The claimant had been employed by the respondent as a driver. He was originally successful in his claims for unfair dismissal and unlawful harassment on the grounds of sexual orientation but the respondent appealed the finding of unfair dismissal to the Court of Appeal. The appeal was allowed and this discrete part of the claim was ordered to be re-heard by a differently constituted tribunal. 

The claimant was summarily dismissed on the ground of gross misconduct arising out of a fight with another colleague. He was consistently uncooperative and the tribunal considered that he ‘took refuge in procedural matters’ instead of dealing with the specific allegation. At one point he argued that insufficient details of the alleged assault had been provided for the purposes of Paragraph 1(1) of the procedure set out in the Employment (NI) 2003 Order. 

This was given short shrift by the tribunal who concluded that in the circumstances there was no confusion and this only added to the impression that the claimant was simply looking for legal technicalities. Another unsuccessful argument by the claimant was that his disciplinary hearing should have stopped until earlier grievances he lodged about the manner of his investigation meeting had been resolved. The tribunal found no legal basis for this assertion and dismissed it as another novel and unfruitful line of argument. The claim for unfair dismissal was dismissed.

PRACTICAL LESSONS

The tribunal was faced with a claimant who was more concerned with finding esoteric procedural failings than actually addressing the substance of his claim. The employer was vindicated in how it handled its investigation and disciplinary hearings in accordance with statutory procedure. Two specific points that may be noted are that:

(1) The details of an employee’s conduct which led the employer to contemplate dismissing or taking disciplinary action need not be a complex drafting exercise. The tribunal stressed that often the employee will know ‘precisely what charge he [is] facing’.

(2) There appears to be no procedural irregularity in an employer continuing with a disciplinary hearing despite there being a ‘live’ grievance procedure against those persons involved in an employee’s original investigation.