Background:

The claimant was employed as a general operative from June 2018 until his dismissal in December 2021.  The incident which led to the dismissal took place on 3rd November 2021. The claimant’s line manager was self-isolating at home due to COVID-19. That night another employee called the line manager and alleged that the claimant had driven a forklift at high speed and jammed it off the wall. It was alleged that it was a deliberate attempt to damage it. On inspection, the skip had a significant bend in it. The CCTV did not have the full incident but did show the claimant taking the skip out, undamaged, and returning with it damaged. The claimant was suspended on his return to work on 5th November pending investigation.

The claimant lodged a formal complaint stating he was being ‘victimised’ and ‘bullied’ because he was not vaccinated against coronavirus. The respondent treated this as a grievance. The Chief Financial Officer oversaw the grievance and said she would not be involved in the disciplinary investigation but later was involved in that procedure. The claimant alleged that he was asked every day about his vaccination status. The respondent did not have any policy about vaccination status.  This was denied by the line manager. The claimant did not call any witness to corroborate his allegations. The grievance was not upheld.

Through the disciplinary procedure it was determined that the claimant had probably caused the damage. The findings also stated that the claimant sought to conceal the damage by turning his vehicle away from another driver and putting the skip in an area where it is not usually stored.  This was regarded as gross misconduct, and the claimant was dismissed. This was appealed internally which was dismissed.

Outcome:

The claimant brought a claim for unfair dismissal. He stated that the fact that those overseeing the procedure and the appeal were family led to unfairness.  The respondent stated that whilst they were a family business the decisions being made were business decisions.  The Tribunal outlined that:

‘The Tribunal in cases of this kind cannot, and does not, expect a standard of investigation on a par with that to be expected of trained detectives investigating a criminal offence.  The actual compilation of evidence is one thing; the degree and quality of critical assessment brought to bear upon the material presented is quite another.’

The Tribunal found that the respondent was genuinely acting upon an allegation of misconduct. The investigation was proper and reasonable. It was found that the findings as a result were reasonable, and evidence based. The claimant and the respondent’s investigations suggested no evidence of a vendetta based upon vaccination status.  Accordingly, it was found that the finding that the damage was deliberate was reasonable and that it was sufficient to lead to the finding of dismissal. Accordingly, the case was dismissed.

Practical Guidance for Employers:

This case provides another interesting factual background in which there has been a fair dismissal. Most pertinently for HR practitioners and those conducting investigations, the Tribunal issues some sage guidance. The Tribunal does not expect the investigations to be carried out as if it were CSI (or any other trained investigatory body) and will be cognisant of the context in which the investigation is taking place. It should give some solace to HR teams who may find difficulties in the investigation process that the Tribunal will be mindful of those.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/