The claimant worked for the respondent as a productive operative from June 2012 until 4th October 2018 when he was dismissed for gross misconduct.   The issue in question arose on 20th September 2018 when the claimant who was carrying out his duties making wooden pallets with a pneumatic nail gun had a nail enter his left foot.  The claimant missed two days of work as a result of the injury.  The claimant contended that the nail gun had malfunctioned on that occasion and that he had actually complained to the health and safety manager about the nail gun.   There was never any record of a complaint being made and it was denied by the respondent. The claimant had suggested that the air pressure could be increased but this was regarded as being a request rather than a complaint.

There was CCTV evidence showing that the claimant was only using one hand to operate the nail gun.  This was contrary to the training that had been given.   The claimant suggested that the nail gun had been ‘jamming’ and that he had to open it up to fix the problem.   The CCTV evidence did not corroborate this account.  The CCTV footage did not show the claimant trying to fix or examine the nail gun.

When the claimant returned to work following the incident, he was informed by his supervisor that he was being suspended on full pay.  An investigation was carried out by the Health and Safety Manager.  The investigation found that the claimant did not follow the training given when he used only one hand to operate the nail gun and he also was not ensuring the nails were fired vertically into the wood.   A disciplinary meeting was recommended on foot of the investigation.

The Tribunal noted that there was an error in the investigation report as it stated it was a failure to follow the Safe Working Procedure but it did not mention about using one or two hands for the nail gun.    The claimant was invited to the disciplinary meeting by letter, stating that it involved a breach of health and safety rules that could cause serious injury and that if it is substantiated, would be regarded as gross misconduct. The claimant was subsequently found to have committed an act of gross misconduct and was dismissed.   The claimant brought a claim for unfair dismissal to the Tribunal.

The Tribunal held that there was a sufficient ground put forward by the respondent justifying the dismissal - that being misconduct.  On the question of reasonableness, the Tribunal reaffirmed that it is a question of fact as to whether the decision to dismiss falls within the bands of reasonableness.  It was held that it did.  There were issues raised in relation to the procedure adopted with the dismissal.  The investigation failed to promptly examine the pallet or nail gun in question.  There was also a perpetuation of errors in relation to the application of the Safe Working Procedure.   In addition, there were also defects in the disciplinary hearing with the decision-making already forming the view that the nail gun had been used unsafely and there was a failure to provide the claimant with witness statements.  These errors were regarded as unnecessary and avoidable.  The Tribunal found that the appeal hearing did not have the defects of the original hearing.  It was found that this cured the earlier defects in the investigation/disciplinary hearing and so the claim was dismissed.

Practical Lessons

This case is interesting in that the final decision of the Tribunal puts forward two views.  It makes its own decision that the procedure had been followed but goes on to say that even if they were wrong in making that argument the compensation would have been reduced to nil considering the conduct in question.    Indeed, there were serious flaws in the original process yet this case demonstrates that the Tribunal will look at whether the statutory dismissal procedure has been followed ‘in the round’ which looks at the appeal process as well.  This is not without foundation with a similar decision being reached by the EAT in Khan v Stripestar [2016].  For this reason, there may be some additional protection for respondents through ensuring that any appeals process is conducted properly where the original disciplinary process may not have been.