The claimant was employed by the respondent as an ‘Operator’ and his role was to drive forklifts. He had worked for the respondent first as an agency worker from 2017 and under contract with the respondent from February 2019.

On 20th April 2021 the claimant was using a fork-lift to move an empty stillage (a rectangular steel cage). The claimant was involved in an accident which led to a number of stillages falling form a stack with one falling onto the roof of another forklift being driven by another worker. This was investigated with the claimant stating that it was not stacked properly and that only damage was caused with no injury to others. A subsequent interview took place with the claimant and he was suspended on full pay pending investigation into potential gross misconduct. The investigator interviewed all others who were in the yard at that point and decided that the matter had to be escalated for a disciplinary process. It should be noted that the investigator did not produce a written report.

The finding from the investigation and the points put to the claimant during the disciplinary process was that there were two possible versions of events leading to the accident. The first was that the claimant was driving dangerously and turning with the forks on his truck at height. The second was that the claimant was moving the stack of three centre finishers to the left of the stack and another stack toppled over. The claimant rejected both of these asserting that there was an upward shunt caused by his forklift which led to the stillage in question to fall and land where it did. It was put to the claimant that mathematics would show that for the stillage to fall where it did, with the claimant’s version of events, was impossible. The Tribunal found that the reference to ‘mathematics’ was a turn of phrase to demonstrate that the version of events put forward by the claimant was not logistically possible. Mr Vogel, who oversaw the disciplinary process, was not a trained mathematician but rather a Logistics Manager. The finding was that as a result of gross misconduct the claimant was dismissed.

The claimant brought a claim for unfair dismissal. The Tribunal assessed the evidence and found that it could not accept the claimant’s version of events. The CCTV was such that it did not support his version of events as there would have been insufficient time for it to take place in relation to the CCTV evidence about how the stillage had fallen. As a result, the Tribunal found that the claimant was dishonest about the events. Additionally, the CCTV evidence showed the claimant continuing to move his forklift after the accident had occurred. He stated this was to free the other worker’s forklift yet it was in direct contravention of the ‘stop-call-wait’ policy of the respondent. As a result, the Tribunal found that the respondent reasonably believed that the claimant committed the misconduct, that the belief was held on reasonable grounds and that there was a fair and reasonable investigation. As a result, it was found that the dismissal was fair and the claimant’s case was dismissed.

Practical Lessons

This case demonstrates the difficulties that can arise with an investigation and disciplinary process where there are issues with the claimant’s version of events. When that does happen then it is a matter of ensuring that the investigation is thorough and all of the information available is detailed. This was done through the investigation carried out and the extensive interviews with the workers on site at the time. It should be noted that written report of the investigation would have been beneficial here but did not lead to any procedural flaw such that the dismissal would be unfair. As a result, the need to ensure that a thorough investigation and the proper procedure is carried out in relation to such incidents will ensure that employers are as protected as possible should an action be taken by a former employee.

https://assets.publishing.service.gov.uk/media/63469d2be90e0731ab18b4e3/Mr_T_Scott_v_Plastic_Omnium_Ltd_2601633.2021.pdf