The claimant commenced employment with the respondent in June 1988 and at the time of dismissal, in October 2020, was a Stores Supervisor at the Dungannon site.  The respondent is a manufacturer of mobile screening, washing and recycling equipment for the quarry/mining industries.  As a result of the heavy engineering the respondent operates a ‘safety first’ policy.

On 25th June 2020, another employee, Mr Collins, was operating a forklift vehicle and accidently pushed a 41kg pump off warehouse shelving causing it to drop 13 feet to the floor.  Mr Collins reported this to the claimant the following day.  The claimant reported the pump damaged to the Quality Inspector who then asked for it to be scrapped.  There were then queries in relation to how the pump had become damaged considering that it was worth £1500. As a result, this was investigated.

The focus of the investigation was why the ‘Near Miss Incident Reporting and Investigation’ procedure was not used.  This would require an Accident Report Form to be completed which would be sent to the Area Supervisor, Area Manager or HSE Representative.  The claimant was asked about this as a ‘near miss’ which he initially refuted before saying that it would have been for Mr Collins to report as a near miss.  As a result of the seriousness of the circumstances, the claimant was suspended on full pay to allow for a full investigation.  The reason for this was put in writing as a ‘serious breach of safety’ and a ‘serious breach of trust and confidence’.   The findings of the investigation stated there was a failure to report a near miss with a recommendation of disciplinary action.

A disciplinary meeting was convened and the claimant was questioned about the event that had taken place. He was asked if he would have done anything different to which he responded that he would have reported to HSE and that he understood it to be a serious incident.  This continued until 14th October 2020 when it was found that there had been gross misconduct for failure to report the accident as a near miss and that the £1,500 pump had been damaged as a result.   Therefore, there was a finding to summarily dismiss the claimant.

The claimant brought a claim for unfair dismissal.  The issue turned on whether the decision to dismiss fell within the band of reasonable responses.  The Tribunal noted that the claimant was working in a supervisory role and that he ought to be aware of the importance of safety especially considering training that had taken place both before and after the Covid-19 shutdown.  The Tribunal also considered the fact that the claimant had sought to deflect and blamed others who had been involved.  The claimant specifically stated that there ought to have been alternatives to dismissal considered and whilst the Tribunal stated that it would be good practice to include it in the letter sent to the claimant outlining the findings of the panel, they did note that it was considered as outlined in the notes. As a result, and despite the claimant’s long unblemished service, the Tribunal found that the decision to dismiss fell within the bands of reasonable responses and was both substantively and procedural fair.

Practical Lessons

This case demonstrates the approach that the Tribunal has to take when there is a case brought relating to the substantive fairness of a decision to dismiss.  The ‘band of reasonable responses’ test has long been used within these cases and it can be seen as favouring the employer.  This is on the basis that the Tribunal is not looking just at what is ‘reasonable’ from their perspective but from the perspective of employers generally and what falls within that ‘band’.  Considering the importance of safety in this workplace and the claimant’s supervisory role this meant that the Tribunal found that the decision to dismiss did fall within those bands of reasonableness.

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