claimant in December 2023, And the claimant was at fault in failing to attend, resulting in a delay until January of the following year. The process thereafter proceeded less quickly than optimal. Certain delays were, however, caused by the claimant himself.[97]Having regard to the process as a whole, the Tribunal was not satisfied to that the timing of the investigation and disciplinary process was such as to render the dismissal unfair.[98]In addressing procedural and substantive fairness more widely, the Tribunal considered the further submissions made on behalf of the claimant. The first of these is that the framing of the charges was insufficiently clear and that the focus changed during the course of the process. In relation to the first incident, it is clear that the invitations to the disciplinary hearings provided only a summary of the allegations, particularly the allegation of a failure to undertake duties to a reasonable level of safety. More detail was, however, set out in the investigation report. During the course of the disciplinary processes, the claimant never suggested that he was unaware of what the allegations were. He responded to them in the way he chose, but there was nothing to suggest that he did not know what they were. To have the detail contained in a report as opposed to the letter itself is not an unreasonable approach to take. It is notable too, that the employee had the benefit of union representation. No request for clarification of the charges was made by the union.[99]The next criticism of the process on behalf of the claimant was the fact that he had been dismissed for a first offence. Implicit in that criticism is that the conduct of the claimant was not gross misconduct so as to entitle the respondent to take that course of action (or at least that the claimant had received insufficient warning to that effect).[100]Regognising the principle that the fairness of health and safety dismissals is not in itself a special category, having regard to the environment in which the respondent operates, the health and safety risks, and the terms of its disciplinary procedure, the Tribunal was nonetheless satisfied that the respondent acted reasonably in characterising both incidents as amounting to gross misconduct. The first arose in exceptionally hazardous circumstances, with a leak of liquid oxygen, being an exceptionally rare event. Instead of complying with the procedures which the claimant knew and had been trained in, he failed to follow them. Whilst the Tribunal had some sympathy with the argument that such an important rule should also be in writing, it accepted Mr Davies’ evidence that the use of video training was implemented as a preferred means following feedback from trade unions.[101]The second incident constituted a clear breach of a legal and workplace requirement, again imposed with a view to ensuring health and safety. The claimant knew of the rule. He did not suggest otherwise during the disciplinary process. His focus instead was on providing differing accounts as to what he did or did not do.[102]In his letter of appeal, the claimant did not make any argument around the characterisation of the incidents, or his knowledge of procedures. His first criticism was that the punished administered was overly severe, which points to an acknowledgment that there was underlying misconduct justifying at least some sanction.[103]The Tribunal reached a similar conclusion in considering the submission about the absence of suspension. Whilst some employers may have chosen to suspend in the circumstances, it accepted the evidence of the respondent’s witnesses that it is something they exercise with caution. It is relevant in this context that one of the reasons put forward for dismissal was a fear that the claimant might act in the same way again. It is clear from the sequence of events, however, that this fear arose during the course of the disciplinary hearing, by which time the claimant was absent due to sickness. There was, therefore, no immediate risk.[104]Before dealing with the criticisms of the appeal, the Tribunal considered whether, having regard to the circumstances of the case, dismissal was a reasonable sanction. It had no hesitation in concluding that dismissal was within the range of reasonable responses open to the respondent. In this context, it had regard not only to the severity of the conduct in question but also the approach of the claimant. His behaviour during the process was at times uncooperative. His accounts of events where at times contradictory. He did not show any remorse. He refused to accept the seriousness of the issues and gave no indication that he would behave differently in the future. For the reasons set out below relating to decision in the discrimination claim, the Tribunal was not satisfied that the claimant’s PTSD had any bearing on the way in which he conducted himself. As such, it is no excuse for the way in which he behaved. Against that background, the Tribunal accepted that Mr Davies, who considered relevant factors such as the claimant’s length of service, was entitled to conclude not only that there had been gross misconduct but that there had also been a breach of the implied term of trust and confidence and that dismissal was an appropriate sanction.[105]Turning to the appeal, Mr Hay’s submission was that the points raised ought to have caused the respondent to take a different approach. The principal concern raised was that Mr Pawsey did not engage with points raised about the claimant's PTSD and the potential impact on his recall given the delays in the process. The Tribunal is not able to say that Mr Pawsey’s approach was outwith the range of reasonable responses at that stage of the process. Although he might have paused the process to seek further information about the claimant’s PTSD, he was aware of previous discussions between the claimant and HR which effectively rested with the claimant stating that he did not need additional support. He also had sight of the claimant’s account of his PTSD at the end of the disciplinary hearing where he stated that it did not have any effect on the case. Those factors, considered alongside the context of the dismissal and the appeal, and the fact that the claimant’s approach to the substance of the allegations had not changed, were such that the Tribunal concluded that the appeal was conducted in an appropriate manner, and that taking a different course of action was not required as a matter of fairness.[106]For of these reasons, the claim for unfair dismissal Is unsuccessful.[107]The Tribunal went on to consider the discrimination claim. Little focus was placed on this during the course of the Tribunal hearing, and very little evidence was led. In particular, little or no evidence was led as to what the “something” arising from the disability was said to be, and very little evidence was led so as to link the claimant’s PTSD to the “something” set out on the list of issues (failing to have perfect recall of and/or varying his account in respect of the disciplinary incidents for which he was dismissed). No relevant medical evidence was produced in support of the claimant’s case. It would be surprising if a diagnosis of PTSD would give rise to a person giving a dishonest account. If that were so, clear medical evidence would be required. The claimant’s own evidence, as reflected in his response to a question from his counsel (see para 58) was not supportive of there being any link. The same is true of his position during the disciplinary process (see para 49).[108]Although it is clear that the claimant was subjected to the detriment of dismissal (and in reality also the detriment of being considered to be lying by the respondent), the reason for that treatment was the respondent’s assessment of his misconduct and his approach during the disciplinary process. There is, however, no evidence at all of a link between the “something” relied upon by the claimant and his condition, and the claimant’s own evidence is contrary to the suggestion that there was a link. The claim of disability discrimination accordingly fails.[109]Finally, turning to the wrongful dismissal claim, the Tribunal considered whether misconduct had in fact occurred entitling the respondent to dismiss without notice. For the reasons set out at paragraphs 60 to 61 above, the Tribunal was satisfied that in respect of both incidents, the conduct to the claimant was inappropriate and knowingly wrong. It was also satisfied that both incidents can be characterised as gross misconduct having regard to the respondent’s disciplinary rules. As such, they are of a character entitling the respondent to dismiss without notice. This is reinforced by the conduct of the claimant during the disciplinary process. His lack of cooperation and lack of candour contributed to a breakdown in trust and confidence between him and his employer.[110]As a matter of fact, therefore, this is a case where the claimant was in breach of contract to the extent that there was a clear breakdown in trust and confidence. The claim for wrongful dismissal is, accordingly, dismissed. 25 5 June 2025